Case 1:21-cv-00566-BAH Document 21 Filed 04/25/21 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`THE NEW YORK TIMES COMPANY,
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`Plaintiff,
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`v.
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`DEFENSE HEALTH AGENCY and
`DEPARTMENT OF HEALTH AND
`HUMAN SERVICES,
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`Defendants.
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`
`
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`Civil Action No. 21-cv-566 (BAH)
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`Chief Judge Beryl A. Howell
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`
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`MEMORANDUM OPINION
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`Plaintiff, The New York Times Company (“NYT”), seeks a preliminary injunction to
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`compel defendants, the Defense Health Agency (“DHA”), a component of the United States
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`Department of Defense, Compl. ¶ 3, ECF No. 1, and the United States Department of Health and
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`Human Services (“HHS”), to respond and produce, on an expedited basis and by a date certain
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`“20 business days of the Court’s order,” all non-exempt records responsive to plaintiff’s
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`December 24, 2020 requests, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §
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`552, for extensive data regarding the federal government’s nationwide effort to distribute
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`coronavirus vaccines to the American public, Pl.’s Mot. Preliminary Injunction (“Pl.’s Mot.”) at
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`1–2, ECF No. 8; Compl. ¶¶ 8, 16–17.1 Defendants object that this request for extraordinary
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`injunctive relief amounts to a litigation tactic “to jump the line on all other FOIA requesters—
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`including numerous other COVID-related requests—” when the gravamen of “[p]laintiff’s legal
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`Plaintiff initially requested an order compelling defendants’ response to the FOIA request at issue “on or
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`before March 31, 2021,” Pl.’s Mot. at 1, but the parties subsequently proposed a briefing schedule for the requested
`injunctive relief proposing completion of briefing, after that date, by April 1, 2021, see Parties’ Joint Status Report,
`ECF No. 12, which proposed schedule was adopted by the Court, see Min. Order (Mar. 15, 2021).
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`Case 1:21-cv-00566-BAH Document 21 Filed 04/25/21 Page 2 of 22
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`claim is nothing more than a complaint that more than twenty days have passed since the
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`submission of the FOIA requests, for which the remedy is constructive exhaustion of
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`administrative remedies and the opportunity for court supervision of the processing and
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`production—not an order that Defendants immediately process and make productions ahead of
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`all other FOIA requests.” Defs.’ Opp’n to Pl.’s Mot. Preliminary Injunction (“Defs.’ Opp’n”) at
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`1, ECF No. 14. Defendants are correct and, for the reasons explained more fully below,
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`plaintiff’s motion is denied.
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`I.
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`BACKGROUND
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`On December 24, 2020, plaintiff submitted identical FOIA requests to DHA and HHS
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`seeking expedited processing and production of four categories of data “from the Defense Health
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`Agency (‘DHA’),” regarding the federal government’s distribution of COVID-19 vaccines.
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`Defs.’ Opp’n, Ex. A, Decl. of Brandon Gaylord, HHS Freedom of Information/Privacy Act
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`Director (“Gaylord Decl.”), Ex. A (Dec. 24, 2020 Letter from Alexandra Settelmayer, NYT
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`Legal Dep’t, to HHS (“HHS FOIA Request”) at 15, ECF No. 14-1); id., Ex. B, Decl. of John
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`Boyer, DHA Freedom of Information/Privacy Act Manager (“Boyer Decl.”), Ex. A (Dec. 24,
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`2020 Letter from Alexandra Settelmayer, NYT Legal Dep’t, to DHA (“DHA FOIA Request”) at
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`9, ECF No. 14-2).2 The requests seek a massive volume of “de-identified” data, broken down by
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`state, geographic zip code and/or county, about vaccination distribution, recipient demographics,
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`including race, ethnicity, age group and occupation, comorbidities, priority groups, usage and
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`waste, providers, manufacturers, and adverse reactions. Specifically, the requests seek DHA
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`records regarding:
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`[1.] Aggregate, de-identified data, broken down by zip code and county of the
`recipient, showing the number of individuals who have received one dose of a
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`Citations to exhibits to declarations use the pagination automatically assigned by the Court’s Case
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`Management/Electronic Filing (CM/ECF) system.
