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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 21-2784 (TSC) 

FROST BROWN TODD LLC,

Plaintiff,

v.

CENTERS FOR MEDICARE AND 

MEDICAID SERVICES,

Defendant.

MEMORANDUM OPINION

Years after filing six different requests for agency records with the Centers for Medicare 

and Medicaid Services (“CMS”) under the Freedom of Information Act (“FOIA”), Plaintiff Frost 

Brown Todd, LLC, filed this action against CMS, claiming that it violated FOIA by withholding 

documents it requested and engaging in a pattern or practice of undue delay. Defendant moved 

to partially dismiss the Complaint, arguing that most of Plaintiff’s FOIA requests failed to 

reasonably describe the records sought and Plaintiff failed to state a claim that Defendant has a 

pattern or practice of violating FOIA. 

Having considered the Complaint and the parties’ briefing, the court will GRANT in part 

and DENY in part Defendant’s partial motion to dismiss. The court will dismiss all aspects of 

Counts I, II, and III that rely on FOIA requests in which Plaintiff failed to reasonably describe 

the records sought under Federal Rule of Civil Procedure 12(b)(6), but will not dismiss Count IV 

because Plaintiff sufficiently alleged that Defendant engaged in a pattern or practice of violating 

FOIA.
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I. BACKGROUND

In May 2018, Plaintiff sent Defendant six separate FOIA requests seeking “documents 

related to the Medicare program, including documents relating to Traditional Medicare, 

Medicare Advantage, the Medicare Advantage payment model, the Risk Adjustment Processing 

System (“RAPS”) filter logic, and the process by which CMS sets payment rates and accepts 

bids from participating Medicare Advantage Organizations (“MAOs”) that offer Medicare 

Advantage benefits.” Compl., ECF No. 1 ¶¶ 13–14. Between May 2018 and October 2021, 

Plaintiff received only seven interim productions regarding its first request, id. ¶ 16; “a limited 

number of documents” in response to its third request, id. ¶ 20; and no responsive documents 

regarding its second, fourth, fifth, or sixth requests, id. ¶¶ 18, 22, 24, 26. Unsatisfied with 

CMS’s response, Plaintiff filed this suit on October 19, 2021, raising four FOIA violations. 

Count I alleges that Defendant violated 5 U.S.C. § 552(a)(3)(A) and (6)(A) by failing to timely 

respond to Plaintiff’s requests and failing to promptly make the responsive records available. Id.

¶¶ 129–33. Count II requests an injunction requiring Defendant to comply with FOIA and 

release the requested documents to Plaintiff. Id. ¶¶ 140–41. Count III seeks an injunction 

compelling Defendant to produce documents it withheld under FOIA exemption (b)(5), the 

deliberative process privilege. Id. ¶¶ 143–49. And Count IV asks the court to enjoin Defendant 

from its pattern or practice of violating FOIA by unduly delaying in disclosing non-exempt 

documents. Id. ¶¶ 151–54.

Defendant filed a partial motion to dismiss on January 21, 2022, Partial Mot. to Dismiss, 

ECF No. 11, asking the court to dismiss all claims arising from Plaintiff’s requests number two 

through six and paragraphs three through six under request number one as well as the pattern or 

practice claim under Count IV, Mem. in Supp. of Partial Mot. to Dismiss, ECF No. 11-1 at 16 

(“Motion”).
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II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a 

complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 

12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (citation omitted). In other words, the plaintiff must plead “factual content 

that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. (citation omitted).

In deciding a motion to dismiss, the court presumes the truth of the factual allegations in 

the complaint and affords the plaintiff “every favorable inference that may be drawn from the 

allegations of fact.” Laughlin v. Holder, 923 F. Supp. 2d 204, 208–09 (D.D.C. 2013) (citing

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The court does not, however, “accept as true ‘a 

legal conclusion couched as a factual allegation,’ nor inferences that are unsupported by the facts 

set out in the complaint.” Id. at 209 (citation omitted).

