Case 1:20-cv-01798-BAH Document 23 Filed 03/16/21 Page 1 of 30
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`DAVITA INC.,
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`Plaintiff,
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`v.
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`U.S. DEPARTMENT OF HEALTH &
`HUMAN SERVICES et al.,
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`Defendants.
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`Civil Action No. 20-1798 (BAH)
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`Chief Judge Beryl A. Howell
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`MEMORANDUM OPINION
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`Plaintiff DaVita Inc., “a leading provider of life-sustaining dialysis treatment for patients
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`with severe kidney disease,” Pl.’s Mem. Supp. Pl.’s Cross-Mot. Summ. J. & Opp’n Defs.’ Mot.
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`Summ. J. (“Pl.’s Opp’n”) at 1, ECF No. 17-1; see also Compl. at 2 ¶ 3, ECF No. 1,1 challenges
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`the response of defendants, the U.S. Department of Health and Human Services (“HHS”) and the
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`Centers for Medicare and Medicaid Services (“CMS”), to a request submitted pursuant to the
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`Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for records consisting of thirty-six public
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`comments submitted more than thirty years ago, in 1990, regarding a proposed rule that was
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`finalized in 1995 (the “FOIA Request”), Defs.’ Mot. Summ. J. (“Defs.’ Mot.”), Ex. A, Decl. of
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`Hugh Gilmore (“Gilmore Decl.”), Ex. 1, FOIA Request at 3, ECF No. 14-3; see also Compl. ¶ 7.
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`Specifically, plaintiff alleges in a single claim that defendants have not fulfilled their obligation
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`under FOIA to “release records sought through” the FOIA Request, Compl. at 5 ¶ 2; see also id.
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`at 5 ¶¶ 1–4, because they conducted an inadequate search for responsive records, see Pl.’s Opp’n
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`at 1–2.
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`1
`The numbering of paragraphs in plaintiff’s Complaint restarts from 1 at page 5. See Compl. at 5. To avoid
`confusion, citations are to the page and paragraph number when referring to duplicated paragraph numbers in the
`Complaint.
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`1
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`Case 1:20-cv-01798-BAH Document 23 Filed 03/16/21 Page 2 of 30
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`Pending before the Court are the parties’ cross-motions for summary judgment. Defs.’
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`Mot., ECF No. 14; Pl.’s Cross-Mot. Summ. J. (“Pl.’s Mot.”), ECF No. 17. For the reasons set
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`forth below, both parties’ motions are denied.
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`I.
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`BACKGROUND
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`Plaintiff’s FOIA Request is briefly described below, followed by review of defendants’
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`responses to the Request both before and after initiation of this lawsuit.
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`A.
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`The FOIA Request
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`In March 1990, HHS’s Health Care Financing Administration, a predecessor subagency
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`to CMS, sought comments on a Notice of Proposed Rulemaking setting forth a proposed rule to
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`implement provisions of the Medicare Secondary Payer Act (“MSP Act”), 42 U.S.C. § 1395y(b),
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`entitled Medicare Program; Medicare Secondary Payer for Disabled Active Individuals (the
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`“Proposed Rule”), 55 Fed. Reg. 8,491 (Mar. 8, 1990). This rulemaking process resulted in a
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`final rule, promulgated in 1995, entitled Medicare Program; Medicare Secondary Payer for
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`Individuals Entitled to Medicare and Also Covered Under Group Health Plans (the “Final
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`Rule”). 60 Fed. Reg. 45,344 (Aug. 31, 1995) (codified at 42 C.F.R. §§ 400, 411). The Final
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`Rule specified that the agency had “received 36 timely letters of comment from employers,
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`insurance companies, law firms, actuarial firms, individuals, associations (two business and one
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`medical), and beneficiary rights organizations” in response to its Proposed Rule. Id. at 45,349.
