Free Motion to Strike - District Court of Federal Claims - federal

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United States Court of Federal Claims

GHS Health Maintenance Organization, Inc., d/b/a BlueLincs HMO, Texas Health Choice, L.C., and Scott & White Health Plan, Plaintiffs, v. United States, Defendant.

No. 01-517C Judge Marian Blank Horn

Plaintiffs Scott & White Health Plan and Texas Health Choice, L.C.'s Motion to Strike the Declaration of Nancy Kichak and References Thereto in Defendant's Memoranda

Plaintiffs Scott & White Health Plan and Texas Health Choice, L.C., respectfully move the Court for an Order striking from the record of this case the Declaration of Nancy H. Kichak (Supplemental Appendix pages 1-7, docket document #44, filed December 6, 2005) and all references to that Declaration in Defendant's Cross-Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment (and any memorandum Defendant files in the future). The grounds for this motion are set forth in the accompanying memorandum.

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March 31, 2006

Respectfully submitted,

Michael S. Nadel McDermott Will & Emery LLP 600 Thirteenth Street, N.W. Washington, D.C. 20005 (202) 756-8000 Attorney for Plaintiffs Scott & White Health Plan and Texas Health Choice, L.C

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United States Court of Federal Claims

GHS Health Maintenance Organization, Inc., d/b/a BlueLincs HMO, Texas Health Choice, L.C., and Scott & White Health Plan, Plaintiffs, v. United States, Defendant.

No. 01-517C Judge Marian Blank Horn

Memorandum in Support of Plaintiffs Scott & White Health Plan and Texas Health Choice, L.C.'s Motion to Strike the Declaration of Nancy Kichak and References Thereto in Defendant's Memoranda Introduction In its papers supporting its cross-motion for summary judgment, OPM relies extensively on a declaration by Nancy Kichak, the Director of Actuaries, Retirement and Insurance Service for OPM. The declaration is dated May 6, 2002, and was originally filed as part of Scott & White's action in the U.S. District Court for the District of Columbia, which was subsequently transferred to this Court. Plaintiffs Scott & White Health Plan ("Scott & White") and Texas Health Choice, L.C. ("Texas Health") have moved this Court to strike the declaration and all references in OPM's brief that rely on it.

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Background and Argument OPM cites the Kichak Declaration throughout its recitation of the facts of this case (specifically, on page 12, 17, 18, 19, 20, 23, 24, 26, 27, and 43). Indeed, far more than anything in the administrative record, the Kichak Declaration serves as the main basis for OPM's defense of the Final Year Regulation. However, the declaration contains "facts" that have no support whatsoever in the administrative record. For example: · Paragraph 14 states: "The Office of the Actuaries does not have the resources, and it is not that Office's operational function, to look behind [the data submitted by the health plans in the reconciliation process] or to verify that they are correct and appropriate to use for purposes of negotiation and reconciliation." Nothing in the administrative record purports to support that contention. Paragraph 20 states: "When a contract is not renewed OPM's experience has been that its access to carrier data and records is constrained in a variety of ways." The administrative record contains information about two plans ­ out of hundreds that participate in the Program ­ that were unable to provide adequate data to OPM upon their exit. The remainder of Paragraph 20 is utterly without support in the administrative record. Paragraph 21 makes claims about "financial disincentives" that are not mentioned or even remotely alluded to in the administrative record. Paragraph 22 asserts that "OPM found that it was unable to obtain adequate data to reconcile rates for a variety of plans." In fact, the administrative record contains evidence of only two plans for which OPM had difficulty obtaining adequate data. Nothing in the administrative record suggests this occurred in any cases beyond those described in Paragraphs 23 and 24.

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· ·

Paragraph 25 is composed of post hoc rationales not found anywhere in the administrative record. Paragraph 27 contains a discussion of "incentives" that does not appear in the administrative record.

