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

March 28, 2012


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


Plaintiffs, who are the National Whistleblower Center and six current and former employees of Defendant Department of Health and Human Services, have brought this action to gain access to records related to the individuals' employment with that Agency. Plaintiffs' Second Amended Complaint challenges the decisions of various HHS components and other agencies to withhold documents, and it asserts claims under a variety of statutes including, but not limited to, the Freedom of Information Act, the Privacy Act, and the Administrative Procedure Act.

The records at issue in the parties' current Cross-Motions for Partial Summary Judgment are contained in two investigative case files maintained by HHS's Office of the Inspector General. While OIG has already released hundreds of pages from these files to Plaintiffs, it has withheld, in whole or in part, hundreds more, citing exemptions to disclosure under FOIA and the Privacy Act. Through this Motion, Plaintiffs are now challenging a subset of OIG's withholding decisions, as well as the procedure HHS followed when processing their related administrative appeals. Defendants oppose Plaintiffs' Motion, arguing their withholdings and processing procedures are correct.

Having considered OIG's sworn representations regarding the content of these withheld records and the necessity of withholding them, and having reviewed in camera many of the actual pages at issue, the Court now upholds the majority of OIG's withholding decisions, but not all. In addition, because the Court finds that Plaintiffs lack standing to bring their procedural claims alleging OIG's failure to adjudicate their appeals, summary judgment will be granted to Defendants on that claim.


Plaintiffs Ewa Czerska, Paul Hardy, Julian Nicholas, Robert Smith, R. Lakshmi Vishnuvajjala, and Nancy Wersto claim that they are witnesses, complainants, or targets of two HHS OIG investigations related to whistleblowing activities. Plfs. Mot. (ECF No. 14), Exh. A (Declaration of Kelly McClanahan), ¶ 5. They contend that these whistleblowing activities relate to HHS's improper approval of medical devices. Plfs. Mot. at 2. Between July 26 and November 4, 2010, all individual Plaintiffs, in concert with the National Whistleblower Center, submitted requests under FOIA, 5 U.S.C. §552, et seq., and the Privacy Act, 5 U.S.C. § 552a, et seq., for various records pertaining to their employment with HHS. Sec. Am. Compl., ¶¶ 17, 51, 64, 102, 155, 168. Different agency components treated the requests differently. As to OIG, after initially denying their requests under Exemption 7(A), on the ground that the files related to an ongoing investigation, it processed Plaintiffs' requests and released to them over 800 pages of relevant, non-exempt documents, some with redactions. See Def. Opp./Mot., Attach. 1 (Declaration of Robin Brooks), ¶¶ 11-12, 18-19, 24-25, 30-31, 36-37, 43-44.

Plaintiffs filed this action on December 15, 2010, and have twice since amended their Complaint. The parties' instant Cross-Motions for Partial Summary Judgment are limited to Counts 1, 6, 7, 12, 19, 20, and 28, which relate only to Plaintiffs' requests for documents maintained by HHS's OIG and not any other component.*fn1 The documents at issue in these counts are contained in two OIG Investigative Case Files: H-08-20505-3 and H-10-00248-3. File H-08-20505-3 (H-08) contains documents relating to OIG's "investigation into managerial misconduct [at FDA] based on Plaintiffs' allegations." Plfs. Opp. (ECF No. 68) at 3. File H-10-00248-3 (H-10) contains documents relating to OIG's investigation into Plaintiffs' "alleged unauthorized disclosure of confidential information." Id. at 4. See Defendant HHS's Statement of Material Facts as to Which there Is No Genuine Issue, ¶¶ 4, 6; Plaintiffs' Response to Defendants' Statement of Material Facts, ¶¶ 4, 6.

