Case 1:20-cv-01063 Document 1 Filed 04/23/20 Page 1 of 11

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
)
)
)
)
Plaintiff, )
)
v.
)
)
U.S. DEPARTMENT OF HEALTH AND
)
HUMAN SERVICES,
)
200 Independence Avenue SW
)
Washington, DC 20201
)
)
U.S. FOOD AND DRUG ADMINISTRATION, )
10903 New Hampshire Avenue
)
White Oak, MD 20903
)
)
NATIONAL INSTITUTE OF ALLERGY AND )
INFECTIOUS DISEASES,
)
5601 Fishers Lane
)
Rockville, MD 20892
)
)
and
)
)
CENTERS FOR MEDICARE AND
)
MEDICAID SERVICES,
)
7500 Security Boulevard
)
Baltimore, MD 21244
)
)
Defendants. )
AMERICAN OVERSIGHT,
1030 15th Street NW, B255
Washington, DC 20005

Case No. 20-1063

COMPLAINT
1.

Plaintiff American Oversight brings this action against the U.S. Department of

Health and Human Services and three of its components—the U.S. Food and Drug
Administration, the National Institute of Allergy and Infectious Diseases, and the Centers for
Medicare and Medicaid Services—under the Freedom of Information Act, 5 U.S.C. § 552

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(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.
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 Defendants have failed to comply with the applicable time-limit

provisions of FOIA, American Oversight is deemed to have 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 American Oversight is a nonpartisan, nonprofit section 501(c)(3)

organization committed to the promotion of transparency in government, the education of the
public about government activities, and ensuring the accountability of government officials.
Through research and FOIA requests, American Oversight uses the information it gathers, and its
analysis of it, to educate the public about the activities and operations of the federal government
through reports, published analyses, press releases, and other media. The organization is
incorporated under the laws of 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, D.C.,

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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 records that American Oversight seeks.
7.

Defendant the U.S. Food and Drug Administration (FDA) is a component of

HHS, an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1). FDA has
possession, custody, and control of records that American Oversight seeks.
8.

Defendant the National Institute of Allergy and Infectious Diseases (NIAID) is a

component of the National Institutes of Health, which is a component of HHS, an agency of the
federal government within the meaning of 5 U.S.C. § 552(f)(1). NIAID has possession, custody,
and control of records that American Oversight seeks.
9.

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

component of HHS, an agency of the federal government within the meaning of 5 U.S.C.
§ 552(f)(1). CMS has possession, custody, and control of records that American Oversight seeks.
STATEMENT OF FACTS
White House Communications Directives Request
10.

On March 2, 2020, American Oversight submitted a FOIA request to HHS and

NIAID via email, and to FDA, via facsimile, seeking:
All final directives, orders, decision memoranda, or guidance from
President Trump, Vice President Pence, or any staff of the Executive
Office of the President (including anyone on White House Staff, in
the Office of the Vice President, or on the staff of the National
Security Council) regarding public statements, public appearances,
website updates or changes, or communications or press strategy on
the coronavirus, COVID-19.
11.

This “White House Communications Directives Request” sought all responsive

records from January 30, 2020, through the date of the search.

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12.

This request further stated that American Oversight believes that, “[a]t a

minimum, a search for responsive records should include a search of the files of the head office,
as well as any press or communications office(s), for your agency.”
13.

American Oversight also asked that its request be “assigned to a Simple

processing track” since it was “limited to final directives, orders, decision memoranda, or
guidance from a recent, short period of time concerning a narrow range of high-profile subject
matters.”
14.

In a letter dated March 23, 2020, HHS acknowledged receipt of the White House

Communications Directives Request and assigned it tracking number 2020-00754-FOIA-OS.
15.

As of the date of this Complaint, American Oversight has not received any further

communication from HHS regarding its White House Communications Directives Request.
16.

As of the date of this Complaint, American Oversight has not received any

communication from FDA or NIAID regarding its White House Communications Directives
Request.
HHS Communications Directives Request
17.

