Case 8:15-cv-00508-CJC-JCG Document 24 Filed 11/18/15 Page 1 of 9 Page ID #:225

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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ORLY TAITZ,
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Plaintiff,
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v.
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SYLVIA BURWELL, in her capacity as )
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the Secretary of HHS,
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Defendant.
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Case No.: SACV 15-00508-CJC(JCGx)

ORDER GRANTING DEFENDANTS

MOTION FOR SUMMARY
JUDGMENT

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I. INTRODUCTION

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In December 2014, plaintiff Orly Taitz filed a complaint against Sylvia Burwell in

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Ms. Burwells capacity as the Secretary of the Department of Health and Human Services

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(HHS). The complaint alleges that the Centers for Disease Control and Prevention
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(CDC), a federal agency under HHS, failed to properly respond to a request Taitz made

under the Freedom of Information Act (FOIA) on November 2, 2014. In its motion to

dismiss, the Government argues that Taitzs complaint must be dismissed because the

proper defendant in a FOIA action is HHS itself, not Secretary Burwell acting in her

official capacity. The Government adds that even if the proper defendant were

substituted here, judgment should be entered in favor of the defendant because CDC,

through sworn declarations, has demonstrated that it conducted searches that were

reasonably calculated to uncover all responsive records, and has fully responded to

Plaintiffs FOIA request, thus making Taitzs complaint moot. Given the evidence the

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Government has put in the record concerning the adequacy of HHSs response to Taitzs

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FOIA request1 and the paucity of evidence Taitz has provided to counter HHSs position,

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the Court hereby GRANTS the Governments motion for summary judgment.2

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II. BACKGROUND

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On November 2, 2014, Taitz submitted a FOIA request to CDC. (Dkt. 1, Compl.

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at PageID 2.) In her request, Plaintiff sought the following documents:

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1. A form quarantine order;

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2. Quarantine/isolation orders issued for Ebola patients or individuals exposed to

Ebola;

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3. Tuberculosis quarantine/isolation orders issued since 2012;

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Taitz argues that because the Government was late in responding to her FOIA request, it should be
taxed with the cost of her bringing suit against it. Because she has provided no legal support for this
position, her request is denied without further consideration. See Guatay Christian Fellowship v. Cnty.
of San Diego, 670 F.3d 957, 987 (9th Cir. 2011) (We will not manufacture arguments for an appellant,
and a bare assertion does not preserve a claim.).
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Having read and considered the papers presented by the parties, the Court finds this matter appropriate
for disposition without a hearing. See Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing set
for November 23, 2015 at 1:30 p.m. is hereby vacated and off calendar.
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4. Enterovirus D-68 quarantine/isolation orders issued since 2012;

5. Any other quarantine/isolation orders issued since 2012;

6. Certification of Ebola Risk level;

7. Prediction of total Ebola cases expected by January 2015;

8. Documents showing quarantine/isolation of sick individuals in HHS camps

created to accommodate the surge of minor illegal aliens from 2012-2014;

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9. Documents relating to rabies quarantine.

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(Compl. attachment at PageID 6.) On November 3, 2014, CDC acknowledged receipt of

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Taitzs FOIA request and indicated that it would be forwarded to its FOIA office on her

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behalf. (Compl. at PageID 2.) On December 18, 2014, Taitz filed an action in the United

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States District Court, Southern District of Texas, naming Secretary Burwell as the

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defendant and challenging CDCs failure to properly respond to her FOIA request.

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(Compl.)

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CDC asserts that it conducted searches for documents that are responsive to Taitzs

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request, and has submitted declarations describing the search process from CDC FOIA

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Officer Katherine Norris and CDCs Health Policy Lead for the Quarantine Border

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Health Services Branch within the Division of Global Migration and Quarantine, Kate

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Pearson. (Dkt. 17-1, Norris Decl.; Dkt. 17-2, Pearson Decl.)

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In response to her FOIA request, Taitz was provided with the following
documents:

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1. 32 pages of template form quarantine and isolation orders (Pearson Decl. 4);

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2. 1 quarantine order located from a search of the Quarantine Activity Reporting

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System (QARS) for the dates requested (Pearson Decl. 5-6);

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3. 29 pages of documents responsive to Plaintiffs search request for Certification

of Ebola Risk level and Prediction of total Ebola cases expected by January

2015 (Norris Decl. 7-8).

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A total of 73 pages of responsive documents were located in the searches. (Norris Decl.

9.) Eight pages were released with redactions under FOIA Exemption 6, with the

redacted information consisting of identifying information about an individual subject to

an isolation order.3 (Id.) The remaining 65 pages were released in full. (Id.) CDC

provided Plaintiff with the responsive documents on January 23, 2015. (Dkt. 4-1, FedEx

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Delivery Confirmation.)