OIG initially released 481 pages in full and 25 pages with redactions from File H-08. Brooks Decl., ¶ 49. Another 366 pages were released in full and 5 pages were released with redactions from File H-10. Id., ¶ 73. HHS withheld in full 839 pages and 52 pages, respectively, from those two files under FOIA Exemptions 4, 5, 6, 7(C), and 7(E). Id., Exhs. 15-16 (Vaughn Indices 1-2). Finally, OIG referred 182 pages to the Food and Drug Administration (the original creator of the documents) for consultation. See Defs. Supp. Mot. (ECF No. 59) at 3; Plfs. Opp. at 2-3.

Plaintiffs initially filed the Motion for Partial Summary Judgment now at issue on April 27, 2011, in conjunction with a Motion for Preliminary Injunction. Defendants opposed Plaintiffs' Motions and cross-moved for summary judgment on May 18, 2011. On June 3, the Court stayed briefing on Defendants' Cross-Motion pending a ruling on Plaintiffs' Motion for Preliminary Injunction. Plaintiffs' filed their Reply on June 10. Following a hearing on June 20, the Court, two days later, denied Plaintiffs' request for injunctive relief and lifted the stay on Defendants' Cross-Motion. See Order Denying Plaintiffs' Motion for Preliminary Injunction (ECF No. 28).

Since initially filing their Cross-Motions, the parties have worked cooperatively to narrow the areas of their disagreement. On June 23, 2011, OIG completed its consultation regarding the 182 pages at issue that had originated with FDA and released to Plaintiffs an additional 51 complete pages and 73 pages with redactions, while withholding 58 pages. See Defs. Supp. Mot. at 3. At this time OIG also released an additional 35 pages to Plaintiffs, including all withholdings from File H-10 previously made under Exemption 7(E). See Joint Notice Regarding Modification of Exemption 7(E) Withholdings (ECF No. 29) at 1.

Some time in June 2011, OIG began an additional search to confirm that all records responsive to Plaintiffs' requests were in fact contained in Investigative Files H-08 and H-10. See Defs. Supp. Mot. at 2. During this search, additional responsive documents were located in boxes in the case agent's office. Id. at 3. OIG's FOIA Officer, Robin Brooks, determined that 923 pages were responsive to Plaintiffs' requests. Id. On August 30 and September 2, 2011, OIG released to Plaintiff an additional 312 pages in their entirety, released 289 pages with redactions, and withheld in their entirety 322 pages located during this additional search. Id.

On September 26, Defendants filed a Supplement to their Cross-Motion for Summary Judgment in order to address the withholding of the documents discovered during OIG's additional search and those initially referred to FDA for consultation, as well as to address Counts 27 and 28. (ECF No. 59). Plaintiffs filed their Opposition to Defendants' Motion and Supplement on October 26, and Defendants filed a Reply on November 16. The Motions are now ripe.

Throughout their briefing, the parties have -- admirably, in the Court's opinion -- continued to work together to narrow their disputes. Plaintiffs have agreed, for the purpose of these Motions, to limit the list of OIG withholdings that they seek to contest. The withholdings Plaintiffs presently oppose are:

 From Investigative File H-08-20505-3: o Withheld in part:Pages 1, 9, 25, 48, 49, 52, 53, 135, and 207-212*.*fn2 o Withheld in full:Pages 6, 11-13, 15-16, 18-19, 21, 24, 28-47, 50-51, 54-57, 60, 62-63, 68-93, 94-101, and 217-234*.  From Investigative File H-10-00248-3: o Withheld in part: Pages 3-5*, 6-10*, 14-40*, 551*, and 553. o Withheld in full:Pages 42-54*, 126-27, 447, 450-51, 498-503, 543-44, 554- 55, and 558-59.  Additional Search (AS) Records*fn3

o Withheld in part:Pages 77-81, 83-87, 93-98, 106-114, 115, 197-98, 199, 289- 96, 378, 381-82, 392-94, 705, 770, 774-78, 784, 806, and 828-29. o Withheld in full: Pages 20-29, 31, 33, 36-48, 66, 74-76, 264, 274, 276, 278- 80, 324, 390, and 427-635.