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`2
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`Case 1:21-cv-00566-BAH Document 21 Filed 04/25/21 Page 3 of 22
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`coronavirus vaccine . . .[and the] aggregate, de-identified data, broken down by
`zip code and county of the recipient, showing the number of individuals who have
`been fully vaccinated . . that [is also] . . . [each] broken down by: [t]he race,
`ethnicity, and age group of vaccine recipients; [t]the comorbidities associated
`with vaccine recipients; [t]he Vaccination Priority Group (i.e. Phase 1a, Phase 1b)
`associated with the vaccine recipients; [t]he vaccine recipients’ status as a health
`care worker, long-term care facility resident, or member of any other priority
`group or profession; [t]he manufacture of the vaccine; and [t]he “administered
`location type” field entry (as defined by the CDC’s Covid-19 Vaccination
`Reporting Specification).
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`[2.] All available data showing the number of coronavirus vaccine doses that were
`allocated and distributed to each vaccine provider, broken down by state, county,
`and zip code.
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`[3.] All available de-identified data regarding allergic or adverse reactions to a
`coronavirus vaccine, including but not limited to the data tracked by the V-SAFE
`data system.
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`[4.] All available data showing the number of coronavirus vaccine doses that were
`distributed but not administered, including any records showing the reasons why
`those doses were not administered.
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`DHA FOIA Request at 9–10; HHS FOIA Request at 15–16.
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`Citing the “urgent demand to inform the public as to how [COVID-19] vaccines are being
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`distributed by the federal government,” “whether healthcare providers are administering
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`vaccinations in an equitable way,” DHA FOIA Request at 11, and to “facilitat[e] public trust in
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`the COVID-19 vaccines” by “helping the public to understand the number of vaccinations that
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`have been administered,” id. at 12, plaintiff requested expedited processing from both DHA and
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`HHS within “the ten . . . working day time limit set by law,” id. at 13 (citing 32 C.F.R. §
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`286.8(e)(1) and 5 U.S.C. § 552(a)(6)(E)(ii)(I)).3
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`On January 26, 2021, DHA provided an “interim response” acknowledging receipt of
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`plaintiff’s FOIA request and granting a fee waiver, but denying the request for expedited
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`Given that the DHA Request and the HHS Request are identical, except for the recipient’s address block at
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`the top of the request, only the DHA Request is cited.
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`Case 1:21-cv-00566-BAH Document 21 Filed 04/25/21 Page 4 of 22
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`processing because plaintiff had not demonstrated a “compelling need” for such processing.
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`Boyer Decl., Ex. B, Letter from DHA to Alexandra Settelmayer, NYT Legal Department (Jan.
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`26, 2021) (“DHA Response Letter”) at 16–17. DHA explained that plaintiff’s request was
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`placed in the “complex queue,” with an “estimated completion date [of] December 2021,” id. at
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`16, due to “unusual circumstances,” including “(a) the need to search for and collect records
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`from a facility geographically separated from [the] office; (b) the potential volume of records
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`responsive to [the] request; (c) the need for consultation with one or more agencies which have
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`substantial interest in either the determination or the subject matter of the records; and (d) an
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`unusually high volume of requests,” id.; see also Compl. ¶ 10. Noting the anticipated large
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`volume of data responsive to plaintiff’s request, DHA stated that the response “will require a
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`very lengthy search across the military health system,” and may require further processing
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`because the “[r]ecords sought may not be in the format and availability Plaintiff expects.” Boyer
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`Decl. ¶ 16.
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`On February 8, 2021, HHS also acknowledged receipt of plaintiff’s FOIA request and,
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`because the request “sought records from DHA, includes references to DHA throughout the
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`request and references DHA’s FOIA regulations,” Gaylord Decl. ¶ 8, HHS sought clarification
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`whether the request was “mistakenly routed to the incorrect agency,” id. ¶ 9. Plaintiff made
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`efforts to respond but nothing further was heard from HHS prior to the filing of this lawsuit.
