Fleming v. Medicare Freedom of Information Group ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RHONDA FLEMING,
Plaintiff,
v. Civil Action No.
1:15-cv-01135 (EGS/GMH)
MEDICARE FREEDOM OF
INFORMATION GROUP, et al.
Defendants.
MEMORANDUM OPINION AND ORDER
In this case brought pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552et seq., Plaintiff Rhonda Fleming, who proceeds pro se, has filed two motions, a “Renewed Motion
for a Judge Supervised Settlement Conference” [Dkt. 130] and a “Motion for Interim Award of
Fees and Costs” [Dkt. 131]. 1 For the reasons that follow, both motions are denied.
I. BACKGROUND
Resolution of these motions does not turn on any substantive claims that Plaintiff has
raised; a truncated procedural history will be useful, however. In 2010, Plaintiff was convicted in
the Southern District of Texas on sixty-seven counts of Medicare-related health care fraud and
related offenses in connection with her submission of fraudulent claims to Medicare using supplier
numbers purchased from Hi-Tech Medical Supply and First Advantage Nursing. In February
2015, in the District of Minnesota, she filed the Complaint in this action seeking documents related
to Medicare payments made to the two companies, documents related to prosecutors involved in
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Plaintiff’s motions were filed on March 26, 2018. Defendants filed their opposition on April 6, 2018. Pursuant to
Local Civil Rule 7(d), any reply was due on April 13, 2018. As of the date of this Memorandum Opinion and Order,
no reply has been filed.
her criminal trial, and various other relief related to claims brought pursuant to Bivens v. Six Un-
known Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). [Dkt. 1]. The case was
transferred to this Court in July 2015. [Dkt. 56]. During the period between July 2015 and April
2017, Plaintiff filed approximately twenty motions, including a motion for partial summary judg-
ment and a motion that sought a referral to this Circuit’s mediation program [Dkt. 88; Dkt. 110].
Defendants filed a Motion for Summary Judgment in November 2015 [Dkt. 76] and a Supple-
mental Motion for Summary Judgment in July 2016 [Dkt. 107].
On November 16, 2017, the undersigned issued a Report and Recommendation that rec-
ommended granting in part and denying in part Defendant’s motions for summary judgment and
denying Plaintiff’s motion for partial summary judgment, among other things (the “November
2017 R&R”). [Dkt. 122 at 27–28]. That Report and Recommendation is currently pending before
the Honorable Emmet G. Sullivan, United States District Judge. Also on November 16, 2017, the
undersigned issued a Memorandum Opinion and Order denying Plaintiff’s motion for mediation,
among other things (the “November 2017 Order”). [Dkt. 123 at 2–3].
II. DISCUSSION
A. Plaintiff Failed to Receive Permission from the Court to File These Motions
On September 1, 2016, after Plaintiff had filed nearly twenty motions in just over one year,
the Honorable Alan Kay, United States Magistrate Judge, ordered Plaintiff to “refrain from filing
any additional motions without prior permission” from the Court. Minute Entry dated Sept. 1,
2016. Plaintiff did not seek or receive such permission to file these motions, so they may be denied
on that basis alone.
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B. Motion for Settlement Conference
In this motion, Plaintiff states that she “has made a fair offer to voluntarily dismiss th[is]
case,” but, because she is a federal prisoner, she is “not in the best position to negotiate with the
Department of Justice,” which is one of the defendants here. [Dkt. 130 at 1]. She therefore seeks
this Court’s supervision of settlement discussions. Id. Defendants notes that Plaintiff is able to
correspond directly with them about settlement and that there is consequently no need for judicial
oversight of settlement discussions. [Dkt. 133 at 2]. They further note that they have been working
to remedy the defects identified in the Report and Recommendation currently pending before
Judge Sullivan, and, assuming it is adopted, plan to renew their motions for summary judgment in
order to fully resolve this case. Id. at 1–2.
Addressing Plaintiff’s prior request to mediate this case, the November 2017 Order states:
Mediation would not be useful at this time. The undersigned has recommended
dismissal of all of Plaintiff’s claims other than her FOIA claim against the Agency
Defendants, MFIG, and the United States Department of Justice. The Agency De-
fendants might well be entitled to summary judgment on that claim after having
performed a new search and submitted revised declarations. See, e.g., Long v. Im-
migrations and Customs Enforcement, 149 F. Supp. 3d 39, 61 (D.D.C. 2015) (deny-
ing defendants’ motion for summary judgment in part and allowing submission of
supplemental evidence supporting motion); Walsh v. F.B.I., 905 F. Supp. 2d 80, 87
(D.D.C. 2012) (denying FBI’s motion for summary judgment and setting schedule
for amended motion for summary judgment). Accordingly, the motion for media-
tion and the appointment of counsel for the purposes of mediation is denied.
[Dkt. 123 at 3]. Nothing material has changed since that order was issued and there is therefore
no reason to reconsider the rationale of that order. Judicially-supervised settlement discussions
would not be an efficient use of judicial resources at this time, when Plaintiff can communicate
her settlement positions to Defendants without the participation of a judge or other mediator, De-
fendants do not see the need for judicial involvement in any settlement discussions, and Defendants
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plan to renew their motion for summary judgment at the earliest opportunity. Plaintiff’s motion
for a court-supervised settlement conference is therefore denied.
