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Isiwele v. United States Department of Health & Human Services

United States District Court, D. Columbia.

March 30, 2015


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ENITAN OSAGIE ISIWELE, Plaintiff, Pro se, Gadsden, AL.


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AMY BERMAN JACKSON, United States District Judge.

Plaintiff is a federal prisoner who has brought suit against several federal agencies and agency components as well as the Administrative Office of the United States Courts. He challenges defendants' " withholding of certain information" in response to requests he made under the Freedom of Information Act, 5 U.S.C. § 552, and he seeks declaratory and injunctive relief, including " expedited service and fee waiver or reduction of fees." Pl.'s Amended Verified Compl. [Dkt. # 29] at 1. In addition to the Freedom of Information Act (" FOIA" ), plaintiff invokes the Privacy Act, 5 U.S.C. § 552a, the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701, the Declaratory Judgment Act (" DJA" ), 28 U.S.C. § 2201, and the All Writs Act, 28 U.S.C. § 1361. Am. Compl. at 1.

Pending before the Court are Defendants' Partial Motion to Dismiss or, in the Alternative, for Summary Judgment [Dkt. # 39], Plaintiff's Motion for Summary Judgment or, in the Alternative, for Discovery [Dkt. # 48], and Plaintiff's Motion for In Camera Review [Dkt. # 49]. The parties have addressed all issues raised in the complaint with the exception of two requests. See June 16, 2014 Order (staying the proceedings in part). Upon consideration of the entire record, and for the reasons explained below, the Court will grant defendants' motion in part and deny it in part.

In addition, the Court will deny plaintiff's motion for summary judgment since it is not accompanied by " a statement of material facts as to which [plaintiff] contends there is no genuine issue," LCvR 7(h), and because, with respect to those claims for which the Court will grant judgment in favor of the defendants or remand the matter back to the defendants for further processing, it is moot. The Court will also deny plaintiff's motion for discovery and motion for in camera review in light of the declarations defendants have proffered in support of summary judgment. See Schrecker v. U.S. Dep't of Justice, 217 F.Supp.2d 29, 35 (D.D.C. 2002), aff'd, 349 F.3d 657, 358 U.S.App.D.C. 334 (D.C. Cir. 2003) (" Discovery in FOIA is rare and should be denied where an agency's declarations are reasonably detailed [and] submitted in good faith[.]" ); Larson v. Dep't of State, 565 F.3d 857, 870, 385 U.S.App.D.C. 394 (D.C. Cir. 2009), quoting Hayden v. NSA, 608 F.2d 1381, 1387, 197 U.S.App.D.C. 224 (D.C. Cir. 1979) (" Although district courts possess broad discretion regarding whether to conduct in camera review. .., we have made clear that '[w]hen the agency meets its burden by means of affidavits, in camera review is neither necessary nor appropriate,'" ) (alteration in original). When, as is the case here, the record includes deficient declarations, " the courts generally will request that the agency supplement its supporting declarations" instead of ordering discovery or the submission of documents for in camera review. Judicial Watch, Inc. v. U.S. Dep't of Justice, 185 F.Supp.2d 54, 65 (D.D.C. 2002), citing Nation Magazine, Washington Bureau v. United States Customs Service, 71 F.3d 885, 892, 315 U.S.App.D.C. 177 (D.C. Cir. 1995) (other citation omitted).


This action arises from plaintiff's FOIA requests to: (1) certain components of the Department of Health and Human Services (" HHS" ), (2) the Department of Justice's Executive Office for United States Attorneys (" EOUSA" ), and (3) certain components of the Department of Homeland Security (" DHS" ). The relevant facts as documented by Defendants' Statement of Material Facts as to Which There is No Genuine Dispute are as follows.

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A. HHS Records

1. OIG Request # 2010-0351KS

On February 5, 2010, plaintiff requested from HHS's Office of Inspector General (" OIG" ) " all [] administrative and personal records, all citizen complaints, incident reports, disciplinary actions, and related internal affairs information pertaining to the conduct of HHS-OIA Special Agent Joseph Reikers." Decl. of Robin R. Brooks [Dkt. # 39-2], Ex. 1. On June 22, 2010, HHS informed plaintiff that it was neither confirming nor denying the existence of responsive records, that such records, if any, would be exempt from disclosure under FOIA exemptions (b)(6) and/or (b)(7)(C), see 5 U.S.C. § 552(b), and that plaintiff could contact the Freedom of Information Officer in the Program Support Center for any requested " personnel" records. Id., Ex. 2. In addition, HHS informed plaintiff about his right to appeal the determination within 30 days to the Deputy Assistant Secretary for Public Affairs. Id.

