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Brown v. Perez

United States District Court, D. Colorado

December 23, 2014

BLAKE BROWN, DEAN BIGGS, JACQUELINE DEHERRERA, RUTH ANN HEAD, MARLENE MASON, ROXANNE MCFALL, RICHARD MEDLOCK, and, BERNADETTE SMITH., Plaintiffs,
v.
THOMAS E. PEREZ, Secretary of Labor, UNITED STATES DEPARTMENT OF LABOR, an agency of the United States, and OFFICE OF WORKERS COMPENSATION, an agency of the United States Department of Labor, Defendants

Page 1218

[Copyrighted Material Omitted]

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For Blake Brown, Dean Biggs, Jacqueline DeHerrera, Ruth Ann Head, Marlene Mason, Roxanne S. McFall, Richard Medlock, Bernadette Smith, Plaintiffs: Karen Virginia Larson, LEAD ATTORNEY, Karen Virgina Larson, Attorney at Law, Denver, CO; John S. Evangelisti, John S. Evangelisti, Attorney at Law, Denver, CO.

For United States Department of Labor, an agency of the United States governing, Office of Workers Compensation Programs, an agency of the United States Department of Labor, Thomas E. Perez, Secretary of Labor, Defendants: Timothy Bart Jafek, U.S. Attorney's Office-Denver, Denver, CO.

Page 1220

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

RAYMOND P. MOORE, United States District Judge.

THIS MATTER comes before the Court on the parties' cross motions for summary judgment (ECF Nos. 51 & 52). Plaintiffs Blake Brown, Dean Biggs, Jacqueline Deherrera, Ruth Ann Head, Marlene Mason, Roxanne McFall, Richard Medlock and Bernadette Smith (" Plaintiffs" ) seek an order finding that Defendants violated the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, by improperly responding to their FOIA requests. Defendants United States Department of Labor, the Office of Workers Compensation, and Thomas E. Perez, the Secretary of Labor (" Defendants" ) seek an order finding that they responded appropriately to the FOIA requests. A hearing was conducted on this matter on September 9, 2014. Upon consideration of the arguments at the hearing, the Vaughn index, papers filed with the Court and the applicable law, Plaintiffs' motion is denied and Defendants' motion is granted.

I. FACTUAL BACKGROUND

Plaintiffs brought this action under FOIA as part of an effort to demonstrate that the Office of Workers Compensation Programs " engaged in fraud, waste and abuse by selecting referee physicians in violation of federal employees' . . . right to have referee physician[s] randomly and equitably selected from a list of all board certified physicians." (ECF No. 41 at 2.)

Page 1221

In order to prove that, Plaintiffs sought various documents related to the referee physician selection process in District 12[1], among them records listing the physicians accepting referrals, the chronological file of referral letters, print outs of selection software screens, and other related documents. ( See, e.g., ECF No. 42-6, FOIA Request Example.) In response, Defendants produced some of the requested reports, redacted and produced others, and denied other requests claiming either a FOIA exemption, or that the documents did not exist, or some other defect with the FOIA request, as detailed further below. Plaintiffs contested the withholding of some of these categories of documents that were not produced, and this suit resulted.

A. Plaintiffs' FOIA Requests

Under the Federal Employees Compensation Act (" FECA" ), the Office of Workers Compensation Programs (" OWCP" ) selects referee physicians to resolve medical conflicts that arise between treating physicians and second opinion physicians hired by OWCP. (ECF No. 72, Proposed Findings of Fact by Plaintiffs, at 1.) FECA provides workers' compensation benefits to civilian federal employees who sustain injury or illness in the performance of duty. (ECF No. 52-1 at 3-4.) Plaintiffs are claimants who received or are receiving FECA benefits. ( Id. at 4.) An individual qualifying for FECA benefits must show a qualifying medical condition supported by a physician's opinion. ( Id.) Where a ...


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