Case 1:18-cv-03010 Document 1 Filed 12/20/18 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SERVICE EMPLOYEES
)
INTERNATIONAL UNION,
)
1800 Massachusetts Avenue NW
)
Washington, DC 20036
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF
)
HEALTH AND HUMAN SERVICES,
)
200 Independence Avenue SW
)
Washington, DC 20201
)
)
and
)
)
CENTERS FOR MEDICARE AND
)
MEDICAID SERVICES,
)
7500 Security Boulevard
)
Baltimore, MD 21244
)
)
Defendants. )
)

Case No. 18-cv-3010

COMPLAINT
1.

Plaintiff Service Employees International Union brings this action against the

U.S. Department of Health and Human Services and the Centers for Medicare and Medicaid
Services under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), and the Declaratory
Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking declaratory and injunctive relief to compel
compliance with the requirements of FOIA.
JURISDICTION AND VENUE
2.

This Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B)

and 28 U.S.C. §§ 1331, 2201, and 2202.

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3.

Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

§ 1391(e).
4.

Because Defendant the U.S. Department of Health and Human Services has failed

to comply with the applicable time-limit provisions of FOIA, Service Employees International
Union is deemed to have constructively exhausted its administrative remedies pursuant to 5
U.S.C. § 552(a)(6)(C)(i) and is now entitled to judicial action enjoining the agency from
continuing to withhold agency records and ordering the production of agency records improperly
withheld.
PARTIES
5.

Plaintiff Service Employees International Union (SEIU) is a labor union

representing approximately two million workers who work primarily in the health care, public
services, and property services industries. SEIU works to uphold the dignity and worth of
workers and the services they provide by promoting united action in one International Union.
SEIU is a tax exempt 501(c)(5) labor organization and is headquartered in the District of
Columbia.
6.

Defendant the U.S. Department of Health and Human Services (HHS) is a

department of the executive branch of the U.S. government headquartered in Washington, DC,
and an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). HHS has
possession, custody, and control of the records that SEIU seeks.
7.

Defendant the Centers for Medicare and Medicaid Services (CMS) is an agency

of the federal government within the meaning of 5 U.S.C. § 552(f)(1) headquartered in
Baltimore, MD. CMS has possession, custody, and control of the records that SEIU seeks.

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STATEMENT OF FACTS
8.

On October 12, 2018, SEIU submitted a FOIA request to CMS regarding a

proposed rule that aims to prohibit independent provider home care workers from paying union
dues and benefit contributions from their paychecks.
9.

SEIU’s request sought the following records:
1) All records reflecting communications (including emails, email
attachments, text messages, Slack messages, encrypted
messages, telephone call logs, calendar invitations/entries,
meeting notices, meeting agendas, informational material, draft
legislation, talking points, any handwritten or electronic notes
taken during any responsive communications, summaries of any
responsive communications, or other materials) between: (a)
Seema Verma, (b) Tim Hill, (c) Kristin Fan, (d) Janet Freeze, (e)
Jeremy Silanskis, (f) Christopher Thompson; and any of the
following entities or individuals:
•

•
•

•

•

•
•
•

Freedom Foundation:
o Including Maxford Nelsen, or
o Individuals using emails ending in
@freedomfoundation.com
National Right to Work Legal Defense Foundation
o William L. Messenger, or
o Individuals using emails ending in @nrtw.org
State Policy Network
o Including F. Vincent Vernuccio, Jennifer Butler,
Jeremy Lott, or
o Individuals using emails ending in @spn.org
Illinois Policy Institute
o Including Kristina Rasmussen, or
o Individuals using emails ending in
@illinoispolicy.org
Mackinac Center for Public Policy
o Including Michael Reitz, or
o Individuals using emails ending in
@mackinac.org
Capital Research Center
o Including individuals using emails ending in
@capitalresearch.org
Free State Foundation
o Including individuals using emails ending in
@freestatefoundation.org
MacIver Institute

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o Including individuals using emails ending in
@maciverinstitute.com
(Center of the) American Experiment
o Including Kim Crockett, or
o Individuals using emails ending in
@americanexperiment.com
Office of Gov. Bruce Rauner
o Including individuals using emails ending in
@illinois.gov
Rep. Cathy McMorris Rodgers or staff working for
Rep. McMorris Rodgers
Sen. Ron Johnson or staff working for Senator
Johnson’s personal office or on the Homeland Security
and Government Affairs Committee.
Mitchell Law PLLC or Jonathan F. Mitchell

•

•
•
•
•

2) All records reflecting communications (including emails, email
attachments, text messages, Slack messages, encrypted
messages, telephone call logs, calendar invitations/entries,
meeting notices, meeting agendas, informational material, draft
legislation, talking points, any handwritten or electronic notes
taken during any responsive communications, summaries of any
responsive communications, or other materials) to, from, or
copying (a) Seema Verma, (b) Tim Hill, (c) Kristin Fan, (d)
Janet Freeze, (e) Jeremy Silanskis, (f) Christopher Thompson;
that contain any of the following terms:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

SEIU
775
skim
Dues
* Protect providers *
Harris v. Quinn
Harris v Quinn
Janus
“Union dues”
“Home care dues”
“Dues guidance”
“Dues rule”
Reassignment
“Home care workers”
Pam Harris
Steven Glossip
Rob Haynes
Pat Haynes
Catherine Hunter
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•
•
•
•
•
•
•
•
•
10.