This Court should strike the Kichak Declaration and disregard all arguments in OPM's brief that rely on it. Neither the declarations nor the arguments therein are part of the administrative record. They cannot be considered in assessing the validity of the Final Year Regulation. See, e.g., Tripoli Rocketry Ass'n v. ATF, 437 F.3d 75, 2006 U.S. App. LEXIS 3249, at *23 (D.C. Cir. Feb. 10, 2006) ("For obvious reasons, this affidavit in no way aids the agency's cause in this case. For one thing, the affidavit was not taken until after litigation in this case commenced. It is therefore not a part of the agency record under review."); Corel Camp v. United States, 165 F. Supp. 2d 12, 30-31 (D.D.C. 2001) ("Corel has submitted lengthy declarations authored by . . . a retained economist, which attack each of the purported justifications DOL offered in support of its decision to standardize to Microsoft. The government has moved to strike the . . . declarations, noting that review of an agency's actions is normally limited to an examination of the administrative record. . . . I agree that the declarations must be stricken."). In the district court, three years before Scott & White's case was transferred, Scott & White served the Government with interrogatories. See Exhibit A. Interrogatory #3 asked: Please identify all rationales for 48 C.F.R. § 1652.216-70(b)(6). Please state which, if any, of the rationales for 48 C.F.R. § 3

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1652.216-70(b)(6) is the principal rationale, and please identify the source for your answer. Please identify all documents that evince, support, discuss, refer to, or relate in any way to any rationale for 48 C.F.R. § 1652.216-70(b)(6). The purpose of Interrogatory #3, as evidenced by its terms, was to determine all of the Government's rationales for the Final Year Regulation. Interrogatory #5 asked: State whether the data and documents that must be retained by a carrier or former carrier under 48 C.F.R. § 1652.204-70 would permit you to obtain data sufficient to calculate the amount that, but for the nonrenewal of the contract, would be owed to a former carrier as a result of the reconciliation process (the "deficiency"). If your answer is in the negative, identify each kind of data necessary to calculate the deficiency that you would find it "difficult" to obtain. The purpose of Interrogatory #5 was to establish that, despite the Government's claim in the administrative record that it is difficult to obtain adequate data from plans that have terminated their participation in the Program, plans are in fact required by a different regulation to retain all the data that the Government could need. The Government, however, refused to answer these interrogatories. Instead, the Government filed a motion for a protective order. See Exhibit B. In support of its motion, the Government wrote: The "focal point" for judicial review of an agency action is "the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973).

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Id. at 2. The Government wrote: "Without addressing the merits of Plaintiff's case, Defendant respectfully submits that discovery is inappropriate here, because it is well established that review of such an APA claim is limited to the administrative record." Id. The district court granted the Government's motion and ordered the Government to file the administrative record with the Court. (Notably, the court expected that the filing of the administrative record would suffice to answer Scott & White's request that the Government enumerate the rationales for the administrative record. Now, of course, the Government relies upon rationales that do not appear in the record.) The Government cannot have it both ways. It cannot refuse to provide Plaintiffs with its purported rationale for the regulation, on the one hand, while relying on new rationales from outside the administrative record, on the other hand. The "facts" ­ arguments, really ­ in the Kichak Declaration, and those in the Government's brief that rely upon the declaration, must be discarded. Conclusion For the reasons stated above, Scott & White's and Texas Health's motion should be granted.

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March 31, 2006

Respectfully submitted,

Michael S. Nadel McDermott Will & Emery LLP 600 Thirteenth Street, N.W. Washington, D.C. 20005 (202) 756-8000 Attorney for Plaintiffs Scott & White Health Plan and Texas Health Choice, L.C

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SCOTT & wmTE HEALTH PLAN,
Plaintiff,
v.

Civil No. 01-1824 (JGP)
;;;,

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,

Defendant.

