Fleming v. Medicare Freedom of Info. Grp.

Citation: 310 F. Supp. 3d 50Docket: Civil Action No. 1:15–cv–01135 (EGS/GMH)

Court: Court of Appeals for the D.C. Circuit; April 20, 2018; Federal Appellate Court

Lead Opinion SummaryLead Opinion Original

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Rhonda Fleming, representing herself, has made two motions in her Freedom of Information Act case: a "Renewed Motion for a Judge Supervised Settlement Conference" and a "Motion for Interim Award of Fees and Costs." Both motions were denied by Magistrate Judge G. Michael Harvey. A brief procedural history indicates that Fleming was convicted in 2010 on multiple counts of Medicare fraud and subsequently filed this FOIA complaint in 2015, seeking documents related to Medicare payments and her criminal trial. The case was transferred to this Court in July 2015. 

Fleming has filed around twenty motions since the transfer, including for partial summary judgment and mediation. The defendants filed their own motions for summary judgment, and a Report and Recommendation regarding these motions is pending before District Judge Emmet G. Sullivan. 

The denial of Fleming's motions is primarily based on her failure to obtain prior permission from the Court for filing additional motions, as mandated by a prior order from Magistrate Judge Alan Kay. Regarding the settlement conference, Fleming argued that her status as a federal prisoner limits her ability to negotiate with the Department of Justice. However, the defendants countered that she can communicate directly with them about settlement and are working to address issues raised in the pending Report and Recommendation.

Mediation is deemed unhelpful at this stage, as the November 2017 Order indicated, and all of the Plaintiff's claims, except for the FOIA claim against the Agency Defendants, MFIG, and the U.S. Department of Justice, are recommended for dismissal. The Agency Defendants may be eligible for summary judgment on the FOIA claim after conducting a new search and providing revised declarations. Consequently, the request for mediation and for the appointment of counsel for mediation purposes is denied. The rationale for this decision remains unchanged, as no significant developments have occurred since the order was issued. Judicial resources would not be efficiently utilized for settlement discussions, given that the Plaintiff can communicate directly with the Defendants, who do not see the need for judicial involvement and intend to promptly renew their summary judgment motion.

In a second motion, the Plaintiff seeks an interim award of fees and costs amounting to $15,000. This request is denied for multiple reasons. First, as a pro se litigant, the Plaintiff is not entitled to attorney's fees under FOIA's fee-shifting provision. Second, any request for recoverable costs is premature, as the Plaintiff must "substantially prevail" in the case to be eligible for such costs. No judicial order has yet been issued that the Plaintiff can rely on, nor is there evidence of a voluntary change in position by the agencies involved. The pending status of the November 17 ruling further substantiates the denial of the fee and costs motion until a judicial order is established and the question of whether the Plaintiff has "substantially prevailed" can be determined.

A court may grant an interim award of fees and costs if a plaintiff demonstrates that lacking such an award will impede their ability to continue litigation. In assessing whether to grant interim fees, factors such as the plaintiff's financial hardship, the duration of the case, and the time remaining until resolution are considered. The plaintiff claims her litigation costs have been covered by family support, the case has been pending for five years, and predicts prolonged litigation due to the defendants' strategy of denial. However, she fails to show that not reimbursing her unspecified costs—allegedly around $15,000—would jeopardize her ability to proceed. Despite filing multiple motions since November 2017, the plaintiff has not substantiated her claims of hardship, which are required for an interim award. The court also notes that interim fee awards should be rare and only granted in cases of significant hardship. Additionally, the plaintiff has not provided proof of her alleged expenses, with only a $400 filing fee documented. Consequently, the request for interim fees is deemed premature, and the court denies both the motion for a judge-supervised settlement conference and the motion for interim fees and costs. No reply to the defendants' opposition was filed by the plaintiff by the deadline.