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Hooker v. U.S. Department of Health and Human Services

United States District Court, District Circuit

July 9, 2013

BRIAN S. HOOKER, Plaintiff,
v.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

On July 14, 2011, plaintiff Brian S. Hooker brought an action against defendants Kathleen Sebelius, Secretary of the U.S. Department of Health and Human Services ("HHS"), and Thomas R. Frieden, Director of the Centers for Disease Control and Prevention ("CDC"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006). Compl. [Dkt. #1] ¶¶ 1, 4-5.[1] He challenged the CDC's response to four FOIA requests he submitted: on March 11, 2005 (Count I); April 20, 2005 (Count II); April 23, 2005 (Count III); and December 14, 2004 (Count IV). Id. ¶¶ 6-43. Defendants filed a motion for summary judgment on November 4, 2011. Defs.' Mot. for Summ. J. [Dkt. #11]. On December 15, 2011, plaintiff filed an opposition to defendants' motion, attaching twenty-nine exhibits. Pl.'s Resp. to Defs.' Mot. for Summ. J. [Dkt. #15]. However, he did not file a cross-motion for summary judgment at that time.

On August 21, 2012, the Court granted in part and denied in part defendants' motion for summary judgment. Hooker v. U.S. Dept. of Health & Human Servs., 887 F.Supp.2d 40, 63 (D.D.C. 2012). The Court granted summary judgment with respect to several issues. First, it held that defendants conducted an adequate search in response to plaintiff's FOIA request in Count IV. Id. at 52-53.[2] Second, after an in camera inspection, the Court concluded that defendants properly withheld records under Exemption 5, id. at 45, 53-59; and that defendants complied with their duty to segregate exempt from non-exempt information in the records withheld or redacted under Exemption 5, id. at 62. Third, it found that "plaintiff's allegations of bad faith [were] insufficient to overcome the presumption of good faith due defendants' supporting declarations." Id. at 50 n.10.

The Court denied summary judgment with respect to two issues.
• Count I: The Court stated that it could not conclude as a matter of law that defendants conducted an adequate search in response to plaintiff's FOIA request at issue in Count I. Id. at 50-52, 63. It explained that the description of the search for records "fail[ed] to explain either why [the] offices [to which the request was forwarded] were the reasonably likely locations of the records sought or [to] describe with specificity the search methodology used, including what records were searched, by whom, and using what process or search terms." Id. at 51.
• Segregability Under Exemption 6: The Court found that for those documents withheld under Exemption 6, defendants had not met their burden of reasonably segregating non-exempt information for disclosure. Id. at 62-63.

Thus, the issues for which summary judgment was denied are the only two issues remaining in this case. To resolve the first issue, the Court instructed defendants to "amend or supplement their declarations with additional detail demonstrating the adequacy of their search" for records responsive to the FOIA request in Count I. Id. at 63. With respect to the second issue, the Court ordered defendants to: "(1) conduct an additional review of records withheld under Exemption 6; (2) produce all segregable non-exempt information; and (3) submit a supplemental declaration demonstrating that they have complied with their duty to segregate exempt from non-exempt information" so that the Court can make a ruling on the issue of segregability. Id.

On the issue of segregability, defendants conducted a further review of all Exemption 6 withholdings and submitted a declaration on September 21, 2012 detailing additional materials that they had released to plaintiff and explaining the remaining withholdings. Supplemental Decl. of Katherine S. Norris [Dkt. #27-1]. Regarding the adequacy of the search for documents responsive to Count I, defendants submitted another declaration on October 12, 2012 identifying the offices to which the request was forwarded, explaining why the request had been forwarded to those offices, and describing the search methodology including the records that were searched, the search terms, and who conducted the search. Supplemental Decl. of Katherine S. Norris [Dkt. #28-1].

Based on these declarations, the Court issued the following order:

In response to the Court's August 21, 2012 order, defendants have: (1) conducted an additional review of records withheld under Exemption 6;

(2) produced additional segregable non-exempt information; and (3) submitted a supplemental declaration asserting that they have complied with their duty to search for responsive information and segregate exempt from non-exempt information. [Dkt. #27 & 28]. Therefore, without rearguing any matters upon which the Court has already ruled, plaintiff shall inform the Court by October 25, 2012 of his position on whether the defendants have complied with the Court's August 21, 2012 order and whether there is any remaining reason why this Court should not enter judgment in favor of the defendants.

Minute Order (Oct. 15, 2012). This order was not an invitation for plaintiff to reopen the whole case. It simply invited plaintiff to address whether defendants' two supplemental affidavits resolved the two outstanding issues remaining after the Court's August 21, 2012 decision. The instruction that plaintiff refrain from "rearguing any matters upon which the Court has already ruled" indicated that "any remaining reason" that plaintiff raised also had to fall within the confines of the two issues that were still before the Court.

In response to this order, plaintiff has filed several pleadings, declarations, and exhibits. On November 15, 2012, after receiving an extension of the original deadline, plaintiff filed his first response to the Court's order. Decl. of Dr. Brian Hooker ("Pl.'s Nov. 2012 Decl.") [Dkt. #30]. On the same day, plaintiff also requested more time to file an additional response to defendants' pending motion for summary judgment. Mot. for Leave to File Additional Resp. to Pending Mot. for Summ. J. by Defs. [Dkt. #31]. The Court granted plaintiff's motion. Minute Order (Nov. 16, 2012). On March 13, 2013, plaintiff filed his additional response as well as a cross-motion for summary judgment. Pl.'s Resp. in Opp. to Defs.' Mot. for Summ. J. and Pl.'s Cross-Mot. for Summ. J. [Dkt. #s 40 and 41].[3]

Defendants have moved to strike plaintiff's pleadings as unresponsive to the Court's October 15, 2012 order, untimely, and procedurally deficient. Defs.' Mot. to Strike Pl.'s Nov. 15, 2012 Resp. to Defs.' Mot. for Summ. J. [Dkt. #32]; Defs.' Mot. to Strike Pl.'s Mar. 13, 2013 Resp. to Defs.' Mot. for Summ. J. and Pl.'s Cross-Mot. for Summ. J. [Dkt. #42]. On April 23, 2013, the Court granted plaintiff's request to cure any procedural deficiency in his cross-motion for summary judgment and to re-file it. Minute Order (Apr. 23, 2013). On May 16, 2013, plaintiff responded to defendants' motion to strike his March 13, 2013 response. Pl.'s Resp. to Defs.' Mot. to Strike Pl.'s Mar. 13, 2013 Resp. [Dkt. #49]. And on May 17, 2013, he re-filed his cross-motion for summary judgment with a statement of material facts not in dispute. Pl.'s Cross-Mot. for Summ. J. [Dkt. #50].[4] Defendants filed their opposition to plaintiff's amended cross-motion and their reply in support of their motion to strike on June ...


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