III. ANALYSIS

A. Counts I, II, and III: Exhaustion of Administrative Remedies 

Defendant moves to dismiss all aspects of Counts I, II, and III that rely on paragraphs 

three through seven of Plaintiff’s first FOIA request and requests two through six for failure to 

exhaust administrative remedies. Because Plaintiff failed to reasonably describe the records it 

sought in these requests, the requests did not comply with FOIA, and Plaintiff therefore failed to 

exhaust its administrative remedies. Thus, the court will grant Defendant’s motion to dismiss 

Plaintiff’s claims arising from these requests.

“The FOIA represents a carefully balanced scheme of public rights and agency 

obligations designed to foster greater access to agency records than existed prior to its 
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enactment.” Kissinger v. Reps. Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980). It 

does so by requiring agencies to make records “promptly available to any person” upon a 

“request for records which (i) reasonably describes such records and (ii) is made in accordance 

with published rules stating the time, place, fees (if any), and procedures to be followed.” 

5 U.S.C. § 552(3)(A).

A person who has requested agency records under FOIA may bring an action “to enjoin 

the agency from withholding agency records and to order the production of any agency records 

improperly withheld from the complainant.” Id. § 552(4)(B). “Judicial authority to devise 

remedies and enjoin agencies can only be invoked,” however, “if the agency has contravened all 

three components of this obligation” by (1) improperly, (2) withholding, (3) agency records, 

Kissinger, 445 U.S. at 150, because the “duties that FOIA imposes on agencies” only “apply 

once an agency has received a proper FOIA request,” Citizens for Resp. and Ethics in 

Washington v. FEC, 711 F.3d 180, 185 n.3 (D.C. Cir. 2013) (“CREW”). Thus failure to comply 

with FOIA and agency requirements—by, for example, failing to reasonably describe the 

records—“amounts to a failure to exhaust administrative remedies, which warrants dismissal.” 

Dale v. IRS, 238 F. Supp. 2d 99, 102–03 (D.D.C. 2002) (citing Gillian v. IRS, 980 F.2d 819 (1st 

Cir. 1992); Voinche v. Dep’t of Air Force, 983 F.2d 667, 669 n.5 (5th Cir. 1993)); accord id. at 

104 (an agency “is under no obligation to release records that have not been reasonably 

described”); 45 C.F.R. § 5.24(b)(2) (“Requests must reasonably describe the records sought and 

contain sufficient information to enable the FOIA office to contact you and transmit records to 

you.”). Failure to exhaust administrative remedies is not jurisdictional, but rather jurisprudential, 

and is thus properly considered under Federal Rule of Civil Procedure 12(b)(6). Hidalgo v. FBI, 

344 F.3d 1256, 1258 (D.C. Cir. 2003).
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A FOIA request reasonably describes the records sought “if the agency is able to 

determine precisely what records are being requested.” Evans v. Fed. Bureau of Prisons, 951 

F.3d 578, 583 (D.C. Cir. 2020) (quoting Kowalcyk v. Dep’t of Just., 73 F.3d 386, 388 (D.C. Cir. 

1996)). The standard is that of a “professional employee of the agency who” is “familiar with 

the subject area of the request.” Truitt v. Dep’t of State, 897 F.2d 540, 545 n.36 (D.C. Cir. 

1990). That employee should be able to “locate the record with a reasonable amount of effort.” 

Id. Typically, this “requirement shall generally be satisfied if the requester gives the name,

taxpayer identification number . . . subject matter, location, and years at issue, of the requested 

records.” 26 C.F.R. § 601.702(c)(5)(i).

A request does not reasonably describe the records sought if it is a “broad, sweeping 

request[] lacking specificity,” Dale, 238 F. Supp. 2d at 104, or a “general request for data, 

information and statistics to be gleaned generally from documents which have not been created 

and which the agency does not generally create or require,” Krohn v. Dep’t of Just., 628 F.2d 

195, 198 (D.C. Cir. 1980). That is because “FOIA was not intended to reduce government 

agencies to full-time investigators on behalf of requestors.” Dale, 238 F. Supp. 2d at 104 

(citation omitted). In applying this standard, courts have concluded that a request does not 

reasonably describe the records requested if it seeks “all” material relating to a certain topic. For 

example, a court in this district concluded that a FOIA request was insufficient where it “sought 

‘all’ records that ‘discuss Iran in the context of American politics and/or elections.’” Freedom 