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`Pl.’s Reply, Ex. A, Decl. of Alexandra Settelmayer (“Settelmayer Decl.”) ¶ 5, ECF No. 16
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`(noting plaintiff’s efforts to respond via voicemail and email, on Feb. 8, 11, 12, 2021).4 HHS
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`HHS initially reported that “[p]laintiff never responded to [the] clarifying email,” Gaylord Decl. ¶ 9, but on
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`April 8, 2021, conceded that plaintiff’s “response emails were mistakenly missed in the course of performing [the]
`office’s responsibilities,” Not. of Correction to Gaylord Decl., Attach. A, Second Decl. of Brandon Gaylord (“2d
`Gaylord Decl.”) ¶ 7, ECF No. 19-1, and that, while HHS did not receive Ms. Settelmayer’s voicemail, because “the
`office [is] in 100% telework [and] the main line is not answered,” he had “no reason to doubt [Ms. Settelmayer’s]”
`claim that she left a voicemail, id. ¶ 8. Plaintiff’s email messages did not clarify that the HHS FOIA Request sought
`the four categories of data from HHS records, rather than DHA records. See Settelmayer Decl., Ex. B, Email
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`Case 1:21-cv-00566-BAH Document 21 Filed 04/25/21 Page 5 of 22
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`began processing plaintiff’s FOIA request only after this lawsuit was filed and, absent any
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`clarification from plaintiff, HHS understands that the HHS FOIA Request, as plainly written,
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`seeks production of responsive “DHA records in HHS’ possession.” Gaylord Decl. ¶ 10.
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`Plaintiff initiated this lawsuit on March 3, 2021, asserting a single claim that “Defendants
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`have failed to meet the statutory deadlines set by FOIA, 5 U.S.C. §§ 552(a)(6)(A)(i),
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`552(a)(6)(B)(i),” such that “Plaintiff is deemed to have exhausted its administrative remedies
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`under FOIA.” Compl. ¶ 13. As relief, plaintiff sought an order that defendants each “undertake
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`an adequate search for the requested records and provide those records to Plaintiff within 20
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`business days of the Court’s order.” Id. ¶¶ 16-17. In a cursory factual reference, plaintiff noted
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`that DHA “denied The Times’s request for expedited processing,” id. ¶ 10, but otherwise
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`asserted no claim that defendants violated any part of FOIA’s provisions, under 5 U.S.C. §§
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`552(a)(6)(E), governing expedited processing or demanded no relief from those denials. A week
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`later, on March 11, 2021, plaintiff moved for preliminary injunctive relief compelling defendants
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`to respond with virtually immediate production of records responsive to the FOIA requests,
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`which motion is ripe for resolution.
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`II.
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`LEGAL STANDARD
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`A preliminary injunction “is a stopgap measure, generally limited as to time, and
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`intended to maintain a status quo or ‘to preserve the relative positions of the parties until atrial on
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`the merits can be held.’” Sherley v. Sebelius, 689 F.3d 776, 781–82 (D.C. Cir. 2012) (quoting
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`Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). To obtain relief, a plaintiff seeking a
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`preliminary injunction must establish that (1) they are “likely to succeed on the merits”; (2) they
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`are “likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of
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`Correspondence between Natasha Taylor, HHS Government Information Specialist, and Alexandra Settelmayer
`(Feb. 8, 2021) at 2–3, ECF No. 16-2.
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`Case 1:21-cv-00566-BAH Document 21 Filed 04/25/21 Page 6 of 22
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`equities” is in their “favor”; and (4) “an injunction is in the public interest.” Winter v. Nat. Res.
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`Def. Council, 555 U.S. 7, 20 (2008); see also League of Women Voters of the U.S. v. Newby, 838
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`F.3d 1, 6 (D.C. Cir. 2016); Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir.