2. OIG Request # 2011-0380

In a letter dated April 18, 2011, plaintiff clarified an earlier request that sought " all information in the possession of . . . Special Agent [] Reikers," and explained that he was seeking " the full disclosure of all documents pertaining to myself. . . my company i.e. Galaxy Medical Supply, LLC and U.S. v. Enitan Osagie Isiwele, Case No. 1:08-CR-163, that were either 'created, prepared by or received and reviewed by . . . Reikers." Brooks Decl., Ex. 5. In addition, plaintiff requested a fee waiver because the requested information " is of primarily public interest, or non-commercial purpose." Id.

On July 22, 2011, OIG informed plaintiff that it had located 163 responsive pages, 13 of which were being released in part and 42 of which were being withheld in their entirety. OIG further informed plaintiff that it was referring the remaining 108 pages to EOUSA and provided the contact information for that " FOIA office now responsible for processing [those] records." Id., Ex. 6. OIG withheld information under FOIA exemptions 5, 6, 7(C), and 7(E), and informed plaintiff about his right to appeal its determination within 30 days. Id. On October 7, 2011, OIG issued " an addendum," informing plaintiff that it was releasing an additional 14 pages in part that had been " inadvertently referred" to DOJ. Id., Ex. 7. OIG withheld information from that release under FOIA exemptions 6 and 7(C), and again informed plaintiff about his right to appeal the determination within 30 days. Id.

3. OIG Request # 2011-0598SS

In a letter dated July 5, 2011, captioned " Supplementary Request Under the [FOIA], Expedited Services Requested," plaintiff requested all records pertaining to Special Agent Riekers, including " (i) performance reviews for the previous 5 years; (ii) compensation records; (iii) 'critical' employment records for the previous years; (iv) administrative grievances and internal investigation records for the past 5 years, and (v) [OIG's] sponsored training programs." Plaintiff also requested a fee waiver. Id., Ex. 8.

On July 18, 2011, OIG denied plaintiff's request for a fee waiver because he " did not proffer any support of how the requested records, if any exist, would significantly contribute to the public's understanding of HHS operations." Id., Ex. 9 at 2. OIG also informed plaintiff about his right to appeal administratively within 30 days. On September 1, 2011, OIG informed plaintiff that it had located 86 records responsive to his request for the performance reviews and that it was releasing 85 pages in part and withholding one page

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in full. OIG withheld information under FOIA exemptions 6, 7(A), and 7(C). In addition, OIG neither confirmed nor denied the existence of records pertaining to administrative grievances and internal investigations, and it informed plaintiff that any such information would be exempt under those same exemptions. OIG referred the request for compensation records to " the PHS" FOIA office to process and provide a direct response to plaintiff, and informed plaintiff that his request for " OIG sponsored training programs and critical employment" failed to " sufficiently describe the desired records." Id., Ex. 10. No fee was assessed because the costs were " under the Department's $25 cost effective threshold." The letter closed with the notice of the right to appeal. Id.

4. CMS Request # 0929 2009 7017

On September 29, 2009, plaintiff requested " multiple categories of agency records related to sixteen individual Medicare beneficiaries" and " billing information for disaster claims, and information regarding the requirements for filing disaster claims for beneficiaries affected by hurricanes Rita and Katrina." Decl. of Michael S. Marquis [Dkt. # 39-4] ¶ 5. On October 4, 2010, the Centers for Medicare & Medicaid Services (" CMS" ) denied plaintiff's request under FOIA exemption 6, because he had not " presented valid authorizations . . . signed by the subject(s) of the records," and advised him about his right to appeal to the Deputy Administrator within 30 days. Id., Ex. 4 [Dkt. # 44-1]. " CMS did not receive any subsequent correspondence from the Plaintiff indicating he wished to appeal this decision." Id. ¶ 6. See Pl.'s Response to Defs.' Statement of Material Fact as to Which There is No Genuine Dispute (" Pl.'s Opp'g Facts" ) [Dkt. # 47-1] ¶ 1 (" Plaintiff instead of pursuing #0929 2009 7017 due to its deficiency, decided to submit a new written FOIA request dated on or about February/March 2010 and duly received an acknowledgment letter . . . on or about March 23, 2010, signed by Mr. Michael S. Marquis[.]" ).

5. CMS Requests ## 0503 2011 7018; 0503 2011 7020; 0503 2011 7054; 0503 2011 7055

Between April 24, 2011 and April 27, 2011, plaintiff submitted four more requests to CMS. The first request dated April 24, 2011 (# 7018) sought Medicare claims data for Sigmah Home Health Services, Inc. of Houston, Texas, and detailed beneficiary claims data for years 2005-2008. Marquis Decl. ¶ 17. The second request dated April 25, 2011 (# 7020) sought Medicare claims data pertaining to power mobility devices, manual wheelchairs, power wheelchairs, and power operated vehicles for First Choice Medical Supply Company between 2000 and 2006, and provided an owner's name. Id. The third request dated April 27, 2011 (# 7054) sought similar claims information for " Lggo Global Equipment & Medical Services" between 2005 and 2008, and provided an owner's name. The fourth request also dated April 27, 2011 (#7055) sought similar claims information and prescriptions written by Dr. Michael D. Kim of Houston, Texas, between 2001 and 2006. Id.

