OF COURT FILINGS IN A FOIA CASE FOR MEDICARE DOCUMENTS
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, federal Rules of
Civil Procedure, and the district court's Local
5/3/2016, Burke Complaint against
U.S. Department of Health and Human Services (HHS), Pacer item 1, pdf, or htm
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.
time I would include a short affidavit saying the 2 documents were true
copies (as in item 9).
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
- 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.
court clerk assigned the case to US District Judge Christopher R. Cooper,
and gave me Judge Cooper's standard undated Electronic Case Filing Order
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
- Standard order from
Judge Cooper requiring parties to file electronically
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
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.
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
Return of Service/Affidavit of Summons and Complaint Executed, Pacer item 3, pdf, or htm:
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.
clerk noted the government’s formal Answer was due by 6/9/2016.
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
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
- I had
agreed to the extension by phone, since this first extension is almost
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.
Burke filed Motion for Order for Partial Voluntary Dismissal and Award of Costs, Pacer item 6, pdf, or htm
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.
filed Unopposed Motion for Extension of Time, Pacer item 7, pdf, or htm
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
Burke filed Notice of Voluntary Dismissal, Pacer item 8, pdf, or htm
said I didn't need the case, since they'd sent the documents, and I would
ask for costs within 2 weeks.
this time we were in settlement discussions, and I though the filing would
move us forward. It didn't.
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.
filed Motion for Costs, Pacer item
Declaration by Burke, Exhibits, Proposed Order
found the elements needed to file for costs in the DOJ
Guide and others' filings.
copied the signature statement for my Declaration from a government filing
in another case, with its reference to 28 U.S.C. § 1746.
Answer to Complaint, Pacer item
10, pdf, This is not very substantive.
Motion to Dismiss, and Memorandum in Opposition to Burke Motion for Costs, Pacer items 11 and 12, pdf
Declaration by Gilmore, Exhibit, Proposed Order
required the same text and attachments filed twice: the motion as item 11,
and the memo as item 12
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
Memorandum in Opposition to HHS Motion to Dismiss, and Reply to HHS Opposition
to Burke Motion for Costs, Pacer
items 13 and 14, pdf
Exhibit, Proposed Order
required the same text and attachments filed twice: the reply as item 13
and the memo as item 14. I filed 13 on the 4th, called the
clerk's office to check electronic instructions, and filed 14 on the 5th.
thought they had filed their opposition too late, but they cited Rule 6(d) allowing extra days with
Reply to Burke opposition to HHS Motion to Dismiss, Pacer item 15, pdf
12/14/2016, Judge Cooper's Order, Pacer item 16, pdf
Burke Motion for Order for Award of Costs, because Medicare "would not have released the documents
but for this law suit."
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."
HHS motion to dismiss;
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..."