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National Whistleblower Center, et al v. Department of Health and Human Services

March 12, 2012

NATIONAL WHISTLEBLOWER CENTER, ET AL.,
PLAINTIFFS,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

This case arose from several requests for records submitted pursuant to the Freedom of Information Act by Plaintiff National Whistleblower Center (NWC), a non-profit organization, and the individual named Plaintiffs, who are current or former employees of Defendant U.S. Department of Health and Human Services. While the suit presents numerous questions, only one discrete issue remains disputed in Defendants' Motion to Dismiss in Part and for Partial Summary Judgment.

FOIA requires agencies to promulgate regulations providing for the expedited processing of FOIA requests in certain circumstances. Although HHS issued a proposed rule in 1999, it has yet to finalize expedited-processing regulations for all of its components except the Food and Drug Administration. In the absence of a final rule, the non-FDA HHS components handle requests for expedited processing pursuant to the general criteria established by FOIA, which are essentially identical to those set forth in HHS's 1999 proposed rule. Plaintiffs, whose requests for expedited processing were denied, seek in Count 26 of their Complaint to compel the agency to comply with FOIA by promulgating a final regulation.

Defendants have now moved to dismiss or for partial summary judgment on this count, as well as for summary judgment on the adequacy of two HHS components' searches for responsive records, which appear to be challenged in Counts 5, 11, 18, and 22. Because Plaintiffs suffered no concrete injury from HHS's failure to finalize an expedited-processing regulation, the Court finds that they lack standing to pursue this cause of action. It will, accordingly, dismiss Count 26 for lack of jurisdiction. Because Plaintiffs do not oppose Defendants' Motion with respect to the adequacy-of-the-search issue, the Court will grant summary judgment for Defendants with respect to those claims predicated thereon.

I.Background

This case concerns a series of FOIA requests submitted by Plaintiffs to HHS for records pertaining to the individual Plaintiffs' employment. Although the Complaint contains numerous counts, only one -- Count 26 -- remains at issue in the instant Motion. Count 26 concerns neither the substance of Plaintiffs' requests nor the sufficiency of HHS's searches and disclosures in response, but rather HHS's failure to promulgate regulations providing for expedited processing of certain FOIA requests. See Second Am. Compl., ¶¶ 203-07.

FOIA states that "[e]ach agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records . . . in cases in which the person requesting the records demonstrates a compelling need; and . . . in other cases determined by the agency." 5 U.S.C. § 552(a)(6)(E)(i). The statute further defines "compelling need" to mean either "that a failure to obtain requested records on an expedited basis . . . could reasonably be expected to pose an imminent threat to the life or physical safety of an individual," or, where the requester is "primarily engaged in disseminating information," that there is an "urgency to inform the public concerning actual or alleged Federal Government activity." Id. § 552(a)(6)(E)(v).

Consistent with this statutory directive, one component of HHS (the FDA) has enacted an expedited-processing regulation, which Plaintiffs do not challenge. See Second Am. Compl., ¶¶ 204, 208 & n.4. HHS has initiated a rulemaking and sought public comment on a proposed expedited-processing regulation for its other components. See 64 Fed. Reg. 14668 (1999). The proposed rule states:

Expedited processing is provided in cases where the requester demonstrates that failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual, or, when the requester is a person primarily engaged in disseminating information, a showing is made that there exists an urgency to inform the public concerning an actual or alleged Federal Government activity. Other requests for expedited processing will be considered on a case by case basis. The decision to grant expedited processing rests with the FOI Officer, but may be appealed.

Id. No final rule, however, has yet issued. See Second Am. Compl., ¶ 204; Mot., Exh. A (Decl. of Robert Eckert), ¶ 11.

According to the agency, its failure to promulgate final regulations governing requests for expedited processing has been the result of limited staff resources. See Eckert Decl., ¶ 11. HHS acknowledges that the statute requires it to promulgate a final regulation and avers that it intends to do so in the future when resources permit. See id. In the meantime, the agency relies upon the statutory criteria for "compelling need." Id., ¶ 12. HHS's FOIA web page provides requesters with a form that allows them to indicate when making a FOIA request whether one of the two statutory criteria for compelling need applies and provide a more detailed justification for expedition. See id., ¶ 13.

Plaintiffs requested expedited processing for each of their FOIA requests corresponding to Counts 1 through 20 of their Second Amended Complaint. See Second Am. Compl., ¶ 207. HHS denied Plaintiffs' requests for expedition. See id. In Count 26, Plaintiffs maintain that HHS's failure to promulgate expedited-processing regulations has left requesters in the dark about "what criteria are being used to evaluate their requests for expedited processing" and "constitutes a cognizable past and future harm to Plaintiff NWC, due to its status as a frequent FOIA requester." Id. Citing FOIA and the mandamus statute, they thus requested that the Court order HHS to promulgate a final expedited-processing regulation and to expedite their FOIA requests. See id., ¶ 208.

Defendants have now moved to dismiss Count 26 under Rules 12(b)(1) and 12(b)(6) and, alternatively, for partial summary judgment.*fn1 They also seek summary judgment on all claims that challenge the adequacy of the searches for responsive records conducted by two HHS components -- the Intermediate Office of the Secretary (IOS) and the Assistant Secretary for Preparedness and Response (ASPR). Plaintiffs' have, "[i]n the interest of judicial economy," conceded the adequacy-of-search issue and limited their Opposition to the expedited-processing regulation issue in Count 26. See Opp. at 1. With respect to this Count, Defendants contend that Plaintiffs lack standing, that the Court lacks jurisdiction under FOIA to order HHS to promulgate expedited-processing regulations, and, even if ...

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