                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA


     RHONDA FLEMING,

                           Plaintiff,

     v.                                                                  Civil Action No.
                                                                    1:15-cv-01135 (EGS/GMH)
     MEDICARE FREEDOM OF
     INFORMATION GROUP, et al.

                           Defendants.



                             MEMORANDUM OPINION AND ORDER

          In this case brought pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552

et seq., Plaintiff Rhonda Fleming, who proceeds pro se, has filed two motions, a “Renewed Motion

for a Judge Supervised Settlement Conference” [Dkt. 130] and a “Motion for Interim Award of

Fees and Costs” [Dkt. 131]. 1 For the reasons that follow, both motions are denied.

                                         I.       BACKGROUND

          Resolution of these motions does not turn on any substantive claims that Plaintiff has

raised; a truncated procedural history will be useful, however. In 2010, Plaintiff was convicted in

the Southern District of Texas on sixty-seven counts of Medicare-related health care fraud and

related offenses in connection with her submission of fraudulent claims to Medicare using supplier

numbers purchased from Hi-Tech Medical Supply and First Advantage Nursing. In February

2015, in the District of Minnesota, she filed the Complaint in this action seeking documents related

to Medicare payments made to the two companies, documents related to prosecutors involved in



1
 Plaintiff’s motions were filed on March 26, 2018. Defendants filed their opposition on April 6, 2018. Pursuant to
Local Civil Rule 7(d), any reply was due on April 13, 2018. As of the date of this Memorandum Opinion and Order,
no reply has been filed.
her criminal trial, and various other relief related to claims brought pursuant to Bivens v. Six Un-

known Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). [Dkt. 1]. The case was

transferred to this Court in July 2015. [Dkt. 56]. During the period between July 2015 and April

2017, Plaintiff filed approximately twenty motions, including a motion for partial summary judg-

ment and a motion that sought a referral to this Circuit’s mediation program [Dkt. 88; Dkt. 110].

Defendants filed a Motion for Summary Judgment in November 2015 [Dkt. 76] and a Supple-

mental Motion for Summary Judgment in July 2016 [Dkt. 107].

       On November 16, 2017, the undersigned issued a Report and Recommendation that rec-

ommended granting in part and denying in part Defendant’s motions for summary judgment and

denying Plaintiff’s motion for partial summary judgment, among other things (the “November

2017 R&R”). [Dkt. 122 at 27–28]. That Report and Recommendation is currently pending before

the Honorable Emmet G. Sullivan, United States District Judge. Also on November 16, 2017, the

undersigned issued a Memorandum Opinion and Order denying Plaintiff’s motion for mediation,

among other things (the “November 2017 Order”). [Dkt. 123 at 2–3].

                                      II.     DISCUSSION

       A.      Plaintiff Failed to Receive Permission from the Court to File These Motions

       On September 1, 2016, after Plaintiff had filed nearly twenty motions in just over one year,

the Honorable Alan Kay, United States Magistrate Judge, ordered Plaintiff to “refrain from filing

any additional motions without prior permission” from the Court. Minute Entry dated Sept. 1,

2016. Plaintiff did not seek or receive such permission to file these motions, so they may be denied

on that basis alone.




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       B.      Motion for Settlement Conference

       In this motion, Plaintiff states that she “has made a fair offer to voluntarily dismiss th[is]

case,” but, because she is a federal prisoner, she is “not in the best position to negotiate with the

Department of Justice,” which is one of the defendants here. [Dkt. 130 at 1]. She therefore seeks

this Court’s supervision of settlement discussions. Id. Defendants notes that Plaintiff is able to

correspond directly with them about settlement and that there is consequently no need for judicial

oversight of settlement discussions. [Dkt. 133 at 2]. They further note that they have been working

to remedy the defects identified in the Report and Recommendation currently pending before

Judge Sullivan, and, assuming it is adopted, plan to renew their motions for summary judgment in

order to fully resolve this case. Id. at 1–2.

       Addressing Plaintiff’s prior request to mediate this case, the November 2017 Order states:

       Mediation would not be useful at this time. The undersigned has recommended
       dismissal of all of Plaintiff’s claims other than her FOIA claim against the Agency
       Defendants, MFIG, and the United States Department of Justice. The Agency De-
       fendants might well be entitled to summary judgment on that claim after having
       performed a new search and submitted revised declarations. See, e.g., Long v. Im-
       migrations and Customs Enforcement, 149 F. Supp. 3d 39, 61 (D.D.C. 2015) (deny-
       ing defendants’ motion for summary judgment in part and allowing submission of
       supplemental evidence supporting motion); Walsh v. F.B.I., 905 F. Supp. 2d 80, 87
       (D.D.C. 2012) (denying FBI’s motion for summary judgment and setting schedule
       for amended motion for summary judgment). Accordingly, the motion for media-
       tion and the appointment of counsel for the purposes of mediation is denied.

[Dkt. 123 at 3]. Nothing material has changed since that order was issued and there is therefore

no reason to reconsider the rationale of that order. Judicially-supervised settlement discussions

would not be an efficient use of judicial resources at this time, when Plaintiff can communicate

her settlement positions to Defendants without the participation of a judge or other mediator, De-

fendants do not see the need for judicial involvement in any settlement discussions, and Defendants




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plan to renew their motion for summary judgment at the earliest opportunity. Plaintiff’s motion

for a court-supervised settlement conference is therefore denied.