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`2016). The first factor is also the “most important factor.” Aamer v. Obama, 742 F.3d 1023,
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`1038 (D.C. Cir. 2014); see also Munaf v. Geren, 553 U.S. 674, 690 (2008) (“[A] party seeking a
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`preliminary injunction must demonstrate, among other things, ‘a likelihood of success on the
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`merits.’” (quoting Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418,
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`428 (2006))).5 Moreover, “‘[t]he basis of injunctive relief in the federal courts has always been
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`irreparable harm,’” and if a party fails to make a showing of irreparable harm, “that alone is
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`sufficient . . . to conclude that the district court did not abuse its discretion.” CityFed Fin. Corp.
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`v. Off. Thrift Supervision, U.S. Dep’t of Treas., 58 F.3d 738, 747 (D.C. Cir. 1995) (quoting
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`Sampson v. Murray, 415 U.S. 61 (1974)). A preliminary injunction is an “extraordinary
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`remedy,” Winter, 555 U.S. at 22 (citation omitted), that “should be granted only when the party
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`seeking the relief, by a clear showing, carries the burden or persuasion” on each of the four
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`factors, Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004).
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` Plaintiff posits that the “sliding-scale” approach to evaluating injunctive relief remains in force in this
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`Circuit after Winter, Pl.’s Mem. at 4–5, such that if “the movant makes an unusually strong showing on one of the
`factors, then it does not necessarily have to make as strong a showing on another factor,” id. (quoting Davis v.
`Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009)). The viability of the sliding-scale approach
`is questionable, however, in the wake of Winter’s holding that a court may not issue “a preliminary injunction based
`only on a possibility of irreparable harm [since] injunctive relief [is] an extraordinary remedy that may only be
`awarded upon a clear showing that the plaintiff is entitled to such relief,” Winter, 557 U.S. at 22. Davis, 571 F.3d at
`1296 (Kavanaugh, J., concurring) (noting that, after Winter, “the old sliding-scale approach to preliminary
`injunctions—under which a very strong likelihood of success could make up for a failure to show a likelihood of
`irreparable harm, or vice versa—is no longer controlling, or even viable” (internal quotations and citation omitted));
`see also In re Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) (requiring proof that all four prongs of
`preliminary injunction standard are met before injunctive relief can be granted); cf. Nken v. Holder, 556 U.S. 418,
`438 (2009) (Kennedy, J., concurring) (“When considering success on the merits and irreparable harm, courts cannot
`dispense with the required showing of one simply because there is a strong likelihood of the other.”). Plaintiff’s
`assertion that “[c]ourts in this Circuit . . . have suggested that the sliding-scale framework still applies,” Pl.’s Mem.
`at 5 n.4, overstates continued adherence to this approach since, at a minimum, Winter is read “at least to suggest if
`not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction,’”
`Sherley, 644 F.3d at 393 (quoting Davis, 571 F.3d at 1296 (concurring opinion)). Plaintiff bears the burden of
`persuasion on all four preliminary injunction factors to secure this extraordinary remedy.
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`Case 1:21-cv-00566-BAH Document 21 Filed 04/25/21 Page 7 of 22
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`Particularly pertinent here, the D.C. Circuit has cautioned that a preliminary injunction
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`generally “should not work to give a party essentially the full relief [it] seeks on the merits,”
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`Dorfmann v. Boozer, 414 F.2d 1168, 1173 n.13 (D.C. Cir. 1969) (citing Selchow & Righter Co.
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`v. W. Printing & Lithographing Co., 112 F.2d 430, 431 (7th Cir. 1940)); see also Diversified
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`Mortgage Inv’rs v. U.S. Life Ins. Co. of N.Y., 544 F.2d 571, 576 (2d Cir. 1976) (collecting cases),
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`and this equitable power “should not be exercised unless it is manifest that the normal legal
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`avenues are inadequate [and] that there is a compelling need to give the plaintiff the relief he
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`seeks,” Dorfmann, 414 F.2d at 1174.
