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Henson v. Department of Health and Human Services

United States District Court, S.D. Illinois

March 23, 2017

J. DONALD HENSON, SR., Plaintiff,


          David R. Herndon United States District Judge.

         I. Introduction

         Before 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.

         II. Background

         On 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. 39)[1]. 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, ¶ 5).[2] 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 (“CDRH”).

         After 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.

         As 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 & 89-5).[3]

         During 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 claims.

         The 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).[4]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 & 89-3).

         Subsequent 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).

         III. Summary Judgment Standard

         “FOIA 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., Inc., 476 F.3d 487, 490 (7th Cir.2007).

         In FOIA 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.

         IV. Analysis

         FOIA 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 long 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).

         Here 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.

         Plaintiff 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, ...

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