PLAINTIFF'S FIRST SET OF INTERROGATORIES

and
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Plaintiff, Scott & Whte Health Plan, by its attorneys hereby serve Plaintiff's First Set

of Interrogatories and First Request for Production of Documents on Defendant, United
States Office of Personnel Management. Pursuant to Rule 33 of the Federal Rules of Civil

Procedure, you are required to answer the following interrogatories, under oath, withi
30 days of the date of service of this document. Pursuant to Rule 34 of the Federal Rules

of Civil Procedure, you are required to serve a written response to the following request
for production of documents within 30 days of the date of service of this document.

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WD99564186-1.059659.0012

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DEFINITIONS
As used herein, the following terms have the following meanings:
A. "Defendant," "you," and "your" mean Defendant United States Office of

Personnel Management and all present and former agents, servants, employees, attorneys
and other persons acting on behalf of any of the foregoing.

B. "Complaint" means the Complaint filed by Plaintiff in this action.

C. "Answer" means Defendant's Answer and Defenses filed by Defendant in
this action.

D. "Person" or "persons" includes not only natural persons, but also, without
limitation, firms, partnerships, associations, corporations, and other legal entities and
divisions, departments, or other units thereof.

E. "Communications" means any conversation, discussion, letter,
memorandum, note, or other transfer of information, whether written, oral, electonic, or
by any other means, and includes any docuent or other medium which abstracts, digests,

records, or transcribes any such communication or any subsequent review or discussion

of such communcation, whether occurring at meetings or otherwise.
F. "Relating to" means in any way regarding, referring to, commemoratig,

concerning, or connected with, in whole or in part, directly or indirectly.

G. "Identify," when referring to any person, means to set forth the name and
present or last known address (and business address, if known), and, if an individual, his
or her employer and title or position. Once a person has been thus identified in an anwer,
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it shall be sufficient thereafter when identifying that person merely to state his or her full
name.

H. "Identify," when referrg to any docuent, means to state whether any such
docuent exists or did exist, and to state fuly the title, nomenclature or descriptive phrase

by which such document is known, the person originating the document, the person to
whom the document is addressed, the customary usual location of the docuent, and the
customary and usual custodian of the document.

i.

"Document" is used in its customary broad sense and includes, without

limitation, the original and each copy (other than an exact duplicate) of every kind of
writing and recording, regardless of origin or location, of the following item, whether
printed, written, produced, or reproduced by any process, and whether or not claimed to
be privileged or otherwise immune or excludable from discovery, including, without

limitation, writings, drawings, graphs, charts, photographs, phone records, computerized

records, electronic mail, data compilations from which information can be obtained
(translated, if necessary, into reasonably usable form), memoranda, correspondence,
reports, notes, papers, books, diaries, microfilms, sound recordings, accounts, ledgers,
registers, auditors' and bookkeepers' records and reports, worksheets, cost sheets, debit
and credit entres, financial reports, assignents, telegrams, telexes, telecopies, faxes, tape

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recordigs, sumaries and records of telephone conversations, sumaries and records and

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personal conversations, records of meetings, summaries and reports of interviews,

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summares and reports of investigations, opinions and reports of consultants, opinions of

counsel, summaries and reports of negotiations, brochures, pamphlets, press releases,
drafts of documents, revisions of drafts of documents, orders, or images of documents,

including those stored or formerly stored in, on, or which can be reproduced from, any

computer memory or magnetic, optical, or other storage media, regardless of how
unoaded or otherwise fixed, now or formerly in written, typewritten, printed by
computer, reproduced, rendered, trancrbed, or filmed form, regardless of how unoaded
or otherwise fixed, which are in Defendant's actual or constructive possession, custody,

care, or control, whether or not prepared by Defendant, or whether or not curently withi
the possession of attorneys for Defendant.

INSTRUCTIONS

A. Unless otherwise specified, these interrogatories and document requests
request information in the possession, custody, or control of Defendant. Furthermore,

these interrogatories and docuent requests are of a contiuig nature. If, after anwerig,
you obtain or become aware of any futher information responsive to these requests, you

are required to make a supplemental response and/ or production..
B. In the event that a responsive docuent has been destroyed, state the reason

for the document's destruction and the date on which the document was destroyed;
identify fuly the person in whose possession, custody or control the docuent was when

it was destroyed; and identify fully the person who destroyed the document.

