Rule 60(b) Motion to Vacate Dismissal — Changizi v. HHS

Record facts

U.S. District Court for the Southern District of Ohio, Eastern Division · No. 2:22-cv-01776-EAS-CMV · Doc. 42 · 2022-06-24 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF OHIO 
 
 
 
 
 
 
 
 
MARK CHANGIZI, et al., 
 
 
 
 
 
 
 
 
Plaintiffs, 
 
 
 
 
CASE NO: 2:22-cv-1776 
v. 
 
 
 
 
 
DEPARTMENT OF HEALTH AND HUMAN 
SERVICES, et al., 
 
Defendants. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
MOTION FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) 
 
Plaintiffs, by and through their undersigned counsel, and pursuant to Federal Rule of Civil 
Procedure 60(b), move this honorable Court for relief from its May 5, 2022 Order (the “Order”) (ECF 
No. 37), which granted Defendants’ Motion to Dismiss pursuant to Federal Rules of Civil Procedure 
12(b)(1) and 12(b)(6) (ECF No. 30).  As set forth more fully below, newly discovered evidence, which 
was not available prior to the April 28, 2022 hearing and which could not have been discovered in 
time for Plaintiffs to move for a new trial, shows that Plaintiffs are entitled to relief from the Order.  
Such new evidence includes documents revealed through a whistleblower that were only made public 
on June 7, 2022, which are material to Plaintiffs’ complaint and which directly address the Court’s 
grounds for dismissal (see Exhibit 1).  In light of the new evidence, Plaintiffs respectfully request that 
the Court enter an order pursuant to Rule 60(b) reversing its previous decision, reinstating this case 
to its docket, and granting such other relief as the Court deems just under the circumstances. 
 
