Burmeister v. United States Department of Health and Human Services et al

Filing 40

ORDER by Judge Vince Chhabria denying 27 Defendant Motion to for Summary Judgment ; granting 31 Plaintiff Motion for Summary Judgment (knm, COURT STAFF) (Filed on 9/2/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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JEANNETTE K. BURMEISTER,

Case No. 14-cv-00133-VC

Plaintiff,
v.
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,
Defendants.

ORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
AND DENYING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Re: Dkt. Nos. 27, 31

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Jeannette Burmeister has sued the United States Department of Health and Human
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Services and the National Institutes of Health (hereinafter "HHS" or "the government") under the
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Freedom of Information Act ("FOIA") for failure to respond to her request for documents relating
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to the decision by HHS to contract with the Institute of Medicine to conduct a study on the
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condition of myalgic encephalomyelitis/chronic fatigue syndrome (hereinafter "the condition").
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The declarations submitted by the government – in particular the supplemental declaration of
Denise Wallace – demonstrate that the government has failed to adequately respond to

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Burmeister's request. Therefore, Burmeister is entitled to summary judgment.
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Burmeister's request sought "any contracts" that HHS entered into with the Institute of
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Medicine about the condition after February 2013. It also sought "any and all records" that "relate
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in any way" to "how it was determined that any such contract(s) would be entered into." And
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Burmeister's request sought "any background records relating to any such contract(s), including
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the determination that there would be no competitive bids." In a subsequent request, Burmeister,
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after discovering that the arrangement between HHS and the Institute of Medicine involved a "task
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order" instead of a contract, requested that task order as well as the relevant "umbrella contract"
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and "all related documentation." She also specifically requested the "Justification for Other than

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Full and Open Competition," if any.

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From these requests it is clear that Burmeister sought all records relating to the decision by

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HHS to commission a study by the Institute of Medicine about the condition, including

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"background records" and all "documentation" that was "related" to the task order. Yet the

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Supplemental Wallace Declaration shows that HHS treated Burmeister's request far more

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narrowly. Wallace insists in this declaration that Burmeister did not originally seek "documents

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regarding how the contracting mechanism was chosen, how it was decided which services would

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be requested or how the entity was chosen to perform such services." Supp. Wallace Dec. at ¶ 4;
see also id. at ¶ 9. This is obviously an unreasonably narrow interpretation of Burmeister's request

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United States District Court
Northern District of California

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given the language she used. Yet Wallace indicates she performed her search based on this

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unreasonably narrow interpretation.1 Indeed, Wallace explains in her supplemental declaration

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that a broader search (the one the government should have conducted given the actual language of

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Burmeister's request) "is a completely different type of search and presumably would have

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resulted in a much larger production." Id. at ¶ 5.

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And Wallace is correct about that. For example, without listing every document that could

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be responsive to Burmeister's actual request, it is obvious that all records relating to the original

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effort by HHS to enter into a sole-source contract with the Institute of Medicine, and documents

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relating to the subsequent decision to change course and proceed with a task order in response to

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expressions of concern by members of the public about the manner in which HHS was proceeding,

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would be responsive. Such records exist, but the government did not provide them to Burmeister.

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Because Wallace's supplemental declaration demonstrates that the government adopted an

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unreasonably narrow interpretation of Burmeister's request, because Wallace concedes she would

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have performed a much broader search had she interpreted the request correctly, and because that

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search would have uncovered additional records responsive to the request, the government has

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It also appears from Wallace’s supplemental declaration that she may have considered only
Burmeister’s initial request and not the two subsequent requests. See id. at ¶¶ 4, 5, 9.
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"improperly withheld agency records" in violation of FOIA. Yonemoto v. Dep’t of Veterans

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Affairs, 686 F.3d 681, 689 (9th Cir. 2011).

