Complaint For Declaratory And Injunctive Relief
Summary
In the United States District Court for the Eastern District of Virginia, Alexandria Division, Empower Oversight Whistleblowers & Research v. National Institutes of Health, Case 1:21-cv-01275-LMB-JFA, Document 1 filed 11/17/21 is a Complaint for Declaratory and Injunctive Relief under the Freedom of Information Act. Plaintiff alleges NIH has not provided a determination on FOIA Requests 56712, 57151 and 57199 within the statutory deadline. The requests concern SARS-CoV-2 sequences submitted for posting to the Sequence Read Archive in March 2020 and withdrawn at the submitting researcher's request in June 2020, as discussed by Dr. Jesse D. Bloom in an article of June 18, 2021. The complaint asserts counts for failure to comply with FOIA deadlines and unlawful withholding of agency records, which are Plaintiff's allegations.
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“Complaint For Declaratory And Injunctive Relief.”
Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-vaed-516270-1-0-2ebfc2472d/
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Case 1:21-cv-01275-LMB-JFA Document 1 Filed 11/17/21 Page 1 of 10 PageID# 1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
EMPOWER OVERSIGHT )
WHISTLEBLOWERS & RESEARCH, )
2615 Columbia Pike, #445 )
Arlington, VA 22204 )
)
Plaintiff, )
) Case No. ___________
v. )
)
NATIONAL INSTITUTES OF HEALTH, )
9000 Rockville Pike )
Bethesda, MD 20892 )
)
Defendant. )
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
1. Plaintiff Empower Oversight Whistleblowers & Research (hereinafter “Empower
Oversight”) brings this action against Defendant National Institutes of Health (“NIH”) to compel
compliance with the Freedom of Information Act, 5 U.S.C. § 552 ( “FOIA”), including obtaining
access to records maintained by the NIH.
2. The records at issue, including but not limited to communications to and from NIH,
relate to SARS-CoV-2 sequences submitted by a Chinese researcher for posting to the Sequence
Read Archive (“SRA”) in March 2020 and subsequently withdrawn by the NIH upon the
researcher’s request to SRA staff in June 2020. See infra ¶¶ 4-7.
3. On June 18, 2021, Dr. Jesse D. Bloom of the Fred Hutchen Cancer Research Center
published an article titled “Recovery of deleted deep sequencing data sheds more light on the early
Wuhan SARS-CoV-2 epidemic.” Jesse Bloom, Recovery of deleted deep sequencing data sheds
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more light on the early Wuhan SARS-CoV-2 epidemic, bioRxiv (June 18, 2021),
https://www.biorxiv.org/content/10.1101/2021.06.18.449051v1.full.pdf.
4. Dr. Bloom explained that in reviewing a March 2020 Wuhan University-associated
study containing a spreadsheet with information on 241 genetic sequences from the SRA, his own
searches for these sequences indicated that they were deleted from the SRA. See id. Nevertheless,
he was able to recover certain deleted files from Google Cloud and reconstruct partial sequences
of 13 early viruses. See id.
5. Dr. Bloom reasoned that “[t]he fact that such an informative data set was deleted
has implications beyond those gleaned directly from the recovered sequences,” and that it
“therefore seems likely the sequences were deleted to obscure their existence.” Id. at 7.
6. A June 23, 2021 New York Times article, among numerous others, heightened the
national focus on Dr. Bloom’s conclusions, reporting that he provided “intriguing new information
for discerning when and how the virus may have spilled over from a bat or another animal into
humans” and that it “raise[s] questions about why original sequences were deleted.” See Carl
Zimmer, Scientist Finds Early Virus Sequences That Had Been Mysteriously Deleted, N.Y.T. (June
23, 2021) (updated July 22, 2021), available at
https://www.nytimes.com/2021/06/23/science/coronavirus-sequences.html.
7. The New York Times article revealed that, in fact, more than 200 data entries from
the genetic sequencing of early COVID-19 cases disappeared from an online scientific database in
the summer of 2020. See id. The article included confirmation by the National Library of
Medicine within the NIH, which manages the SRA, that these sequences were “submitted for
posting in SRA in March 2020 and subsequently requested to be withdrawn by the submitting
investigator in June 2020.” See id.
