Settlement Discussions in a FOIA Case

Burke v. HHS (Case 16-CV-825)

We made efforts to settle this case, but did not succeed, so Judge Cooper decided, in my favor.

The American Bar Association has strategic and ethical advice on settlements. LexisNexis has a helpful textbook, quoting research on what works. Thomson/West has a collection of readings, and there are other books. Old editions are cheap; new editions add the latest research. Articles on suing the government sometimes appear.

The books recommend yielding to neither benevolence nor hostility; it may be an act, and the best response is to stay calm and take all the time you need. Negotiations take longer than expected. However they do recommend immediately pointing out unreasonable and obdurate behavior, besides saying no (Nexis p.140, and Adler p.23, quoted in West p.450).

Understanding the Government

Governmental goals in settlements include protecting information if legally possible, not admitting they did wrong, and not losing in court. So they try to win FOIA cases in court when they can, and settle when they're at fault. Their first step is a fresh review: by a Justice Department lawyer. "Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law." It is not surprising that as soon as a Justice Department lawyer looks at the case, documents may appear.

In my case the government sent me the documents as soon as a lawyer looked at the case, and two weeks later she emailed me a draft settlement. The next working day she said she wanted to file the settlement that afternoon. Besides the short deadline, problems included:

• It would close off "any litigation or administrative proceeding that Plaintiff has brought, could bring, or could have brought regarding Plaintiff's FOIA requests in this case," so it would keep me from getting updated or missing documents.
• It could "not be used as evidence or otherwise in any pending or future civil or administrative action against Defendant..." so it could not be enforced.
• She called it "standard" but never cited any other Medicare settlements with the same terms.

I sent back a counter-offer, she got an extension, we both compromised, and eventually the only sticking point was her prohibition on updated or missing documents. So we filed motions and replies, and Judge Cooper ruled in my favor, saying their reasoning had "nothing whatsoever to do with FOIA exemption 5...," and they "apparently, gave Mr. Burke the run-around for nearly three years..." He closed this case, ordering them to pay my costs. He did not close off other cases which I "could bring or could have brought" as the government wanted to do, and I can still bring a new case to get updated or missing documents.

An issue I did not insist on in the settlement, but which Judge Cooper gave me, was declaring the government at fault. The government does not want to admit when they are wrong, saying "The whole point of a settlement is that there is no admission of liability." That is false. Many settlements do assign fault, when a member of the public is wrong, such as SEC enforcement. The government says "that a refusal to admit the allegations is equivalent to a denial, unless the defendant or respondent states that he neither admits nor denies the allegations" (17CFR202.5(e)). When a person or company is at fault, the government makes them admit it or "neither admit nor deny" to get a settlement. I have never seen the federal government take that medicine, so by their standards they always deny fault, except for the few cases where they lose in court, like mine, and the system never gets better.

Of all court actions on FOIA in 2016, the government settled 200 and Plaintiffs won 30 in court, partly or wholly, while the government won 170. So plaintiffs actually won something in about 60% of cases, but the government looked as if it won 85% of court decisions.

Putting It in Writing

I negotiated by email so I could look up precedents and alternatives for whatever the lawyer offered, despite her demands that we talk. Books on settlement say email helps in negotiating some issues, and creates written records, though mistrust can arise faster with emails (Epstein "Cyber e-mail negotiation offers numerous benefits and minimal detriments", and Morris, quoted in West; and Craver "A surprising number of individuals like to conduct their negotiations primarily or entirely through letters, e-mail, or fax transmissions").

In this case, despite using email for a written record, I was misquoted at least twice. Mistrust arose early, from the initial short deadline, and the opposing lawyer's unwillingness to cite precedents for the conditions she wanted. She also thought I was not reasonable and competent, and that I wasted her time, ironic, after the years when her client wasted my time. I had past success with email in state environmental cases, and experts include email as a reasonable avenue. I could not equal an experienced lawyer in body language, voice control, or knowledge of precedents, which I am sure she realized, so email was best.

On the other hand while the FOIA request was pending I had talked with Medicare many times by phone, following up with an email summary, since I could talk confidently about FOIA procedures. Recording calls with Medicare (when allowed by state law) did not seem necessary.

When I dealt with Medicare, I had to confirm key steps by certified mail, since they lost my administrative appeal, and only my USPS receipt kept it active.

Settlement Discussions Not Confidential

What we say in settlement discussions has a bit of protection from appearing in court as evidence to disprove or impeach, under Rule 408., However 408 has a broad ambiguous exception, "evidence for another purpose." Besides that exception, some cases in some districts go to settlement conferences with a judge, who then learns what is going on in settlement, but DC District Court Local Rule 16.3(b)(9) exempts FOIA cases from certain pre-trial conferences.

The opposing lawyer did tell the judge, in filing 11, that "HHS already offered to reimburse Burke for the $400 filing fee." I had a problem with her saying that, since (a) it did not reflect the burdensome conditions they insisted on before they would pay the $400, and (b) it introduces settlement discussions in court. I noted there was no such evidence before the court, but did not formally object under Rule 408, since it wasn't worth it to me to resolve the ambiguities. The judge did accept her representation, but it did not seem to affect his ruling.

While Rule 408 has limits on bringing settlement discussions into court, and they may not be subject to FOIA, they can be revealed elsewhere:

• "With client consent, a lawyer may use or disclose to third parties information learned during settlement negotiations, except when some law, rule, court order, or local custom prohibits disclosure or the lawyer agrees not to disclose" (p.4).
• "Rule 408 ... does not protect against your counterparty’s public disclosure of the terms of your settlement discussions" (p.1).