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`Plaintiff is currently litigating the meaning and application of the MSP Act and its
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`implementing regulations in several lawsuits. Pl.’s Statement of Undisputed Material Facts
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`(“Pl.’s SMF”) ¶ 4, ECF No. 17-2; see also, e.g., DaVita Inc. v. Amy’s Kitchen, Inc., 981 F.3d
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`664, 670–71 (9th Cir. 2020), pet. for reh’g filed, Pet. Panel Reh’g or Reh’g En Banc, No. 19-
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`15963 (9th Cir. Jan. 7, 2021), ECF No. 78; DaVita Inc. v. Marietta Mem’l Hosp. Emp. Health
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`Benefit Plan, 978 F.3d 326, 353 (6th Cir. 2020); Mot. to Stay Mandate Pending Filing of Pet. for
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`2
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`Case 1:20-cv-01798-BAH Document 23 Filed 03/16/21 Page 3 of 30
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`Writ of Cert., Marietta Mem’l Hosp. Emp. Health Benefit Plan, No. 19-4039 (6th Cir. Dec. 30,
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`2020), ECF No. 81. As part of the preparation for that litigation, on November 22, 2019,
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`plaintiff submitted a FOIA request to CMS, seeking “access to the comments that were
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`submitted on the Proposed Rule,” in particular, “copies of all 36 comments” referenced in the
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`Final Rule, “in PDF format if possible.” FOIA Request at 3. Plaintiff also “ask[ed]” that the
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`FOIA Request “receive expedited processing because the comments may be materially relevant
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`to the outcome of an ongoing federal court case.” Id.
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`B.
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`Processing of the FOIA Request and Procedural History
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`CMS acknowledged receipt of the FOIA Request on November 22, 2019. Gilmore Decl.
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`¶ 3, ECF No. 14-2; Defs.’ Statement of Material Facts as to Which There Is No Genuine Issue
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`(“Defs.’ SMF”) ¶¶ 3, 5, ECF No. 14-1; Pl.’s Resp. Defs.’ Statement of Material Facts as to
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`Which There Is No Genuine Dispute (“Pl.’s Resp. SMF”) ¶¶ 3, 5, ECF No. 17-2. On December
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`4, 2019, CMS denied plaintiff’s request for expedited processing and advised that the FOIA
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`Request would therefore be processed “in accordance with th[e] agency’s ‘first in, first out’
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`practice.” Gilmore Decl., Ex. 2, Letter from Jay Olin, Director, Division of FOIA Analysis-C,
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`FOIA Group, CMS, to Andrew Tutt, Arnold & Porter Kaye Scholer LLP (“Arnold & Porter”)
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`(Dec. 4, 2019) at 1, ECF No. 14-3; see also Pl.’s SMF ¶ 12; Defs.’ Reply Pl.’s Statement of
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`Undisputed Material Facts (“Defs.’ Resp. SMF”) ¶ 12, ECF No. 19-2; Defs.’ SMF ¶ 6; Pl.’s
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`Resp. SMF ¶ 6. Plaintiff has not appealed the denial of its expedition request, see Gilmore Decl.
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`¶ 8; Defs.’ SMF ¶ 9, and does not challenge the timeliness of defendants’ response to the FOIA
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`Request in this litigation.
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`1.
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`Initial Search for Comments
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`CMS then began its search for responsive records. According to the Director of the
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`FOIA Group for CMS’s Office of Strategic Operations and Regulatory Affairs (“OSORA”), who
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`is also CMS’s FOIA Officer, Gilmore Decl. ¶ 1, after plaintiff’s expedition request was denied,
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`the FOIA Request “was assigned to the complex track” for further action because of the
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`possibility that it would require “searches . . . of multiple offices and possibly warehouses based
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`on the age of the records” requested, id. ¶ 13. Following the “first in, first out” processing
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`procedures of this track, the FOIA Group assigned the FOIA Request to OSORA based on the
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`regulatory nature of the records sought by plaintiff. Id. ¶ 14. On March 20, 2020, OSORA
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`“advised” the FOIA Group that records from a rulemaking that began in 1990, such as those
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`requested by plaintiff, “would likely be dispositioned to the National Archives and Records
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`Administration (‘NARA’)” for storage and eventual archiving because of their age and
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`recommended that plaintiff “be directed there.” Id. ¶ 15. To investigate whether the records had
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`been transferred to NARA, “OSORA transferred the FOIA Request to the Regulations
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`Development Group (‘RDG’),” id. ¶ 16, which is the office “responsible for CMS’[s] process for
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`vetting, developing, and publishing regulations and liais[ing] with the Office of Management and
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`Budget for regulation publication in the national Federal Register,” id. ¶ 24.