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8. However, deletions from the SRA are reportedly rare. From March 2020 to March
2021, the SRA repeatedly received approximately 2.4 million submissions of sequence data,
according to the NCBI spokeswoman. However, a mere 0.19% were withdrawn. See Amy
Dockser Marcus & Drew Hinshaw, After Covid-19 Data Is Deleted, NIH Reviews How Its Gene
Archive Is Handled, WALL ST. J. (Sept. 13, 2021), available at https://www.wsj.com/articles/after-
covid-19-data-is-deleted-nih-reviews-how-its-gene-archive-is-handled-11631545490.
9. On June 28, 2021, Senators Grassley, Blackburn, and Marshall sent the NIH a letter
seeking records and responses to questions regarding the removal of the sequences from the SRA.
Letter from Sen. Grassley et al. to Francis S. Collins, June 28, 2021. The same Senators sent a
follow-up letter on September 16, 2021, reiterating their requests. Letter from Sen. Grassley et al.
to Francis S. Collins, Sept. 16, 2021.
10. According to the Centers for Disease Control and Prevention (“CDC”), as of
November 6, 2021, over 756,000 deaths—and counting—have been attributed to COVID-19 in
the United States alone. See COVID-19 Mortality Overview, CDC (last accessed Nov. 16, 2021),
available at https://www.cdc.gov/nchs/covid19/mortality-overview.htm. Yet, upon information
and belief, there is no global consensus on the origin of the COVID-19 pandemic.
11. The public thus has a significant interest in understanding the reason why these
early sequences were removed from the SRA. In recognizing this significant interest, Empower
Oversight filed the three FOIA Requests described herein.
JURISDICTION AND VENUE
12. The Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and
28 U.S.C. § 1331.
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13. Venue is proper in this district and division pursuant to 5 U.S.C. § 552(a)(4)(B) and
28 U.S.C. § 1391(e)(1).
PARTIES
14. Plaintiff Empower Oversight is a nonprofit, nonpartisan educational organization
dedicated to enhancing independent oversight of government and corporate wrongdoing.
Empower Oversight has its principal place of business located at 2615 Columbia Pike, #445,
Arlington, VA 22204. Empower Oversight works to help insiders safely and legally report waste,
fraud, abuse, corruption, and misconduct to the proper authorities, as well as work to hold
authorities accountable to act on such reports.
15. Defendant NIH is an agency within the U.S. Department of Health and Human
Services, and a federal administrative agency within the meaning of 5 U.S.C. § 552(f)(1), with its
principal place of business located at 9000 Rockville Pike, Bethesda, MD 20892. Upon
information and belief, the NIH has possession, custody, and control of the records, within the
meaning of 5 U.S.C. § 552(f)(2), to which Empower Oversight seeks access.
LEGAL STANDARD
16. FOIA requires a federal administrative agency to promptly make available
requested, non-exempt agency records in response to a request that (a) reasonably describes such
records and (b) “is made in accordance with published rules stating the time, place, fees, . . . and
procedures to be followed[.]” 5 U.S.C. § 552(a)(3)(A); see also 45 C.F.R. § 5.22.
17. FOIA requires an agency to respond to a valid request within twenty (20) days
(exempting Saturdays, Sundays, and legal public holidays) (hereinafter “working days”) upon
receipt of such request, including notifying the requestor immediately of its determination, the
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reasons therefor, and the right to appeal any adverse determination. 5 U.S.C. § 552(a)(6)(A)(i);
see also 45 C.F.R. §§ 5.24, 5.28.
18. In certain circumstances, an agency may instead provide notice to the requester that
“unusual circumstances” merit additional time—up to an additional ten (10) working days—to
respond to the request. 5 U.S.C. § 552(a)(4)(viii)(II)(aa); see also 45 C.F.R. § 5.24(f). In the
event the agency provides notice to the requester of “unusual circumstances,” and that it is not able
to respond to the records request within the statutory deadline, the agency must provide the
requester “an opportunity to arrange with the agency an alternative time frame for processing the
request.” 5 U.S.C. § 552(a)(6)(B)(ii); 45 C.F.R. § 5.24(f).
19. If an agency does not respond to a FOIA request by the statutory deadline, the
requester is deemed to have exhausted administrative remedies and may immediately pursue
judicial review. 5 U.S.C. § 552(a)(6)(C)(i).
