Trotter v. Ctrs. for Medicare & Medicaid Servs.

• Decision Date: 30 March 2022
• Docket Number: 1:19-cv-2008-RCL
• Parties: FREDERICK C. TROTTER, Plaintiff, v. CENTER FOR MEDICARE AND MEDICAID SERVICES, Defendant.
• Court: U.S. District Court — District of Columbia

FREDERICK C. TROTTER, Plaintiff, v. CENTER FOR MEDICARE AND MEDICAID SERVICES, Defendant.

No. 1:19-cv-2008-RCL

United States District Court, District of Columbia

March 30, 2022

MEMORANDUM OPINION

ROYEE C. LAMBERTH UNITED STATES DISTRICT JUDGE

Plaintiff Frederick C. Trotter sued the Center for Medicare and Medicaid Services ("CMS") under the Freedom of Information Act ("FOIA") to compel disclosure of two types of information: first, the domain portions of email addresses associated with CMS-registered healthcare providers, and second, the providers' corresponding national provider identification numbers ("NPI numbers"). See Compl., ECF No. 1. On February 8, 2021, this Court rejected the bulk of Trotter's arguments and granted summary judgment in part to CMS. See Trotter v. Ctr. For Medicare & Medicaid Servs., 517 F.Supp.3d 1 (D.D.C. 2021). But the Court found that CMS could not withhold the domains of providers who participate in electronic health-information exchange because this information is already disclosed to the public. Id. at 9. Accordingly, the Court granted partial summary judgment to Trotter for this narrow subset of the requested information.

Now Trotter moves for attorneys' fees and costs under 5 U.S.C. § 552(a)(E)(i) for the results of his FOIA litigation. See Pl. 's Mot. For Att'ys Fees ("Pl. 's Mot."), ECF No. 37; Pl. 's Mem. in Support ("Pl.'s Mem"), ECF No. 37-12. CMS opposes. Def.'s. Opp'n, ECF No. 40. Trotter filed a reply in support of his motion. Pl.' s Reply, ECF No 41-16. Upon consideration of the parties' filings, ECF Nos. 37, 37-12, 40, 41, 41-16 applicable law, and the entire record herein, the Court will DENY Trotter's motion for attorneys' fees and costs.

I. BACKGROUND

Federal regulations require virtually every healthcare provider to register with CMS and obtain a unique identification number (the NPI number). See generally 45 C.F.R. ch. 162. To obtain an NPI number, providers must register with a database and provide certain contact information-including an email address. See Trotter, 517 F.Supp.3d at 1. Trotter is a "journalist, data journalist, and part-owner and founder" at CareSet Journal Frederick Trotter Decl. ¶ 1, . ECF No. 37-1. In January 2014, Trotter submitted a FOIA request to CMS for the email addresses associated with each NPI number. See Trotter, 517 F.Supp.3d at 1. CMS identified 6, 380, 915 active providers. Id. at 4. But CMS informed Trotter that it would withhold the full email addresses to protect the healthcare providers' privacy. Id. Trotter subsequently amended his request to ask only for the domains associated with each provider.^[1] Id. CMS-again-asserted the providers' privacy interests and refused to release the domains. Id. After exhausting his administrative remedies, Trotter filed this lawsuit to compel CMS's disclosure of (1) the domain portion of the email address associated with each healthcare provider registered with CMS and (2) the NPI numbers associated with these addresses. See id.

On February 8, 2021, this Court granted in part and denied in part the parties' cross-motions for summary judgment. Id. at 9. First, the Court rejected Trotter's arguments that CMS's search for records was inadequate. Id. at 6. Next, the Court concluded that CMS had properly invoked the FOIA's privacy exception for withholding the domains of providers who do not participate in health-information exchange (a digital records sharing program with CMS). Id. at 8. However, the Court ordered CMS to disclose the email domains of providers who participate in the health-information exchange because CMS already publicly discloses their information and "[these providers] no longer have an interest in maintaining the privacy of their domains." Id. at 7. Rather than receiving information for the 6, 380, 915 active providers that CMS identified, Trotter received only 203, 939 lines of provider information. See Trotter, 517 F.Supp.3d at 1; Frederick Trotter Decl. ¶ 19.

Trotter now moves for $189, 685.85 in attorneys' fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E)(i). CMS concedes that Trotter is eligible for attorney's fees under the FOIA, but disputes whether Trotter is entitled to a fee award. Def.'s Opp'n 5. Trotter filed a reply in support of his motion. Pl's Reply.

Trotter's motion for attorneys' fees is ripe for review.