I have no problem showing the discussions, if they can help others do better.

Timeline

2013, July 15	Burke files FOIA request
2015, Feb 25	Medicare denies request
2015, Mar 24	Burke appeals denial at Medicare. They lost the appeal, but I had the USPS receipt showing they received it on time, and sent another copy.
2016, May 3	Burke starts lawsuit, pdf or htm. (LINKS TO ALL COURT FILINGS)
June 7, Tuesday	Medicare phones Burke offering documents by Friday if he withdraws administrative appeal
June 8, Wednesday
11:18 Email	Burke summarizes previous day's conversation, not withdrawing appeal
12:01 Email	McNeal emails the documents
	Government assigns Marsha Yee to represent HHS, pdf, or htm
13:05 Voicemail	Government lawyer, Marsha Yee, introduces herself and wants time extension
	SUMMARY OF FIRST PHONE CALL
	Unopposed Motion for Extension of Time, pdf, or htm
June 11, Saturday	Burke moves for dismissal and costs, pdf, or htm
June 24, Friday
13:02 Voicemail	Yee will email settlement, wants Burke's bank account number to send $400 electronically.
14:51 Email	Yee sends draft settlement.
June 27, Monday
10:35 Voicemail	Yee wants to file settlement same day.
	COMMENTS ON DRAFT SETTLEMENT, poor terms and unnecessary deadline
12:19 Email	Burke re-drafts settlement, questions reason for same-day deadline
12:29 Voicemail	Yee wants time extension, says her draft is standard, "whole point of a settlement is that there is no admission of liability".
12:49 Email	Burke agrees to time extension.
14:41 Voicemail	Yee wants to discuss by phone, and "will absolutely not agree" that Burke prevailed, nor ending "without prejudice. The whole point is that it'd have to be with prejudice." Prejudice means issue cannot be brought back to court if needed.
18:15 Email	Yee says Burke phone not working, requests call, won't agree to Burke's language.
23:07 Email	Burke notes government position, will respond by Thursday June 30, and will mail bank account number (a small account which can be closed later, since number may leak)
June 28 Tuesday
	Yee files Unopposed Motion for Extension of Time, pdf, or htm
17:05 Email	Yee says Burke declined to discuss settlement, notes Burke filed June 11 Motion without discussion under Local Rule 7(m).
June 30 Thursday
	Burke files Notice of Voluntary Dismissal, pdf, or htm
00:36 Email	Burke tells Yee why Voluntary Dismissal.
	EXPLANATION OF VOLUNTARY DISMISSAL
01:49 Email	Burke notes agency's absolutism, and other FOIA cases where the agency did not insist on those demands. Wants ability to reopen case if later evidence shows more documents exist. Suggests compromise of omitting problematic wording that was not in other settlements.
17:41 Email	Yee agrees to drop some problematic wording, misinterprets Burke's email, says FOIA cases Burke cited involved attorneys, other courts and lawyers, and did not reimburse costs.
July 1 Friday
	COMMENTS ON DISCUSSING COSTS
11:22 Email	Burke sends draft motion on costs for discussion, required under Local Rule 7(m).
13:46 Email	Yee declines to comment on draft motion, wants response to June 30 email, considers lack of phone calls "significant impediment."
16:04 Email	Burke repeats need to reopen if later evidence identifies missing documents, questions why a national agency ignores precedents which it has accepted from other attorneys and courts, since she said the conditions came from the agency, not herself. Asks goal of phone calls, and if she objects to recording them.
July 5 Tuesday
16:27 Email	Yee says Burke could get any missing documents by going through a whole new FOIA process afresh, showing she was not willing to narrow the wording. Said main reason to ignore cited cases is they did not seek costs. Did not cite any case which had any of the wording she wants. Repeated her refusal to admit liability, though we had already solved that the week before by agreeing to say nothing. Says Burke not reasonable and competent, and wastes her time. Did not respond about recording phone calls; she wants calls, but not concerned if parties remember them accurately, since written agreement is what matters.
	COMMENTS ON PERSUASION
July 6 Wednesday
16:24 Email	Burke noted settlement would be silent on liability, but Judge Cooper might not be, declined to reopen the case, noted time needed to research her ideas. Asked if she got bank account information in the mail.
July 7 Thursday
14:30 Email	Burke offers to discuss motion on costs
July 8 Friday
10:10 Email	Burke offers to discuss motion on costs
July 11 Monday
10:10 Email	Burke offers to discuss motion on costs
	Phone call
	Burke files Motion for Costs, pdf
July 12 Tuesday
14:21 Email	Yee rescinds settlement, accuses Burke of wasting time and money
July 18 Monday
13:39 Email	Burke asked if Yee got bank account information in the mail.
July 27-August 11	More motions and replies
Dec 16, 2016	Judge Cooper's Order, pdf
	COMMENTS ON THE END OF THE CASE

SETTLEMENT COMMUNICATIONS IN THIS CASE

JUNE 7 PHONE CALL

Medicare phones Burke offering documents in 3 days if he withdraws his administrative appeal within Medicare. This conversation is summarized in Burke's email below

June 8, 2016 Wednesday 11:18 Email

Dear Mr. Gilmore,

Thanks for your phone call Tuesday morning June 7. I understand you offered to drop the assertion of exemptions, and to provide the documents I requested, if I first drop the administrative appeal.

I also appreciate your offer that you weren't asking me to drop the court case, and that after I dropped the administrative appeal, you could give me a "document saying the court case survives" in the absence of the administrative appeal, though I am not sure how that would work. Can you point me to any information on this?