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PROCEDURAL POSTURE 
 
Plaintiffs filed suit in the United States District Court for the Southern District of Ohio on March 
24, 2022, against the Department of Health and Human Services (HHS), Surgeon General Vivek 
Murthy, and Secretary of HHS Xavier Becerra.  They moved for a preliminary injunction shortly 
thereafter, on March 30, 2022.  Defendants filed a combined response to the preliminary injunction 
and a motion to dismiss on April 15, 2022, and Plaintiffs filed a combined reply to the preliminary 
injunction opposition and opposition to the motion to dismiss on April 22, 2022, to which Defendants 
replied on April 27, 2022. 
Exactly a week after an April 28, 2022 hearing was held on the preliminary injunction, on May 5, 
the court granted Defendants’ motion to dismiss pursuant to Fed. R. Civ. P. (12)(b)(1) and (12)(b)(6).  
On June 14, 2022, Plaintiffs moved for leave to file an amended complaint.  The Court denied 
Plaintiffs’ motion on June 20, 2022, stating that following entry of final judgment, they could not seek 
to amend the complaint without first moving to alter, set aside, or vacate the judgment.  It concluded 
that Plaintiffs were “free to move for relief under Rule 60.” See ECF No. 41. 
ARGUMENT 
Under Federal Rule of Civil Procedure 60(b), a party may obtain relief from final judgment under 
several circumstances, including where there is “newly discovered evidence that, with reasonable 
diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Fed. R. 
Civ. P. 60(b)(2).  Rule 60(b)(2) relief is warranted when a movant demonstrates “1) that he exercised 
due diligence in obtaining the information, and (2) the evidence is material and controlling and clearly 
would have produced a different result if presented before the original judgment.” Bilski v. McCarthy, 
790 F. App'x 756, 765 (6th Cir. 2019) (citing Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir. 1998)). 
To qualify as “newly discovered,” the evidence must have been in existence, or pertain to facts that 
existed, at the time of trial.  Davis by Davis v. Jellico Cmty. Hosp. Inc., 912 F.2d 129, 135-36 (6th Cir. 1990). 
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Plaintiffs’ newly discovered evidence readily satisfies the requirements for obtaining relief under 
Rule 60(b)(2), as the evidence (1) could not have been discovered with reasonable diligence in time to 
move for a new trial; (2) is material and would have resulted in a different outcome had it been 
presented to the Court prior to the April 28, 2022 hearing; and (3) pertains to facts that existed at the 
time of the Court’s ruling on Defendants’ motion to dismiss.  Accordingly, the Court should grant 
Plaintiffs’ motion for relief from judgment. 
First, and perhaps most crucially, Plaintiffs’ newly discovered evidence meets Rule 60(b)(2)’s 
reasonable diligence requirement given that it concerns information that only came to light on June 7, 
2022 through the disclosure of a whistleblower, regarding the DGB and its documented 
instrumentalization of social media companies—especially Twitter—to combat “misinformation.”  
The memoranda specifically discuss attempts to stifle “misinformation” about COVID-19, the 
material at issue here (see Exhibit 1 at p. 6 [9/13/21 Memorandum of Robert Silvers]). 
Indeed, the DGB’s existence was unknown to the American public until its creation was 
announced by the Biden Administration April 27, 2022 (the day preceding the hearing in this case). 
Likewise, DHS’s involvement in driving social media censorship only came to light at that time, and 
the extent of that involvement was not known until the whistleblower documents came to light (see 
Exhibit 1 at pp. 25-26 [Undated Memorandum from Robert Silvers to Jonathan Meyer]).  Prior to 
June 7, 2022, when the newly discovered evidence was revealed and publicized, there was no direct 
proof that President Biden’s executive agencies had been conferring with social media companies and 
using them to further their aim of silencing those spreading “misinformation” (although Plaintiffs 
maintain that they presented enough circumstantial evidence to survive a motion to dismiss).  These 
documents establish that DHS officials met in secret with Twitter executives to coordinate online 
censorship of perspectives such as those offered by Plaintiffs, who had been suspended on Twitter 
for saying, inter alia, masks were ineffective.  The leaked documents showed that DHS considered 
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“disinformation relating to the origins and effects of Covid-19 vaccines or the efficacy of masks” a 
“serious homeland security risk” (see Exhibit 1 at pp. 6-24 [9/13/21 Memorandum of Robert Silvers, 
1/31/22 Memorandum of Robert Silvers]).  This was not information that Plaintiffs knew or could 
have known until June 7, 2022—33 days after entry of the Court’s Order and, thus, beyond the 28-
day period in which Plaintiffs could have moved for a new trial under Rule 59(b). See Fed. R. Civ. P. 
59(b).   Indeed, Plaintiffs could not have known even of the DGB’s existence, let alone the role that 
it played, when they filed their complaint nor during the days leading up to the hearing, as that also 
remained a government secret until April 27, 2022.  The evidence that Plaintiffs seek to introduce thus 
satisfies Rule 60(b)(2)’s requirement, as it was “previously unavailable such that it was not discoverable 
by due diligence prior to the judgment from which [Plaintiffs] seek relief.” Kimble v. Hoso, 2008 WL 
2404964, at *1 (N.D. Ohio June 11, 2008) (citing GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 
834 (6th Cir. 1999)).   
Second, this evidence is both material and controlling, as it goes to the heart of Plaintiffs’ 
contentions that government involvement in social media censorship violated their First Amendment 
rights to free speech and expression. Granting Defendants’ motion to dismiss, this Court determined 
that there was insufficient evidence from which to conclude that Defendants’ actions caused Twitter 
to censor Plaintiffs or that it had a chilling effect.  On that basis, the Court dismissed Plaintiffs’ 
complaint both for lack of standing and for failure to state a claim.  But this new information 
constitutes direct evidence of the government’s involvement in social media censorship that this Court 
found lacking in the original complaint.  In short, it demonstrates that the government considered 
“misinformation” on social media a national security threat, that it met with Twitter executives to 
address that threat, and that it intended to use social media companies to accomplish its aim of 
silencing non-government approved views on the subject of COVID-19.  In the Defendants’ own 
words, a First Amendment claim based on private conduct may be shown in cases of state action 
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where “the government called on the private party to take the precise action at issue.” ECF No. 31 at 