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`In April 2020, approximately four months after submission of the FOIA Request, plaintiff
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`requested that CMS “furnish the requested records as soon as possible,” Gilmore Decl., Ex. 3,
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`Letter from John P. Elwood, Arnold & Porter, to Jay Olin, Director, Division of FOIA Analysis-
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`C, FOIA Group, CMS (Apr. 3, 2020) at 1, ECF No. 14-3; see also id. ¶ 6, and that the agency
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`describe its “plans for addressing” the FOIA Request, id., Ex. 4, Email from Sam Callahan,
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`Arnold & Porter, to Hugh P. Gilmore & Joseph Tripline, OSORA, CMS (Apr. 13, 2020, 3:28
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`PM) at 1, ECF No. 14-3; see also id. ¶ 7; Defs.’ SMF ¶¶ 7–8; Pl.’s Resp. SMF ¶¶ 7–8. Three
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`months later, on July 2, 2020, having received no response from defendants, Defs.’ SMF ¶ 9;
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`Pl.’s Resp. SMF ¶ 9, plaintiff initiated this litigation, see Compl.; Defs.’ SMF ¶ 10; Pl.’s Resp.
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`SMF ¶ 10.
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`2.
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`Use of Archives Records Center Information System (“ARCIS”)
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`In the meantime, CMS continued its search for records responsive to the FOIA Request,
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`which was now assigned to RDG. RDG uses a tracking system called Regulations Records
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`Management (“RRM”) to locate records related to past rulemakings and other agency
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`proceedings. Gilmore Decl. ¶ 16. This system allows RDG to locate any transfer number or
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`other information about records storage that is associated with a particular set of records. The
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`existence of an associated transfer number indicates that the records have begun the process of
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`transitioning from CMS to NARA custody. See id. ¶¶ 15–16, 25. At the first step of this
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`process, records remain in the agency’s custody but are kept in temporary storage at a Federal
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`Records Center (“FRC”) operated by NARA. At the second step, triggered by the close of a
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`retention period determined by the agency’s relevant records retention policies, the records are
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`permanently dispositioned from the FRC to NARA. See id. ¶¶ 16, 19, 25. “CMS can request
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`records when they are still at the FRC, but once the records get accessioned by NARA, CMS no
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`longer has physical or legal custody of them.” Id. ¶ 19. When RDG’s search of RRM produces
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`a transfer number or other information relevant to locating a particular set of records, RDG
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`“provides that information” to CMS’s Division of Records Information Systems (“DRIS”), id.
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`¶ 16; see also id. ¶ 26, the office “responsible for CMS records management standards and
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`develop[ing] policies and procedures to ensure the availability of CMS records and programs,”
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`id. ¶ 17. DRIS may be able to use the information generated by RRM “to track the records[’]
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`location.” Id.
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`RDG transferred the FOIA Request to DRIS, apparently without conducting an initial
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`RRM search, “because the age of the records indicated that records management retention rules
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`may have been applied to” them, meaning that they had likely begun, or even completed, the
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`process of transitioning from CMS to NARA custody and that DRIS was consequently best
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`positioned to track their location. Id. DRIS, like OSORA, informed the FOIA Officer that the
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`thirty-year-old records “may have been transferred out of CMS’[s] custody to NARA.” Id. ¶ 18.
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`To determine whether the records remained in agency custody or had been accessioned to
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`NARA, DRIS “assigned the [FOIA Request] to a records analyst and initiated a search of the
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`Archives Records Center Information System (‘ARCIS’),” id. ¶ 18, a database that “tracks
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`records transfers at the [FRC] based on the disposition authorities,” and can be searched by RRM
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`transfer number or regulation tracking number, id. ¶ 19. This database “tells CMS when records
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`meet . . . retention requirements and must be transferred [from the FRC where they are
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`temporarily stored] to NARA for permanent recordkeeping” and provides precise location
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`information for records in temporary storage by warehouse and box number. Id.; see also id.
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`¶¶ 20, 28.