I understand your estimate that you have some way to release the documents by Friday if I drop the appeal, but that if I don't drop it, you will need to "go through proper channels, which takes 5-6 weeks," though your staffer Mr. Levitan said he'd seen it take years.

While I am not willing to drop the rights I have under the administrative appeal before seeing the documents, and in the absence of any written agreement to make everything clear, if you send the documents, and they are what I asked for in the FOIA request, then I can look at dropping further legal action.

If I have misunderstood, please let me know. As I said at the end of our phone call, if there's another approach which doesn't involve me dropping the administrative appeal before seeing the documents, let's talk again.

Paul Burke

June 8, 2016, Wednesday 12:01 Email from Derrick McNeal, Medicare

Good morning Mr. Paul Burke, I am forwarding you the FOIA requested documents as requested in your original 7/15/2013 FOIA request. We are hopeful that these documents meet your request demands. Thanks for your patience, understanding and support of the FOIA program.

June 8, 2016, Wednesday 13:05 Voicemail

Hi, this is a message for Paul Burke. This is Marsha Yee. I'm with the US attorney's office in DC. I'm calling about your FOIA case against the Department of Health and Human Services, case number 16-825 in DC.

I'm calling to obtain your position on defendant's motion to extend the time to file its response to your complaint. I was told that the agency is going to release the documents you requested by the end of the week, which would moot your complaint. My number is .... I intend to ask the court to extend defendant's time to answer by a month, and after that point if necessary we can do this dispositive, set a schedule for dispositive motions. But I would prefer to avoid dealing with motions if possible. If you could call me back I'd appreciate it. Thanks so much, bye.

COMMENTS ON FIRST PHONE CALL

I had not checked my email, so did not know they had already emailed the documents. I called back, agreed to the extension, said the agency had told me it would take weeks or months to release the documents, I could tell her more details if she needed, and I would want reimbursement of the $400 filing fee. I also commented that it appeared they made a habit of releasing documents only after a court case is filed. She said, "I hate it when they do that." The initial call was cordial, though she did not respond on the $400, nor on the discrepancy of months or days to release documents.

June 24, Friday 13:02 Voicemail

Mr. Burke this is Marsha Yee with US attorney's office calling about your FOIA case against the Department of Health and Human Services, DDC number 16CV-825.

I'm calling to let you know that HHS has agreed to settle this case by reimbursing you for the $400 filing fee in exchange for your dismissal of this case with prejudice. I'm waiting for sign off on the stipulation of settlement and dismissal, which I expect to send to you later today.

The only other thing I wanted to also mention to you is that you will need to provide your bank account information because payment is made through an electronic funds transfer. My number is .... Thanks, bye.

June 24, Friday 14:51 Email

Dear Mr. Burke:

As per the voicemail I left for you earlier today, please find attached a stipulation of settlement and dismissal. After you have reviewed and signed it, please email to me a PDF of your signed copy and then mail to me your original signature page.

Please remember to provide your bank information (i.e., the name and address of your bank, the full name on the account, the account number, and the routing number), which HHS needs to process this payment.

Thank you.

_____________________________

Marsha W. Yee

Assistant United States Attorney

U.S. Attorney's Office for the

District of Columbia

555 Fourth Street, N.W.

Washington, D.C. 20530

Attachment:

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PAUL BURKE, )

)

Plaintiff, )

) Civil Action No. 16-CV-825 (CRC)

v. )

)

U.S. DEPARTMENT OF HEALTH )

AND HUMAN SERVICES, )

)

Defendant. )

_______________________________________)

STIPULATION OF SETTLEMENT AND DISMISSAL

Plaintiff Paul Burke and Defendant United States Department of Health and Human Services ("HHS") hereby settle and compromise the above-captioned case brought under the Freedom of Information Act ("FOIA") on the following terms:

1. Plaintiff agrees to dismiss this case with prejudice.

2. Defendant shall pay four hundred dollars ($400.00) in costs to Plaintiff. Defendant will make this payment through an electronic funds transfer within thirty (30) days of Defendant's receipt of Plaintiff's bank account information. Plaintiff is required to provide the necessary information to process this payment.

3. This Stipulation constitutes the full and complete satisfaction of any and all claims, including any claim for fees or costs, arising from (a) the allegations set forth in the complaint filed in this action, and (b) any litigation or administrative proceeding that Plaintiff has brought, could bring, or could have brought regarding Plaintiff's FOIA requests in this case.

4. This Stipulation does not constitute an admission of liability or fault on the part of the Defendant, the United States, or either of its agents, servants, or employees, and is entered into by both parties for the sole purpose of compromising disputed claims and avoiding the expenses and risks of further litigation.

5. This Stipulation is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns.

6. The parties agree that this Stipulation will not be used as evidence or otherwise in any pending or future civil or administrative action against Defendant, the United States, or any agency or instrumentality of the United States.

7. Execution of this Stipulation by Plaintiff and by Defendant's counsel constitutes a dismissal of this action with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).

By:___________________________ Paul Burke, Pro Se Executed on June ___, 2016.

CHANNING D. PHILLIPS, D.C. Bar # 415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN, D.C. Bar # 924092 Chief, Civil Division By: ____________________________ MARSHA W. YEE Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 Counsel for Defendant Executed on June ___, 2016.

June 27, Monday, 10:35 Voicemail

Hi Mr. Burke, this is Marsha Yee with the US attorney's office in DC. I'm calling about your FOIA case against HHS,16CV825.

I haven't heard back from you. I emailed you on Friday a draft stipulation of settlement and dismissal. I just want to make sure you received it and to check whether you have any questions. Ideally I'd like to file it by today if possible. My number is ... and I hope to hear from you soon. Thanks so much, bye.