27. Plaintiffs’ newly discovered information offers ample evidence of just that, including the 
Administration’s intent to instrumentalize Twitter to combat views deemed “misinformation” by the 
government—in stark contrast to Defendants’ repeated characterization of Twitter’s actions as 
“voluntary” and “independent.”  See ECF No. 35 at 6, 8, 9, 10, 12 (“Plaintiffs fail to show that any 
adverse actions Twitter has taken or will take, against Plaintiffs flow from Defendants rather than 
Twitter[‘s] independent judgment.”). 
 Indeed, assuming arguendo that Plaintiffs’ suspensions on Twitter and censorship on other social 
media platforms could not be tied to state action before, given this new knowledge that the 
government is directly involved in such censorship now, they certainly have standing to bring this suit 
at the present time. At the very least, this previously undisclosed information warrants vacating the 
Court’s Order and reinstating Plaintiffs’ case to the docket to allow Plaintiffs to move forward with 
the lawsuit and obtain discovery.  See Consumers Petroleum Co. v. Texaco, Inc., 804 F.2d 907 (6th Cir. 1986) 
(“We can not [sic] conclude from reviewing the record that [Plaintiff] could not have developed facts 
to support its assertion …”).  After all, if the case were reinstated, Plaintiffs would not need to prove 
their case at that juncture.  They would need only to provide sufficient facts which, viewed in the light 
most favorable to them, could support a claim that would entitle them to relief.  DirecTV, Inc. v. Treesh, 487 
F.3d 471, 476 (6th Cir. 2007).  The newly discovered evidence is, thus, material to Plaintiffs’ complaint 
and, had it presented to this Court at the April 28, 2022 hearing, would have resulted in a different 
outcome.  See Bilski v. McCarthy, 790 F. App'x 756 at 765; see also Midwest Franchise Corp. v. Metromedia 
Rest. Group, Inc., 177 F.R.D. 438 (N.D. Iowa 1997) (noting that courts will grant 60(b)(2) motions 
where newly discovered evidence “counter[s] a substantive issue in [the] case” and creates likelihood 
that “new trial would probably produce a different result”). 
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Third, Plaintiffs added Defendants to the amended complaint, including the Department of 
Homeland Security, its Secretary, Alejandro Mayorkas, the Cybersecurity and Infrastructure Security 
Agency, and the DGB.   Plaintiffs could not have named DHS and the DGB as Defendants when 
they filed the lawsuit in late March for the reasons discussed above—namely, that the DGB’s creation 
was announced in late April, and the nature of its role kept secret until revealed through the 
declassification of certain documents on June 7, 2022.  However, as mentioned, it is readily apparent 
that DHS and the DGB have played a significant role in the commandeering of technology companies 
to quell the dissemination of COVID-19 “misinformation,” and, accordingly, it would be appropriate 
to include them as Defendants in this lawsuit, should Plaintiffs be granted the opportunity to proceed 
with the lawsuit in light of the newly discovered evidence.   
Lastly, and as noted above, the facts on which Plaintiffs’ newly discovered evidence is based 
“existed at the time of trial.” Davis v. Jellico Cmty. Hosp., Inc., 912 F.2d at 136; see also Nat'l Union Fire 
Ins. Co. of Pittsburgh v. Alticor, Inc., No. 05-2479, 2007 WL 2733336, at *8 (6th Cir. Sept. 19, 2007) 
(reports created after final judgment constituted “newly discovered evidence” under Rule 60(b)(2) 
because they pertained to facts in existence at time of judgment); Fields v. City of Chicago, 981 F.3d 534 
(7th Cir. 2020) (granting Rule 60(b)(2) where evidence of witness’s release only arose after trial but 
which concerned a pre-trial deal in which the witness would receive accelerated release in return for 
his testimony in favor of defendants); Kettenbach v. Demoulas, 901 F. Supp. 486, 409-93 (D. Mass. 1995) 
(granting Rule 60(b)(2) motion based on conversation recorded on wiretap months after judgment 
because conversation described facts in existence at time of trial).  The underlying facts of the newly 
discovered evidence that are relevant to Plaintiffs’ action existed at the time of judgment, including, 
inter alia, details of the government’s plans as of September 13, 2021 (if not earlier), to combat what it 
deemed “disinformation relating to the origins and effects of Covid-19 vaccines or the efficacy of 
masks.”  Such efforts include, as the evidence reveals, its “mission” to “engage private sector services” 
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and otherwise foster partnerships with “private sector entities [and] tech platforms” to help achieve 
the DHS mission of combating and suppressing so-called Covid-related misinformation. The 
documents discussed above also reveal that, on April 28, 2022, DHS officials met—in secret (“off the 
record and closed press”)—with Twitter executives to discuss “operationalizing public-private 
partnerships between DHS and Twitter,” as part of DHS’s efforts to combat so-called misinformation, 
which also includes the use of Twitter to combat “misinformation.”  Because the underlying facts on 
which the newly discovered evidence is based existed at—and largely well before—the time of 
judgment, Plaintiffs satisfy the final requirement for relief from judgment under Rule 60(b)(2).   
For the foregoing reasons, Plaintiffs respectfully request that the Court grant the motion for relief 
from judgment, vacate the Order, and allow Plaintiffs to proceed with this action.  As evidenced by 
the materials made public by a whistleblower, discussed above, the new evidence pertains to facts that 
existed at the time of this Court’s judgment, but which were not available to Plaintiffs until June 7, 
2022—the time at which they were disclosed by a whistleblower.  Further, for the reasons discussed 
throughout this motion, the new evidence is material to Plaintiffs’ complaint and directly addresses 
the Court’s grounds for dismissal by amplifying Plaintiffs’ factual allegations with information they 
could not previously have known in time to move for a new trial.  Accordingly, the motion for relief 
from judgment should be granted. 
Dated: June 24, 2022  
 
 
Respectfully, 
/s/Jenin Younes__________ 
 
 
 
Jenin Younes (pro hac vice) 
 
 
John J. Vecchione (pro hac vice) 
NEW CIVIL LIBERTIES ALLIANCE 
1225 19th Street NW, Suite 450 
Washington, DC 20036 
(202) 869-5210 
Jenin.younes@ncla.legal 
 
/s/Angela Lavin___________  
Angela M. Lavin (0069604) 
Case: 2:22-cv-01776-EAS-CMV Doc #: 42 Filed: 06/24/22 Page: 7 of 8  PAGEID #: 652

 
 
Jay R. Carson (0068526) 
Local Counsel 
WEGMANHESSLER 
6055 Rockside Woods Boulevard North 
Suite 200 
Cleveland, Ohio 44131 
Telephone: (216) 642-3342 
Facsimile: (216) 642-8826 
AMlavin@wegmanlaw.com 
 
 
 
 
 
 
 
 
 
Attorneys for Plaintiffs 
 
Case: 2:22-cv-01776-EAS-CMV Doc #: 42 Filed: 06/24/22 Page: 8 of 8  PAGEID #: 653

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