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`To facilitate DRIS’s search of ARCIS, the FOIA Group provided DRIS with the Federal
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`Register citation for the Proposed Rule. Id. ¶ 20. DRIS, using this citation, “inadvertently
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`determined” that the relevant regulation tracking number was “BPD-485-P.” Id. A search of
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`ARCIS indicated that records associated with this tracking number “were accessioned to NARA
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`on January 1, 2018” and, as a result, “are in NARA’s legal and physical custody,” not CMS’s.
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`Id. By this time, the instant litigation was underway and the parties were in the process of
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`conferring in the hopes of reaching a negotiated solution. See Pl.’s SMF ¶¶ 17–22; Defs.’ Resp.
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`SMF ¶¶ 17–22. On August 13, 2020, defendants, relying on DRIS’s inaccurate search of
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`ARCIS, informed plaintiff that they did not have legal or physical custody over the requested
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`records and therefore planned to issue a “no records response.” Pl.’s Mot., Ex. 1, Email from
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`Paul A. Mussenden, Asst. U.S. Att’y (“AUSA”), U.S. Att’y’s Off. for D.C. (“USAO”), to Sam
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`Callahan, Arnold & Porter (Aug. 13, 2020, 9:57 AM) at 1, ECF No. 17-3; see also Pl.’s SMF
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`¶ 20; Defs.’ Resp. SMF ¶ 20. That same day, plaintiff informed the agencies that the regulation
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`tracking number “BPD-485-P” was incorrect, and provided the correct tracking numbers of
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`“BPD-482-P” for the Proposed Rule and “BPD-482-FC” for the Final Rule. Pl.’s Mot., Ex. 2,
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`Email from Sam Callahan, Arnold & Porter, to Paul Mussenden, AUSA, USAO (Aug. 13, 2020,
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`12:44 PM) at 1, ECF No. 17-4; see also Gilmore Decl. ¶ 22; Pl.’s SMF ¶¶ 21–22; Defs.’ Resp.
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`SMF ¶¶ 21–22.
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`3.
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`Use of Regulations Records Management (“RRM”) Tracking System
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`The FOIA Group provided the correct tracking numbers for the Proposed Rule and the
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`Final Rule to DRIS, Gilmore Decl. ¶ 23, which in turn contacted records management custodians
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`in RDG to verify “the records transfer number” associated with the Proposed Rule and “to ensure
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`no other records remained in RDG about” the Proposed Rule, id. ¶ 24. RDG searched the RRM
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`system using the correct tracking number for the Proposed Rule, BPD-482-P, as a search term.
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`This search associated the tracking number with the transfer number 440-99-0011 and the
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`records box number 14 (“Box 14”). Id. ¶ 26. “RDG provided the transfer number and box
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`number to DRIS,” which in turn “used this information to search ARCIS for the records
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`transfer.” Id. ¶ 27. ARCIS indicated that Box 14 was in temporary storage at the Washington
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`National Records Center (“WNRC”) and had not yet been accessioned to NARA. Id. ¶ 28.
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`Accordingly, on August 17, 2020, CMS requested Box 14 from the WNRC, id. ¶ 29, as reflected
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`in the parties’ first joint status report to the Court, see Joint Status Report (Aug. 21, 2020) ¶ 3,
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`ECF No. 9.
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`4.
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`Review of Box 14
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`On September 10, 2020, CMS received from the WNRC the box, Gilmore Decl. ¶ 29,
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`containing “about thirteen linear inches of paper,” id. ¶ 30. CMS’s FOIA Officer “manually
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`reviewed each piece of paper in the box and determined that none of the papers in the box
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`consisted of public comments.” Id. ¶ 31; see also Suppl. Decl. of Hugh Gilmore (“Suppl.
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`Gilmore Decl.”) ¶ 3, ECF No. 19-1. All thirteen inches of paper consisted of “draft copies of the
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`proposed rule with internal agency redline edits and comments on them.” Gilmore Decl. ¶ 31.
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`Upon realizing that Box 14 did not contain the records sought by plaintiff, the FOIA Group
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`“reached out to” RDG “to determine if . . . any other warehouse boxes [were] associated” with
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`the tracking number for the Proposed Rule, BPD-482-P, or if any box was associated with the
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`tracking number for the Final Rule, BPD-482-FC. Suppl. Gilmore Decl. ¶ 4. RDG again
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`searched the RRM using the tracking numbers for both the Proposed Rule and the Final Rule as
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`search terms, id. ¶ 5, and “no other boxes” associated with either rule were located, id. ¶ 6. Nor
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`did RDG locate a different transfer number associated with either the Proposed Rule or the Final
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`Rule to provide to DRIS for a new search of ARCIS. See id.