COMMENTS ON DRAFT SETTLEMENT

• Section 3(b) was problematic. They wanted to close off "any litigation or administrative proceeding that Plaintiff has brought, could bring, or could have brought regarding Plaintiff’s FOIA requests in this case." That wording about the future was unusual, vague, and broad. When Medicare adds more pages over time, or if evidence appears later that the documents they gave me were incomplete, I would want the other information, and $400 was nowhere near enough reason to give up that right.
• Paragraph 4 does not admit liability. They later agreed to be silent on liability, as they had been in other settlements. I accepted this compromise, because I doubted they'd accept the other possible wording, "HHS neither admits nor denies liability." I agree with the SEC, "the Commission believes that a refusal to admit the allegations is equivalent to a denial, unless the defendant or respondent states that he neither admits nor denies the allegations" (17CFR202.5(e)). SEC can punish a respondent for denying fault in public after it "neither admits nor denies" in a settlement.
• Paragraph 6 says "this Stipulation will not be used as evidence or otherwise..." This sentence seemed to prevent us going to court to enforce the settlement. It also pretends to control what other people do with our stipulation, which we have no control over. They later agreed to take this sentence out too, so the main remaining issue was section 3(b).

RESULT: The deadline of one working day, along with problematic clauses, and no discussion of why they wanted the clauses or the deadline, created a cycle of mistrust, which books say is a common danger in settlement negotiations. When I later found that other Medicare FOIA settlements lacked these clauses, and she insulted me as being unlike "any reasonable and competent attorney," trust dimmed further.

ALTERNATIVE: They could have paid me $400 unilaterally, which would have:

(A) made the case moot and saved further staff time;

(B) avoided admitting liability;

(C) avoided filing their damaging affidavit which admitted (¶15-17) that the Medicare appeal process is handled and delayed by the same office which denied the original request, so is not independent;

(D) avoided showing a lost case in the government's annual summary of FOIA court decisions;

(E) not closed off future cases.

Apparently paragraph 3(b) was so important to them that they incurred significant costs to press me to agree, unsuccessfully.

June 27 Monday 12:19 Email

Dear Ms. Yee,

Thank you for your offer of settlement. It does not entirely meet my needs, so I attach a revised version, which I hope can be a basis for settlement.

I am demonstrating willingness to engage in good faith negotiations for settlement, by responding within one working day to your offer, though the government took two weeks to prepare its offer.

Your phone call this morning said you wanted to file today. Please let me know if there is a reason for that goal, and I will try in good faith to finish negotiations today. However your earlier email asked for a mailed copy of my signature, in addition to the pdf. If there is a reason why we need to mail each other signatures, they won't arrive today.

Meanwhile I will mail you my bank account information, to enable an electronic funds transfer.

Thank you,

Paul Burke

Attachment:

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. |

STIPULATION OF SETTLEMENT AND DISMISSAL

Plaintiff Paul Burke and Defendant United States Department of Health and Human Services ("HHS") hereby settle and compromise the above-captioned case brought under the Freedom of Information Act ("FOIA") on the following terms:

1. Defendant shall pay four hundred dollars ($400.00) in costs to Plaintiff, who substantially prevailed in this case. Defendant will make this payment through an electronic funds transfer within thirty (30) days of Defendant's receipt of Plaintiff's bank account information. Plaintiff is required to provide the necessary information to process this payment.

2. Plaintiff agrees not to oppose one more 30-day extension of the time to file an Answer, to allow time for paragraph 1.

3. Plaintiff agrees to withdraw this case without prejudice, since all claims will have been satisfied, within 5 days after receiving the $400 in costs, pursuant to Federal Rule of Civil Procedure 41(a)(1)(B).

4. This Stipulation is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns.

By:____________________ Paul Burke, Pro Se Executed on June ___, 2016.

CHANNING D. PHILLIPS, D.C. Bar # 415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN, D.C. Bar # 924092 Chief, Civil Division By: _______________________________ MARSHA W. YEE Assistant United States Attorney Civil Division 555 4th Street, N.W. Washington, D.C. 20530 Counsel for Defendant Executed on June ___, 2016.

June 27, Monday, 12:29 Voicemail

Hi, Mr. Burke, this is Marsha Yee with the US attorney's office in DC calling you about your FOIA case against HHS, 16CV825. I just received your email and I wanted to discuss it with you.

The reason why I wanted to try to file the stipulation today is because defendant's opposition, if any, to plaintiff motion for cost is due by tomorrow and if we can't file this stipulation today, I would have to move for an extension of time for defendant to respond to that motion. If you wish to extend the time out so that the court maintains jurisdiction while payment is pending, that's fine. But I would suggest that we do approximately 40 days instead of 30 since it really depends on how long you take to provide the bank account information as well as your signature.

There was an additional point which I wanted to make. In terms of how long it took for the government to provide you with the stipulation, I hope you understand that it takes time for the government to actually process this kind of paperwork. Any time that the government is authorizing a payment there is a process involved.

I think that the draft that I provided you is a fairly standard draft. The defendant is not making any admission of liability. In your draft you added that plaintiff substantially prevailed in this case. The whole point of a settlement is that there is no admission of liability. Please call me at ... Thanks, bye.

June 27 Monday 12:49 Email

Dear Ms. Yee:

Your phone call explained that the reason for trying to stipulate today, is tomorrow's deadline for responding to the motion for costs, and suggested a 40-day extension would allow more time.

I don't oppose a 40-day extension of both that deadline and the deadline for an Answer, which will give us time to create an agreement which meets both our needs.