See Plfs. Opp. at 3-4.

Plaintiffs are "also voluntarily removing from controversy any challenge to the withholding of any names, titles, phone numbers, social security numbers, office numbers, and comparable Personally Identifiable Information ('PII') that may be located in the above indicated pages." Plfs. Opp. at 6. Plaintiffs note, however, that "this concession is made with the caveat that Plaintiffs narrowly define PII as just these types of unique identifiers, as opposed to . . . anything that could be used to identify a person." Id. (emphasis added). As an example, Plaintiffs challenge the notion that "the fact that [an individual] was in a particular meeting and that Plaintiffs would be able to use that information to deduce the person's identity based on the fact that they knew who was present at that meeting" qualifies as personally identifiable information exempt from disclosure. Id.

In order to more accurately evaluate OIG's withholding decisions, on March 13 and 20, 2012, the Court ordered OIG to submit for in camera review 279 pages that the Agency contends are exempt from disclosure, along with a declaration further explaining the non-public nature of the law-enforcement techniques withheld under Exemption 7(E). OIG complied with these orders, and the Court has reviewed the documents in question.

While Counts 1, 6, 7, 12, 19, and 20 all relate to Plaintiffs' challenges to specific OIG withholdings, Count 28 -- "Failure to Adjudicate Appeals" -- is procedural in nature. See Sec. Am. Compl., ¶¶ 217-225. Here Plaintiffs state: "Each time Plaintiffs filed an administrative appeal challenging the blanket exemptions initially invoked by OIG, HHS did not adjudicate the appeal. Instead, OIG opened a new FOIA/PA request with a new Request Number, and HHS dismissed the pending appeal as moot. Upon information and belief, this activity represents an ongoing policy or practice." Id., ¶ 218. "By failing to adjudicate Plaintiffs' appeals of these blanket withholdings," they allege, "HHS effectively ensured that the blanket withholdings could not be reversed administratively or undergo judicial review." Id., ¶ 219. Plaintiffs contend that "[a] policy or practice that intentionally avoids appellate or judicial review of withholding decisions is in violation of FOIA and the Privacy Act," and is "arbitrary, capricious, an abuse of discretion, or otherwise contrary to law." Id., ¶ 220. As relief Plaintiffs seek a declaratory order that "HHS is in violation of its statutory responsibilities under 5 U.S.C. § 552, 552a and an injunction compelling Defendant HHS pursuant to those statutes to cease the practice of opening new FOIA/PA requests instead of properly adjudicating administrative appeals of denials." Id., ¶ 225.

II.Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248. Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). A defendant agency seeking summary judgment in a FOIA case must demonstrate that no material facts are in dispute, that it has conducted an adequate search for responsive records, and that each responsive record that it has located has been produced to the plaintiff or is exempt from disclosure.

Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations if they are relatively detailed and "describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).


As narrowed by the parties, there are now three questions to be decided here. First, although OIG has released many pages to Plaintiffs, it nonetheless asserts a blanket privilege under the Privacy Act for those documents it has withheld. Is this blanket privilege proper? Second, even if proper under the Privacy Act, are the particular withholdings also appropriate under FOIA? Plaintiffs' entitlement to access records under each of these Acts "is available without regard to exemptions under the other"; therefore, in order to withhold the documents Plaintiffs seek, OIG "must demonstrate that the documents fall within some exemption under each Act." Martin v. Office of Special Counsel, MSPB, 819 F.2d 1181, 1184 (D.C. Cir. 1987) (emphasis in original). Third and finally, did OIG correctly handle Plaintiffs' administrative appeals under FOIA?