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`III. DISCUSSION
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`In seeking to compel defendants to process and produce, “on an expedited basis,” all non-
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`exempt documents responsive to plaintiff’s two outstanding FOIA requests, Pl.’s Mem. at 2,
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`plaintiff effectively requests immediately the full relief called for in the Complaint, but without
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`the aid of additional factual support and briefing analysis ordinarily available in assessing
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`dispositive motions in FOIA cases and notwithstanding the ordinary administrative process for
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`addressing FOIA requests in a fairly ordered and transparent process guided by agency
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`regulations.6 As detailed below, plaintiff challenges only defendants’ failure to respond to its
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`Plaintiff insists it “has met the requirements for expedited processing,” Pl.’s Reply Mem. Supp. Mot. for
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`Preliminary Injunction (“Pl.’s Reply”) at 1, ECF No. 15, but that issue is not properly before this Court. As noted,
`supra Part I, although neither defendant granted plaintiff’s request for expedited processing, plaintiff asserts no
`claim challenging the agencies’ explicit or constructive denial of expedited processing in the Complaint, nor
`demands relief to override defendants’ denial of plaintiff’s expedited processing request. See generally Compl.
`Consequently, whether defendants improperly denied plaintiff’s request for expedited processing, under 5 U.S.C. §
`552(a)(6)(E)(iii), is not raised in the Complaint and thus may not be the subject of preliminary injunctive relief since
`plaintiff can show no likelihood of success on a claim that is not even asserted. See, e.g., De Beers Consol. Mines v.
`United States, 325 U.S. 212, 220 (1945) (finding that “[a] preliminary injunction is always appropriate to grant
`intermediate relief of the same character as that which may be granted finally,” but declining to grant relief where
`the requested injunction “deals with a matter wholly outside the issues in the suit” and so “in no circumstances can
`be dealt with in any final injunction that may be entered”); Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810
`F.3d 631, 633 (9th Cir. 2015) (“A court’s equitable power lies only over the merits of the case or controversy before
`it.”); Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997) (per curiam) ((“A district court should not issue
`an injunction when the injunction in question is not of the same character, and deals with a matter lying
`wholly outside the issues in the suit.”); Omega World Travel v. TWA, 111 F.3d 14, 16 (4th Cir. 1997) (“[A]
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`Case 1:21-cv-00566-BAH Document 21 Filed 04/25/21 Page 8 of 22
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`FOIA requests within the 20-day statutory deadlines, Pls.’ Mem. at 3, reflecting a clear
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`misconstruction of the remedies afforded by the FOIA. Defendants rightly contend that plaintiff
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`fails to show, beyond the expiration of the 20-day statutory period, entitlement to the requested
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`extraordinary preliminary injunctive relief, Defs.’ Opp’n at 1, or any irreparable harm to plaintiff
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`absent such relief, id. at 1–2, and that, given the likely massive volume of responsive data, with
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`the concomitant heavy processing burden on defendants and resulting disruption of the ordinary
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`FOIA processing on similarly-situated FOIA requesters, the balance of equities and the public
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`interest do not favor preliminary injunctive relief here, id. at 2. This Court agrees with
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`defendants that plaintiff falls far short of satisfying any of the preliminary injunction factors,
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`which are examined seriatim.
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`Plaintiff is Not Likely to Succeed on the Merits of Claim to Entitlement to
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`Processing and Production of FOIA Records Within 20 Business Days
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`Plaintiff posits that it is likely to succeed on the merits of its claim because defendants’
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`“failure to respond to [plaintiff’s] valid FOIA request violates the agency’s obligations under
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`FOIA to respond within 20 business days and to make reasonable efforts to conduct a search for
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`responsive documents.” Pl.’s Mem. at 5. Yet, as defendants observe, any alleged failure by the
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`defendants to respond within the 20-day statutory deadline, under 5 U.S.C. § 552(a)(6)(A)(i),
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`preliminary injunction may never issue to prevent an injury or harm which not even the moving party contends was
`caused by the wrong claimed in the underlying action”); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)
`(“[A] party moving for a preliminary injunction must necessarily establish a relationship between the injury claimed
`in the party’s motion and the conduct asserted in the complaint.”); Steele v. United States, No. l:14-cv-1523 (RCL),
`2020 U.S. Dist. LEXIS 229629, at *20 (D.D.C. Dec. 4, 2020) (denying preliminary injunction motion “because
`[Court] cannot grant preliminary relief on claims not pleaded in the complaint.”); Bird v. Barr, No. 19-cv-1581
`(KBJ), 2020 U.S. Dist. LEXIS 130277, at *7 (D.D.C. July 23, 2020) (“[T]his Court only possesses the power to
`afford preliminary injunctive relief that is related to the claims at issue in the litigation”) (emphasis in original).