Thank you,

Paul Burke

June 27, Monday, 14:41 Voicemail

Hi, Mr. Burke, this is Marsha Yee. I'm with the US attorney's office in DC calling about your FOIA case against HHS,16CV825.

I was calling just to discuss what your concerns are with respect to the stipulation. I think it'd be easier for us to have a conversation about it than to go back and forth over e-mail. This is what we would consider a very simple FOIA case. You've gotten documents that you've requested. The agency is offering you reimbursement of your filing fee. I'm not sure what else you think you could get out of this case.

Agency has said that it will absolutely not agree to your language about your substantially prevailing in this case or to your withdrawing the case without prejudice. The whole point is that it'd have to be with prejudice. If you could call me at …, I'd appreciate it. Thanks so much, bye.

June 27 Monday 18:15 Email

Dear Mr. Burke:

Your telephone number does not appear to be working at this point. Please call me asap at ... to discuss what "your needs" are with respect to the Stipulation of Dismissal and Settlement.

This is a simple FOIA case: You received the documents you requested and the agency is agreeing to reimburse you for the filing fee in exchange for your dismissal of this case with prejudice. The agency will not agree to your proposed language that you "substantially prevailed" in this case or to your withdrawing the case "without prejudice." This case is moot because you received the documents you requested. What more do you think you could obtain?

_____________________________

Marsha W. Yee

Assistant United States Attorney

U.S. Attorney's Office for the

District of Columbia

555 Fourth Street, N.W.

Washington, D.C. 20530

June 27 Monday 23:07 Email

Dear Ms. Yee:

Thank you for your voicemail from 14:41 Monday and email from 18:15 Monday, as well as the 12:29 voicemail which I responded to in my 12:49 email. I am not sure why you thought my phone was not working?

Since you'd suggested a 40-day extension, and I agreed, I went to work on other issues, and was not available to respond immediately to your questions.

I understand that dismissing with prejudice, and not admitting liability or fault, are important to HHS. The 12:29 voicemail said, "the whole point of a settlement is that there is no admission of liability." The 14:41 voicemail said, "the whole point is that it would have to be with prejudice."

Since your first draft didn't meet my needs and my first alternative didn't meet your needs, I want to spend some time researching your two issues and seeing what other options I can suggest. Like you I have other things on my plate, but I promise to send you something by Thursday June 30.

Sincerely,

Paul Burke

June 28 Tuesday 17:05 Email

Dear Mr. Burke:

As you may know, I called you five times yesterday to discuss the stipulation of settlement and dismissal. You did not answer your telephone, and you did not return my telephone calls. I was able to leave voicemail, each time requesting that you call me, at approximately 10:34 am, 12:26 pm, and 2:39 pm. When I called you at 4:43 pm, I got a message "the number you dialed is not in service." When I redialed at 4:44 pm, there was beeping.

Local Civil Rule 7(m) requires the parties, including pro se parties, to confer about non-dispositive motions. You never discussed with me your "Motion for Partial Voluntary Dismissal and Award of Costs," ECF No. 6, before you filed it. Now that I have obtained authority to settle your case by providing you with the relief you requested in your motion (i.e., reimbursement for the $400 filing fee) in exchange for your dismissal of this case with prejudice, you have declined to discuss "your needs" with respect to the stipulation of settlement and dismissal.

To be clear, I suggested a 40-day extension of defendant's time to respond to the complaint and your motion in connection with what appears to be your request that this case remain open until after you receive the electronic funds transfer. Built into that 40-day period is the 30 days that HHS will need to process the payment.

_____________________________

Marsha W. Yee

Assistant United States Attorney

U.S. Attorney's Office for the

District of Columbia

555 Fourth Street, N.W.

Washington, D.C. 20530

June 30 Thursday 00:36 Email

Dear Ms. Yee:

Outside settlement discussions, your June 28 Motion to Extend Time noted that my Motion for Voluntary Dismissal did not refer to Local Civil Rule 7(m).

I've addressed this as quickly as possible by splitting the dismissal of the case from the motion for costs.

I sent my bank information by Priority Mail to the address you give on the filings, tracking number 9505 5144 6139 6180 0041 08. USPS expects it to arrive Thursday.

Sincerely,

Paul Burke

EXPLANATION OF VOLUNTARY DISMISSAL

• [June 30 I filed "Notice of Dismissal of Complaint" 8
• This said I didn't need the case, since they'd sent the documents, and I would ask for costs within 2 weeks
• I filed under Rule 41 which allows plaintiff to dismiss the case before the defendant has filed an answer or motion for summary judgment. An incentive for this kind of dismissal is the right to reinstate it if necessary (ending "without prejudice"). When you wait for the judge to decide, they normally end it without the right to reinstate (ending "with prejudice").
• The judge on 7/1 confirmed what I had done, but on 12/16 ruled that I could only end it by giving up the $400. There doesn't seem to be other precedent specifically on whether holding out for costs is consistent with Rule 41, so your mileage may vary.
• If I don't need to claim costs, or don't want to file motions and replies for them, I could clearly use Rule 41 to close the entire case without prejudice.]

June 30 Thursday 01:49 Email

Dear Ms. Yee:

In the context of settlement discussions:

I apologize my phone line appeared not to be working Monday afternoon. I'm glad you emailed and got through that way. As you know I replied to all three voicemails within hours or minutes.

In environmental cases where I've had settlement discussions, email has always been helpful so we could discuss precise wording, and have a record of what we agreed on.