A. Privacy Act

The Privacy Act requires that [e]ach agency that maintains a system of records shall . . . upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him . . . to review the record and have a copy made of all or any portion thereof in a form comprehensible to him . . . . 5 U.S.C. § 552a(d)(1). The Act, however, also identifies certain general and specific exemptions from this requirement. See id., §§ 552a(d)(5), (j)-(k). In the present case, Defendants invoke § 552a(k)(2). Under this exemption, OIG may withhold the documents Plaintiffs seek under the Privacy Act if HHS has properly promulgated a rule that exempts from disclosure the system of records in which they are maintained. See 5 U.S.C. § 552a(k). Whether HHS has done so is where the first dispute lies.

1. Proper Promulgation of Rule

HHS contends that the records at issue in this case -- namely, those contained in Files H-08 and H-10 -- are exempt because they are maintained in OIG's "civil and administrative investigative files" records system, and HHS has promulgated a rule, 45 C.F.R. § 5b.11(b)(2)(ii)(D), exempting such files from the Privacy Act's access provisions. See Defs. Opp./Mot. (ECF No. 18) at 35-36 (citing Brooks Decl., ¶ 7). In light of this rule, Defendants argue, OIG need not have processed Plaintiffs' records requests under the Privacy Act.

Plaintiffs argue first, and in vain, that 45 C.F.R. § 5b.11(b)(2)(ii)(D) was improperly promulgated and, consequently, that OIG's civil and administrative investigative files have not been successfully exempted from the Privacy Act. See, e.g., Plfs. Reply (ECF No. 26) at 5-7. Their argument is based on the last provision of § 552a(k), which states that "[a]t the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempt from a provision of this section." They argue that § 5b.11(b)(2)(ii)(D) fails to comply with this requirement and is thus invalid.

Plaintiffs concede that "HHS included its reasons for exempting the OIG Civil/ Administrative Records System when it published a Final Rule in the Federal Register." Plfs. Reply at 6 (citing 47 Fed. Reg. 57040 (Dec. 22, 1982)). In fact, the Final Rule advises that OIG's Civil and Administrative Investigative Files were exempted "[i]n order to maintain the integrity of the OIG investigative process and to assure that the OIG will be able to obtain access to complete and accurate information" and explains that this records system will contain sensitive investigative records, the release of which could impede on-going investigations, violate the privacy rights of individuals other than the subjects of the investigations, reveal the identifies of confidential sources, or otherwise impair the ability of the Office of Inspector General to conduct civil and administrative investigations. For these reasons, the Department is exempting this system, under subsection (k)(2) of the Privacy Act, from the notification, access, correction and amendment provisions of the Privacy Act. 47 Fed. Reg. 57040. Nor do Plaintiffs contest the sufficiency of these reasons. Rather, they argue that because HHS's statement of reasons appears only in the Federal Register, and not in the Code of Federal Regulations where the rule was eventually codified at 45 C.F.R. § 5b.11(b)(2)(ii)(D), subsection (k) is not satisfied. Plaintiffs' interpretation of subsection (k) and, more to the point, section 553(c) demands too much.

Subsection (k)(2) requires only that an agency's rule exempting investigative material comply with the Administrative Procedure Act's requirement that "the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose." 5 U.S.C. § 553(c). Contrary to Plaintiffs' position, see Plfs. Reply at 6-7 n.3, § 553(c) is satisfied when a statement of the rule's basis and purpose is included in the preamble to the Final Rule appearing in the Federal Register. That is the case here.

The regulations and case law interpreting § 553(c) indicate that compliance with the "basis and purpose" requirement is an essential part of a rule's preamble. For example, 1 C.F.R. § 18.12 requires that "[e]ach agency submitting a proposed or final rule document for publication shall prepare a preamble which will inform the reader, who is not an expert in the subject area, of the basis and purpose for the rule or proposal." Id. (emphasis added). The D.C. Circuit has made clear that when a rule's preamble contains an adequate statement of the rule's basis and purpose, the requirement of § 533(c) is satisfied. See In re Surface Mining Regulations Litigation, 627 F.2d 1346, 1354 (D.C. Cir. 1980) ("The preamble to the final interim regulations satisfies the mandate of the Administrative Procedure Act, 5 U.S.C. s 553(c), that rules adopted incorporate 'a concise general statement of their basis and purpose.'"). Section 4(b) of the APA, codified at § 533(c), the D.C. Circuit has explained, provides that the statement of "basis and purpose" shall be incorporated "in the rules." Since the rules must be published . . . a statement of "basis and purpose" can be "incorporated in the rules" only if it too is published.

