Plaintiffs' Reply in Support of Rule 60(b) Motion — Changizi v. HHS (S.D. Ohio)

Record facts

UNITED STATES DISTRICT COURT · No. 2:22-cv-01776-EAS-CMV · Doc. 49 · 2022-07-28 · 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. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
REPLY TO DEFENDANTS’ RESPONSE TO MOTION FOR RELIEF FROM 
JUDGMENT UNDER FED. R. CIV. P. 60(b) 
 
Plaintiffs respectfully submit this reply to Defendants’ opposition (ECF No. 48) (“Def. Opp.”) 
to Plaintiffs’ motion for relief from judgment pursuant to Rule 60(b) requesting that the Court 
reinstate this case to its docket (ECF No. 42) (the “Motion”).      
ARGUMENT 
Defendants’ claim that Plaintiffs have not satisfied the requirements of Rule 60(b) is without 
merit.  First, Defendants rely on the spurious contention that this Court lacks jurisdiction to consider 
the motion, and so it should be denied. But Defendants fail to address the plethora of case law, not 
to mention the federal rules, endowing the Court with authority to consider the motion and convey its 
intended ruling to the Court of Appeals.  Defendants argue in the alternative that Plaintiffs’ new 
evidence, which they fail to address in any meaningful way, is insufficient for purposes of Rule 60(b) 
relief.   
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I. 
The Court Should Consider Plaintiffs’ Motion 
Defendants’ contention that the Court lacks authority to entertain the Motion is wrong and 
misconstrues the governing legal authority.  Defendants ignore the substantial body of law that 
instructs district courts, in circumstances such as these, to consider a Rule 60(b) Motion and convey its 
intended ruling to the Court of Appeals.  
Typically, the filing of a notice of appeal “confer[s] jurisdiction to the court of appeals and 
divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. 
Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982).  However, under the Federal Rules of Appellate 
Procedure, a notice of appeal that is filed while a Rule 60(b) motion remains outstanding in the district 
court “becomes effective” only after that motion is resolved.  Fed. R. App. P. 4(a)(4)(B)(i); see also Stone 
v. I.N.S., 514 U.S. 386, 402-403 (1995) (district courts retain jurisdiction to adjudicate certain post-
judgment motions, including those filed under Rule 60(b)).  The rules are clear that a Rule 60(b) 
motion made while an appeal is pending must be filed in the district court, rather than the court of 
appeals. See Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002) (dismissing Rule 60(b) motion made 
directly to court of appeals on the ground that motion was not first filed in the district court).   
Indeed, according to the Advisory Committee notes on the 1993 amendment to FRAP 4(a)(4), 
a “notice [of appeal] filed … after the filing of a motion [including a Rule 60(b) motion] but before 
disposition of the motion is, in effect, suspended until the motion is disposed of”—and it is only 
thereafter that “the previously filed notice effectively places jurisdiction in the court of appeals.” Fed. 
R. App. P. 4(a)(4) Advisory Committee Notes (1993); see also Craig v. Mackie, No. 2:17-CV-12830, 2021 
WL 608738, at *2 (E.D. Mich. Jan. 29, 2021) (“Where a notice of appeal is filed before the [District] 
Court decides a timely Rule 60(b) motion, ‘the notice becomes effective to appeal a judgment or order, 
in whole or in part, when the order disposing of the last such remaining motion is entered.’”).   
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Thus, contrary to Defendants’ contention, the district court is not wholly divested of the ability 
to consider or decide a Rule 60(b) motion (to be contrasted with granting the Motion) after filing of a 
notice of appeal. See Pickens v. Howes, 549 F.3d 377, 383 (6th Cir. 2008) (“the Sixth Circuit has set forth 