FACTS
20. On July 14, 2021, Empower Oversight submitted a FOIA request to the NIH, see
Ex. A, seeking access to the following:
a. All communications regarding the request to post the SARs-CoV-2 sequences to
the Sequence Read Archive in March 2020. This request covers all
communications between March 1, 2020 to March 31, 2020.
b. All communications regarding the request to withdraw the SARS-CoV-2 sequences
from Sequence Read Archive in June 2020. This request covers all
communications between June 1, 2020 to June 31, 2020.
c. All communications regarding these withdrawn sequences as reported by a preprint
titled “Recovery of deleted deep sequencing data sheds more light on the early
Wuhan SARS-CoV-2 epidemic” by Jesse Bloom, a virologist at the Fred
Hutchinson Cancer Research Center. This request covers all communications
between Jesse Bloom and the NIH, from January 1, 2021 and the present. This
request covers all communications inside the NIH regarding the preprint from
June 21, 2021 to the present.
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d. All communications to, from, and within the NIH press office about the NIH
statement released on June 23, 2021, and about reports that these sequences were
removed from the Sequence Read Archive. This includes all emails related to the
drafting of the statement, communications about the reported removal, and
communications with reporters. This request covers all communications between
June 21, 2021 to June 25, 2021.
21. On September 30, 2021, Plaintiff submitted two additional FOIA Requests to the
NIH. In one September 30, 2021 Request, see Ex. B, Plaintiff sought access to and copies of:
a. All communications regarding the letter by Senators Grassley and Blackburn dated
June 28, 2021.
b. All communications regarding the NIH’s response to Senators Grassley and
Blackburn dated September 8, 2021.
c. All communications regarding the letter by Senators Grassley and Blackburn dated
September 16, 2021.
22. In the other September 30, 2021 Request, see Ex. C, Plaintiff requested a copy of
the NIH’s “log” of requests for records filed pursuant to the FOIA.
23. To date, Empower Oversight has yet to receive any correspondence whatsoever
from Defendant concerning any of its three pending FOIA Requests (hereinafter the “Three
Requests”), despite applicable regulations prescribing that the NIH, at a minimum, is required to
acknowledge receipt of all FOIA requests in writing within 10 working days. See 45 C.F.R. §
5.24; see also 45 C.F.R. § 5.4 (explaining that all operating divisions (“OpDivs”) of HHS are
subject to the requirements in that regulation); 45 C.F.R. § 5.3 (defining NIH as an OpDiv of
HHS).
24. However, to date, Empower Oversight’s account on the NIH’s online FOIA portal
shows:
a. A Request 56712 as having been filed by Empower Oversight on July 15, 2021.
The “Description” of Request 56712 matches the four enumerated items on
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Empower Oversight’s July 14, 2021 Request, and the details of Request 56712
include an embedded link to a copy of Empower Oversight’s request. Therefore,
upon information and belief, the responsible FOIA officer “received” that July 14,
2021 Request on or before July 15, 2021.
b. A Request 57151 as having been filed by Empower Oversight on October 7, 2021.
The “Description” of Request 57151 matches the substance of one of Empower
Oversight’s September 30, 2021 Requests, and the details of Request 57151 include
an embedded link to a copy of Empower Oversight’s request. Therefore, upon
information and belief, the responsible FOIA officer “received” that September 30,
2021 Request on or before October 7, 2021.
c. A Request 57199 as having been filed by Empower Oversight on October 14, 2021.
The “Description” of Request 57199 matches the substance of Empower
Oversight’s other September 30, 2021 Request, and the details of Request 57199
include an embedded link to a copy of Empower Oversight’s September 30, 2021
Request. Therefore, upon information and belief, the responsible FOIA officer
“received” that September 30, 2021 Request on or before October 14, 2021.
25. To date, the NIH has not provided a determination as to Request 56712, 57151, or
57199, despite the requirement of 5 U.S.C. § 552(a)(6)(A) that an agency respond within twenty
(20) working days, including by providing detail on the scope of the records the agency intends to
produce or withhold, the reasons for making that determination, and an explanation of the process
by which a requester can administratively appeal that determination.
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26. To date, the NIH also has not provided Empower Oversight notice that “unusual
circumstances” warrant a failure to comply with the statutory deadline with respect to any of the
Three Requests.