We do not mean to suggest, however, that a [§] 4(b) statement must be published at precisely the same moment as the regulations. The agency must be allowed some latitude for technical difficulties. The enquiry must be whether the rules and statement are published close enough together in time so that there is no doubt that the statement accompanies, rather than rationalizes the rules.

Tabor v. Joint Board for Enrollment of Actuaries, 566 F.2d 705, 711 n.14 (D.C. Cir. 1977).

As the reasons for HHS's rule exempting OIG's civil and administrative investigative files from the Privacy Act's access provisions sufficiently appear in the preamble to the Final Rule in the Federal Register, OIG has complied with § 553(c). These files, including those at issue in this case, therefore, are generally exempt from the Privacy Act.

2. Denial of Right, Privilege, or Benefit

Section 552a(k)(2) makes clear, however, that even files contained in an exempt system of records must be disclosed under the Privacy Act "if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material." Plaintiffs contend that even if OIG's records-system exemption was properly promulgated, they have a right to access the documents contained in File H-10 under this exception. In other words, they claim they suffered adverse employment actions as a result of the maintenance of such material. See Notice of Filing of Additional Exhibits and of Additional Authority (dated June 20, 2011) (ECF No. 27) (with attachments: "Czerska Notice of Proposed Removal," "Hardy Notice of Non-Duty Status," "Vishnuvajjala Memo of Caution"). This argument fares no better.

OIG disputes that any employment actions taken against Plaintiffs occurred as a result of the maintenance of Investigative File H-10. The results of that investigation, OIG attests, produced "no evidence of prohibited personnel practices, retaliation, or other violations of law. Any administrative action taken by the FDA against the individual plaintiffs was separate from OIG's two investigations, was at FDA's discretion, and was not as a result of OIG's maintenance of records in the two investigation files at issue in this case." Brooks Decl., ¶ 9. All Plaintiffs offer in contradiction is an email from the OIG Assistant Special Agent in Charge of the investigation to the FDA Director of the Center for Devices and Radiological Health (CDRH), where Plaintiffs worked. This email states: "Your office indicated it had developed sufficient evidence to address the alleged misconduct through administrative processes . . . ." Plfs. Mot. at 15. Despite Plaintiffs' reliance on it, when it is considered in light of OIG's findings of no misconduct, this email actually supports OIG. In other words, OIG is pointing out that FDA will handle Plaintiffs' misconduct through FDA's administrative processes. In sum, OIG's maintenance of its investigative files did not cause Plaintiffs to be denied rights or benefits; instead, FDA's maintenance of its own investigative files resulted in any adverse employment actions suffered by Plaintiffs.

Plaintiffs nevertheless contend that Plaintiff Czerska was terminated by FDA in part based on "'evidence that OIG obtained during its investigation.'" Plfs. Opp. at 14 (quoting Defs. Opp./Mot. at 32). They contend that ยง (k)(2) should be read such that if one agency (FDA) took administrative action against an employee based on records or documents collected by another agency (OIG) during its own investigation, the files must be disclosed. Yet, as the email demonstrates, FDA took action based on its collection of evidence, not OIG's. Finally, Plaintiffs argue that FDA's actions and OIG's maintenance of its investigative files are both attributable to their parent agency, HHS. The Court need not decide this issue now because Plaintiff has sought the same documents from FDA itself. The Court will thus address the FDA issue ...

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