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Terris, Pravlik & Millian, Llp v. Centers For Medicare & Medicaid

June 29, 2011

TERRIS, PRAVLIK & MILLIAN, LLP PLAINTIFF,
v.
CENTERS FOR MEDICARE & MEDICAID SERVICES, DEFENDANT.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

This case has been referred to me by Judge Huvelle for resolution of Plaintiff's Motion for an Award of Attorneys' Fees and Expenses (Dkt. 17).*fn1

I. STATEMENT OF FACTS

Based on the briefing, there is no genuine dispute as to the following material facts:

1. Plaintiff is the law firm of Terris, Pravlik & Millian ("TPM"), who represents prevailing parties in Salazar v. District of Columbia, 954 F. Supp. 278 (D.D.C. 1996). Dkt. 17 at 1. As part of the Settlement Order in that case, TPM, on behalf of the Salazar plaintiffs, has monitored and enforced the District of Columbia's compliance in carrying out the Settlement Order. Id.

2. Defendant is the Centers for Medicare and Medicaid Services ("CMS"), under the Department of Health and Human Services ("HHS"). Declaration of Michael S. Marquis [Dkt. 20-1] ("Marquis Decl.") at ¶ 1. Michael S. Marquis is the Director of the Freedom of Information Group (the FOIA Group), Office of Strategic Operations and Regulatory Affairs, CMS, HHS, and serves as the Records Access Officer for CMS. Id.

3. On October 11, 2005, TPM submitted a request for records to CMS under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Dkt. 17 at 1-2. The request sought eight categories of records relating to TPM's monitoring of a remedial order in Salazar. Id. at 2. CMS received the request on October 13, 2005. Id. at 2.

4. CMS acknowledged receipt of the request in a letter dated November 9, 2005, and informed TPM of CMS's heavy volume of FOIA requests and CMS's "first in, first out" policy. Marquis Decl. at ¶ 5. Also on November 9, 2005, the CMS FOIA Group referred the request to the Philadelphia regional office for a search for responsive records. Id.

5. On June 28, 2006, Marguerite Clark of CMS contacted TPM to inquire whether TPM was still interested in the records requested in its October 11, 2005 FOIA request; TPM confirmed that it was still interested. Affidavit of Patrick A. Sheldon [Dkt. 17-5] ("Sheldon Aff.") at ¶ 3.

6. On July 14, 2006, Susan Cuerdon, Associate Regional Administrator, Division of Medicaid and Children's Health, sent Marquis a memorandum providing the responsive records found by the Philadelphia regional office. Supplemental Declaration of Michael S. Marquis [Dkt. 24-1] ("Supp. Marquis Decl.") at ¶ 8. The memorandum explained that the office conducted a search for documents, but was unable to locate records in response to items 3, 5, 7, and 8. Id. In response to items 1 and 2 of the request, the office attached the most current strategy plan and revisions dated August 8, 2003, and December 2, 2003.

Id. In response to item 4, the office attached two Notices of Public Interest. Id. In response to item 6, the office attached the Fiscal Year 2004 CMS Form 416. Id.

7. On March 6, 2007, the CMS FOIA Group received a March 2 letter from TPM inquiring about the status of the October 11, 2005 request and restating a request for a waiver of all processing fees. Marquis Decl. at ¶ 6.

8. On June 14, 2007, TPM initiated a phone call with CMS, in which CMS indicated that its responses to FOIA requests were delayed, and that TPM's request would be pulled to see if the agency had the requested records. Dkt. 17 at 2.

9. In January 2008, Rowena Rice, the FOIA analyst originally assigned to TPM's request, retired. Marquis Decl. at ¶ 7. In reviewing the file record, Marquis does not believe Rice took any further action on the request between the time the documents from the Philadelphia regional office were sent to the FOIA Group in 2006 and her retirement in 2008. Supp. Marquis Decl. at ¶ 9. Due to limited staff resources, TPM's request was not reassigned to another FOIA specialist until 2010, when it was assigned to the CMS FOIA Backlog Reduction Task Force. Id. at 10.

10. On May 18, 2009, TPM contacted CMS by telephone, at which time TPM was informed that CMS would need to consult with the FOIA office in Washington, D.C. regarding the October 2005 request and that CMS would contact TPM when that had been done. Dkt. 17 at 2-3. TPM did not receive further contact. Id.

11. In 2010, HHS issued an Open Government Plan, which created a plan to improve FOIA operations at HHS. Marquis Decl. at ¶ 10. Consistent with this effort, CMS created a FOIA Backlog Reduction Task Force whose goal in Fiscal Year 2010 was to close and finalize 100 requests in the backlog per week to substantially reduce CMS's existing FOIA request backlog. Id. Over the course of the year, CMS reduced its backlog of requests from 10,312 to 3,486. Id. at ¶¶ 9-10. TPM's October 11, 2005 request was sent to the FOIA Backlog Reduction Task Force during Fiscal Year 2010 prior to CMS becoming aware of this litigation. Id. at ¶ 11.

12. On June 9, 2010, TPM filed its complaint in this lawsuit. Complaint (Dkt. 1). TPM served CMS at its Baltimore, Maryland address on June 16, 2010, along with serving the United States Attorney General on June 18, 2010, and the United States Attorney's Office for the District of Columbia on June 14, 2010. Dkt. 17 at 4.

13. Rowena Rice worked as a contractor at CMS as part of the Backlog Reduction Task Force from March 5, 2010 to August 31, 2010. Supp. Marquis Decl. at ¶ 12. Rice resigned from the task force on August 31, 2010 and no longer works for CMS in any capacity. Id. Based on a one-page handwritten summary in the request file that, according to Marquis, appears to be in Rice's handwriting, it seems that Rice reviewed the documents, and, in her judgment, deemed the documents releasable. Id. at ¶ 13.

14. On June 29, 2010, Rice called TPM, stating that she was calling to determine whether TPM had a continued interest in its "March 2, 2007 FOIA request." Sheldon Aff. at ¶ 4; Supp. Marquis Decl. at ¶ 13. Rice stated that a search had been done at some point in time, and that some, but not all, of the requested records were located. Sheldon Aff. at ¶6. Rice had not conducted any additional searches for the request. Supp. Marquis Decl. at ¶ 13. Attorney Patrick Sheldon indicated to Rice that his office filed litigation on the case two weeks prior, and ...


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