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C. The final version and each draft of each document should be produced

separately. Each original and each nonidentical copy (bearing marks or notations not
found on the origial) of each fial version and draft of each docuent should be produced

separately.
D. The documents should be produced in an orderly manner (and with

appropriate markigs or other identification) so that CIC will be able to identify the source

of the document, the file in which it was maintained, the person to whom such file
belonged, and the number(s) of the Request to which it responds.
E. With respect to any inormation witheld on the basis of a claim of privilege
or other protecton, furnsh a list identifyng each communcation or information withheld

and settng forth the following information for each such communcation or withheld
information:
1. a brief description of the nature and subject matter of the

communcation or withheld inormation, including the tye of communcation (i.e.,
telephone call, meeting, etc.);
2. the date of the communcation;

3. the name and title of the participant(s);

4. the name and title of all person(s) present or with whom the
communcation was shared, or made accessible, or to whom it was explained,
together with an identification of such person(s);

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5. the request to which the communication or withheld information is

otherwise responsive; and
6. a statement constituting the basis for any claim of privilege, work

product, or other ground for nondisclosure.

F. The connectives "and" and "or" shall be construed either disjunctively or
conjunctively as necessary to brig withi the scope of the discovery request all responses

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that might otherwise be construed to be outside the scope.

G. The use of the singuar form of any word includes the plural and vice versa.
INTERROGATORIES
1. Please state the complete basis for, and all facts that support, your Second

Defense that the "Court lacks subject matter jurisdiction over this matter."
2. Please state the complete basis for, and all facts that support, your Fourth

Defense that "Plaintiff has failed to exhaust administrative remedies."
3. In your Answer to en 16 of the Complaint, you admit that "a" rationale for

48 CF.R. § 1652.216-70(b)(6) is that "it is difficult to get adequate data from plans when

they have termiated," but you deny that the quoted language is the "pricipal rationale."

In your Answer to en 33 of the Complaint, you admit that "a" rationale for 48 C.F.R.
§ 1652.216-70(b)(6) is that "in the event a plan goes out of business, there are no rates to

reconcile," but you deny that the quoted language is "the only other rationale." Please
identify all rationales for 48 C.F.R. § 1652.216-70(b)(6). Please state which, if any, of the
rationales for 48 CF.R. § 1652.216-70(b)(6) is the principal rationale, and please identify the

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source for your answer. Please identify all documents that evince, support, discuss, refer
to, or relate in any way to any rationale for 48 C.F.R. § 1652.216-70(b)(6).
4.

A.

In your Answer to 1 31 of the Complaint, you deny Plaintiff's

characterization that is "not difficult" to obtain" adequate data" about the amount owed
to Scott & Whte in this case, but you admit that "OPM has calculated the amount" that

Scott & Whte is owed. Please state whether you would have admitted the first sentence
of 131 of the Complaint if it had read as follows: ''It is not 'difficult' to obtain 'adequate

data' about the amount that would have been owed to Scott & Whte if Scott & Whte had

renewed the contract with OPM, because OPM has already calculated that amount with
precision: $3,625,782." If your answer is in the affirmative, you need not respond to the

rest of this interrogatory.

B. Otherwse, please state whether it is your position that it is difficut for
you to obtain adequate data about the amount owed to Scott & Whte in ths case. If your
answer is in the affirmative, please identify each fact that supports your position, and

please identify all documents that evince, support, discuss, refer to, or relate in any way
to your position.
5. State whether the data and documents that must be retained by a carrier or

former carrier under 48 CF.R. § 1652.204-70 would permit you to obtain data sufficient to

calculate the amount that, but for the nonrenewal of the contract, would be owed to a
former carrier as a result of the reconcilation process (the" deficiency"). If your answer

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is in the negative, identify each kid of data necessary to calcuate the deficiency that you
would find it "difficult" to obtain.
6. Please identify the person or persons primarily responsible for drafting
48 C.F.R. § 1652.216-70(b)(6).