`Consequently, plaintiff’s argument for preliminary injunctive relief because its FOIA requests “meet[] the requisite
`showings for [] expedited processing,” Pl.’s Reply at 7, is readily rejected. To the degree plaintiff uses its urgency
`arguments to show irreparable harm, by claiming that “delaying a response would compromise a significant
`recognized interest . . . [namely,] the health of the public,” id. (citing Pl.’s Mem., Ex. A, Decl. of David E. McCraw,
`NYT Legal Dep’t (“McCraw Decl.”), Ex. A, DHA Request at 6, ECF No. 9-1), these arguments are considered infra
`Part B.
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`does not entitle plaintiff to immediate processing and production. Defs.’ Opp’n at 15.7 Rather,
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`as the D.C. Circuit has explained, “[i]f the agency does not adhere to FOIA’s explicit timelines,
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`the ‘penalty’ is that the agency cannot rely on the administrative exhaustion requirement to keep
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`cases from getting into court.” Citizens for Responsibility & Ethic in Wash. v. FEC (“CREW”),
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`711 F.3d 180, 189 (D.C. Cir. 2013) (Kavanaugh, J.).
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`In short, plaintiff appears to misapprehend the way in which the FOIA operates. While
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`agencies have 20 working days to “make a ‘determination’ with adequate specificity, such that
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`any withholding can be appealed administratively,” id. (quoting 5 U.S.C. § 552(a)(6)(A)(i)), the
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`consequence of agency delay in rendering such a determination bears only on the requester’s
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`ability to get into court, id. Requesters are “generally required to exhaust administrative appeal
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`remedies before seeking judicial redress,” id. at 184, but an agency’s failure to “make and
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`communicate its ‘determination’” within the statutory timeline allows the requester to be
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`“deemed to have exhausted his administrative remedies,” id. (quoting 5 U.S.C. §
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`552(a)(6)(C)(i)), and to obtain judicial review. After a lawsuit is filed, “the agency may continue
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`Defendants additionally argue that plaintiff is not likely succeed on the merits because plaintiff submitted
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`an invalid FOIA request to which HHS is not required to respond. Defs.’ Opp’n at 13. Plaintiff characterizes the
`references to DHA throughout the HHS FOIA Request as “minor error[s]” that do not “permit[] HHS to simply
`ignore the request,” Pl.’s Reply at 5, and further argues that HHS has a duty to “construe the request liberally,” id.
`Both sides’ arguments miss the mark. The HHS FOIA Request, identical to the DHA FOIA Request, is both
`intelligible and valid. To the extent this request for “records from the Defense Health Agency” held by HHS that
`fall within the four broad data-sets was erroneous, HHS has no duty to cure any mistakes made by plaintiff in stating
`its request. See, e.g., Amadis v. U.S. Dep’t of State, 971 F.3d 364, 370 (D.C. Cir. 2020) (“Agencies must read FOIA
`requests ‘as drafted.’” (quoting Miller v. Casey, 730, 777 (D.C. Cir. 1984))); Kowalczyk v. Dep’t of Justice, 73 F.3d
`386, 389 (D.C. Cir. 1996) (“The agency . . . is not obliged to look beyond the four corners of the request . . . .”); Am.