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`5.
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`Search of Program Components
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`Since this second search of the RRM database did not lead to any new locations where
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`responsive records might be found, RDG “suggested” that the FOIA Group “search the
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`originating program offices for” the Proposed and Final Rules “to determine if records were
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`retained by those offices.” Id. ¶ 7. In particular, RDG recommended a search of the Centers for
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`Medicare Office Fee For Service (“CMFFS”), the Centers for Medicare Drug Plan and C&D
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`Data Group (“CMMDPG”), and the Centers for Medicare Chip Services (“CMCS”), each of
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`which “has involvement in Medicare billing” and therefore might have been involved in the
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`development of regulations implementing the MSP Act. Id. ¶ 8. Although, based on CMS’s
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`records retention policies, “it was unlikely that the originating offices would retain copies of the
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`rulemaking record, as permanent records that old have typically already been sent to [the
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`WNRC] for storage,” CMFFS, CMMDPG, and CMCS were asked to search for responsive
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`records. Id. ¶ 7. On October 19, 2020, the FOIA Officer “sent [them] a search request and a
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`copy of the FOIA [R]equest.” Id. ¶ 8. CMFFS reported that it “could not find anything related
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`to” the Proposed Rule or the Final Rule; CMMDPG “replied that their mission was not the
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`subject of the request,” indicating that their office was not involved in developing the regulation
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`and therefore had no records; and CMCS “had no records that old in their possession.” Id. ¶ 9.
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`CMS acknowledges that “[b]ased on current protocol for packaging records, comments
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`submitted on a rulemaking would be a standard part of [the] record,” but notes that, “[g]iven the
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`passage of time” since the Proposed Rule was issued in 1990, “there is no one currently available
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`to speak to what the procedures were and how the records were packaged” when records related
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`to the Proposed Rule were transferred to the FRC. Gilmore Decl. ¶ 32. The agencies therefore
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`represent that “[a]ll offices and files likely to contain responsive materials have been consulted
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`and searched.” Suppl. Gilmore Decl. ¶ 11.
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`6.
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`Defendants’ “No Records Response” and Parties’ Conferral
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`Based on the results of its efforts, on November 2, 2020, CMS provided a “final no
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`records response” to plaintiff, Gilmore Decl. ¶ 33, stating that “CMS was unable to locate any
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`records, i.e. 36 comment letters, to 55 F.R. 8491 (Mar. 8, 1990) proposed rule responsive to your
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`request,” id., Ex. 5, Letter from Hugh Gilmore, Director, FOIA Group, CMS, to Andrew Tutt,
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`Arnold & Porter (Nov. 2, 2020) at 2, ECF No. 14-3; see also Defs.’ SMF ¶ 35; Pl.’s Resp. SMF
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`¶ 35; Pl.’s SMF ¶ 29; Defs.’ Resp. SMF ¶ 29. The parties conferred after plaintiff received this
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`letter, in a final attempt to reach a negotiated solution. Pl.’s SMF ¶ 30; Defs.’ Resp. SMF ¶ 30.
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`As part of this process, plaintiff asked that the agencies produce copies of or otherwise allow
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`access to the contents of Box 14, Pl.’s Mot., Ex. 3, Email from Paul A. Mussenden, AUSA,
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`USAO, to Sam Callahan, Arnold & Porter (Nov. 19, 2020, 3:54 PM) (“Nov. 19 Email”) at 4,
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`ECF No. 17-5; Pl.’s SMF ¶ 31; Defs.’ Resp. SMF ¶ 31, and informed the Court that defendants’
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`response to this request “would assist in determining whether a negotiated resolution is feasible,”
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`Joint Status Report (Nov. 4, 2020) ¶ 7, ECF No. 11. On November 19, 2020, defendants denied
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`the request on the grounds that the FOIA Request sought only the thirty-six comments to the
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`Proposed Rule. Nov. 19 Email at 1. In the agencies’ view, “drafts of the rule itself” therefore
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`“were not ultimately responsive” to the FOIA Request, and defendants had no obligation under
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`FOIA to produce them. Id.; see also Pl.’s SMF ¶ 32; Defs.’ Resp. SMF ¶ 32. Accordingly, the
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`parties advised the Court that they had reached deadlock, Joint Status Report (Nov. 25, 2020)
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`¶¶ 8, 12–13, ECF No. 12, and a schedule for dispositive motions was set, see Min. Order (Nov.