I hope there's room for negotiation here. I was concerned when your voicemail at 14:41 on June 27 stated the agency's absolute demands ,

· "the agency has said that it will absolutely not agree to your language about your substantially prevailing in this case, or to your withdrawing the case without prejudice."

(A) PREJUDICE

Further negotiation on prejudice was futile since "the agency has said that it will absolutely not agree ... to your withdrawing the case without prejudice." My voluntary dismissal without prejudice addresses the issue. I would also note that CMS has in fact agreed to settle a couple of recent cases without prejudice:

· Kilborn v. HHS et al, ALS, 1:2015cv00633, 12/15/2015-4/1/2016, "the parties have resolved their differences to date and have agreed that the proper course of action is to dismiss this case without prejudice."

· Pohl v. HHS et al, PAW, 2:2013cv00930, 7/1/2013-6/11/2015, "the parties have agreed that this action should be dismissed."

And Mr. Glazer dismissed his case without prejudice in the same way that I did:

· Glazer v. HHS et al, DC, 1:2015cv00423, 3/23/2015-6/1/2015, "The plaintiff hereby voluntarily dismisses this case pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i)."

I read Pohl and Glazer in the context of RCP 41(a)(1)(B) as dismissals without prejudice.

The reason I wanted a dismissal without prejudice is that it's always possible I'll hear of other responsive documents, not yet provided, undermining my current acceptance of HHS' representation that the 17 pages provided are complete. In that situation I'd need to go back to court for them.

(B) ADMISSION

In order to settle on costs, the issue remains from the 12:29 June 27 voicemail that, "the whole point of a settlement is that there is no admission of liability."

The two cases above, and all the other CMS FOIA cases I found closed in 2015 or 2016, are silent on liability.

I suggest we resolve this issue by being silent in this case too, on both liability and "substantially prevail."

(C) WORDING

Can we put wording in any agreement that PDF signatures are as good as originals, to avoid further mail delays?

There's no need to make this case complicated. Paragraphs 3, 4 and 6 in the proposal you sent are more complicated and far-reaching than the wording used to dismiss the other FOIA cases involving CMS which I found and which closed in 2015-2016. I believe these paragraphs are not necessary in my case, since they were not necessary in other CMS FOIA cases, and propose not using them.

Others have successfully settled CMS FOIA cases in straightforward ways. I trust we can too.

Sincerely,

Paul Burke

June 30 Thursday 17:41 Email

Dear Mr. Burke:

Your email below indicates that you believe that dismissal "without prejudice" preserves your ability to come back to court to request documents that should have been, but were not, provided to you in response to your FOIA request. If you believe that CMS improperly withheld any document, you should have raised that issue prior to filing your notice of dismissal. A settlement is intended to achieve finality, not to give a party a free pass to raise an issue that the party could have raised, but did not in fact raise, prior to settlement.

If you were to make another FOIA request and find that you need to file another lawsuit, you would litigate based on the new FOIA request.

Although it is true that Glazer filed a notice of voluntary dismissal, Glazer did so seven days after filing the complaint (i.e., well before the time for the defendants to respond to the complaint), no attorney entered an appearance for the defendants, and Glazer did not seek costs. As you know, Kilborn and Pohl did not file their cases in the U.S. District Court for the District of Columbia. In any event, please take note that (i) no stipulation of dismissal was filed in Kilborn, (ii) the parties in Kilborn and Pohl agreed to bear their own costs, and (iii) the plaintiff in each of these three cases is an attorney or was represented by an attorney. Those cases are not similar to your case. Moreover, those cases do not involve a stipulation of settlement handled by my office.

The agency is willing to agree to remove paragraph 4 ("This Stipulation does not constitute an admission of liability or fault on the part of the Defendant . . . .") and paragraph 6 ("The parties agree that this Stipulation will not be used as evidence . . . ."). Paragraph 3 ("This Stipulation constitutes full and complete satisfaction . . . .") is a standard provision to ensure that you cannot resurrect this case.

I need your original signature on any stipulation for my office's records.

Marsha W. Yee

Assistant United States Attorney

U.S. Attorney's Office for the

District of Columbia

555 Fourth Street, N.W.

Washington, D.C. 20530

COMMENTS ON DISCUSSING COSTS

· [My June 30 Notice of Voluntary Dismissal had promised a motion on costs by July 13

· I needed to start discussing it under Local Rule 7(m), so I sent a draft]

July 1 Friday 11:22 Email

To facilitate resolution of costs, if we cannot reach a settlement, could you let me know what you agree and disagree with, or can and cannot support, in my discussion of costs, as shown in the attached?

Thank you,

Paul Burke

Attachment:

1. Plaintiff Paul Burke respectfully 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 only seeks payment of his $400 filing fee.

2. Chronology

3. 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.

4. 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, but all were withheld under exemption 5 of the FOIA, which covers inter-agency and intra-agency privileged deliberations (5 U.S.C § 552(b)(5)).

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).

6. 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.

7. On January 24, 2016 Mr. Derrick McNeal of HHS telephoned 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.

8. On May 3, 2016, Plaintiff filed this court action.

9. On June 7, 2016, Mr. Gilmore and two of his staff, Mr. McNeal and Mr. Paul Levitan, telephoned the Plaintiff to convince him to withdraw the administrative appeal. Mr. Gilmore specifically 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 it to take its normal course, 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 without seeing the documents, and with no agreement in writing.

10. On June 8, 2016, Mr. Gilmore's office emailed the documents to Plaintiff, despite having estimated it would take 5-6 weeks, or years. Plaintiff accepts HHS' representation that these are all the documents.

11. Eligibility for Award of Costs

12. 5 U.S.C. § 552(a)(4)(E) says,

13. "(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.