II. LEGAL STANDARDS

The FOIA permits attorney-fee awards "to encourage [FOIA] suits that benefit the public interest." LaSalle Extension Univ. v. FTC, 627 F.2d 481, 484 (D;C. Cir. 1980). Accordingly, courts may assess against the United States attorneys' fees and other litigation costs reasonably incurred in any case when the complainant has substantially prevailed. 5 U.S.C. § 552(a)(4)(E)(i); see Morley v. CIA (Morley II), 894 F.3d 389, 391 (D.C. Cir. 2018). Courts considering whether to grant attorneys' fees consider two prongs-eligibility and entitlement. See Church of Scientology of Cal. v. Harris, 653 F.2d 584, 587 (D.C Cir. 1981).

First, a court must determine whether the plaintiff is eligible for fees. This prong is not at issue here. The parties agree that Trotter "substantially prevailed" and is eligible for fees. Pl's Mem. 4; Def.'s Opp'n 5; see Grand Canyon Tr. v. Bernhardt, 947 F.3d 94, 95 (D.C. Cir. 2020) (explaining that plaintiffs who "obtained relief through a "judicial order, or an enforceable written agreement or consent decree" have "substantially prevailed" and are eligible for fees).

But Trotter's eligibility is not the end of the matter. The Court must determine whether Trotter is entitled to fees. See Jud. Watch Inc. v. Dep 't of Commerce, 470 F.3d 363, 369 (D.C. Cir. 2006) (explaining that eligibility does not determine entitlement under the FOIA). The touchstone of this inquiry is whether an attorneys' fee award is necessary to implement the FOIA. See Davy v. CIA, 550 F.3d 1155, 1158 (D.C. Cir. 2008) (citing Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 715 (D.C. Cir. 1977)). Four factors guide this inquiry: "(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiffs interest in the records; and (4) the reasonableness of the agency's withholding of the requested documents." Tax Analysts v. Dep't of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992); see Morley v. CIA (Morley I), 810 F.3d 841, 842 (D.C. Cir. 2016). "[T]he first three factors assist a court in distinguishing between requesters who seek documents for public informational purposes and those who seek documents for private advantage." Davy, 550 F.3d at 1160. The first category of requesters need a fee incentive to litigate, the latter do not. Id. The Court has discretion to balance these factors and determine a fee award. See Id. at 1158.

III. DISCUSSION

The parties agree that Trotter is eligible for an attorney-fee award because he achieved a favorable result from this Court. See Trotter, 517 F.Supp.3d at 9; Pl's Mem. 4; Def.'s Opp'n 5. The Court agrees and need not engage in an eligibility analysis here.

But the Court, weighing the four factors identified by the D.C. Circuit, finds that Trotter is not entitled to attorneys' fees. Trotter fails to identify a public benefit derived from this case and CMS acted reasonably in withholding the requested information. So, while Trotter's role as a data journalist weighs in his favor, the Court finds, on balance, that Trotter has failed to establish his entitlement to attorneys' fees.

A. Trotter Has Failed To Identify A Public Benefit Derived The Case

The first factor that the Court weighs is "the public benefit derived from the case." Kwoka v. IRS, 989 F.3d 1058, 1063 (D.C. Cir. 2021). There are two components to the public benefit inquiry. The first analyzes the "effect of the litigation." Morley I, 810 F.3d at 844 (quoting Davy, 550 F.3d at 1159). The second-and more important component-"requires an ex ante assessment of the potential public value of the information requested." Id.

As to the effect of the litigation, this component focuses only on whether the litigation caused an agency to release the requested documents. Morley I, 810-F.3d at 844 (citing Davy, 550 F.3d at 1159). This FOIA litigation caused the release-of 203, 939 lines of information. See Trotter, 517 F.Supp.3d at 7; Pl.' s Mem. 7. But the mere release of information is not sufficient to swing the public-benefit factor in Trotter's favor. See Cotton v. Heyman," 63 F.3d 1115, 1120 (D.C. Cir. 1995) (explaining that the public-benefit prong turns on "evaluat[ing] the specific documents at issue in the case at hand"). Moreover, the public already had access to much of this information. Any effect of Trotter's lawsuit was minimal.^[2]

The second (and more important) component of the public benefit inquiry requires the Court to make "an ex ante assessment of the potential value of the information requested, with little or no regard to whether the documents supplied prove to advance the public interest." Morley I, 810 F.3d at 844. While "the release of any government document benefits the public by increasing its knowledge of its government... Congress did not have this broadly defined benefit in mind" when authorizing attorneys' fees in FOIA cases. Cotton, 63 F.3d at 1120. Instead, Trotter must show "at least a modest probability of generating useful new information about a matter of public concern." Id. This includes the possibility that citizens may use the information to make "vital political choices." Fenster v. Brown, 617 F.2d 740, 744 (D.G. Cir. 1979).

This second component swings the public-interest factor in favor of CMS. Trotter's fee request relies on many of the same arguments and conclusory statements that the Court previously determined were inadequate. For...