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On February 4, 2015, the Government filed a motion to dismiss asserting that

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Taitzs action was moot because CDC had fully complied with her FOIA request. (Dkt.

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4.) On March 31, 2015, the District Court in the Southern District of Texas issued an

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order transferring this case to this Court because it is the district in which Plaintiff

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resides. (Dkt. 10.) This Court dismissed without prejudice the Governments motion that

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was pending before the Southern District of Texas Court, and directed the Government to

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file its motion to dismiss before this Court. (Dkt. 16.) Taitz moved to strike the

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Governments updated motion on the basis that it was not identical to the motion filed in

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Texas. (Dkt. 18.) This Court denied Taitzs motion to strike and instructed her to file a

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substantive response to the Governments motion. (Dkt. 20.) Taitz subsequently filed

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her substantive response and the Government filed its reply.

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There is no indication in the briefing that Taitz is challenging the Exemption 6 redactions of the
individuals identifying information. Because the Government is not asserting that it is withholding any
other information at all from Taitz, it is not necessary for the Government to provide her with a Vaughn
Index in this case.
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II. LEGAL STANDARD

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The United States can only be sued to the extent that it has waived its sovereign

immunity. Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987). Waiver of

sovereign immunity under FOIA permits the Court to have jurisdiction to enjoin the

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

records improperly withheld from the complainant. 5 U.S.C. 552(a)(4)(B). Federal

jurisdiction to order disclosure is dependent on a showing that an agency has

(1) improperly (2) withheld (3) agency records. Spurlock v. FBI, 69 F.3d 1010,

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1015 (9th Cir. 1995) (quoting Kissinger v. Reporters Comm. for Freedom of Press, 445

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U.S. 136, 150 (1980)). Unless each of these criteria is met, a district court lacks

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jurisdiction to devise remedies to force an agency to comply with the FOIAs disclosure

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requirements. Spurlock, 69 F.3d at 1015 (quoting Dept of Justice v. Tax Analysts, 492

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U.S. 136, 142 (1989)).

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FOIA cases are regularly decided on motions for summary judgment. See Lane v.

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DOI, 523 F.3d 1128, 1134 (9th Cir. 2008) (citing Miscavige v. IRS, 2 F.3d 366, 368 (11th

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Cir. 1993)). In FOIA suits, to be entitled to summary judgment, the agency must prove

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that each document (1) was produced, (2) was not withheld, (3) is unidentifiable, or (4) is

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exempt from disclosure. Kissinger, 445 U.S. at 150; Weisberg v. U.S. Dept of Justice,

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627 F.2d 365, 368 (D.C. Cir. 1980). The agency is not required to create records to

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respond to a FOIA request, see, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162

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(1975), and is not obliged to look beyond the four corners of the request for leads to the

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location of responsive documents, Kowalczyk v. Dept of Justice, 73 F.3d 386, 389 (D.C.

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Cir. 1996).

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The Court must evaluate the search conducted by HHS to establish that the search

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was reasonably calculated to uncover all responsive records. See Zemansky v. EPA, 767
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F.2d 569, 571 (9th Cir. 1985); Oglesby v. U.S. Dept of Army, 920 F.2d 57, 68 (D.C. Cir.

1990). The agency must:

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demonstrate that it has conducted a search reasonably calculated to uncover

all relevant documents. Further, the issue to be resolved is not whether
there might exist any other documents possibly responsive to the request, but
rather whether the search for those documents was adequate. The adequacy
of the search, in turn, is judged by a standard of reasonableness and depends,
not surprisingly, upon the facts of each case. In demonstrating the adequacy
of the search, the agency may rely upon reasonably detailed, nonconclusory
affidavits submitted in good faith.

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Zemansky, 767 F.2d at 571 (quoting Weisberg v. United States Department of Justice,

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745 F.2d 1476, 1485 (D.C. Cir. 1984). If the agency submits such affidavits showing the

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scope and method of the search, then in the absence of countervailing evidence, or

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apparent inconsistency of proof, summary judgment is appropriate. Perry v. Block, 684

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F.2d 121, 127 (D.C. Cir. 1982).

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III. ANALYSIS

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Here, the CDC employees sworn declarations attached to the Governments

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motion are sufficiently detailed and nonconclusory to demonstrate that the Government

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has met its burden of conducting a thorough search in good faith. Pearson, Health Policy

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Lead for CDCs Quarantine Border Heath Services Branch within the Division of Global

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Migration and Quarantine provided a detailed explanation of how CDCs search was

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carried out and what the search revealed. (Pearson Decl. 4-13.)