On March 3, 2020, American Oversight submitted a FOIA request to HHS and

NIAID via email, and to FDA, via facsimile, seeking:
All final directives, orders, decision memoranda, or guidance
provided by HHS leadership—both by the Office of the Secretary
and the head offices of HHS components, including the Centers for
Disease Control and Prevention (CDC), the National Institute of
Health (NIH), the National Institute of Allergy and Infectious
Diseases (NIAID), or the Food and Drug Administration (FDA)—
regarding public statements, public appearances, website changes or
updates, or communications or press strategy on the coronavirus,
COVID-19. This request includes but is not limited to any final
directives, orders, decision memoranda, or guidance originating
within HHS or components that were sent to other agencies on this
topic.

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18.

This “HHS Communications Directives Request” sought all responsive records

from January 30, 2020, through the date of the search.
19.

This request further stated that American Oversight believes that, “[a]t a

minimum, a search for responsive records should include a search of the files of your agencies’
head office, office of public affairs, and anyone serving as an agency point of contact for the
coronavirus task force.”
20.

American Oversight also asked that its request be “assigned to a Simple

processing track” since it was “limited to final directives, orders, decision memoranda, or
guidance from a recent, short period of time concerning a narrow range of high-profile subject
matters.”
21.

On March 4, 2020, American Oversight received an email from HHS assigning

the HHS Communications Directives Request tracking number 020-00618-FOIA-PHS.
22.

On March 6, 2020, American Oversight received an email from HHS stating that

the tracking number for the HHS Communications Directives Request was changed to 202000618-FOIA-OS.
23.

In a letter dated March 4, 2020, FDA acknowledged receipt of the HHS

Communications Directives Request and assigned it tracking number 2020-1977.
24.

As of the date of this Complaint, American Oversight has not received any further

communication from HHS or FDA regarding its HHS Communications Directives Request.
25.

As of the date of this Complaint, American Oversight has not received any

communication from NIAID regarding its HHS Communications Directives Request.

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Coronavirus Task Force Requests
26.

On March 5, 2020, American Oversight submitted a set of FOIA requests to HHS,

NIAID, and CMS, via email, and to FDA, via facsimile, seeking all email communications
between specified agency officials and specified Executive Office of the President (EOP)
officials, from January 30, 2020, through the date of the search.
27.

With respect to HHS, the specified agency officials are as follows:
i.
ii.
iii.
iv.
v.
vi.

28.

Secretary Alex Azar
Assistant Secretary for Preparedness and Response Robert
Kadlec
Assistant Secretary for Health Brett Giroir
Surgeon General Jerome Adams
Director of the Biomedical Advanced Research and
Development Authority Rich [sic] Bright
Anyone serving as White House Liaison or agency point of
contact for the coronavirus task force

With respect to NIAID, the specified agency officials are “Director of the

National Institute of Allergy and Infectious Diseases Anthony Fauci or anyone serving as White
House Liaison or agency point of contact for the coronavirus task force.”
29.

With respect to CMS, the specified agency officials are as follows:
i.
ii.
iii.

30.

Administrator Seem Verma
Deputy Administrator Brady Brookes
Anyone serving as White House Liaison or agency point of
contact for the coronavirus task force

With respect to FDA, the specified agency officials are as follows:
i.
ii.
iii.
iv.
v.

Commissioner Stephen Hahn
Principal Deputy Commissioner Amy Abernethy
Director of the Center for Drug Evaluation and Research
Janet Woodcock
Director of the Center for Devices and Radiological Health
Jeff Shuren
Anyone serving as White House Liaison or agency point of
contact for the coronavirus task force

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31.

The EOP officials specified in these requests, all of whom reportedly serve on or

provide support to the White House coronavirus task force, are as follows:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
32.

Vice President Mike Pence
National Security Advisor Robert O’Brien
Assistant to the President and Deputy National Security
Advisor Matthew Pottinger
Assistant to the President and Senior Advisor to the Chief of
Staff Robert Blair
Assistant to the President and Director of the Domestic
Policy Council Joseph Grogan
Assistant to the President and Deputy Chief of Staff for
Policy Coordination Christopher Liddell
Director of the National Economic Council Larry Kudlow
White House Coronavirus Response Coordinator Deborah
Birx
Press Secretary Katie Miller (formerly Katie Waldman)
Director of the White House Office of Science and
Technology Policy Kelvin Droegmeier

In a letter dated March 6, 2020, HHS acknowledged receipt of this request and

assigned it tracking number 2020-00634-FOIA-OS.
33.