C. Motion for Interim Award of Fees and Costs
In the second motion, Plaintiff seeks “an award of inter[i]m fees and costs in the amount
of $15,000.” [Dkt. 131 at 3]. There are a number of reasons to deny this request.
First, to the extent that Plaintiff seeks attorney’s fees under FOIA’s fee-shifting provision,
she is not entitled to them. Pro se litigants may not recover attorney’s fees. See, e.g., Kay v.
Ehrler, 499 U.S. 432, 435–36 (1991) (entitlement to fee award requires attorney-client relation-
ship); accord Burka v. U.S. Dep’t of Health & Human Servs., 142 F.3d 1286, 1289 (D.C. Cir.
1998); Dorsen v. U.S. Sec. & Exchange Comm’n, 15 F. Supp. 3d 112, 117 n.5 (D.D.C. 2014).
Second, to the extent that Plaintiff seeks recoverable costs, such as filing fees, the request
is premature. In order to recover such costs, a plaintiff must have “substantially prevailed” in the
case. 5 U.S.C. § 552(a)(4)(E)(i); see also Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013) (per
curiam). “A complainant is deemed to have substantially prevailed if [she] obtained relief through
either ‘a judicial order . . .’ or ‘a voluntary or unilateral change in position by the agency if the
complainant’s claim is not insubstantial.’” Hussain v. U.S. Dep’t of Homeland Sec., 674 F. Supp.
2d 260, 272 (D.D.C. 2009) (alteration in original). Here, the November 17 R&R, which denied
Plaintiff’s motion for partial summary judgment and granted in part and denied in part Defendants’
motions, is still pending before Judge Sullivan. There is, therefore, no “judicial order” on which
Plaintiff can rely, nor is there any indication that the agencies at issue have voluntarily changed
their position in this case. Moreover, once the appropriate relief is embodied in a judicial order,
the Court will then have to determine whether Plaintiff has “substantially prevailed” so as to be
eligible for an award of costs. See, e.g., Terris, Pravlik & Millian, L.P. v. Ctrs. For Medicare &
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Medicaid Servs., 794 F. Supp. 2d 29, 34 (D.D.C. 2011) (“Whether a plaintiff has ‘substantially
prevailed’ is a question of fact for the District Court . . . .”).
Third, a court may grant an interim award of fees and costs if the plaintiff has raised a
concern that, without such an award, she will not be able to continue the litigation. See Clemente
v. FBI, 867 F.3d 111, 121 (D.C. Cir. 2017) (“It is eminently reasonable for a district court, in
determining whether to award interim fees or instead to wait to award fees until the end of the
litigation, to consider factors going to the plaintiff’s ability to continue the litigation.”). Thus,
courts may look to such factors as the financial hardship to the litigant of denying the interim fee
award, the length of time the case has been pending, and the period of time until the case is con-
cluded. Id. at 120. Plaintiff asserts that her litigation costs have been paid by her family, notes
the case has been pending for five years, and speculates that the case will continue into the limitless
future, because Defendants’ “game” is “deny, deny, deny . . . the truth.” [Dkt. 131 at 2–3]. Con-
spicuously absent is any argument that a failure to reimburse her costs—the amount of which is
unspecified and unsupported, but is unlikely to be anywhere near the $15,000 she seeks—will
endanger her ability to continue this litigation. Indeed, in the period since November 2017, Plain-
tiff has continued to prosecute this case enthusiastically, filing with the Court a total of four mo-
tions—one of them an omnibus motion—all in violation of Judge Kay’s September 1, 2016 Order.
[Dkt. 127; Dkt. 130; Dkt. 131; Dkt. 132]. And, as noted above, Defendants plan to renew their
motion for summary judgment at the earliest opportunity, so this action might well be resolved in
relatively short order. Plaintiff has not, therefore, made a sufficient showing of hardship. See,
e.g., Allen v. F.B.I., 716 F. Supp. 667, 672 (D.D.C. 1988) (“Interim awards, if allowed, must be
granted sparingly, and only in those instances where great hardship is alleged. An award of interim
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fees at this point of the litigation is premature, even though seven years have elapsed since the
initial filing of this action.”).
Finally, as indicated above, Plaintiff has provided nothing to support the amount she has
requested. Generally, even if a plaintiff is eligible to recover costs, a request is “properly denied
for want of substantiation.” Blazy v. Tenet, 194 F.3d 90, 97–98 (D.C. Cir. 1999). Plaintiff here
seeks $15,000, but provides no proof that any such amount was expended on this litigation. In-
deed, the only amount supported is Plaintiff’s $400 filing fee, which was paid in April 2015. [Dkt.
13]; see Blazy, 194 F.3d at 98 (finding that court “had documentary evidence that [the plaintiff]
paid his filing fees. His appearance before the court attests to that fact.”). But even that amount
is not compensable at this time for the reasons discussed above.
In sum, Plaintiff is not entitled to an interim award of fees.
III. ORDER
Upon consideration of the record and the reasons stated above, it is hereby
ORDERED that Plaintiff’s Renewed Motion for a Judge Supervised Settlement Confer-
ence [Dkt. 130] is DENIED; it is further
ORDERED that Plaintiff’s Motion for Interim Award of Fees and Costs [Dkt. 131] is
DENIED.
SO ORDERED.
G. Michael Harvey
2018.04.20 11:00:54
Date: April 20, 2018 -04'00'
___________________________________
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
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