Watch, Inc. v. Dep’t of State, 925 F. Supp. 2d 55, 62 (D.D.C. 2013). In Freedom Watch, the 

court held that it was unclear “how broadly . . . an objective agency professional should construe 

the terms ‘context of American politics and elections’ and ‘context of American politics or

elections,’” and “neither time limitation nor subject matter of such communications” was 
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mentioned in the request. Id. Similarly, in Dale, the court concluded that a request for “any and

all documents, including but not limited to files, that refer or relate in any way to Billy Ray 

Dale” did not reasonably describe the records sought because it did not “specify what records he 

seeks, for what years, and located at which office of the IRS.” 238 F. Supp. 2d at 104.

Many of Plaintiff’s requests fail to reasonably describe the records sought because they 

seek all materials related to a certain topic. Paragraphs three through seven in Plaintiff’s first 

request seek “[a]ll documents produced or disclosed”; “[a]ll interrogatory answers, deposition 

testimony, or other sworn statements”; and “[a]ll documents that CMS has produced” relating to 

litigation, requests, or investigations regarding whether invalid or unsupported diagnosis codes 

or RAPS data by MAOs or MAO providers violated the False Claims Act. Compl. Ex. A at 2. 

All fourteen subsections of Plaintiff’s second request seek “[a]ll documents” relating to Medicare 

attestation and compliance; the fee-for-service adjuster; and reconciliation payments. Id. Ex. B 

at 1–3. Plaintiff’s third request seeks “[a]ll training-related documents,” “[a]ll documents related 

to internal and external policies and procedures,” “[a]ll communications between any MAO and 

CMS,” and “[a]ll documents” regarding specific topics relating to MAOs and diagnosis codes. 

Id. Ex. C at 1–2. Similarly, the fourth request seeks “[a]ll documents CMS created, received, 

evaluated and/or relied upon,” “[a]ll documents relating to CMS’s review, analysis, or receipt,” 

and “[a]ll documents” related to the Medicare Managed Care Manual; data diagnosis filtering 

logic; Risk Adjustment Data Validation audits of MAOs; Risk Adjustment Participant Guides; 

MAO bids; and coding intensity adjustments CMS applies to MAOs. Id. Ex. D at 1–2.

Plaintiff’s fifth request seeks “[a]ll documents” related to twelve subsections under the categories 

of overpayments to MAOs and the Social Security Act’s actuarial equivalence requirement. Id.

Ex. E at 1–2. Finally, Plaintiff’s sixth request seeks “[a]ll documents” relating to another twelve 
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subsections, this time under the categories of retrospective reviews of medical charts by MAOs, 

data work groups, and CMS’s decision not to finalize a proposed chart review rule. Id. Ex. F at 

1–3. Each of these requests is too general and broad to reasonably describe the records sought

and lacks the required “name,” “location,” and in many cases, also “years at issue” of the 

records, 26 C.F.R. § 601.702(c)(5)(i), and “require[s] the agency to locate . . . vast quantity of 

material,” Am. Fed’n of Gov’t Emps. v. U.S. Dep’t of Com., 907 F.2d 203, 209 (D.C. Cir. 1990). 

Because these requests fail to reasonably describe the records sought, Defendant was never 

required to disclose any records in response, and Plaintiff has failed to exhaust its administrative 

remedies.

In fact, Plaintiff does not argue that these requests reasonably describe the records 

sought, only that it would be improper for the court to decide the reasonable description question 

at the motion to dismiss stage. See Mem. in Opp’n to Partial Mot. to Dismiss, ECF No. 13 at 

11–14 (“Opp’n”). That argument, however, ignores FOIA’s exhaustion requirements. By 

requiring that a plaintiff make a valid request and the defendant withhold records to exhaust 

administrative remedies, see CREW, 711 F.3d at 185 n.3, FOIA requires courts to analyze 

whether a valid request was made—and thus, whether a request reasonably describes the records 

sought—at the motion to dismiss stage, see, e.g., Dale, 238 F. Supp. 2d at 102–03. Plaintiff also

contends that the court must accept its statement in the Complaint that it exhausted its

administrative remedies. Opp’n at 14. But that is not the standard of review. The court does not 

need to accept as true the legal conclusions in the Complaint. Laughlin, 923 F. Supp. 2d at 209.

