UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
PAUL BURKE, Pro Se |
|
Plaintiff, |
|
vs.
| Case: 1:16-cv-00825 (CRC)
|
U.S.
DEPARTMENT OF HEALTH AND |
HUMAN SERVICES |
|
Defendant.
|
PLAINTIFF’S
MOTION FOR PARTIAL VOLUNTARY DISMISSAL AND AWARD OF COSTS
Pursuant to Federal Rules of Civil Procedure
41(a)(2), Plaintiff Paul Burke respectfully moves for the voluntary dismissal
of his claim for the records covered by this action, and petitions the Court
for an award of costs as provided by the Freedom of Information Act ("FOIA"),
5 U.S.C. §442(a)(4)(E).
Plaintiff received the documents specified in the
FOIA request by email on June 8, which was 1,059 days after the FOIA request
was filed, and 36 days after this court case was filed.. Plaintiff now only
seeks payment of his $400 filing fee.
Chronology
On July 15,
2013, Plaintiff submitted a FOIA request to the Centers for Medicare and Medicaid
Services ("CMS"), which is part of the US Department of Health and
Human Services ("HHS"). His request asked for explanatory material
which CMS wrote and distributed to certain medical offices. Those offices, in
turn, provide the material to Medicare patients.
On February 25, 2015, after 590 days and numerous phone
calls between the parties, Mr. Hugh Gilmore of CMS sent Plaintiff a letter
saying there were 17 pages of responsive records, and he had decided to withhold
all of them under exemption 5 of the FOIA, which covers inter-agency and
intra-agency privileged deliberations (5 U.S.C § 552(b)(5)).
On March
26, 2015, HHS received Plaintiff's administrative appeal. This was 29 days
after the February 25, 2015 denial letter, so it was within the required 30
days (45 CFR 5.34).
On June 4, 2015, Plaintiff contacted the Office of
Government Information Services ("OGIS"), since one of its functions
is to "offer mediation services to resolve disputes" under the FOIA
(5 U.S.C § 552(h)(3)). OGIS found the appeal was "pending review" at
HHS but HHS had no estimate for its completion date. OGIS said, "At this
time, OGIS cannot offer you any additional assistance" on August 31, 2015.
On January 24, 2016 Mr. Derrick McNeal, who works for Mr.
Gilmore, called Plaintiff and said HHS policy is that only Accountable Care
Organizations have access to the written material, so Plaintiff could not have
it. However no written decision was issued on the appeal.
On May 3,
2016, Plaintiff filed this court action.
On June 7,
2016, Mr. Gilmore (who issued the original denial) and two of his staff, Mr.
McNeal and Mr. Paul Levitan, telephoned the Plaintiff
to convince him to withdraw the administrative appeal. Mr. Gilmore explicitly
said he was "aware of the litigation," but was not seeking withdrawal
of the litigation, which could continue. He said that if Plaintiff sent an
email withdrawing the administrative appeal, HHS would send the requested
documents within three days. If Plaintiff did not withdraw the administrative
appeal and waited for a decision, HHS would take 5-6 weeks or possibly years to
send the same information. Mr. Gilmore offered to send a "document saying
the court case survives" in the absence of the administrative appeal,
though Plaintiff was not clear how that would work. Plaintiff was not willing
to drop the administrative appeal before seeing the documents, and with no
agreement in writing.
On June 8,
2016, the next day, Mr. Gilmore's office emailed the documents to Plaintiff,
despite having said resolution would take 5-6 weeks, or years. Plaintiff
accepts HHS' representation that these are all the documents.
Eligibility
for Award of Costs
5 U.S.C. §
552(a)(4)(E) says,
"(i) The court may assess against the United States… litigation
costs reasonably incurred in any case under this section in which the
complainant has substantially prevailed.
"(ii)
For purposes of this subparagraph, a complainant has substantially prevailed if
the complainant has obtained relief through… a voluntary or unilateral change
in position by the agency, if the complainant’s claim is not insubstantial."
For almost
three years HHS improperly refused to release the documents. But FOIA staff
released them 35 days after the court case was filed, one day after FOIA staff
said they were aware of the court case, and the same day the HHS answer to the
Court was originally due. The timing of this "unilateral change in
position by the agency" was too close to be coincidental.
Entitlement
for Award of Costs
Four
aspects entitle the plaintiff to an award of his minimal costs (Davy v. CIA,
550 F.3d 1155, 1159 (D.C. Cir. 2008)):
(1) Public benefit derived from the
case - Medicare has 430 Accountable Care
Organizations in 49 states and DC, serving 7.7 million patients (CMS Press
release June 6, 2016, "Medicare Makes Enhancements to the Shared Savings
Program…"). Information on doctors' incentives and cost cutting in these
organizations is important to patients and for public policy. Medicare has now
finally released the documents which show specifically how doctors must inform
patients on these and other issues. Plaintiff has already posted the documents
on the web for anyone to see, and he is preparing an analysis for publication.
(2) Lack of commercial benefit to
the plaintiff
- Plaintiff derives no income from the information, nor from his website, which
does not take advertisements and is maintained as a contribution to the public
interest.
(3) Nature of the plaintiff's interest
in the records
- Plaintiff needed the information to report fully on how Medicare patients are
informed about Accountable Care Organizations. Plaintiff has long had an
article, posted online, about the lack of information for patients on how these
organizations affect their care, and he can now make the article more complete
by showing the extent of information which the government provides.
(4) Reasonableness of the agency's
withholding of the requested documents - There was no basis for withholding, since a claim of
privilege cannot apply to information that is "made available" to the
public. Furthermore the median time to process a simple FOIA request at CMS in
2013-2015 ranged from 10 to 14 days (HHS
Freedom of Information Annual Reports), while CMS took hundreds of days for
this request.
Plaintiff
should not have had to pay $400 and bring this into court, in order to get 17
pages which were clearly not privileged and were not exempt from disclosure.
Plaintiff
could have come to court sooner, but he hoped to get the information from HHS,
without resort to court.
Plaintiff
has not prepared a draft order, since he understands West Virginia law does not
permit a non-lawyer "to prepare for another legal
instruments of any character"
(WV State Bar, Committee on the Unauthorized Practice of Law, Opinion 2007-01,
page 2).
June 11, 2016 Respectfully
submitted,
____________________________
Paul Burke, Pro Se
29 Dance Lane
Harpers Ferry,
WV 25425
304-876-2227
PaulBurke@Globe1234.info