`Oversight v. United States Dep’t of Justice, 401 F. Supp. 3d 16, 34 (D.D.C. 2019) (“An agency must liberally
`construe a FOIA request, but it is not obligated to rewrite the request to ask for more than the requester did.”)
`(internal quotations and citations omitted); Kenney v. Dep’t of Justice, 603 F. Supp. 2d 184, 189 (D.D.C. 2009)
`(“Plaintiff cannot allege that the agency failed to produce responsive records, when the records he now identifies fall
`outside the scope of his . . . request”). Accordingly, HHS correctly “plans to proceed under its current
`understanding of the FOIA request as written,” Defs.’ Opp’n at 8, namely that plaintiff seeks “DHA’s records in
`HHS’ possession,” Gaylord Decl. ¶ 10. If plaintiff failed to frame its HHS FOIA Request accurately, the remedy is
`clear: plaintiff may submit a new, corrected FOIA request to HHS—and to avoid wasting resources of HHS,
`plaintiff should withdraw the request for records plaintiff did not intend to seek. Plaintiff is not, however, entitled to
`force HHS to cure plaintiff’s own substantive mistakes by stretching the plain text of the HHS FOIA Request to
`reflect the meaning that plaintiff desires or actually intended but that substantially differs from its plain text.
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`to process the request, and the court (if suit has been filed) will supervise the agency’s ongoing
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`progress, ensuring that the agency continues to exercise due diligence in processing the request.”
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`Id. at 189 (citing 5 U.S.C. § 552(a)(6)(C))). Moreover, as relevant here, “[t]he 20-working-day
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`timeline is not absolute,” id. at 184, as the agency may, “[o]nce in court . . . extend its response
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`time” upon a showing of “exceptional circumstances,” id. at 188.
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`Plaintiff’s sole asserted basis for entitlement to immediate record production “within 20
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`business days of the Court’s order,” Compl. ¶¶ 16–17, is that defendants failed to issue a final
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`determination within the 20-day statutory deadline, but the absence of an agency’s final
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`determination within 20 business days of the filing of a FOIA request merely opens the
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`courthouse doors for a lawsuit and authorizes judicial supervision of the agency’s diligence in
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`responding to the request. This cited “failure” by defendant does not trigger entitlement to
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`production of responsive records, much less immediate production, of the enormous data sets
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`plaintiff’s FOIA requests seek.8
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`Plaintiff’s likelihood of success is further diminished by defendants’ demonstration of
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`unpredictable exceptional circumstances saddling the agencies with an increased workload
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`despite considerable progress in reducing their backlogs, circumstances that are not
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`acknowledged by plaintiff. “Exceptional circumstances” do not include “a delay that results
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`from a predictable agency workload of requests . . . unless the agency demonstrates reasonable
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`progress in reducing its backlog of pending requests.” 5 U.S.C. § 552(a)(6)(C)(ii). Upon such a
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`showing, “so long as ‘the agency is exercising due diligence in responding to the request, the
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`Plaintiff suggests injunctive relief is also appropriate because defendants “failed to make reasonable efforts
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`to search for the records requested,” Pl.’s Mem. at 5 (quoting 5 U.S.C. § 552(a)(3)(C)); see also Compl. ¶¶ 16–17,
`even though defendants are currently processing plaintiffs’ two requests, with DHA logging the DHA FOIA Request
`in a queue for complex requests, Defs.’ Opp’n at 7 (citing DHA Response Letter at 15–17), and HHS conducting an
`“initial analysis” of the HHS FOIA Request as written, Gaylord Decl. ¶ 10. Just because defendants have begun but
`not completed their searches and processing of responsive records within the 20-day statutory period does not mean
`those searches are inadequate or the efforts are not reasonable; instead, this claim is simply premature.
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`Case 1:21-cv-00566-BAH Document 21 Filed 04/25/21 Page 11 of 22
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`court may retain jurisdiction and allow the agency additional time to complete its review of the
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`records.’” CREW, 711 F.3d at 185 (quoting 5 U.S.C. § 552(a)(6)(C)(i)).