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`30, 2020).
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`II.
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`LEGAL STANDARD
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`Under Federal Rule of Civil Procedure 56, “‘[a] party is entitled to summary judgment
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`only if there is no genuine issue of material fact and judgment in the movant's favor is proper as
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`a matter of law.’” Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting
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`Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006));
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`see also Fed. R. Civ. P. 56(a). “‘In FOIA cases, summary judgment may be granted on the basis
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`of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory
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`statements, and if they are not called into question by contradictory evidence in the record or by
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`evidence of agency bad faith.’” Aguiar v. DEA, 865 F.3d 730, 734–35 (D.C. Cir. 2017) (quoting
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`Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)); see also Students
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`Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n agency is entitled
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`to summary judgment if no material facts are in dispute and if it demonstrates ‘that each
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`document that falls within the class requested either has been produced . . . or is wholly exempt
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`from the Act’s inspection requirements.’” (omission in original) (quoting Goland v. CIA, 607
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`F.2d 339, 352 (D.C. Cir. 1978))). Most FOIA cases “can be resolved on summary judgment.”
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`Brayton v. Off. of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
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`FOIA was enacted “to promote the ‘broad disclosure of Government records’ by
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`generally requiring federal agencies to make their records available to the public on request.”
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`DiBacco v. U.S. Army (“DiBacco I”), 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting Dep’t of
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`Justice v. Julian, 486 U.S. 1, 8 (1988)). Agencies are therefore statutorily mandated to
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`“make . . records promptly available to any person” who submits a request that “reasonably
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`describes such records” and “is made in accordance with [the agency’s] published rules.” 5
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`U.S.C. § 552(a)(3)(A). Should an agency fail to comply with these obligations, FOIA authorizes
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`federal courts “to enjoin the agency from withholding agency records and to order the production
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`of any agency records improperly withheld from the complainant.” Id. § 552(a)(4)(B).
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`An agency responding to a FOIA request is “simply required to ‘conduct[] a search
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`reasonably calculated to uncover all relevant documents.’” In re Clinton, 973 F.3d 106, 116
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`(D.C. Cir. 2020) (alteration in original) (emphasis omitted) (quoting Steinberg v. U.S. Dep’t of
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`Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)). Thus, when reviewing a challenge to the adequacy
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`of an agency’s search for responsive records, “a district court is not tasked with uncovering
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`‘whether there might exist any other documents possibly responsive to the request,’ but instead,
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`asks only whether ‘the search for [the requested] documents was adequate.’” Id. (alteration and
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`emphasis in original) (quoting Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir.
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`1984)).
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`In this regard, an agency “fulfills its obligations under FOIA if it can demonstrate beyond
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`material doubt that its search was reasonably calculated to uncover all relevant documents” and
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`that it “perform[ed] more than a perfunctory search” to identify responsive records. Ancient
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`Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (internal
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`quotation marks omitted); see also Clemente v. FBI, 867 F.3d 111, 117 (D.C. Cir. 2017) (“‘In
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`order to obtain summary judgment the agency must show that it made a good faith effort to
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`conduct a search for the requested records, using methods which can be reasonably expected to
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`produce the information requested.’” (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68
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`(D.C. Cir. 1990))). At the summary judgment stage, an agency “can satisfy this burden through
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`a ‘reasonably detailed affidavit, setting forth the search terms and the type of search performed,
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`and averring that all files likely to contain responsive materials (if such records exist) were
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`searched.’” Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 368 (D.C. Cir. 2020)
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`(quoting Oglesby, 920 F.2d at 68); see also Reps. Comm. for Freedom of the Press v. FBI
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`(“Reps. Comm.”), 877 F.3d 399, 402 (D.C. Cir. 2017). Courts “accord such affidavits ‘a
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`presumption of good faith, which cannot be rebutted by purely speculative claims about the
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`existence and discoverability of other documents.’” Machado Amadis, 971 F.3d at 368 (quoting
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`SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)).