Jennifer Parrish
Brad Boardman
Rosetta Horne
Sandra LaCelle
Ben Olsen
Tammy Olsen
Mary Jane Olson
Michelle Peterson
Miranda Thorpe

SEIU’s request sought all responsive records from January 20, 2017 to the date

the search is conducted.
11.

On November 2, 2018, CMS notified SEIU that it had assigned SEIU’s request

control number 101620187075 and PIN Z7RV.
12.

SEIU has not received any further communication from CMS regarding its FOIA

request.
Exhaustion of Administrative Remedies
13.

As of the date of this Complaint, CMS has failed to (a) notify SEIU of a final

determination regarding its FOIA request, including the scope of any responsive records CMS
intends to produce or withhold and the reasons for any withholdings; or (b) produce the
requested records or demonstrate that the requested records are lawfully exempt from
production.
14.

Through Defendants’ failure to respond to SEIU’s FOIA request within the time

period required by law, SEIU has constructively exhausted its administrative remedies and seeks
immediate judicial review.
COUNT I
Violation of FOIA, 5 U.S.C. § 552
Failure to Conduct Adequate Searches for Responsive Records
15.

SEIU repeats the allegations in the foregoing paragraphs and incorporates them as

though fully set forth herein.

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16.

SEIU properly requested records within the possession, custody, and control of

Defendants.
17.

HHS is an agency subject to FOIA, and its component CMS must therefore make

reasonable efforts to search for requested records.
18.

CMS has failed to promptly review agency records for the purpose of locating

those records that are responsive to SEIU’s FOIA request.
19.

CMS’s failure to conduct adequate searches for responsive records violates FOIA.

20.

Plaintiff SEIU is therefore entitled to declaratory and injunctive relief requiring

CMS to promptly make reasonable efforts to search for records responsive to SEIU’s FOIA
request.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Records
21.

SEIU repeats the allegations in the foregoing paragraphs and incorporates them as

though fully set forth herein.
22.

SEIU properly requested records within the possession, custody, and control of

Defendants.
23.

HHS is an agency subject to FOIA, and its component CMS must therefore

release in response to a FOIA request any non-exempt records and provide a lawful reason for
withholding any materials.
24.

CMS is wrongfully withholding non-exempt agency records requested by SEIU

by failing to produce records responsive to its FOIA request.
25.

CMS is wrongfully withholding non-exempt agency records requested by SEIU

by failing to segregate exempt information in otherwise non-exempt records responsive to
SEIU’s FOIA request.

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26.

CMS’s failure to provide all non-exempt responsive records violates FOIA.

27.

Plaintiff SEIU is therefore entitled to declaratory and injunctive relief requiring

CMS to promptly produce all non-exempt records responsive to its FOIA request and provide an
index justifying the withholding of any responsive records withheld under claim of exemption.
REQUESTED RELIEF
WHEREFORE, SEIU respectfully requests the Court to:
(1) Order Defendants to conduct a search or searches reasonably calculated to uncover all
records responsive to SEIU’s FOIA request;
(2) Order Defendants to produce, by such date as the Court deems appropriate, any and
all non-exempt records responsive to SEIU’s FOIA request and an index justifying
the withholding of any responsive records withheld under claim of exemption;
(3) Enjoin Defendants from continuing to withhold any and all non-exempt records
responsive to SEIU’s FOIA request;
(4) Award SEIU attorneys’ fees and other litigation costs reasonably incurred in this
action, pursuant to 5 U.S.C. § 552(a)(4)(E); and
(5) Grant SEIU such other relief as the Court deems just and proper.

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Dated: December 20, 2018

Respectfully submitted,
/s/ Hart W. Wood
Hart W. Wood
D.C. Bar No. 1034361
Cerissa Cafasso
D.C. Bar No. 1011003
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 873-1743
hart.wood@americanoversight.org
cerissa.cafasso@americanoversight.org
/s/ Nicole G. Berner___
Nicole G. Berner
D.C. Bar No. 472280
Renee M. Gerni
D.C. Bar No. 979573
SERVICE EMPLOYEES
INTERNATIONAL UNION
1800 Massachusetts Avenue, NW
Washington, DC 20036
(202) 730-7168
nicole.berner@seiu.org
renee.gerni@seiu.org
Counsel for Plaintiff

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