Children’s Health Def. v. CDC, No. 23-00431, 2024 WL 3521593 (D.D.C. July 24, 2024) (McFadden, J.)

Children’s Health Def. v. CDC, No. 23-00431, 2024 WL 3521593 (D.D.C. July 24, 2024) (McFadden, J.)

Re:  Requests for records concerning safety monitoring of COVID-19 vaccines through the Vaccine Adverse Event Reporting System database

Disposition:  Granting in part defendant’s partial motion to stay

• Litigation Considerations, Pleadings:  The court “[c]onsider[s] first [plaintiff’s] threshold argument that HHS cannot move for a stay because of its status as a nonparty.”  “[Plaintiff] says this suit is between [plaintiff] and CDC, and it notes that CDC has not sought a stay.”  “According to [plaintiff], this means the Court should either strike or deny HHS’s motion.”  The court finds that “[plaintiff] is half right.”  “Typically only parties may seek relief from a court.”  “But there are various ways an outsider can become a party:  ‘intervention, substitution, or third-party practice,’ to name a few.”  “No matter the mechanism, [plaintiff] has a point – HHS must become a party to seek relief.”  “HHS says it is a party by operation of law.”  “Specifically, it says that FOIA automatically makes an executive department a defendant whenever one of its components is sued.”  The court finds that “§ 551(1) generally defines ‘agency’ and § 552(f)(1) lists some specific entities that fit that bill.”  “But the word ‘includes’ tees off that list, making its examples illustrative instead of exclusive.”  “Yet it may also refer to an ‘authority of the Government of the United States, whether or not it is within or subject to review by another agency’ . . . .”  “Either way, FOIA’s double-layer definition of ‘agency’ does not – as HHS suggests – make an ‘executive department’ a de facto party in every suit against its components.”  “Precedent confirms that ‘subcomponents of federal executive departments may, at least in some cases, be properly named as FOIA defendants’ even if their parent agency is left out of the action.”  “And the D.C. Circuit has said that ‘agency status [is conferred on] on any administrative unit with substantial independent authority in the exercise of specific functions.’”  “So based on text and precedent, HHS did not automatically become a party when [plaintiff] sued CDC.”  “That said, the Court will recognize HHS as an intervenor for the limited purpose of seeking a stay.”  “Rightly or wrongly, HHS has acted like a party from the beginning of this litigation.”  “In the Complaint, [plaintiff] alleged that CDC was ‘an agency within the executive branch of the U.S. Government, . . . is a federal agency within the meaning of 5 U.S.C. § 552(f), and has possession, custody, and control of records to which Plaintiff seeks access.’”  “But CDC denied the allegation and answered that ‘CDC is an operating component within [HHS],’ meaning ‘[HHS] is the proper defendant to this Complaint.’”  “HHS has also filed joint status reports and joint motions with [plaintiff] – all without objection.”  “So from the get-go, HHS has functionally participated here.”  “HHS also qualifies for permissive agency intervention under Federal Rule of Civil Procedure 24(b).”  “That rule says:  ‘On timely motion, the court may permit a federal . . . agency to intervene if a party’s claim or defense is based on . . . a statute or executive order administered by the . . . agency.’”  “HHS meets that standard.”  “As for the ‘timely motion’ requirement, the Court recognizes that HHS never filed a formal motion seeking intervention.”  “But HHS has plainly demonstrated its desire to participate here.”  “So rather than requiring HHS and [plaintiff] to engage in ‘superfluous motion practice,’ . . . the Court will construe HHS’s stay motion as a request to intervene on that narrow issue.”

• Litigation Considerations, “Open America” Stays of Proceeding:  The court holds that, “[h]aving weighed the equities on both sides of the ledger, the Court will stay this case for six months from the date of this Order.”  “To recap, several judges in this district have issued stays affecting access to the same documents [plaintiff] seeks here, and one of these cases even involves [plaintiff].”  “Two courts in this district have required plaintiffs – who seek the same documents [plaintiff] seeks here – to wait their turn.”  “Like a child denied by one parent who decides to ask the other, [plaintiff] seeks relief here that was withheld by another judge of this district.”  “Letting [plaintiff] skip the line would trigger a host of problems.”  “Most prominently, an order like that would directly ‘interfere[ ] with [ ]other case[s]’ – cases involving the same documents and, for one of the cases, the same plaintiff.”  “Of course, the Court must balance its interest in judicial economy and the preservation of the related stay orders against ‘any possible hardship to the parties.’”  “But one party will face some hardship either way the Court rules.”  “Even if[, as plaintiff argues,] the records are being ‘withheld,’ a ‘standard of reasonableness’ governs whether that withholding is ‘improper.’”  “CDC has taken reasonable measures to process the records.”