United States Court of Appeals, District of Columbia Circuit
Center for the Study of Services, d/b/a Consumers' Checkbook, Appellee
United States Department of Health and Human Services and Centers for Medicare and Medicaid Services, Appellants
September 7, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-00498)
Schoen, Attorney, U.S. Department of Justice, argued the
cause for appellants. With her on the briefs was Mark B.
Stern, Attorney. R. Craig Lawrence, Assistant U.S. Attorney,
entered an appearance.
M. Jennings argued the cause for appellee. With her on the
brief was Caroline M. Brown.
Before: Rogers and Millett, Circuit Judges, and Randolph,
Senior Circuit Judge.
Rogers, Circuit Judge.
government appeals the order of the district court, in
response to requests pursuant to the Freedom of Information
Act by the Center for the Study of Services
("Consumers' Checkbook"), directing the
government to release health insurance plans to be offered
"each year" on the federal exchanges under the
Affordable Care Act once their terms are effectively final,
or "locked down." The government contends that the
order is contrary to the statutory scheme and unwarranted
absent a finding the government had been and was likely to
continue to be delinquent in responding to Consumers'
Checkbook's requests. For the following reasons, we
reverse the order granting prospective relief.
Freedom of Information Act ("FOIA") provides that
upon receiving a request for release of records, an agency
shall release the information "promptly" to the
requester. 5 U.S.C. § 552(a)(3)(A). A request that
"reasonably describes" the records sought,
id., triggers the agency's obligation to search
for and disclose all responsive records, Morley v.
CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007), unless the
records fall within one of the statutory exemptions. The
burden is on the agency to demonstrate that the records have
not been "improperly withheld." U.S. Dep't
of Justice v. Tax Analysts, 492 U.S. 136, 142 & n.3
(1989) (citing S. Rep. No. 89-813, 2d Sess., 8 (1965); H. R.
Rep. No. 89-1497, 2d Sess., 9 (1966)). District courts are
authorized "to enjoin the agency from withholding agency
records and to order the production of any agency records
improperly withheld." 5 U.S.C. § 552(a)(4)(B).
the Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119
(2010) ("ACA"), entities seeking to offer insurance
plans on federally-funded healthcare exchanges must submit
their proposals to the Centers for Medicare and Medicaid
Services ("CMS"). Through an iterative process over
several months, CMS determines which plans can be certified
as a "Qualified Health Plan" and included on a
federal healthcare exchange. Pub. L. No. 111-148, 124 Stat.
119 §§ 1301, 1302; 45 C.F.R. pt. 156. For example,
entities seeking to offer plans in 2016 were required to
submit data in May 2015 describing their proposed plans. CMS
discovered deficiencies in the data for all proposals in 2015
and sent "correction notices." Corrected data in
support of a revised plan was to be submitted by August 25,
2015. After that date, the data was "locked down"
for final CMS review. Changes thereafter required CMS
approval and were limited to technical changes, such as those
"necessary to correct data display errors." In
October 2015, CMS published the final plan lists and the
eligible plans on the healthcare exchange website,
Checkbook is a nonprofit organization "dedicated to
conducting and supporting studies of consumer services . . .
and providing public benefit by publishing magazines, books,
reports, and websites that educate and inform
consumers." Letter of Nov. 29, 2013 to CMS from Robert
Krughoff, President of Consumers' Checkbook. In November
2013, as healthcare exchanges were launching under the ACA,
Consumers' Checkbook submitted a FOIA request to CMS for
data related to the insurance plans that would be offered on
the new healthcare exchanges. It requested that data as soon
as it was initially provided to CMS. Having received no
records, Consumers' Checkbook sued CMS and the Department
of Health and Human Services (collectively, "the
agency") in March 2014, alleging they failed to
"release any of the requested information or even to set
a schedule for production of the information, " Cmpt.
¶ 4, and that this delay prevented it "from
establishing online consumer-help tools it sought to
establish prior to the expiration of the ACA's initial
open enrollment period, " id. ¶ 5. It
further alleged that "CMS's failure to respond
raises doubts about whether the agency can be relied on to
release similar information to Consumers' C[heckbook] for
future plan years, " when it intended to "provide
up-to-date online tools for consumers during each annual,
health plan enrollment period." Id.
Consumers' Checkbook sought a declaration the agency had
violated FOIA and an injunction against withholding the
requested records, as well as a permanent injunction against
"refusing to disclose or delaying the disclosure of
substantially the same information sought for future plan
years"; alternatively, it asked the district court to
retain jurisdiction to ensure the agency "promptly
disclose[s]" this information in the future.
Checkbook submitted FOIA requests to the agency in June 2014,
May 2015, and August 2016, each seeking the same type of data
for the upcoming ACA open enrollment period. In 2013, 2014,
and 2015, it sought the data as soon as it was submitted to
CMS. In its 2016 request, Consumers' Checkbook sought
records only after the data had been "locked down."
The several FOIA requests were consolidated in the litigation
pending in the district court. The basic dispute in the
district court centered on the agency's invocation of
Exemption 4, which permits agencies to withhold "trade
secrets and commercial or financial information obtained from
a person and privileged or confidential." 5 U.S.C.
§ 552(b)(4). The agency maintained that all of the
requested information is "confidential" and thus
exempt from release under FOIA, while Consumers'
Checkbook argued Exemption 4 did not apply or did not apply
to all of the requested information. See Mem. Order
6 (Aug. 16, 2016).
district court initially denied the parties' cross
motions for summary judgment. The court rejected the
agency's position that the case was moot in light of
release of the 2014 and 2015 requested information.
Consumers' Checkbook had alleged that the delays in
receiving the requested 2014 and 2015information had
interfered with its ability "to provide up-to-date
online tools for consumers during each annual, health plan
enrollment period." Cmpt. ¶ 5. As for the
agency's reliance on Exemption 4, the court found, based
on letters from insurers, that "one could conclude"
actual competitive harm could arise from releasing plan
benefits data prior to the open enrollment period. Mem. Op.
17, 21 (July 1, 2015) (citing Niagara Mohawk Power
Corp. v. U.S. Dep't of Energy, 169 F.3d 16,
18 (D.C. Cir. 1999)). The district court adopted, by order,
the parties' proposed schedule that called for the
release to Consumers' Checkbook of the requested
information for the 2016plan year by September 15, 2015.
August 16, 2016, the district court issued the challenged
order. The district court concluded that Consumers'
Checkbook's most recent FOIA request in 2016, seeking
data after the "lock down" date, was "an
extremely significant change, " Mem. Order 8 (Aug. 16,
2016), which would do two things. First, it would allow
Consumers' Checkbook more than a month to prepare its
informational materials before the ACA open enrollment period
began. Second, "no reliable evidentiary support"
indicated that release of information after the "lock
down" date would cause "substantial competitive
harm" to any insurer. See id. 10-11. The court
noted that plan changes allowed by CMS after the "lock
down" date are limited and, moreover, that fluctuations
occur even to final plans and plan lists. Further, it noted
that Consumers' Checkbook was not seeking any sensitive
data or underlying actuarial or business assumptions.
Accordingly, the court ruled that the requested information
was not protected from disclosure under Exemption 4. See
id. 9, 11. Because there was no reason to deny
Consumers' Checkbook "what it is entitled to, "
id. 13, the district court rejected the agency's
argument that no order of any kind should be entered, and
denied its motion for summary judgment. Upon declaring the
agency violated FOIA by withholding the requested benefits
data after the lock down/final data submission deadline, the