14. "(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."

15. For almost three years HHS improperly refused to release the documents. But HHS released them 35 days after the court case was filed, and one day after they said they were aware of the court case.

16. Entitlement for Award of Costs

17. Four aspects entitle the plaintiff to award of his minimal costs (Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008)):

18. 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). 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.

19. 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.

20. 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 on the lack of information for patients about how these organizations affect their care, and it can now be more complete by showing information the government provides.

21. 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.

22. 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.

23. Plaintiff could have come to court sooner, but found the prospect daunting, since he has never filed a case in Federal court before, so he hoped to get the information from HHS.

24. 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 2003-01, page 4).

July 1 Friday 13:46 Email

Dear Mr. Burke:

I decline to comment on what appears to be your proposed filing.

I would appreciate your response to the email that I sent you yesterday at 5:41 pm (attached).

I note that your refusal to speak with me by telephone is a significant impediment to the resolution of what should be a simple issue.

_____________________________

Marsha W. Yee

Assistant United States Attorney

U.S. Attorney's Office for the

District of Columbia

555 Fourth Street, N.W.

Washington, D.C. 20530

July 1 Friday 16:04 Email

Dear Ms. Yee:

I understand that if I knew of missing items, I would have addressed them before dismissing the case, and if I file a new FOIA request, and do not receive that material, I would need a new court case. I have said that I accept HHS' representation that the 17 pages provided are complete. If evidence becomes available to me later, which is not available to me now, identifying any other material responsive to the FOIA request, there might be a need to go back to court, so dismissal without prejudice seemed appropriate to me.

I understand Kilborn and Pohl filed in other Districts. I'm not aware of differences in Districts' or Circuits' rulings which would explain different postures by HHS or CMS, which are national, in the different Districts. Kilborn didn't file a stipulation, but he represented that both parties agreed to dismissal without prejudice. I do understand attorneys handled those cases. If you suggest that I would get more equitable treatment by hiring an attorney, I can do so, and claim her fees.

I also understand the cases I mentioned were not handled by your office, but on Monday you said the insistence on certain conditions came from the agency.

These are not differences which merit disparate treatment; accordingly I am not persuaded.

I'm glad the agency is willing to drop paragraphs 4 and 6.

When and if we do stipulate, I can mail an original signature for your office records.

I have not refused to talk on the phone; I just haven't done it yet, since I needed to do research in order to respond thoughtfully to your ideas. I know on Monday you wanted to know why I wanted the clauses I put in my draft, and I explained my reasoning in my emails yesterday and today. I've also been asking why HHS wants paragraph 3. What would be the goal of a phone call? I'd want to record the call; would you have any objections? I'm concerned about different interpretations and memories.

Sincerely,

Paul Burke

July 5 Tuesday 16:27 Email

Dear Mr. Burke:

Kilborn and Pohl did not ask for costs (or attorneys' fees); HHS did not agree to settle those cases without prejudice and to pay costs. In contrast, you are asking for costs.

A settlement involves compromise. HHS is offering you reimbursement for the $400 filing fee in exchange for your dismissal of this case with prejudice. What do you think you are giving up to receive the $400? What do you think HHS is getting for its $400 if you have a free pass to resurrect the claims for this case at some future date?

According to the docket reports, Kilborn is an attorney and Pohl was represented by an attorney. I pointed out this difference largely because I doubt that any reasonable and competent attorney would take the positions that you have taken with respect to settlement.

If you were to discover that you want some additional document, even if it is one that you arguably should have received in response to the FOIA requests at issue in this case, the simplest way to get that document is to make a new FOIA request. You would then litigate, if necessary, based on the new FOIA request.

The bulk of the FOIA cases that are filed in the United States are filed in the District of Columbia, and my office handles many of those cases. The agency provided the stipulation that I sent you, and its terms are consistent with the terms that my office uses. I accurately communicated to you that the agency will not agree to your proposed language that you "substantially prevailed" in this case or to your proposed dismissal "without prejudice." I do not think I have ever seen an executed stipulation with such terms or similar terms, and I certainly have never signed a stipulation with such terms.

I think a discussion in real-time would have been a faster way to resolve this simple issue. The emails below reflect that you never returned the calls I made on June 27, 2016, and that you have refused to speak with me by telephone. I note that interpretations and memories are irrelevant: The language of the executed stipulation is controlling.

Please let me know if you are unable to accept a dismissal with prejudice in exchange for $400. The time that I have spent on this case is disproportionate to the $400 at issue, and this email makes many of the same points that I covered in my earlier emails.

_____________________________

Marsha W. Yee

Assistant United States Attorney

U.S. Attorney's Office for the

District of Columbia

555 Fourth Street, N.W.

Washington, D.C. 20530

COMMENTS ON PERSUASION

I expected we would settle, since I thought they would see my strong case and not want to lose in court. I was pleased to get the documents quickly, and surprised when they tried so hard to have the settlement forestall future cases on the same topic. I persisted and didn't take it personally, since I can't know the goals of Ms Yee and her managers. If I ever had to defend these actions to a judge, I wanted him or her to realize I had negotiated in good faith to the best of my ability.

Yee's July 5 email, above, made me believe she was no longer trying to reach agreement. Her expression of "doubt that any reasonable and competent attorney would take the positions that you have taken" is not wording which would motivate a negotiating partner to change.