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`If an agency has made a prima facie showing of the adequacy of its search, the FOIA
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`requester bears the burden of overcoming this presumption of good faith by “provid[ing]
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`countervailing evidence as to the adequacy of the agency’s search.” Iturralde v. Comptroller of
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`Currency, 315 F.3d 311, 314 (D.C. Cir. 2003) (internal quotation marks omitted). “‘[S]ummary
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`judgment is inappropriate’ if ‘a review of the record raises substantial doubt’ as to the search’s
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`adequacy, ‘particularly in view of well defined requests and positive indications of overlooked
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`Case 1:20-cv-01798-BAH Document 23 Filed 03/16/21 Page 13 of 30
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`materials.’” Reps. Comm., 877 F.3d at 402 (alteration in original) (quoting Valencia-Lucena v.
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`U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999)); see also Aguiar, 865 F.3d at 738.
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`III. DISCUSSION
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`The parties’ cross-motions for summary judgment dispute only the adequacy of
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`defendants’ search for responsive records. See Defs.’ Mot. at 1; Pl.’s Opp’n at 1–2. First,
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`plaintiff asserts that defendants’ search was unreasonable and inadequate because the agencies
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`did not locate or produce in response to the FOIA Request the thirty-six public comments sought
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`by plaintiff. Pl.’s Opp’n at 6–14; Pl.’s Reply Supp. Pl.’s Cross-Mot. Summ. J. (“Pl.’s Reply”) at
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`3–8, ECF No. 21. According to plaintiff, defendants’ “failure to find a ‘well-defined’ set of
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`comments known to have been submitted during the rulemaking” itself renders the agencies’
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`search inadequate. Pl.’s Opp’n at 10; see also Pl.’s Reply at 3–5. In addition, plaintiff contends
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`that it “is entitled to the draft rules” that were found in Box 14, “as the record suggests that those
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`drafts may well be responsive” to the FOIA Request. Pl.’s Opp’n at 2; see also id. at 14–15;
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`Pl.’s Reply at 8–9. The adequacy of defendants’ search for the thirty-six public comments is
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`addressed before consideration of whether the drafts located in Box 14 are within the scope of
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`plaintiff’s FOIA Request.
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`A.
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`Adequacy of Defendants’ Search for 36 Public Comments
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`Plaintiff first contends that defendants’ conceded failure to locate the thirty-six comments
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`that are the subject of the FOIA Request indicates that their search was inadequate, both standing
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`alone and because the agencies improperly failed to search locations other than Box 14,
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`including neighboring warehouse boxes in which the comments might inadvertently been placed.
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`Pl.’s Opp’n at 6–14; Pl.’s Reply at 3–8. As set forth below, defendants have carried their burden
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`at summary judgment to explain how they identified repositories where the comments were
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`likely to be found and why no other locations were likely to contain records responsive to the
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`Case 1:20-cv-01798-BAH Document 23 Filed 03/16/21 Page 14 of 30
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`FOIA Request, and were not required to search surrounding boxes. They have not, however,
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`described their supplemental searches of RDG, CMFFS, CMMDPG, and CMCS with sufficient
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`detail to determine whether these searches were adequate, and summary judgment must therefore
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`be denied.
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`1.
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`Significance of the Agencies’ Failure to Find the Comments
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`In response to plaintiff’s contention that their failure to retrieve the comments indicates
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`that the search was inadequate, the agencies counter that “CMS has . . . searched as extensively
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`as it can using all of the information available to it,” Defs.’ Mem. P. & A. Supp. Defs.’ Mot.
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`Summ. J. (“Defs.’ Mem.”) at 6, ECF No. 14-4, and that “the one time existence of these 31 year
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`old records . . . does not render CMS’s search inadequate, nor is it sufficient to defeat summary
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`judgment,” Defs.’ Reply Supp. Mot. Summ. J. & Opp’n Pl.’s Cross-Mot. Summ. J. (“Defs.’