27. Empower Oversight has been required to expend resources to prosecute this action.
CLAIMS FOR RELIEF
Count I
Failure to Comply with Statutory Deadlines in Violation of FOIA, 5 U.S.C. § 552(a)(6)
28. Plaintiff realleges and incorporates by reference each of the foregoing allegations,
contained in paragraphs 1-27, as if fully set forth herein.
29. To date, Defendant has failed to respond – timely or otherwise - to each of
Plaintiff’s Three Requests identified above in paragraphs 20-22.
30. More than 20 working days have passed since each of the Three Requests were
received by the NIH as reflected on its online FOIA portal.
31. FOIA requires Defendant to have provided a final determination within 20 working
days of each of the Three Requests. Defendant may extend this 20-day period in the event of
“unusual circumstances,” as defined by 5 U.S.C. § 552(a)(6)(B)(iii), for a maximum of 10 working
days, but must provide Empower Oversight with notice to do so. See 5 U.S.C.
§§ 552(a)(4)(A)(viii)(II)(aa), 552(a)(6)(B)(ii).
32. Defendant did not provide a final determination within 20 working days of each of
the Three Requests, nor did it contact Empower Oversight with a claim that unusual circumstances
exist as to any of the Three Requests.
33. The NIH has thus failed to timely make a determination on all Three Requests, in
violation of FOIA. See 5 U.S.C. § 552(a)(6).
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34. Empower Oversight has constructively exhausted all administrative remedies
required by FOIA as to each of the Three Requests. See 5 U.S.C. § 552(a)(6)(C)(i).
35. Plaintiff is being irreparably harmed by Defendant’s violation of the FOIA, and
Plaintiff will continue to be irreparably harmed unless Defendant is compelled to comply with the
FOIA as to each of the Three Requests.
Count II
Unlawful Withholding of Agency Records in Violation of FOIA, 5 U.S.C. § 552(a)(3)
36. Plaintiff realleges and incorporates by reference each of the foregoing allegations,
contained in paragraphs 1-35, as if fully set forth herein.
37. FOIA requires Defendant to process records requests and promptly provide the
requested records or the reasonably segregable portion of records not subject to a FOIA exemption.
5 U.S.C. § 552(a)(3)(B).
38. However, Defendant has neither provided Empower Oversight any responsive
documents in response to any of its Three Requests, nor has it claimed that any responsive records
are exempt from disclosure.
39. Therefore, the NIH’s acts and omissions for failing to produce records or claim
applicable exemptions violate FOIA. 5 U.S.C. § 552(a)(3)(B).
RELIEF REQUESTED
WHEREFORE, Plaintiff prays that this Court:
A. Declare that NIH failed to make timely determinations on each of Empower
Oversight’s Three Requests, in violation of FOIA, 5 U.S.C. § 552(a)(6)(A)(i);
B. Declare that NIH failed to promptly provide records responsive to each of Empower
Oversight’s Three Requests, in violation of FOIA, 5 U.S.C. § 552(a)(3);
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C. Order NIH to immediately conduct a reasonable search for all responsive records,
as required by FOIA, 5 U.S.C. § 552(a)(3)(C);
D. Order NIH to immediately provide determinations on each of Empower Oversight’s
Three Requests, as required by FOIA, 5 U.S.C. § 552(a)(6)(A)(i);
E. Order NIH to promptly disclose to Empower Oversight all responsive, non-exempt
records, as required by FOIA, 5 U.S.C. § 552(a)(3);
F. Award Empower Oversight its costs and reasonable attorneys’ fees incurred in this
action, pursuant to 5 U.S.C. § 552(a)(4)(E); and
G. Grant such other relief as the Court may deem just and proper.
November 17, 2021 Respectfully submitted,
/s/ Michael J. Schrier
Michael J. Schrier (VSB #65916)
HUSCH BLACKWELL LLP
750 17th Street, NW, Suite 900
Washington, DC 20006-4675
Tel. 202-378-2313
Fax 202-378-2319
michael.schrier@huschblackwell.com
Scott L. Glabe
HUSCH BLACKWELL LLP
235 E. High St., Suite 300
Jefferson City, MO 65101
Tel. 202-378-2396
Fax 292-378-2319
scott.glabe@huschblackwell.com
Attorneys for Plaintiff Empower Oversight
Whistleblowers & Research
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