Plaintiff also points to two regulations to argue that Defendant cannot challenge whether 

the requests reasonably describe the records sought for the first time at this stage. Opp’n at 8–

11, 14–16. The first regulation provides that if CMS “determines that a request does not meet 
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these requirements,” it “will attempt to contact” the requester “if possible.” 45 C.F.R. 

§ 5.24(b)(2). But this regulation does not provide that an agency waives any argument as to the 

validity of a FOIA request if it does not contact the requester.

The second regulation requires the agency to issue an adverse determination on requests 

within 20 days of receiving the request, and provides that “[a]ny person making a request to any 

agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have 

exhausted his administrative remedies with respect to such request if the agency fails to comply 

with the applicable time limit provisions.” 5 U.S.C. § 552(a)(6)(C)(i). In other words, if an 

agency issued an adverse determination 40 days after the request was made, even though 

§ 552(a)(6)(A)(i) sets a 20-day limit, Plaintiff could challenge that determination in court 

directly, without going through the administrative appeal process for adverse determinations 

provided by § 552(a)(6)(A)(i)(III). This 20-day time limit for issuing adverse determinations

does not kick in, however, if the requester does not make a “request to any agency for records 

under paragraph (1), (2), or (3) of this subsection.” Id. § 552(a)(6)(C)(i). To make a “request to 

any agency for records” under paragraph 3 of the subsection, a request for records must

“(i) reasonably describes such records” and (ii) be “made in accordance with published rules.” 

Id. § 552(a)(3)(A). Because Plaintiff never made a valid FOIA request under paragraph 3, 

Defendant was never required to comply with the time limit for issuing adverse determinations in 

§ 552(a)(6)(A), and the constructive exhaustion waiver in § 552(a)(6)(C) is inapplicable.

That interpretation of the statutory scheme comports with the D.C. Circuit’s reading of

§ 552(a)(6)(C) in Oglesby v. United States Department of Army, 920 F.2d 57, 64–65 (D.C. Cir. 

1990), in which it explained that applying the exhaustion waiver to all potential FOIA claims 

would be inconsistent with the statutory scheme and undermine the administrative process. This 
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construction of § 552(a)(6)(C) is also consistent with other cases in this district, including Dale, 

238 F. Supp. 2d at 102–05 and Freedom Watch, 925 F. Supp. 2d at 60–63, where courts have 

considered whether a plaintiff reasonably described the records sought to determine whether a 

claim was exhausted without acknowledging whether the agency ever issued an adverse 

determination.

In sum, Plaintiff’s FOIA request failed to reasonably describe the records sought. Thus, 

Plaintiff failed to exhaust its administrative remedies, and the court will grant Defendant’s 

motion to dismiss Plaintiff’s claims that rely on those requests under Federal Rule of Civil 

Procedure 12(b)(6). 

B. Count IV: Pattern or Practice

Defendant also moves to dismiss Count IV in its entirety, arguing that Plaintiff cannot 

state a claim that Defendant has a pattern or practice of violating FOIA. But because Plaintiff’s 

Complaint sufficiently alleges that Defendant has a pattern or practice of engaging in undue 

delay in disclosing non-exempt documents from which Plaintiff is likely to continue to suffer, 

the court will deny Defendant’s motion to dismiss Count IV.

To state a pattern or practice claim under FOIA, a plaintiff must allege (1) that the 

defendant is “following an ‘impermissible practice’ in evaluating FOIA requests,” and (2) that 

the plaintiff “will suffer ‘continuing injury due to this practice.’” Payne Enters., Inc. v. United 

States, 837 F.2d 486, 491 (D.C. Cir. 1988) (quoting Better Gov’t Ass’n v. Dep’t of State, 780 

F.2d 86, 91 (D.C. Cir. 1986)). A pattern or practice may be informal, rather than a formal 

agency policy. See id. And “informal agency conduct resulting in long delays in making 

requested non-exempt records available may serve as the basis for a policy or practice claim.” 

