LIST OF COURT FILINGS IN A FOIA CASE FOR MEDICARE DOCUMENTS

BURKE v. HHS (Case 16-CV-825) Six major documents are bold.

You can easily find other documents prepared by lawyers, from other cases at FoiaProject. You can search for cases involving your agency and/or your judge. Some documents are free there, many more are free at RecapTheLaw, and all documents are at Pacer, which is free for under 150 pages per calendar quarter, and 10 cents per page otherwise.

Interspersed with these court filings, we had settlement discussions, which you can also read. Before filing the various documents it was important to read advice, HHS rules, Medicare rules, federal Rules of Civil Procedure, and the district court's Local Rules.

Docket: https://www.courtlistener.com/?type=r&q=docket_id%3A4214701

5/3/2016, Burke Complaint against U.S. Department of Health and Human Services (HHS), Pacer item 1, pdf, or htm

• Attachments: original FOIA, HHS denial letter, Civil Cover Sheet. Lawyers generally don't attach the FOIA request and denial, but some do, and being without a lawyer I wanted to show I had been following proper procedures, unlike many pro se plaintiffs.
• Next time I would include a short affidavit saying the 2 documents were true copies (as in item 9).
• The original FOIA request was electronic, so it reached HHS without any formatting. I gave it to the court double-spaced for readability, like most court documents, but next time I would send the agency in the first place a formatted request, using pdf if possible, online or by mail, so it is easier to read at the agency. No legal difference, but best to make it easy.
• Filing Fee $400.
• I had drafted, the court clerk stamped, and I later mailed (Rule 4i) three summonses notifying: HHS, U.S. Attorney for the District of Columbia, and U.S. Attorney General. The "agency" covered by FOIA is considered to be the cabinet department, HHS, not Medicare, which is just a component of the "agency." The clerk has a format, which I filled in.
• I filed in DC, since most FOIAs are filed there, so those judges have a lot of FOIA experience. I thought a judge elsewhere, with less FOIA experience, might defer more to the government. I filed in person in DC, since I live a couple hours away. People farther from DC can file there by mail.
• The court clerk assigned the case to US District Judge Christopher R. Cooper, and gave me Judge Cooper's standard undated Electronic Case Filing Order (below).
• The court clerk gave me a form asking if they could transfer the case from Judge Cooper to a magistrate, to save Judge Cooper's time. It is transferred if both sides agree. If one side doesn't agree Judge Cooper keeps the case and is not told who objected. My guess is the US attorney usually agrees, so Judge Cooper could guess I was the holdout, but I wanted the experience and independence of a judge with a life-time appointment, not a magistrate with a limited term and experience. I did know Judge Cooper's name by then, and reading his past opinions at FoiaProject found that he did not always defer to the government, so I had a fair chance with him.

Undated, Initial Electronic Case Filing Order (not in PACER), pdf or htm

• Standard order from Judge Cooper requiring parties to file electronically

5/5/2016, Motion for CM/ECF Password by Paul Burke (Case Management/Electronic Case Files), Pacer item 2, pdf, or htm

• This requested Judge Cooper's order to get electronic access, for sending and receiving documents electronically.
• I could have saved time by having this ready 5/3/2016, to give to the clerk as soon as they assigned a case number, and I could have mailed it with the summonses, instead of separately.
• Instructions are in Local Rule 5.4(b)(2), and the court clerk gave me more instructions.

5/6/2016, Judge Cooper's Minute Order: It is hereby ordered that plaintiff's Motion for CM/ECF Password be granted.

5/31/2016, Return of Service/Affidavit of Summons and Complaint Executed, Pacer item 3, pdf, or htm:

• I attached copies of 3 USPS return receipts. Some plaintiffs file each one with the court as it comes in. I waited for the last one, and filed all together. HHS' deadline depends on when they got the summonses in the mail, not when I filed receipts with the court.
• Court clerk noted the government’s formal Answer was due by 6/9/2016.