specific procedures for a district court that wishes to intervene after a case has been appealed … if the 
district judge believes there should be relief from the judgment, the district court is to indicate that it 
would grant the motion”; internal citations and quotation marks omitted); First National Bank of Salem, 
Ohio v. Hirsch, 535 F.2d 343 (6th Cir. 1976) (“If the district judge is disposed to grant the motion, he 
may enter an order so indicating and the party may then file a motion to remand in [the appellate 
court]”).  Even if the district court is without jurisdiction to grant a Rule 60(b) motion, “it must as an 
initial matter entertain it and make a request to the court of appeals.” See Pickens, 549 F.3d at 384 
(citing LSJ Inv. Co., Inc. v. O.L.D., Inc., 167 F.3d 320, 324 (6th Cir. 1999) (“[A] lower court may entertain 
a motion for relief from judgment filed during the pendency of an appeal.”));  Dobrowiak v. Convenient 
Family Dentistry, Inc., No. 04-73495, 2008 WL 450474, at * 1 n. 2 (E.D. Mich. Feb.15, 2008) (“[T]he 
Sixth Circuit has recognized that district courts have at least some discretion to entertain a motion for 
relief from judgment notwithstanding a pending appeal.”); Reeves v. Jensen, No. 5:04-cv-194, 2007 WL 
2381942, at *1 (W.D. Mich. Aug.17, 2007) (“Notwithstanding this court’s lack of jurisdiction to rule 
on plaintiff’s motion, case law indicates that it would be proper for the court to indicate whether it 
would be inclined to grant the motion.”).  Such an “indication” then informs the decision of the Court 
of Appeals.  This Court must therefore resolve the matter by acting on the Motion.   
Notably, Defendants cite only three cases to support their argument that this Court lacks 
jurisdiction to rule on Plaintiffs’ Motion, two of which were decided in 1988—prior to the 1993 
amendment of FRAP 4(a)(4), as discussed above.  See Def. Opp., ECF No. 48, at 6-7 (citing Agristor 
Leasing v. Hermitage Harvistore Sys., Inc., 849 F.2d 608 (6th Cir. 1988) and Smith v. Combustion Eng’g, Inc., 
843 F.2d 1392 (6th Cir. 1988)).  Thus, those cases have been effectively superseded by the amendment 
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and are no longer controlling law. Defendants’ third case, Pickens, expressly provides for the district 
court to consider the motion and signal an intent to grant it to the Court of Appeals, as discussed.1   
In sum, a litigant faced with an unfavorable district court judgment must file a Rule 60(b) 
motion with the district court while appealing that judgment within the time allotted by Federal Rule 
of Appellate Procedure 4 (in this case, 60 days from the order of dismissal), whether or not the litigant 
first files a Rule 60(b) motion, and even “where the Rule 60 motion is filed more than [now 28 days] 
following judgment.” See Fed. R. App. P. 4(a)(4)(A; see also Stone, 514 U.S. 386, at 401. Plaintiffs have 
done just that, filing the Rule 60(b) Motion directly with the district court and timely filing the notice 
of appeal.  Read together, according to the applicable Supreme Court and Sixth Circuit precedent 
(including each case cited in Defendants’ response), as well as the Federal Rules, this Court retains 
discretion to enter an order indicating an intent to grant the Motion so that the Sixth Circuit may 
remand the case to the district court. Accordingly, Defendants’ argument that the Court should deny 
the Motion for lack of jurisdiction is without merit. 
II. 
Plaintiffs Meet the Requirements Under Rule 60(b)(2) to Obtain Judgment 
from Final Relief 
The Motion details Plaintiffs’ newly discovered evidence, establishing that it readily meets the 
requirements for obtaining relief under Rule 60(b)(2), as the new 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; 
 
