HENRY et al v. AZAR
| ALCRESTA THERAPEUTICS, INC. and JAMES HENRY |
| ALEX M. AZAR, II |
| 1:2020cv01144 |
| May 1, 2020 |
| US District Court for the District of Columbia |
| Colleen Kollar-Kotelly |
| Administrative Procedure Act/Review or Appeal of Agency Decision |
| 05 U.S.C. ยง 0706 |
| None |
Docket Report
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| Set/Reset Deadlines: Defendant's Response to #8 Motion for Summary Judgment due by 7/6/2020. Plaintiffs' Reply to #8 Motion for Summary Judgment due by 7/13/2020. (dot) |
MINUTE ORDER: The Court has received #8 Plaintiffs' Motion for Summary Judgment, #10 Defendant's Motion for Extension of Time to Respond to Plaintiffs' Motion for Summary Judgment, #11 Plaintiffs' Opposition to Defendant's Motion for Extension of Time to Respond to Plaintiffs' Motion for Summary Judgment, and #12 Defendant's Reply in Support of Its Opposed Motion for Extension of Time to Respond to Plaintiffs' Motion for Summary Judgment. Plaintiffs filed their dispositive motion early in this case on May 30, 2020, before when Defendant's response to the Complaint would be due. Defendant seeks an extension to allow time to compile the full administrative record and to potentially prepare a cross-motion for summary judgment, as the process of compiling and certifying the administrative record will require consultation with various components within the agency at issue. In response, Plaintiffs argue that timely resolution is necessary, that Defendant's counsel was involved in prior related litigation and thus is familiar with the issues, and that it has attached "all documents that would be in the full administrative record." Upon consideration of the briefing, relevant authorities, and for good cause shown, the Court GRANTS #10 Defendant's Motion for Extension of Time. As Defendant represents in its Reply, the counsel involved in this case were not involved in the underlying administrative appeal proceeding at issue and require time to become familiar with the case. Moreover, with respect to the administrative record, the APA directs the Court to review the whole record or those parts of it cited by a party. 5 U.S.C. 706. This requires the Court to review the full administrative record that was before the Secretary at the time he made his decision. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). To this end, Local Civil Rule 7(n) requires the agency to file a certified list of the contents of the administrative record with the Court within 30 days following service of the answer to the complaint or simultaneously with the filing of a dispositive motion. LCvR 7(n). There is a reason for this requirement; as Defendant suggests, the agency is generally in the best position to designate the full administrative record. See Am. Bioscience, Inc. v. Thompson, 243 F.3d 579, 582 (D.C. Cir. 2001) (vacating decision of district court because it did not require full administrative record to be filed by agency at issue before issuing decision). Preparing an administrative record and/or cross-motion, however, may take time, and Defendant further represents that the Secretary has expedited the process of finalizing the record to speed up this process. Accordingly, the Court GRANTS Defendant's Motion. Defendant shall file its response to Plaintiffs' Motion for Summary Judgment on or before JULY 6, 2020. Plaintiffs shall file any reply on or before JULY 13, 2020. Signed by Judge Colleen Kollar-Kotelly on June 16, 2020. (lccck1)
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| Filing 12 REPLY to opposition to motion re #10 MOTION for Extension of Time to File Response/Reply as to #8 MOTION for Summary Judgment filed by ALEX M. AZAR, II. (Walker, Johnny) |
| Set/Reset Deadlines: Defendant's Reply to #8 Motion for Summary Judgment due by 6/12/2020. (dot) |
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MINUTE ORDER: The Court has received #8 Plaintiffs' Motion for Summary Judgment, #10 Defendant's Motion for Extension of Time to Respond to Plaintiffs' Motion for Summary Judgment, and #11 Plaintiffs' Opposition to Defendant's Motion for Extension of Time to Respond to Plaintiffs' Motion for Summary Judgment. Defendant shall file any Reply in support of its #10 Motion by no later than tomorrow, JUNE 12, 2020 at 12:00 PM. Signed by Judge Colleen Kollar-Kotelly on June 11, 2020. (lccck1)
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| Filing 11 Memorandum in opposition to re #10 MOTION for Extension of Time to File Response/Reply as to #8 MOTION for Summary Judgment filed by ALCRESTA THERAPEUTICS, INC., JAMES HENRY. (Attachments: #1 Text of Proposed Order, #2 Exhibit Attachment 1)(Webster, Stephanie) |
| Filing 10 MOTION for Extension of Time to File Response/Reply as to #8 MOTION for Summary Judgment by ALEX M. AZAR, II (Attachments: #1 Text of Proposed Order)(Walker, Johnny) |
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Filing 9
ORDER ESTABLISHING PROCEDURES FOR CASES ASSIGNED TO JUDGE COLLEEN KOLLAR-KOTELLY. Signed by Judge Colleen Kollar-Kotelly on 06/01/2020. (DM)
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| Filing 8 MOTION for Summary Judgment by ALCRESTA THERAPEUTICS, INC., JAMES HENRY (Attachments: #1 Exhibit Exhibit List, #2 Exhibit 1, #3 Exhibit 2, #4 Exhibit 3, #5 Exhibit 4, #6 Exhibit 5, #7 Exhibit 6, #8 Exhibit 7, #9 Exhibit 8, #10 Exhibit 9, #11 Exhibit 10, #12 Exhibit 11, #13 Exhibit 12, #14 Exhibit 13, #15 Exhibit 14, #16 Exhibit 15)(Webster, Stephanie) |
| Filing 7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/4/2020. Answer due for ALL FEDERAL DEFENDANTS by 7/3/2020. (Webster, Stephanie) |
| Filing 6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/08/2020. (Webster, Stephanie) (Main Document 6 replaced on 5/13/2020) (ztd). |
| Filing 5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. ALCRESTA THERAPEUTICS, INC. served on 5/7/2020; JAMES HENRY served on 5/7/2020 (Webster, Stephanie) (Main Document 5 replaced on 5/13/2020) (ztd). |
| Filing 4 NOTICE of Appearance by Johnny Hillary Walker, III on behalf of ALEX M. AZAR, II (Walker, Johnny) |
| Filing 3 SUMMONS (3) Issued Electronically as to ALEX M. AZAR, II, U.S. Attorney and U.S. Attorney General (Attachment: #1 Notice and Consent)(zmc) |
| Case assigned to Judge Colleen Kollar-Kotelly. (zmc) |
| Filing 2 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by ALCRESTA THERAPEUTICS, INC., JAMES HENRY (Webster, Stephanie) |
| Filing 1 COMPLAINT against ALEX M. AZAR, II ( Filing fee $ 400 receipt number ADCDC-7082451) filed by JAMES HENRY, ALCRESTA THERAPEUTICS, INC.. (Attachments: #1 Civil Cover Sheet, #2 Summons Attorney General, #3 Summons U.S. Attorney, #4 Summons Secretary)(Webster, Stephanie) |
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