In a letter dated March 6, 2020, NIAID acknowledged receipt of the request and

assigned it tracking number 53694.
34.

In a letter dated March 9, 2020, CMS acknowledged receipt of this request and

assigned it Control Number 030520207113 and the PIN “NKDS.” In its response, CMS stated
that this request “will require the additional processing time of ten (10) business days due to
unusual circumstances.”
35.

Upon request by FDA, to accommodate teleworking employees, American

Oversight resubmitted its request to FDA on March 12, 2020, via the agency’s online portal.
36.

In an email dated March 25, 2020, FDA acknowledged receipt of this request and

assigned it tracking number 2020-2523.

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37.

On April 1, 2020, HHS emailed American Oversight to ask whether American

Oversight intended to include search terms as part of its request. American Oversight responded
the following day that it did not.
38.

As of the date of this Complaint, American Oversight has not received any further

communication from HHS, FDA, NIAID, or CMS regarding these “Coronavirus Task Force
Requests.”
Exhaustion of Administrative Remedies
39.

As of the date of this Complaint, Defendants HHS, FDA, NIAID, and CMS have

failed to (a) notify American Oversight of any determinations regarding American Oversight’s
FOIA requests, including the full scope of any responsive records Defendants intend to produce
or withhold and the reasons for any withholdings; or (b) produce all of the requested records or
demonstrate that the requested records are lawfully exempt from production.
40.

Through Defendants’ failure to make determinations as to American Oversight’s

FOIA requests within the time period required by law, American Oversight 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
41.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
42.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
43.

Defendants are an agency, and components thereof, subject to and within the

meaning of FOIA and must therefore make reasonable efforts to search for requested records.

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44.

Defendants have failed to promptly and adequately review agency records for the

purpose of locating those records that are responsive to American Oversight’s FOIA requests.
45.

Defendants’ failures to conduct adequate searches for responsive records violate

46.

Plaintiff American Oversight is therefore entitled to injunctive and declaratory

FOIA.

relief requiring Defendants to promptly make reasonable efforts to conduct adequate searches for
records responsive to American Oversight’s FOIA requests.
COUNT II
Violation of FOIA, 5 U.S.C. § 552
Wrongful Withholding of Non-Exempt Responsive Records
47.

American Oversight repeats the allegations in the foregoing paragraphs and

incorporates them as though fully set forth herein.
48.

American Oversight properly requested records within the possession, custody,

and control of Defendants.
49.

Defendants are an agency, and components thereof, subject to and within the

meaning of FOIA and must therefore release in response to a FOIA request any non-exempt
records and provide a lawful reason for withholding any materials.
50.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to produce records responsive to American Oversight’s FOIA
requests.
51.

Defendants are wrongfully withholding non-exempt agency records requested by

American Oversight by failing to segregate exempt information in otherwise non-exempt records
responsive to American Oversight’s FOIA requests.
52.

Defendants’ failures to provide all non-exempt responsive records violate FOIA.

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53.

Plaintiff American Oversight is therefore entitled to declaratory and injunctive

relief requiring Defendants to promptly produce all non-exempt records responsive to its FOIA
requests and provide indexes justifying the withholding of any responsive records withheld under
claim of exemption.
REQUESTED RELIEF
WHEREFORE, American Oversight respectfully requests the Court to:
(1) Order Defendants to conduct a search or searches reasonably calculated to uncover all
records responsive to American Oversight’s FOIA requests identified in this
Complaint;
(2) Order Defendants to produce, within twenty days of the Court’s order, or by such
other date as the Court deems appropriate, any and all non-exempt records responsive
to American Oversight’s FOIA requests and indexes 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 American Oversight’s FOIA requests;
(4) Award American Oversight attorneys’ fees and other litigation costs reasonably
incurred in this action, pursuant to 5 U.S.C. § 552(a)(4)(E); and
(5) Grant American Oversight such other relief as the Court deems just and proper.

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Dated: April 23, 2020

Respectfully submitted,
/s/ Christine H. Monahan
Christine H. Monahan
D.C. Bar No. 1035590
AMERICAN OVERSIGHT
1030 15th Street NW, B255
Washington, DC 20005
(202) 869-5244
christine.monahan@americanoversight.org
Counsel for Plaintiff

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