United States District Court, S.D. Illinois
J. DONALD HENSON, SR., Plaintiff,
DEPARTMENT OF HEALTH AND HUMAN SERVICES and FOOD & DRUG ADMINISTRATION, Defendant.
MEMORANDUM & ORDER
R. Herndon United States District Judge.
the Court is a motion for summary judgment brought by
defendants Department of Health and Human Services and Food
& Drug Administration (Doc. 89). Defendants seek summary
judgment in their favor as to plaintiff J. Donald Henson,
Sr.'s (Henson) complaint alleging a cause of action under
the Freedom of Information Act (“FOIA”). Henson
opposes defendants' motion (Doc. 91). For the following
reasons, defendants' motion is GRANTED.
August 19, 2014, plaintiff Henson, a former employee of the
Food & Drug Administration (“FDA), filed this
pro se action against the Department of Health and
Human Services (HHS), the Food & Drug Administration
(FDA), and two individual FDA officials, Frederick J. Sadler
and Sarah Kotler, claiming that they violated the Freedom of
Information Act (“FOIA”), 5 U.S.C. 552 (Doc.
Henson later filed two amended complaints, the second of
which was filed on December 5, 2014 (Doc. 39). Henson alleges
that the FDA denied the majority of his 46 individual FOIA
requests by failing to properly acknowledge receipt or assign
each with a “tractable FOI-ID-#” (Doc. 39, ¶
However, as recorded in the Agency Information Management
Systems (AIMS), between November 2011 and August 2014, Henson
submitted 18 FOIA requests to the FDA (Doc. 89). FDA
aggregated several of those requests, pursuant to its
regulations, because of their overlapping nature (Docs. 89-1,
¶ 17 & 89-5, ¶ 16). See also 21 C.F.R. §
20.42. The majority of the records sought by Plaintiff Henson
were related to FDA's premarket approval of a particular
device, PMA P980022, and its supplements. PMA P980022 is an
application by Medtronic Minimed Inc. for a continuous
glucose monitoring system, which is a Class III device which
was approved by the FDA on June 15, 1999 (Doc. 89-5). All of
these premarket approval records are located in FDA's
Center for Devices and Radiological Health
the FDA received plaintiff's FOIA request, it was logged
by FDA's Division of Freedom of Information
(“DFOI”). Thereafter, the request was forwarded
to the FDA office most likely to possess responsive records.
DFOI assigned fifteen of plaintiff's FOIA requests to
CDRH because those requests sought records related to a
medical device regulated by CDRH.
mentioned above, plaintiff submitted 18 FOIA requests to the
FDA between November 2011 to August 2014. During that same
four-year period plaintiff also submitted numerous
supplemental communications to the FDA, in addition to his
FOIA requests. He sent letters and emails seeking responses
to questions and additional information, which FDA alleges
were outside the scope of FOIA (Docs. 89-1 &
this time, plaintiff repeatedly filed motions in this Court,
many of which were repetitive in nature. See Doc. 111, pgs.
3-4. The Court later stayed this matter pending FDA's
re-processing of plaintiff's FOIA requests to ensure that
the agency fulfilled its obligations under FOIA (Doc. 66).
The FDA proposed that CDRH conduct a new search and provide
the plaintiff with all responsive records, a Vaughn
index, and documents previously produced to plaintiff with
the addition of a Bates-stamp. This was done in an effort to
resolve the matter at issue and address plaintiff's
rolling production of documents was completed on November 20,
2015, with defendants having produced approximately 7964
bates-numbered pages of documents along with corresponding
Vaughn indices (Doc. 89-7).Thereafter, the Court lifted
the stay (Doc. 87). On June 3, 2016, DFOI and CDRH reproduced
documents responsive to FOIA Request 2012-7286, which had
been provided to plaintiff prior to this lawsuit, but were
absent from the re-production disclosures (Docs. 89-1 &
to the reproduction, defendants filed the pending motion for
summary judgment (Doc. 89). Defendants move for summary
judgment under Federal Rule of Civil Procedure 56. Attached
to the motion for summary judgment are declarations of
William H. Holzerland, Director of the Division of
Information Disclosure (CDRH) (Doc. 89-5), and Sarah Kotler,
Director of the Division of Freedom of lnformation (DFOI)
(Doc. 89-1) in which each director declared their compliance
with FOIA. Henson filed his response to the motion for
summary judgment shortly thereafter (Doc. 91). Subsequent to
the filing of plaintiff's response, the Court issued an
order providing plaintiff with notice of the Rule 56
requirements regarding the pending motion for summary
judgment (Doc. 109). In said order, the Court directed
plaintiff to Fed.R.Civ.P. 56, particularly Rule 56(e). The
Court also included a copy of Rule 56 attached to the order
(Doc. 109-1). Following the Court's order, plaintiff
filed a response (Doc. 111).