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In response to the request for a form quarantine order, Pearson retrieved the

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template documents CDC keeps in order to be able to quickly issue quarantine or

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isolation orders in the event of a public emergency and provided those documents (32

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pages) to Taitz. (Id. 4.) Pearson further explained that:

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With regard to Dr. Taitzs request for quarantine orders, the Quarantine
Activity Reporting System (QARS), an electronic database, houses all
records of activities which occur within the jurisdiction of the nationwide
network of quarantine stations, the Quarantine Activity Reporting System
(QARS), an electronic database, houses all records of activities which occur
within the jurisdiction of the nationwide network of quarantine stations.
These records include all reports of ill travelers and the issuance of federal
isolation and quarantine orders. QARS began collecting data in 2005. All
records of CDC-issued isolation or quarantine orders since 2005, are
maintained in QARS . . . . There are no other reasonably likely locations of
quarantine or isolation orders issued since 2012.

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(Id. 5, 7.) Pearson stated that she searched QARS using the search terms isolation

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orders, and quarantine orders from the date range January 1, 2012 to the date the request

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was received. (Id. 6.)

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Pearson further explained that federal isolation or quarantine orders issued by CDC

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are issued under the authority of section 361 of the Public Health Service Act, and that

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CDCs authority is limited to those communicable diseases specified in an Executive

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Order of the President.

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communicable diseases under the Executive Order, (id. 9), and indicated that though

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Taitz asked for quarantine records relating to enterovirus and rabies, CDC has no

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authority to issue quarantine/isolation orders for those diseases. (Id. 10.) Pearson

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explained that [i]t is rare for CDC to issue quarantine or isolation orders and that

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[s]ince 2012 CDC has issued only one quarantine order. (Id. 11.) She further

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mentioned that [s]tate and local health entities also have quarantine and isolation

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authorities that they may exercise with regard to individuals within their jurisdiction.

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(Id. 12.)

(Id. 8.)

Pearson provided a list of all quarantinable

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Finally, with regard to Taitzs request for documents showing quarantine/isolation

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of sick individuals in HHS camps created to accommodate the surge of minor illegal

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aliens from 2012-2014, Pearson indicted that no federal isolation or quarantine orders
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were issued in response to unaccompanied minors. If such orders had been issued, all

records would have been in QARS and found in the search described above. (Id. 13.)

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Norris, CDCs FOIA Officer, indicated that in addition to Pearsons search, a

member of Norriss staff conducted a search. (Norris Decl. 7.) Norris indicated that

with regard to Taitzs request for Certification of Ebola Risk level and Prediction of

total Ebola cases expected by January 2015, her office searched CDCs Ebola response

website using the search terms ebola risk, epidemiological curve, ebola case count. (Id.

8.) That search yielded 29 pages of responsive documents, which were provided to

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Taitz. (Id.)

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In response to the Governments briefing and the Norris and Pearson declarations,

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Taitz attempts to create a genuine issue of material fact by attaching her own declaration

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and the following exhibits:

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1. An April 2, 2015 letter from four members of Congress referencing an

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Immigration and Customs Enforcement (ICE) plan to release an individual

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with drug-resistant tuberculosis;

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2. A March 30, 2015 letter from the Pinal County Director of Public Health

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regarding the release by ICE of presumably the same individual referenced in

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the April 2, 2015 letter;

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3. A July 30, 2014 memorandum from the DHS Office of Inspector General
regarding Oversight of Unaccompanied Alien Children; and
4. A February 16, 2015 email regarding the U.S. Customs and Border Patrol

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(CBP) Treatment Authorization Request database, which contains

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information about aliens treated for tuberculosis and various other diseases

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while in CBP custody.

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But as Government correctly notes in its reply, none of these materials submitted

by Taitz relates to any quarantine orders issued by CDC, which is a federal agency under

the Department of Health and Human Services separate from the Department of

Homeland Security, which houses ICE and CBP. HHS has no obligation under FOIA to

search the records of the Department of Homeland Security.

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The Pearson and Norris declarations indicate that CDC methodically searched its

own records and released the documents that it was able to locate through its search. If

an agency submits affidavits showing the scope and method of a search, then in the

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absence of countervailing evidence, or apparent inconsistency of proof, summary

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judgment is appropriate. Zemansky, 767 F.2d at 571. Here, Taitzs evidence fails to

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provide any indication that CDC failed to meet its burden to perform adequate searches

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for responsive records. Searches were conducted as set forth in the declarations of

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Pearson and Norris, and where no documents were located, the declarations explain why

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CDC is not in possession of such documents.

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IV. CONCLUSION

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Accordingly, the Governments motion for summary judgment is GRANTED.

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DATED:

November 18, 2015

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__________________________________
CORMAC J. CARNEY

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UNITED STATES DISTRICT JUDGE

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