Heffernan v. Azar

• Decision Date: 16 October 2019
• Docket Number: Civil Action No. 15-2194 (RBW)
• Citation: 417 F.Supp.3d 1
• Parties: Henry G. HEFFERNAN, Plaintiff, v. Alex AZAR, in his official capacity as Secretary of the United States Department of Health and Human Services, Defendant.
• Court: U.S. District Court — District of Columbia

417 F.Supp.3d 1

Henry G. HEFFERNAN, Plaintiff,

v.Alex AZAR, in his official capacity as Secretary of the United States Department of Health and Human Services, Defendant.

Civil Action No. 15-2194 (RBW)

United States District Court, District of Columbia.

Signed October 16, 2019

Cathy Ann Harris, Juliette Markham Niehuss, Kator, Parks, Weiser & Harris, PLLC, Washington, DC, for Plaintiff.

Marina Utgoff Braswell, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, Henry G. Heffernan, initiated this civil action against the defendant, Alex Azar, in his official capacity as Secretary of the United States Department of Health and Human Services ("HHS"), alleging multiple violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2018). See generally Complaint ("Compl."). Currently pending before the Court are (1) the Defendant's Renewed Motion for Summary Judgment ("Def.'s Mot.") and (2) the Plaintiff's Opposition to Summary Judgment and Cross-Motion for Summary Judgment ("Pl.'s Mot."). Upon careful consideration of the parties' submissions,¹ the Court concludes for the following reasons that it must grant the defendant's renewed motion for summary judgment and deny the plaintiff's renewed cross-motion for summary judgment.

I. BACKGROUND

The Court previously set forth the factual background of this case in its June 27, 2018 Memorandum Opinion, see Heffernan v. Azar, 317 F. Supp. 3d 94, 101–03 (D.D.C. 2018) (Walton, J.), and therefore will not reiterate it again here. The Court will, however, set forth the procedural background of this case, which is pertinent to the resolution of the pending motions.

The parties previously filed cross-motions for summary judgment on the plaintiff's Complaint. See id. at 101. On June 27, 2018, the Court granted in part and denied without prejudice in part the defendant's motion for summary judgment and denied the plaintiff's cross-motion for summary judgment. See id. at 134. Relevant to the pending motions, the Court denied without prejudice the defendant's motion for summary judgment with respect to (1) the adequacy of "the defendant's searches for the fall 2007 Chief Operating Officer Power[ ]Point presentation," id. at 134 ; (2) the adequacy of "the defendant's searches for ... John Poll[a]ck's^{[2 ]} response to a July 27, 2009 e[ ]mail," id.; (3) the propriety of the defendant's "with[olding] [of the] pre-final draft press release," id.; and (4) the propriety of the defendant's segregability analysis, see id., and granted the motion in all other respects, see id. The Court also ordered the defendant to "file a renewed motion for summary judgment addressing the deficiencies in the declarations submitted and the segregability analysis conducted as outlined in the [Court's June 27, 2018] Memorandum Opinion." Order at 1 (June 27, 2018), ECF No. 39.

In response to the Court's June 27, 2018 decision, the defendant filed his renewed motion for summary judgment, see generally Def.'s Mot., and the plaintiff filed his renewed cross-motion for summary judgment, see generally Pl.'s Mot., which are the subjects of this Memorandum Opinion.

II. STANDARD OF REVIEW

The Court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When ruling on a Rule 56 motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party, however, cannot rely on "mere allegations or denials." Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). Thus, "[c]onclusory allegations unsupported by factual data will not create a triable issue of fact." Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 908 (D. C Cir. 1999) (Garland, J., concurring) (alteration in original) (quoting Exxon Corp. v. Fed. Trade Comm'n, 663 F.2d 120, 126–27 (D.C. Cir. 1980) ). If the Court concludes that "the non[-]moving party has failed to make a sufficient showing on an essential element of h[is] case with respect to which h[e] has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At bottom, "in ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Shays v. Fed. Election Comm'n, 424 F. Supp. 2d 100, 109 (D.D.C. 2006).

"FOIA cases typically are resolved on a motion for summary judgment." Ortiz v. U.S. Dep't of Justice, 67 F. Supp. 3d 109, 116 (D.D.C. 2014) ; see Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). "[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions." Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). In a FOIA action, the defendant agency has "[the] burden of demonstrating that the withheld documents are exempt from disclosure." Boyd v. Crim. Div. of U.S. Dep't of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007). The Court will grant summary judgment to the government in a FOIA case only if the agency can prove "that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester." Friends of Blackwater v. U.S. Dep't of Interior, 391 F. Supp. 2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep't of Treasury, 10 F. Supp. 2d 3, 11 (D.D.C. 1998) ). Thus, in a lawsuit brought to compel the production of documents under the FOIA, "an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced ... or is wholly[, or partially,] exempt from [disclosure].’ " Students Against Genocide, 257 F.3d at 833 (first alteration in original) (quoting Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978) ).

III. ANALYSIS

The defendant argues that he is entitled to summary judgment because he "has satisfied all of [his] obligations with respect to the [ ] issues" identified in the Court's June 27, 2018 decision. Def.'s Mem. at 2. Specifically, the defendant contends that he has (1) run "[a]dditional searches for documents responsive to the fall 2007 Chief Operating Officer Power[ ]Point presentation," id.; (2) run "[a]dditional searches for ... Poll[a]ck's [r]esponse to a July 27, 2009 email," id.; (3) submitted a supplemental declaration "explain[ing] in greater detail why the draft press release was withheld," id.; and (4) "provide[d] greater information concerning why there is no reasonably segregable information that can be released to [the] plaintiff," id. The plaintiff responds that the defendant "still has been unable to comply with the requirements of [the] FOIA" and that "[t]he Court should order the [defendant] to re-search [his] records, produce the draft press release in full, and release any and all factual information from otherwise redacted materials which has not properly been segregated per [the] FOIA." Pl.'s Mem. at 1.

The Court will address in turn whether the defendant has satisfied each of his remaining obligations previously identified by the Court regarding the plaintiff's FOIA request.

A. Whether the Defendant Adequately Searched for the Fall 2007 Chief Operating Office PowerPoint Presentation

In its June 27, 2018 decision, the Court found that the defendant's search for the Chief Operating Officer's fall 2007 PowerPoint presentation was not adequate because "the defendant's declarations, taken together, do not provide the Court the minimum information needed for the Court to conclude that the defendant conducted a search ‘reasonably calculated to uncover all relevant documents.’ " Heffernan, 317 F. Supp. 3d at 113 (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) ). The Court reasoned that "[a]lthough the defendant's declarations sufficiently identify the search terms used, they do not provide the requisite averment that all locations likely to contain responsive documents were searched," id. (citations and internal quotation marks omitted), because "[t]he defendant's declarants simply state[d] that [Maureen] Gormley was the person [ ] most likely [to] have maintained or have access to the [requested PowerPoint] presentation," id. (fifth and sixth alterations in original) (internal quotation marks omitted), when he was instead "required to submit reasonabl[y] detailed declarations averring that all files likely to contain responsive materials (if such records exist) were searched," id. (internal quotation marks omitted). The Court reserved its ruling as to the adequacy of the defendant's search terms until the defendant filed his renewed motion for summary judgment. See id. at 115 n.13.

The defendant argues that "[f]ollowing this Court's decision, [he] performed another search for records responsive to [the] plaintiff's request for the fall 2007 Chief Operating Officer Power[ ]Point presentation," Def.'s Mem. at 4 and submitted a declaration "mak[ing] clear that ‘[a]s a result of these latest searches, all files likely to...