REOUEST FOR PRODUCTION OF DOCUMENTS

Please produce within 30 days all documents identified in response to the above
interrogatories.

February 25, 2002

A
Joel . ichaels, D.C. Bar #230466 Arthur G. Sapper, D.C. Bar #227660
John G. Horan, D.C. Bar #417729

Michael S. Nadel, D.C. Bar #470144
McDERMOTT, WILL & EMERY

600 Thirteenth Street, N.W.
Washigton, D.C. 20005

(202) 756-8000 - Telephone
(202) 756-8087 - Facsimile
Attorneys for Plaintif

Scott & White Health Plan

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EXHIBIT B

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________________ SCOTT & WHITE HEALTH PLAN, ) ) Plaintiff, ) ) v. ) Civil Action No. 01-1824 (JGP) ) U.S. OFFICE OF PERSONNEL MANAGEMENT ) ) Defendants. ) ) DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION FOR PROTECTIVE ORDER Defendant respectfully seeks an Order protecting it from the discovery to which Plaintiff is not entitled in this matter. According to the Complaint, Plaintiff is seeking a declaratory judgment that 48 C.F.R. § 1652.216-70(b)(6), a regulation promulgated by Defendant is invalid because it conflicts with the Federal Health Benefits Act, 5 U.S.C. §§ 8901 et seq., either facially or as applied to Plaintiff. A claim of this type is generally reviewed in accordance with the standards set forth in the Administrative Procedures Act. 5 U.S.C. §§ 551 et. seq. Plaintiff has propounded on Defendant a set of Interrogatories and Document Requests. See Record 01-1824. Defendant, pursuant to Federal Civil Procedure Rule 26(c), now moves for a protective order to void these discovery requests. Rule 26(c) provides that a court may grant a motion for protective order upon a showing of good cause. The Court should find that good cause exists here. Discovery is not generally permitted in cases brought pursuant to the Administrative Procedure Act, and there is no good reason to depart from that general rule in this case. As set forth above, Plaintiff in this case seeks a declaratory judgment that 48 C.F.R. §

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1652.216-70(b)(6) is invalid on its face or invalid as to how it is applied to Plaintiff. Without addressing the merits of Plaintiff's case, Defendant respectfully submits that discovery is inappropriate here, because it is well established that review of such an APA claim is limited to the administrative record. The "focal point" for judicial review of an agency action is "the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973); see also Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981). Because de novo inquiry is inappropriate, "the general rule is that discovery is not permitted prior to a court's review of the legality of the agency action" under the APA. National Law Center on Homelessness & Poverty v. United States Dept. Of Veterans Affairs, 736 F. Supp. 1148, 1152 (D.D.C. 1990). See also Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Engineers, 87 F.3d 1242, 1247 (11th Cir. 1996) ("[t]he District Court did not err in limiting its review to the administrative record and so did not abuse its discretion by granting a protective order prohibiting any discovery"); USA Group Loan Services v. Riley, 82 F.3d 708, 715 (7th Cir. 1996)("[d]iscovery is rarely proper in the judicial review of administrative action"); Fort Sumter Tours, Inc. v. Babbitt, 66 F.3d 1324, 1335 (4th Cir. 1995) (district court did not abuse its discretion in issuing a protective order barring discovery), cert. denied, 517 U.S. 1220 (1996). Fact-finding beyond the record in APA cases is the exception, not the rule. The exception to this rule is when there has been a "strong showing of bad faith or improper behavior" or when the record is so bare that it prevents effective judicial review. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971); Community for Creative Non-Violence v. Lujan, 908 2