       C.      Motion for Interim Award of Fees and Costs

       In the second motion, Plaintiff seeks “an award of inter[i]m fees and costs in the amount

of $15,000.” [Dkt. 131 at 3]. There are a number of reasons to deny this request.

       First, to the extent that Plaintiff seeks attorney’s fees under FOIA’s fee-shifting provision,

she is not entitled to them. Pro se litigants may not recover attorney’s fees. See, e.g., Kay v.

Ehrler, 499 U.S. 432, 435–36 (1991) (entitlement to fee award requires attorney-client relation-

ship); accord Burka v. U.S. Dep’t of Health & Human Servs., 142 F.3d 1286, 1289 (D.C. Cir.

1998); Dorsen v. U.S. Sec. & Exchange Comm’n, 15 F. Supp. 3d 112, 117 n.5 (D.D.C. 2014).

       Second, to the extent that Plaintiff seeks recoverable costs, such as filing fees, the request

is premature. In order to recover such costs, a plaintiff must have “substantially prevailed” in the

case. 5 U.S.C. § 552(a)(4)(E)(i); see also Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013) (per

curiam). “A complainant is deemed to have substantially prevailed if [she] obtained relief through

either ‘a judicial order . . .’ or ‘a voluntary or unilateral change in position by the agency if the

complainant’s claim is not insubstantial.’” Hussain v. U.S. Dep’t of Homeland Sec., 674 F. Supp.

2d 260, 272 (D.D.C. 2009) (alteration in original). Here, the November 17 R&R, which denied

Plaintiff’s motion for partial summary judgment and granted in part and denied in part Defendants’

motions, is still pending before Judge Sullivan. There is, therefore, no “judicial order” on which

Plaintiff can rely, nor is there any indication that the agencies at issue have voluntarily changed

their position in this case. Moreover, once the appropriate relief is embodied in a judicial order,

the Court will then have to determine whether Plaintiff has “substantially prevailed” so as to be

eligible for an award of costs. See, e.g., Terris, Pravlik & Millian, L.P. v. Ctrs. For Medicare &



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Medicaid Servs., 794 F. Supp. 2d 29, 34 (D.D.C. 2011) (“Whether a plaintiff has ‘substantially

prevailed’ is a question of fact for the District Court . . . .”).

        Third, a court may grant an interim award of fees and costs if the plaintiff has raised a

concern that, without such an award, she will not be able to continue the litigation. See Clemente

v. FBI, 867 F.3d 111, 121 (D.C. Cir. 2017) (“It is eminently reasonable for a district court, in

determining whether to award interim fees or instead to wait to award fees until the end of the

litigation, to consider factors going to the plaintiff’s ability to continue the litigation.”). Thus,

courts may look to such factors as the financial hardship to the litigant of denying the interim fee

award, the length of time the case has been pending, and the period of time until the case is con-

cluded. Id. at 120. Plaintiff asserts that her litigation costs have been paid by her family, notes

the case has been pending for five years, and speculates that the case will continue into the limitless

future, because Defendants’ “game” is “deny, deny, deny . . . the truth.” [Dkt. 131 at 2–3]. Con-

spicuously absent is any argument that a failure to reimburse her costs—the amount of which is

unspecified and unsupported, but is unlikely to be anywhere near the $15,000 she seeks—will

endanger her ability to continue this litigation. Indeed, in the period since November 2017, Plain-

tiff has continued to prosecute this case enthusiastically, filing with the Court a total of four mo-

tions—one of them an omnibus motion—all in violation of Judge Kay’s September 1, 2016 Order.

[Dkt. 127; Dkt. 130; Dkt. 131; Dkt. 132]. And, as noted above, Defendants plan to renew their

motion for summary judgment at the earliest opportunity, so this action might well be resolved in

relatively short order. Plaintiff has not, therefore, made a sufficient showing of hardship. See,

e.g., Allen v. F.B.I., 716 F. Supp. 667, 672 (D.D.C. 1988) (“Interim awards, if allowed, must be

granted sparingly, and only in those instances where great hardship is alleged. An award of interim




                                                     5
fees at this point of the litigation is premature, even though seven years have elapsed since the

initial filing of this action.”).

        Finally, as indicated above, Plaintiff has provided nothing to support the amount she has

requested. Generally, even if a plaintiff is eligible to recover costs, a request is “properly denied

for want of substantiation.” Blazy v. Tenet, 194 F.3d 90, 97–98 (D.C. Cir. 1999). Plaintiff here

seeks $15,000, but provides no proof that any such amount was expended on this litigation. In-

deed, the only amount supported is Plaintiff’s $400 filing fee, which was paid in April 2015. [Dkt.

13]; see Blazy, 194 F.3d at 98 (finding that court “had documentary evidence that [the plaintiff]

paid his filing fees. His appearance before the court attests to that fact.”). But even that amount

is not compensable at this time for the reasons discussed above.

        In sum, Plaintiff is not entitled to an interim award of fees.

                                          III.    ORDER

        Upon consideration of the record and the reasons stated above, it is hereby

        ORDERED that Plaintiff’s Renewed Motion for a Judge Supervised Settlement Confer-

ence [Dkt. 130] is DENIED; it is further

        ORDERED that Plaintiff’s Motion for Interim Award of Fees and Costs [Dkt. 131] is

DENIED.

        SO ORDERED.
                                                                         G. Michael Harvey
                                                                         2018.04.20 11:00:54
        Date: April 20, 2018                                             -04'00'
                                                       ___________________________________
                                                       G. MICHAEL HARVEY
                                                       UNITED STATES MAGISTRATE JUDGE




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