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`Reply”) at 7, ECF No. 19. In making this argument, defendants rely on the elementary FOIA
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`principles that “[a] search is not inadequate merely because it failed to ‘uncover every document
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`extant,’” Defs.’ Mem. at 5 (quoting SafeCard Servs., Inc., 926 F.2d at 1201), and that “the
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`adequacy of a FOIA search is generally determined not by the fruits of the search, but by the
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`appropriateness of the methods used to carry out the search,” Iturralde, 315 F.3d at 315; see also
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`Defs.’ Reply at 6–7.
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`Plaintiff argues that, even within the boundaries of this well-settled FOIA law, “[c]ourts
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`hold FOIA searches inadequate when an agency fails to find known records that are responsive
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`to the plaintiff’s request, and then offers insufficient explanation for that failure.” Pl.’s Opp’n at
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`7. In so arguing, plaintiff appears to allude to an exception to the general rule that “the failure of
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`an agency to turn up one specific document in its search does not alone render a search
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`inadequate,” which exception arises “[i]n certain circumstances” deemed “sufficient to overcome
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`an adequate agency affidavit.” Iturralde, 315 F.3d at 315. “Among those circumstances is a
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`Case 1:20-cv-01798-BAH Document 23 Filed 03/16/21 Page 15 of 30
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`case in which a FOIA requester points to ‘evidence that would indicate that at the time the
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`[agency] searched its files there was reason to believe that [the missing documents were] in those
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`files.’” Ctr. for Biological Diversity v. Bureau of Land Mgmt., Civ. A. No. 17-1208 (BAH),
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`2021 WL 918204, at *7 (D.D.C. Mar. 9, 2021) (alterations in original) (quoting Iturralde, 315
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`F.3d at 315). “In such cases, ‘[t]he agency’s failure to locate a document that the evidence
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`indicates likely existed at the time of the search . . . may give rise to material doubt about the
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`adequacy of the agency’s affidavits.’” Id. (alteration and omission in original) (quoting Lamb v.
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`Millennium Challenge Corp., 228 F. Supp. 3d 28, 36 (D.D.C. 2017)).
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`As evidence that the thirty-six comments existed at the time of the Final Rule’s
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`promulgation in 1995, plaintiff points to the Final Rule’s explicit reference to and brief
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`description of them. See 60 Fed. Reg. at 45,349; Pl.’s Opp’n at 8–9; Pl.’s Reply at 3–5. To
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`demonstrate that the comments likely existed at the time of defendants’ search last year, plaintiff
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`notes that defendants are required, under the Federal Records Act, 44 U.S.C. §§ 3101–3107, and
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`its implementing regulations to “make and preserve records,” id. § 3101, “[d]ocument[ing] the
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`formulation and execution of basic policies and decisions,” 36 C.F.R. § 1222.22(e), and to
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`establish records schedules, subject to NARA approval, governing the maintenance and
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`preservation of records, see id. § 1220.34(g); 44 U.S.C. § 3102; Pl.’s Opp’n at 9; Pl.’s Reply at
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`3–4. The records schedule approved by NARA with respect to CMS’s predecessor subagency
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`required permanent retention of an “official Rulemaking record file,” including “all public
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`comments received in response to the proposed rule,”2 while CMS’s current records schedule
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`requires “[p]ermanent” retention of “[a]ny records documenting the policy of CMS, including
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`
`2
`Health Care Financing Admin., Request for Records Disposition Authority, No. N1-440-95-1, at 2 (Oct. 28,
`1998), https://www.archives.gov/files/records-mgmt/rcs/schedules/departments/department-of-health-and-human-
`services/rg-0440/n1-440-95-001_sf115.pdf.
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`Case 1:20-cv-01798-BAH Document 23 Filed 03/16/21 Page 16 of 30
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`policy and regulations [and] substantial cases related to rulemaking records.”3 Giving
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`defendants the presumption of regularity, “that agency employees comply with applicable law”
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`when carrying out agency business, Ctr. for Biological Diversity, 2021 WL 918204, at *8 (citing
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`Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004); Bracy v. Gramley, 520
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`U.S. 899, 909 (1997); Stone v. Stone, 136 F.2d 761, 763 (D.C. Cir. 1943)), plaintiff has
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`demonstrated that the thirty-six comments should have existed somewhere in the agency’s
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`records a