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F.2d 992, 997-98 (D.C. Cir. 1990). Even in such circumstances, however, the proper course generally is to remand to the agency for additional investigation or explanation. See Florida Power and Light Co. v. Lorion, 470 U.S. 729, 744 (1985). Plaintiff in this case has made no showing that the administrative record will be insufficient for purposes of review, and indeed cannot, because the administrative record has not yet been filed by the agency. Defendant intends to file the administrative record simultaneously with Defendant's dispositive motion, which is currently due on May 6, 2002. Accordingly, the Court should enter a protective order pursuant to Fed. R. Civ. P. 26(c) barring any discovery in this case until after the record is submitted and the Court determines whether additional information is needed. For the reasons set forth above, Defendants respectfully submit that discovery at this time would be inappropriate and that the Court should grant Defendant's request for a protective order. Respectfully submitted, _____________________________________ ROSCOE C. HOWARD, JR. Bar # 246470 United States Attorney ____________________________________ MARK E. NAGLE, D.C. Bar #416364 Assistant United States Attorney __________________________________ VINCENT H. COHEN, JR, D.C. Bar 471489 Assistant United States Attorney Judiciary Center Building, Room 10-919 555 Fourth Street, N.W. Washington, D.C. 20530 (202) 307-0406

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EXHIBIT C

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SCOTT & WHITE HEALTH PLAN, Plaintiff v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Defendant ORDER Before the Court is Defendant's, United States Office of Personnel Management ("OPM"), Motion for a Protective Order. Defendant seeks protection from Plaintiff's First Set of Interrogatories and First Request for Production of Documents. Scott & White Health Plan ("Scott & White"), argues that the six interrogatories propounded on OPM are narrow and seek only to clarify OPM's "cryptic answers," and identify the basis for OPM's procedural. As explained more fully below, the Court concludes that defendant's motion should be granted, and that OPM shall provide Scott & White with a copy of the administrative record on or before April 29, 2002. Ordinarily, discovery is not permitted in APA cases, absent a showing that the administrative record is inadequate for review and where there is a strong showing of bad faith or improper review. Saratoga Development Corp. v. United States et al., 305 U.S.App.D.C. 351, 363-364, 21 F.3d 445, 457-458 (1994) (internal citations and quotations omitted). Here, as in Civil Action No. 01-1824 (JGP)

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Saratoga, plaintiff is seeking discovery before the administrative record is filed.1 However, the information Scott & White is seeking in discovery is not "outside the administrative record" nor would the information supplement the rulemaking record. Memorandum of Law in Opposition to Defendant's Motion for Protective Order ("Pl.'s Mem.") at 2. Scott & White asserts that the limited discovery it seeks is related to OPM's litigation position, information in the rulemaking record or information that is otherwise proper. Id. OPM's litigation position OPM's asserts two procedural defenses in its Answer on which Scott & White request discovery. Interrogatories Nos. 1 and 2 ask: 1. Please state the complete basis for, and all facts that support, your Second Defense that the "Court lacks subject matter jurisdiction over this matter." 2. Please state the complete basis for, and all the facts that support, your Fourth Defense that "Plaintiff has failed to exhaust administrative remedies." OPM's complete basis for its affirmative defenses will be fully explained in its motion for summary judgment, assuming OPM continues to pursue the defenses. Scott & White will have ample notice of and opportunity to address the defenses in any opposition it chooses to file. Substantive Interrogatories The remaining four interrogatories seek: the rationale(s) behind the challenged regulations2; clarification on the application of the regulation plaintiff3; the interaction of