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To avoid this conclusion, the government argues that Burmeister's lawsuit should be

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dismissed as moot. Specifically, the government contends that even if Burmeister had the right to

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file her lawsuit because HHS failed to respond to her request within the time period required by

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FOIA, its subsequent production to Burmeister moots the lawsuit, even if the production was

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deficient. At the hearing on this motion, counsel for the government insisted that the case law

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compels this result – he argued that even if the production was deficient, the case law required that

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the lawsuit be dismissed as moot and that Burmeister be left to submit a response to the
government's production explaining how she believed it was deficient, so that the government

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Northern District of California

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would have a chance to remedy the deficiencies. However, the case law says exactly the opposite

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of what counsel for the government represented at the hearing. See, e.g., Yonemoto, 686 F.3d at

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689 ("To moot a FOIA claim, however, the agency's production must give the plaintiff everything

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to which he is entitled. Otherwise, there remains some 'effective relief' that can be provided the

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plaintiff, and the case is not moot."). 2

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For her part, Burmeister argues that before the Court grants summary judgment in her

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favor, it should permit her to conduct discovery, including taking depositions of high-level

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government officials, to allow her to confirm that all responsive documents can be identified. She

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bases this request in part on the fact that the declarations submitted by the government, in its

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The government also contends Burmeister’s lawsuit should be dismissed for failure to exhaust
her administrative remedies with respect to her claim that the agency’s search was inadequate.
Specifically, the government argues that it responded to Burmeister’s request on January 7, two
days before Burmeister sued, and that Burmeister should have objected to HHS about the
adequacy of the response before filing the lawsuit. But the government's response was not
postmarked until January 8, and Burmeister credibly asserts she did not receive it until several
days after she filed her complaint. Nor, in any event, was the government's response a final or
complete one – in other words, it was not a real response. The real response (which was, as
discussed above, inadequate) came on February 3. Because the government failed to timely
respond to Burmeister’s records request, and because Burmeister did not receive a final decision
from the government until after she filed this lawsuit, her case is properly before the Court. See
Pollack v. Dep’t of Justice, 49 F.3d 115, 118-19 (4th Cir. 1995) (“Under FOIA’s statutory scheme,
when an agency fails to comply in a timely fashion to a proper FOIA request, it may not insist on
the exhaustion of administrative remedies, unless the agency responds to the request before suit is
filed.” (citations omitted)); 5 U.S.C. § 522(a)(6)(C)(i).
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attempt to show that it conducted a thorough search in response to Burmeister's records request,

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are deficient. She is correct that the declarations are deficient in their failure to describe the search

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with sufficient particularity, but that is beside the point given the facts of this case. The

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requirement that the government submit declarations describing its document searches with

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particularity is designed to provide some degree of assurance, in a situation where certainty is

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impossible, that the government has done the best it reasonably can to find responsive documents.

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But in this case, we already know the government has not done a reasonable job – the government

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effectively admits that in the Supplemental Wallace Declaration. Therefore, Burmeister is entitled

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to summary judgment, and there is no need to conduct discovery about, or otherwise explore,
whether the government's search was adequate. She has already established a FOIA violation, and

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Northern District of California

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the government must go back to the drawing board and conduct a proper search, this time under

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court order.

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Accordingly, Burmeister's motion for summary judgment is granted, and the government's

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cross-motion for summary judgment is denied. The government is ordered to produce, within 60

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days, all documents responsive to Burmeister's request that are not covered by any exemption to

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FOIA's disclosure requirements. Lest there be any confusion, Burmeister's request seeks any

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records relating to the decision by HHS to engage the Institute of Medicine in a study about

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myalgic encephalomyelitis/chronic fatigue syndrome. The government may not artificially narrow

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this request to exclude "background" records, such as records relating to the decisionmaking

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process about whether and how to engage the Institute of Medicine for this endeavor. Burmeister

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may file a motion for attorneys’ fees and costs within 14 days of the date of this order, and the

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government has 7 days to respond.

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IT IS SO ORDERED.
Dated: September 2, 2014
______________________________________
VINCE CHHABRIA
United States District Judge

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