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`Qualifying exceptional circumstances are amply demonstrated here. First, DHA
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`experienced a dramatic increase in FOIA requests and litigation matters over the last four years
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`and the agency has made meaningful efforts to keep pace with this surge, despite limited
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`personnel. Boyer Decl. ¶ 10 (reporting 613 requests and 581 closings in 2017, 989 requests and
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`385 closings in 2018, 1,186 requests and 762 closings in 2019 and 1,020 requests and 752
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`closings in 2020); id. ¶ 7 (describing the 6 full time staff responsible for fulfilling all DHA FOIA
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`requests). DHA’s FOIA personnel have been further inundated by a “significant increase in . . .
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`FOIA litigations matters,” many of which “have monthly court-ordered production deadlines.”
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`Id. ¶ 11. The impact of the workload spike on DHA’s already “extremely strained personnel
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`resources,” id. ¶ 12, has been exacerbated by the “widespread disruptions of normal operations in
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`the Washington, D.C. area” caused by the COVID-19 pandemic, id., which has “plac[ed]
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`unprecedented strain on the Department’s networks and other systems” due to employee
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`teleworking and has led to “periodic network interruptions that limit [employees’] ability to view
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`and send emails, or to even log into the DHA network remotely,” id. ¶ 14. In addition, DHA has
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`received approximately 41 FOIA requests to date for records related to DHA’s response to the
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`pandemic. Id. ¶ 15. To its credit, DHA is making significant strides in improving its FOIA
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`processing, by restructuring its records-management system, planning to hire additional staff,
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`and seeking to acquire improved software to assist in processing FOIA requests. Id. ¶ 11.
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`HHS, similarly, reports an even steeper increase in FOIA requests over the last five years,
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`and particularly since the pandemic began: the number of incoming FOIA requests between 2016
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`and 2019 jumped by 26%, from 1,377 to 1,733, and further skyrocketed by 700 to 2,066 requests
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`Case 1:21-cv-00566-BAH Document 21 Filed 04/25/21 Page 12 of 22
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`in the 12 months since the COVID FOIA surge began. Gaylord Decl. ¶¶ 20–21. Burdened by
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`the 2019 30-day federal government shutdown, id. ¶ 22, at least sixty FOIA litigation matters
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`involving 130 to 160 individual FOIA requests, id. ¶ 27, and the increasing complexity of FOIA
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`requests, id. ¶ 25, HHS’ approximately 20 employees, which number includes only half the
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`senior personnel the office requires, Defs.’ Opp’n at 4 (citing Gaylord Decl. ¶ 24), are well
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`beyond capacity. In order to address the litigation backlog, HHS has hired four contractors and
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`reallocated two additional contractors to manage the extensive litigation-related production.
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`Gaylord Decl. ¶ 30. Taken together, these conditions persuasively demonstrate that defendants’
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`present circumstances, coupled with the sheer anticipated volume of records responsive to
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`plaintiff’s data requests, are sufficiently extreme and unusual to allow for some delayed
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`processing.
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`Moreover, defendants have taken various steps to address both of plaintiff’s FOIA
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`requests, as evidenced by DHA’s interim response, which projected an anticipated completion
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`date of December 2021, DHA Response Letter at 2, the agency’s initiation of a search for the
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`requested records “with two Program Offices,” Boyer Decl. ¶ 16, and HHS’ initiation of
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`processing plaintiff’s request, Gaylord Decl. ¶ 10, indicating the exercise of due diligence and
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`warranting additional time to complete the request.
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`Plaintiff has not shown a likelihood of success on the merits of its only claim that it is
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`entitled to production of responsive records within 20 business days “set by FOIA, 5 U.S.C. §§
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`552(a)(6)(A)(i), 552(a)(6)(B)(i).” Compl. ¶ 13; see supra n.6. Lapse of this statutory period
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`without an agency “determination and the reasons therefor,” 5 U.S.C. §§ 552(a)(6)(A)(i)(I),
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`gives plaintiff precisely what it has now obtained, which is to be “deemed to have exhausted his
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`administrative r