OPM intends to filed the administrative record with its dispositive motion. Defendant's Memorandum in Support of Motion for Protective Order ("Def.'s Mem.") at 3. Interrogatory No. 3 asked: In your Answer ¶ 16 of the Complaint, you admit that "a" rationale for 48 C.F.R. § 1652.216-70(b)(6) is that "it is difficult to get adequate data from plans when they have terminated," but you deny that the quoted language is the "principal rationale." In your Answer to ¶ 33 of the Complaint, you admit that "a" rationale for 48 C.F.R. § 1652.2162
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seemingly conflicting aspects of the regulation4; and names of the drafters5. With respect to Interrogatories Nos. 3, 5 and 6, it appears to the Court that the administrative record would satisfy the requests. Understandably, Scott & White is not in a position to determine whether the administrative record is sufficient because they do have not a copy of the record. OPM states that it plans to file the administrative record simultaneously with its dispositive motion. The Court find this insufficient and requires OPM to provide Scott & White with a copy of the administrative record by April 29, 2002. If Scott & White finds the information supplied in the administrative record insufficient, it may seek leave of the Court to

70(b)(6) is that "in the event a plan goes out of business, there are no rates to reconcile, " but you deny that the quoted language is "the only other rationale." Please identify which, if any, of the rationales for 48 C.F.R. § 1652.216-70(b)(6) is the principal rationale, and please identify the source for your answer. Please identify all documents that evince, support, discuss, refer to, or relate in any way to any rationale for 48 C.F.R. § 1652.216-70(b)(6). Interrogatory No. 4 asked: A. In your Answer to ¶ 31 of the Complaint, you deny Plaintiff's characterization that is "not difficult" to obtain "adequate data" about the amount owed to Scott & White in this case, but admit that "OPM has calculated the amount" that Scott & White is owed. Please state whether you would have admitted the first sentence of ¶ 31 of the Complaint if it had read as follows: "It is not `difficult' to obtain `adequate data' about the amount that would have been owed to Scott & White if Scott & White has renewed the contract with OPM, because OPM has already calculated the amount with precision: $3,625782." If your answer is in the affirmative, you need not respond to the rest of this interrogatory. B. Otherwise, please state whether it is your position that it is difficult for you to obtain adequate data about the amount owed to Scott & White in this case. If your answer is in the affirmative, please identify each fact that supports your position, and please identify all documents that evince, support, discuss, refer to, or relate in any way to your position. Interrogatory No. 5. asks: State whether the data and documents that must be retained by a carrier or former carrier under 48 C.F.R. § 1652.204-70 would permit you to obtain data sufficient to calculate the amount that, but for the nonrenewal of the contract, would be owed to a former carrier as a result of the reconciliation process (the "deficiency"). If your answer is in the negative, identify each kind of data necessary to calculate the deficiency that you would find it "difficult" to obtain. Interrogatory No. 6 states: Please identify the person or persons primarily responsible for drafting 48 C.F.R. § 1652.216-70(b)(6). 3
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Case 1:01-cv-00517-MBH

Document 57-4

Filed 03/31/2006

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conduct additional discovery. Scott & White asserts that Interrogatory No. 4 is necessary to sort out the confusion over OPM's seemingly contradictory answers and to provide information relevant to Scott & White's as applied challenge. Pl.'s Mem. at 7-8. Scott & White further argue that the information is necessary to formulate its as-applied challenge and cites to Amfac Resorts, LLC v. Dep't of the Interior, 282 F.3d 818 (D.C. Cir. 2002). Id. In Amfac, the D.C. Circuit held that a party making an as-applied challenge to a regulation, may present evidence outside the administrative record. Amfac 282 F.3d at 830. The evidence Amfac sought to introduce related to its individual injury. Id. The court held that in order for Amfac to establish standing it would have to establish its injury with evidence, which would not necessarily be contained in the administrative record. Id. Scott & White has calculated its injury and can present that amount to the Court in its as-applied challenge to the regulation. Scott & White has not established that additional discovery is necessary related to this issue. Accordingly, it is hereby ORDERED that the defendant's Motion for a Protective Order is hereby GRANTED; it is further ORDERED that the defendant shall provide a copy of the administrative record to the plaintiff on or before April 29, 2002.

DATE: April 19, 2002

JOHN GARRETT PENN United States District Judge

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