Jud. Watch, Inc. v. U.S. Dep’t of Homeland Sec., 895 F.3d 770, 777–78 (D.C. Cir. 2018). But “a 
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single FOIA violation is insufficient as a matter of law to state a claim for relief based on a 

policy, pattern, or practice of violating the FOIA.” Muttitt v. U.S. Cent. Command, 813 

F. Supp. 2d 221, 231 (D.D.C. 2011).

In Count IV, Plaintiff alleges that Defendant “engaged in unreasonable delays in 

disclosing non-exempt documents,” Compl. ¶ 151, “engages in repeated and long delays as a 

pattern or practice while interacting with FOIA Requestors, such as Petrillo & Powell and Sidley 

Austin,” id. ¶ 152, and that Plaintiff’s “current FOIA requests have been, and are likely to 

continue to be, subject to that same practice,” id. ¶ 153. Plaintiff’s allegations fulfill the first 

element of a pattern or practice claim by asserting that Defendant unreasonably delays disclosing 

documents not only in this case, but also in cases involving other requestors. Plaintiff’s 

allegations also fulfill the second element of a pattern or practice claim by contending that 

Plaintiff’s FOIA requests will likely continue to be subject to this practice.

Defendant’s arguments to the contrary are unpersuasive. First, it argues that “the 

pleadings refer only to delays in Plaintiff’s pending case,” and a single incident of delay is

insufficient to support a pattern or practice claim. Reply in Supp. of Partial Mot. to Dismiss, 

ECF No. 15 at 13 (“Reply”); accord Motion at 14–15. But Plaintiff does not just rely on its own

case to allege a pattern or practice—it also points to cases involving the firms Petrillo & Powell 

and Sidley Austin. Compl. ¶ 152. Defendant counters that these additional requests “do not 

establish that the delays were part of a pattern and practice as opposed to mere isolated 

mistakes.” Motion at 14–15; accord Reply at 13–14. But, in doing so, it mistakes the burden at 

the motion to dismiss stage with the burden at summary judgment, citing a case in which the 

court granted an agency summary judgment because the plaintiff was unable to “show that the 

defendants’ delays were not due ‘merely [to] isolated mistakes by agency officials.’” Forest 
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Cnty. Potawatomi Cmty. v. Zinke, 278 F. Supp. 3d 181, 208–09 (D.D.C. 2017) (citation omitted). 

At the motion to dismiss stage, however, it is sufficient that Plaintiff has pleaded that Defendant 

engages in unreasonable delays. Plaintiff was not required to plead that Defendant did not make 

a mistake or error, or that Defendant’s unreasonable delays were deliberate. See Payne, 837 F.2d 

at 491.

Second, citing pre–Judicial Watch district court cases, Defendant claims that “delay 

alone, even repeated delay, is not the type of illegal policy or practice that is actionable.” Cause 

of Action Inst. v. Eggleston, 224 F. Supp. 3d 63, 72 (D.D.C. 2016); accord Del Monte Fresh 

Produce N.A. v. United States, 706 F. Supp. 2d 116, 120 (D.D.C. 2010) (“Payne Enterprises

regards the repeated denial of [FOIA] requests based on the invocation of inapplicable statutory 

exemptions rather than delay of an action over which the agency had discretion.”). But this court 

is bound by Judicial Watch—a D.C. Circuit case that overrules any inconsistent aspects of the 

earlier district court opinions upon which Defendant relies. In Reply, Defendant attempts to 

distinguish Judicial Watch on its facts, see Reply at 12–13, but the D.C. Circuit unequivocally 

concluded that “[i]n this circuit it is settled law that informal agency conduct resulting in long 

delays in making requested non-exempt records available may serve as the basis for a policy or 

practice claim.” 895 F.3d at 777–78. Consequently, Plaintiff’s allegation that Defendant has a 

pattern or practice of unreasonably delaying in disclosing non-exempt documents is sufficient to 

survive a motion to dismiss.
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IV. CONCLUSION

For the foregoing reasons, the court will GRANT in part and DENY in part Defendant’s 

Partial Motion to Dismiss, ECF No. 11. An Order will accompany this memorandum opinion. 

Date: February 5, 2024 

Tanya S. Chutkan

TANYA S. CHUTKAN

United States District Judge