Summary Judgment Standard
cases typically and appropriately are decided on motions for
summary judgment.” Citizens for Responsibility
& Ethics in Washington v. U.S. Dep't of Veterans
Affairs, 828 F.Supp.2d 325, 329-330 (D.D.C. 2011).
Summary judgment is proper when the pleadings, discovery, and
disclosures establish that there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. Winsley v. Cook Cnty., 563 F.3d 598,
602-03 (7th Cir. 2009); Fed.R.Civ.P. 56; see Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In
deciding whether a genuine dispute exists as to any material
fact, a court must view all the evidence and draw all
reasonable inferences in favor of the non-moving party. See
Weber v. Univ. Research Assoc., Inc., 621 F.3d 589,
592 (7th Cir.2010). The existence of an alleged factual
dispute, by itself, will not defeat a summary judgment
motion; “instead, the nonmovant must present definite,
competent evidence in rebuttal, ” Parent v. Home
Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir.2012),
and “must affirmatively demonstrate, by specific
factual allegations, that there is a genuine issue of
material fact that requires trial.” Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir.2007).
cases, the Court may resolve summary judgment solely on the
basis of affidavits or declarations from agency employees if
they are “relatively detailed and
non-conclusory.” SafeCard Servs., Inc. v. SEC,
926 F.2d 1197, 1200 (D.C. Cir. 1991). Also, an agency has the
right to file a motion for summary judgment to demonstrate
that it has reasonably conducted a search based upon a
plaintiff's request and has either produced all relevant
documents or has legitimate reason for withholding such
documents. Liverman v. Office of Inspector General,
139 Fed.Appx. 942, 945 (10th Cir. 2005). Ultimately, if the
agency's submissions or reasons for withholding seem
adequate and made in good faith from the face of the
briefings, a district court may elect to award summary
judgment in favor of the agency without need for discovery.
Liverman, 139 Fed.Appx. at 945.
serves the “basic purpose of ensuring an informed
citizenry, vital to the functioning of a democratic
society.” Bensman v. United States Forest
Serv., 408 F.3d 945, 958 (7th Cir. 2005). FOIA requires
federal agencies to make information available to the public
when requested, unless the information falls within one of
the specified exemptions. See Enviro Tech Int'l, Inc.
v. EPA, 371 F.3d 370, 374 (7th Cir.2004). Furthermore,
it gives federal courts authority “to enjoin the agency
from withholding agency records and to order the production
of any agency records improperly withheld.” GTE
Sylvania, Inc. v. Consumers Union of U.S., Inc., 445
U.S. 375, (1980) (citing 5 U.S.C. § 552(a)(4)(B)).
as the government agency is able to demonstrate that it
conducted a reasonable search pursuant to a plaintiff's
FOIA request, and withheld documents that properly fall
within the claimed FOIA exemptions, a district court can
elect to award summary judgment in favor of the government
agency without need for discovery. Becker v. I.R.S.,
34 F.3d 398, 406 (holding that district court judge did not
abuse discretion in denying discovery prior to granting
agency's motion for summary judgment when judge concluded
agency affidavit and index was sufficient).
defendants move for summary judgment asserting that they are
entitled to judgment as a matter of law because FDA has
conducted reasonable, good-faith searches for responsive
records, and thus complied with its FOIA obligations. The
facts support defendants' position.
alleges that the “primary purpose for his FOIA
litigation, was to obtain the necessary, original, review
file documentation of FDA's device application review for
PMA P980022 et al.” and “this objective has been
consistently thwarted by the defendants” (Doc. 111).
Specifically, plaintiff alleges that of his 46 FOIA requests,
only one was fully answered. However, ...