1 Defendants also assert that, because Plaintiffs filed the 60(b) Motion over 28 days after the Court 
entered its final judgment, Plaintiffs’ appeal should not be “held in abeyance” pursuant to FRAP 
4(a)(4). See Def. Opp., ECF No. 48, at 6 (pointing out that the Sixth Circuit issued an order on July 5, 
2022, stating that the case was inadvertently docketed under FRAP 4(a)(4)).  Plaintiffs do not dispute 
that filing a Rule 60(b) motion triggers abeyance only “if the motion is filed no later than 28 days after 
the judgment is entered.” Fed. R. App. P. 4(a)(4)(A)(vi).  Certainly, had Plaintiffs filed the Motion 
within that timeframe, that would have tolled Plaintiffs’ time to file an appeal. However, given 
Plaintiffs’ timely filing of the notice of appeal, it is unclear what bearing Defendants’ contention has 
on this Court’s jurisdiction and ability to consider the Motion.   
 
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and (3) pertains to facts that existed at the time of the Court’s ruling on Defendants’ motion to dismiss. 
See ECF No. 42 (citing 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))).  Defendants’ response, however, glosses over the 
underlying facts and significance of Plaintiffs’ new information, including direct evidence of the 
government’s “mission” and extensive efforts to direct private tech companies, including Twitter and 
other social media platforms, to combat and suppress “misinformation.”  Yet this is precisely the sort 
of information that this Court found lacking in the original complaint—and which remained wholly 
unavailable to Plaintiffs until June 7, 2022, when a whistleblower’s disclosure revealed it. 
Furthermore, a district court recently granted a motion for expedited discovery based on the 
same newly discovered evidence that Plaintiffs presented in their Motion. See Missouri v. Biden, No. 
3:22-CV-01213, 2022 WL 2825846 (W.D. La. July 12, 2022) (granting discovery request for 
preliminary injunction motion).  Significantly, the Missouri motion for expedited discovery was filed 
on June 14, 2022 and contained the new information put forth in Plaintiffs’ Motion, which was 
unavailable to them prior to entry of the Court’s May 5, 2022 order dismissing and closing the case.  
See id., ECF No. 30, at 7 (distinguishing case from Changizi and others because “[t]hese cases were 
filed long before most of the States’ evidence of a massive federal censorship program became publicly 
available, and thus they were based on much less extensive allegations of federal censorship activity 
and joint action, collusion, and coercion.”). 
Defendants contend that Plaintiffs’ new evidence would not have resulted in a different 
outcome had it been presented to the Court prior to its original judgment.  Indeed, according to 
Defendants, the new evidence merely shows that DHS “engaged in general anti-misinformation 
efforts comparable to those of the Surgeon General,” and thus, they claim, it fails to establish that 
Plaintiffs have standing. Def. Opp., ECF No. 48, at 7.  But the new information includes ample 
evidence of DHS’s coercive actions, undue influence on private third parties, and myriad efforts taken 
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to secretly coordinate the censorship of constitutionally protected speech through private entities.  
Such evidence plainly substantiates he allegations from the original Complaint regarding the Surgeon 
General’s tweets, public comments and Request for Information (RFI). 
Specifically, Defendants argue that the new evidence adds nothing to Plaintiffs’ complaint that 
would “cure [its] deficiencies” in terms of showing causation.  They maintain that Plaintiffs still have 
not demonstrated their injuries are traceable to Defendants’ actions, rather than to Twitter’s 
“independent” and “voluntary” decisions.  See id., at 7-8.  Defendants, however, starkly mischaracterize 
the new evidence, which fortifies Plaintiffs’ complaint on each of those fronts.  First, the evidence 
extensively details DHS’s frequent communications, meetings, and collusion with Twitter to 
coordinate the censorship of views that the government has deemed dangerous.  This demonstrates that 
Twitter’s mounting censorship of protected speech—speech which, not coincidentally, counters the 
government’s viewpoint—is not the product of “independent, discretionary judgments,” as 
Defendants claim.  Additionally, Plaintiffs’ new evidence includes documentation and details regarding 
the formation of the “Disinformation Governance Board” (“DGB”) within DHS, how DHS created 
the DGB and tasked it with stopping the spread of misinformation—barely veiled code for 
censorship—through partnership with private companies, including social media platforms, and how 
DHS held meetings in secret with Twitter executives to discuss the operationalizing of public-private 
partnerships between DHS and Twitter, including using Twitter, specifically, to combat 
misinformation.   
The extraordinary level of collaboration and collusion between DHS and a private company—
all for the purpose of constructing a censorship apparatus to suppress the protected speech of 
Americans—is more than sufficient to show that Twitter’s past and ongoing censorship of its users 
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are not independent, voluntary actions.2  Private parties that are “jointly engaged with state officials in 
[a] prohibited action are acting ‘under color’ of law … It is enough that [the private party] is a willful 
participant in joint activity with the State or its agents.”  Lugar v. Edmondson Oil Co., 457 U.S. 922, 941–
942 (1982).  The claim that these documents reveal a willingness on the part of technology companies 
to work with the government and accomplish its aims, and is thereby lawful, should be rejected.  The 
inherent power imbalance renders this argument inapposite, in that the government can penalize 
uncooperative companies (and has explicitly stated an intent to do so).  At the very least, the question 
is one of fact for a jury to determine.  Thus, Plaintiffs’ newly discovered information, which provides 
extensive evidence of DHS and Twitter’s collusive activities in furtherance of speech suppression, 
goes to the heart of the causation issue and directly contradicts Defendants’ claims that Plaintiffs failed 
to establish a causal link between the federal government’s campaign and their censorship on social 
media.   
Indeed, in Missouri, the district court concluded that the traceability component of the standing 
inquiry had been “easily met” as Defendants had coerced and colluded with private third parties to 
censor “disfavored speakers, viewpoints, and content.” Id. at 5-6 (Plaintiffs had standing on grounds 
that “the alleged injuries are ‘imminent’ and allegedly ‘on-going,’ due to allegations of social media 
suspensions, removals of disfavored viewpoints, and censorship.”).  The district court there also 
noted—contrary to Defendants’ contention—that the plaintiffs met the redressability element of 
standing, as putting an end to the “alleged suppression of supposed disfavored speakers, viewpoints, 
and content would address Plaintiff States’ alleged injuries.” Id., at 6.  This case, being virtually identical 
 
2 New emails made public just yesterday establish that CDC officials regularly communicated with 
personnel at Twitter, Facebook, and Google to censor “vaccine misinformation,” including CDC’s 
flagging specific posts and setting up meetings to instruct tech companies on how best to police 
“misinformation.”  Available at https://freebeacon.com/wp-content/uploads/2022/07/CDC-
Emails-to-Big-Tech.pdf.   
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in relevant respects, should compel the same conclusion.  In short, Plaintiffs’ new evidence offers, in 
spades, proof of collusion, coercion, correspondence, and joint action between DHS and Twitter that 
supplies grounds for granting their Rule 60(b) Motion.  
CONCLUSION 
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. 
Dated: July 28, 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) 
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 
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