6/8/2016, Government assigned Marsha Yee to represent HHS, Pacer item 4, pdf, or htm and she filed Unopposed Motion for Extension of Time, Pacer item 5, pdf, or htm

• She works for the US attorney for DC. That office is just as experienced with FOIA as the DC judges. Three lawyers’ names were on each filing: the assigned lawyer and her two bosses. They don't always win, but they know the ropes.
• I had agreed to the extension by phone, since this first extension is almost universal.
• This same day HHS emailed me the 17 pages I had requested

6/10/2016, Judge Cooper's Minute Order: It is hereby ordered that the time for defendant to file a response to plaintiff's complaint is hereby extended to and including July 8, 2016.

6/11/2016, Burke filed Motion for Order for Partial Voluntary Dismissal and Award of Costs, Pacer item 6, pdf, or htm

• Soon after getting the documents, this told the court I now only needed HHS to reimburse the $400 filing fee. I could have asked for $70-80 of other costs, for certified mail and parking to take papers to the courthouse, but I kept it simple.

6/28/2016, HHS filed Unopposed Motion for Extension of Time, Pacer item 7, pdf, or htm

• They noted my 6/11 motion had not been discussed with them. Local rule 7(m) requires "nondispositive" motions be discussed. I'd thought it was dispositive, but there are some precedents that motions for costs are not dispositive.

6/29/2016, Judge Cooper's Minute Order: It is hereby ordered that the time for defendant to file its responses to plaintiff's Complaint and plaintiff's Motion for Order of Partial Voluntary Dismissal and Award of Costs is hereby extended to and including July 27, 2016.

6/30/2016, Burke filed Notice of Voluntary Dismissal, Pacer item 8, pdf, or htm

• This said I didn't need the case, since they'd sent the documents, and I would ask for costs within 2 weeks.
• By this time we were in settlement discussions, and I though the filing would move us forward. It didn't.
• 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"). Judge Cooper 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 precedent on exactly that issue, so your mileage may vary.

7/1/2016, Judge Cooper's Minute Order: In light of plaintiff's Notice of Voluntary Dismissal without Prejudice, It is hereby ordered that plaintiff's Motion for Order of Partial Voluntary Dismissal and Award of Costs be denied as moot.

7/11/2016, Burke filed Motion for Costs, Pacer item 9, pdf

• Attachments: Declaration by Burke, Exhibits, Proposed Order
• I found the elements needed to file for costs in the DOJ Guide and others' filings.
• I copied the signature statement for my Declaration from a government filing in another case, with its reference to 28 U.S.C. § 1746.

7/27/2016, HHS Answer to Complaint, Pacer item 10, pdf, This is not very substantive.

7/28/2016 HHS Motion to Dismiss, and Memorandum in Opposition to Burke Motion for Costs, Pacer items 11 and 12, pdf

• Attachments: Declaration by Gilmore, Exhibit, Proposed Order
• Court required the same text and attachments filed twice: the motion as item 11, and the memo as item 12
• Filing a motion near the end is a common step by defense lawyers, so they will get the last word, in their reply to the plaintiff's opposition memorandum

8/4/2016, Burke Memorandum in Opposition to HHS Motion to Dismiss, and Reply to HHS Opposition to Burke Motion for Costs, Pacer items 13 and 14, pdf

• Attachments: Exhibit, Proposed Order
• Court required the same text and attachments filed twice: the reply as item 13 and the memo as item 14. I filed 13 on the 4^th, called the clerk's office to check electronic instructions, and filed 14 on the 5^th.
• I thought they had filed their opposition too late, but they cited Rule 6(d) allowing extra days with electronic filing.

8/11/2016, HHS Reply to Burke opposition to HHS Motion to Dismiss, Pacer item 15, pdf

12/14/2016, Judge Cooper's Order, Pacer item 16, pdf

• Grants Burke Motion for Order for Award of Costs, because Medicare "would not have released the documents but for this law suit."
• Government'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..."