Trotter v. Ctr. for Medicare & Medicaid Servs., No. 19-2008, 2022 WL 951377 (D.D.C. Mar. 30, 2022) (Lamberth, J.)

Trotter v. Ctr. for Medicare & Medicaid Servs., No. 19-2008, 2022 WL 951377 (D.D.C. Mar. 30, 2022) (Lamberth, J.)

Re:  Request for domain portions of email addresses associated with CMS-registered healthcare providers

Disposition:  Denying plaintiff's motion for attorneys' fees and costs

• Attorney Fees: "The parties agree that [plaintiff] is eligible for an attorney-fee award because he achieved a favorable result from this Court."  "But the Court, weighing the four factors identified by the D.C. Circuit, finds that [plaintiff] is not entitled to attorneys' fees."  "As to the effect of the litigation, this component focuses only on whether the litigation caused an agency to release the requested documents."  "This FOIA litigation caused the release of 203,939 lines of information."  "Moreover, the public already had access to much of this information."  "Any effect of [plaintiff's] lawsuit was minimal."  "The second (and more important) component of the public benefit inquiry requires the Court to make 'an ex ante assessment of the potential value of the information requested, with little or no regard to whether the documents supplied prove to advance the public interest.'"  "But like before, [plaintiff] fails to 'show a nexus' between the email domains and 'how CMS addresses waste, fraud, and abuse.'"  "[Plaintiff] states that the released data 'make[] it simpler to test which provider-to-hospital relationship should be regarded as primary,'—which means the organization is 'willing to spend money to enable the provider to exchange healthcare data using CMS-approved digital protocols.'"  "One year on, this assertion is 'speculative because he provides no reason to believe that a provider's domain has any connection to his primary organization.'"  "Nor does [plaintiff] explain how a domain link between an individual provider and their associated organization illuminates whether the organization is 'willing to spend money to enable the provider to exchange healthcare data using CMS-approved protocols.'"  "[Plaintiff's] belated attempts to plug the holes in his sinking arguments cannot succeed."  "In his reply, [plaintiff] explains how the domains were used in his study and provides a copy of the study itself."  "Because he raised these arguments for the first time in his reply filings, they are forfeited."  "The Court could not consider them anyway, for this factor requires an 'ex ante assessment' of potential value."  "Finally, [plaintiff] contends that he 'has demonstrated his ability to disseminate the information obtained by this litigation to a high degree' through his website, newsletter, and data sharing processes."  "This argument does not affect the Court's public-benefit analysis."  "Nearly half of the information that CMS released was already available to the public."  "And there is 'no public interest' in releasing documents already provided to the public."
  
  "The second and third entitlement factors lean in favor of [plaintiff]."  "[Plaintiff] does not have a personal or commercial interest in this case."  "Rather, he has acted within the scope of his professional role as a 'data journalist.'"  "CMS does not contend that [Plaintiff's] scholarly interests are frivolous or purely commercial."  "Instead, CMS focuses on the structure of [plaintiff's] business.'"  "CMS argues that that because CareSet Journal's commercial arm is 'tight[ly] link[ed]' with its journalistic arm, [plaintiff] has personal and commercial interests in the information that are 'sufficient to ensure the vindication of the rights given in the FOIA.'"  "The Court is not persuaded."  "These two factors should 'generally aid scholars and journalists even if, in some cases, they do not weigh strongly in a plaintiff's favor and therefore ultimately 'do little to advance [their] position' when weighing all four factors.'"  "Accordingly, the Court finds that the second and third factors weigh in favor of [plaintiff]."  "But while these factors weigh in favor of [plaintiff] because of his uncontested status as a 'data journalist,' they do 'little to advance [his] position when weighing all four factors.'"
  
  "The final factor cuts decisively in favor of CMS."  "This inquiry focuses on the reasonableness of the agency's position throughout the litigation, even if the Court ultimately ordered disclosure."  "The remaining issue is whether the other, wrongfully withheld domains affect how the Court balances this factor."  "They do not."  "[Plaintiff's] success in this litigation stems only from CMS's failure to segregate the 3.2% of domains for providers that participate in a health-information exchange."  "But [plaintiff] does not appear to have argued—until this litigation—that CMS needed to segregate domains of providers that participate in health-information exchange from the other domains."  "In light of these broad requests, the Court concludes that CMS's withholdings were reasonable."  "CMS implemented a global response rooted in sound FOIA principles, its policy notice in the Federal Register, and good faith."  "At bottom, the Court cannot say that CMS's position was unreasonable or that CMS's behavior was 'recalcitrant' or 'obdurate' when it was correct on the vast majority of its claims and the legal framework that was the focus of this litigation."  "Based on its legal position, the Court concludes that CMS acted reasonably in its withholding." 
  
  "Upon consideration of the four factors, the Court finds that the balancing test weighs in favor of CMS and that [plaintiff] is not entitled to attorneys' fees."