By letter dated June 29, 2011, plaintiff acknowledged that the search fee for his four requests could exceed $250 and that he was " willing to pay" the costs. He then requested that CMS remove those requests from " tolling" and send them to " your Medicare Contractor for a cost estimate and notify me in writing of the estimated costs" so that he could " make payment upon the receipt of the notification letter and time specified." Marquis Decl., Ex. 10 [Dkt. # 44-1]. The Dallas Regional Office requested cost estimates of the

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search from two Medicare contractors, Palmetto Government Benefits Administrators and CGS Administrators, LLC. Marquis Decl. ¶ 18. An estimate of $368 was provided for the first request, but the administrators could not provide estimates for the remaining three requests because they needed the providers' identifier numbers, and, in the case of the subject of plaintiff's third request " Lggo Global Equipment," the correct name. Id. ¶ ¶ 19-22. Plaintiff sent a follow-up letter on November 7, 2011 addressed to the Director of CMS's Freedom of Information Group, requesting that he " act promptly on these FOIA requests" and complaining that he had been given " runaround treatment." Am. Compl., Ex. 4J [Dkt. # 29-2]. CMS's FOIA Division has no record of having received that letter. Marquis Decl. ¶ 24.

In four separate letters dated May 16, 2012, CMS informed plaintiff that it was " conducting a review of pending [FOIA] requests to ascertain if the requested information is still desired" (hereafter " continued interest letter" ). Marquis Decl., Ex. 11. Each referenced the respective request number. Plaintiff was told to sign and return the letter within five working days if he was still interested in receiving the documents; otherwise, CMS would " assume you are no longer interested in receiving the documents and the case will be administratively closed." Id. Since " [t]he FOIA Division did not receive any replies to those letters," CMS closed the four requests two months later, on July 20, 2012 and July 27, 2012. Marquis Decl. ¶ 25.

6. CMS Requests ## 0708 2011 7009; 0708 2011 7010

On June 29, 2011, plaintiff submitted two requests to CMS. The first request (#7009) sought Medicare claims data pertaining to power mobility devices, manual wheelchairs, power wheelchairs, and power operated vehicles for two Houston-based durable medical equipment companies -- Thurman Family Medical Services and Seniors Comfort & Caring Medical Services -- between 2000 and 2005. Marquis Decl. ¶ 26. The second request (# 7010) sought similar claims information and prescriptions written by Drs. Lewis Gottlieb, Jayshree Patel, and Charles Frank Skripka, Jr., whom plaintiff identified as employees of a Houston-based clinic owned by Dr. Gottlieb. Plaintiff sought the information for years 2000 through 2006. Id. ¶ 27.

Since " NPI numbers could not be located for the named entities" in request # 7009, and for Drs. Gottlieb and Skripka named in request # 7010, CMS " could not" conduct a search. Id. ¶ ¶ 29-30. As for the third doctor named in the latter request, Dr. Patel, CMS located " an NPI number [but] could not locate a corresponding PTAN number." Hence, the Medicare contractor, CGS Administrators located no records pertaining to Dr. Patel. Id. ¶ 30. CMS has no record that it notified plaintiff about the foregoing result. Id. ¶ 31. However, on May 16, 2012, CMS sent plaintiff a continued interest letter with regard to requests ## 7009 and 7010, and closed those requests on July 10 and July 11, 2012, when plaintiff did not reply. Id. ¶ 32.

B. EOUSA Records

1. Requests ## 09-4535, 09-4784

After plaintiff's three attempts to obtain records pertaining to his criminal prosecution in the Eastern District of Texas, United States v. Isiwele, No. 1:08-CR-163, see Defs.' Facts ¶ ¶ 32-43, EOUSA acknowledged the request on January 13, 2010, and informed plaintiff that it would be processed under request number 09-4784;

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EOUSA denied plaintiff's request for expedited processing. Decl. of Kathleen Brandon [Dkt.# 39-1] ¶ ¶ 12, 13.

By letter dated March 26, 2010, EOUSA then denied plaintiff's request in full under FOIA exemptions 3, 5, 7(A), 7(C), 7(D), and under section (j)(2) of the Privacy Act, 5 U.S.C. § 552a.[1] Brandon Decl., Ex. K. The letter further informed plaintiff that the office had withheld grand jury material, that the responsive material included public records that could be obtained from the clerk of the court or from EOUSA via a new FOIA request, and that he could appeal the determination to the Office of Information Policy (" OIP" ) within 60 days. Id ...

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