• First, it's unrealistic: Medicare settlements negotiated by lawyers did have terms I wanted.
• Second, it's irrelevant: she needs to address the issues, not my degrees or other people's positions.
• Third, it's fluff: expressing her point as "doubt" shows she has not researched whether her point is true.
• I understand she thought it, but writing it down and sending it to me seems to be one-upmanship, which wouldn't convince anyone.
• A later paragraph rehashes "substantially prevailed" which we had dropped on June 30.
• Another paragraph wishes for phone calls. She didn't like my positions in writing, but implies she could change me by phone. Patronizing, and why would it convince me to call?
• Yee's last paragraph says she's spending too much time and repeating herself, which are interesting but not my concern.

From the beginning, Yee may not have been interested in negotiation, and expected to impose terms.

• She started by giving me a same-day deadline without giving a reason.
• Her next step was to say it was a "fairly standard draft" and "standard provision", without citing any other cases where Medicare used this wording.
• I tried to persuade her by citing examples in other settlements, and did persuade her to drop a couple of paragraphs.

• Her refusal ever to say if she received my bank account number was petty, and a security problem, which would have been serious if I had been unwise enough to send my main bank account. Fortunately I sent a small account which I could close after they deposited the $400.

July 6 Wednesday 16:24 Email

Dear Ms Yee:

USPS says they delivered my Priority Mail letter to you, containing my bank information, early in the morning of July 5. I want to be sure the letter hasn't gone astray. Have you received it?

The case has been dismissed without prejudice. I don't see the value in reopening that issue.

Last week I said I was willing to give up wording about substantially prevailing, in order to reach a settlement. If this proceeds to hearing, Judge Cooper may rule whether I substantially prevailed and on "the reasonableness of the agency's withholding of the requested documents" (Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008)).

I've answered each of your calls and emails as soon as possible. Telephone calls would not have sped up the research and thought which I needed to give to your ideas.

Sincerely,

Paul Burke

July 7 Thursday 14:30 Email

Dear Ms. Yee:

I am confirming my phone call today that I plan to move for Award of Costs, and pursuant to Local Rule 7(m) I would like to discuss that motion and determine if you oppose it. If so can we narrow the areas of disagreement?

Sincerely,

Paul Burke

July 8 Friday 10:10 Email

Dear Ms Yee:

I am confirming my phone call this morning that I plan to move for Award of Costs on Monday July 11, since I will be tied up later in the week. Pursuant to Local Rule 7(m) I'd like to discuss that motion and determine if you oppose it. If so can we narrow the areas of disagreement?

Sincerely,

Paul Burke

July 11 Monday 10:10 Email

Dear Ms Yee:

I'm confirming my phone call this morning that I plan to move for Award of Costs today on Burke v. HHS, DDC No. 16-CV-825, since I will be tied up later in the week.

As you know, I told the Court June 30 in the Notice of Voluntary Dismissal, that I would file for costs within two weeks. As I said on the phone, the motion is now written, and it builds on the ideas I sent you July 1, which you declined to comment on then. Pursuant to Local Rule 7(m) I'd like to discuss the motion for Award of Costs and determine if you oppose it. If so can we narrow the areas of disagreement?

Sincerely,

Paul Burke

JULY 11 PHONE CALL

· [She called back and repeatedly wanted to discuss settlement.

· I gave the explanations I had given in emails, and said I wanted to learn the agency's position on my proposed motion for costs.

· She told me, "the agency takes no position at this time."]

July 12 Tuesday 14:21 Email

Dear Mr. Burke:

I write to inform you that the Department of Health and Human Services ("HHS") has rescinded its settlement offer (i.e., reimbursing you for the $400 filing fee in exchange for your dismissal of the above-referenced case with prejudice).

By filing a motion for costs, despite HHS' offer to give you those costs, you have expressed your preference for litigating this case, and have forced HHS and the Court to spend additional time and resources on a case that should have been mooted in its entirety weeks ago.

_____________________________

Marsha W. Yee

Assistant United States Attorney

U.S. Attorney's Office for the

District of Columbia

555 Fourth Street, N.W.

Washington, D.C. 20530

July 18 Monday 13:39 Email

Dear Ms. Yee:

Have you received my letter with my bank information? USPS says it was delivered July 5. Even though you don't plan a transfer, I want to know that the letter reached you so the information is secure.

Filing does not mean a preference for litigation; filing was needed to avoid delays. Each of us made an offer; each of us amended our initial offer, but neither of us has been able to accept the other's offer. Settlement would be preferable, but we haven't found mutually satisfactory terms.

As I said, I was tied up most of last week, but I wanted to follow up as soon as I could.

Sincerely,

Paul Burke

COMMENTS ON THE END OF THE CASE

Ms Yee never did say whether she got my bank information. Fortunately I had not expected a big office to keep my account number secure, so I sent an account number with a small balance, which I was planning to close anyway. After I won the case, another lawyer said they needed more information than Ms. Yee had asked for, in a specific format and gave two other addresses to send the bank information to. Mailing a check would avoid this exchange of paperwork, and the security risk to account numbers.

· We filed motions, responses, replies, and Judge Cooper wrote his decision.

• Grants Burke motion for costs, because Medicare "would not have released the documents but for this law suit."
• FOIA Director Hugh Gilmore's refusal "has nothing whatsoever to do with FOIA exemption 5's deliberative process privilege, which was the purported basis for withholding the documents. Indeed, the government does not even attempt to justify the withholding based on an interpretation of the claimed exemption. The Court thus seriously questions the reasonableness of CMS's withholdings, not to mention its delay in processing and deciding Burke's request. HHS must reimburse Mr. Burke the $400 filing fee."
• Denies HHS motion to dismiss.
• Dismisses the Complaint, with prejudice, as there is no further relief to be sought.
• "The government ... apparently, gave Mr. Burke the run-around for nearly three years..."