Wright v. U.S. Dep't of Health & Human Servs.

CHRIS WRIGHT, Plaintiff, v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

Civil Action No. 22-1378 (RC)

United States District Court, District of Columbia

December 30, 2022

RE DOCUMENT NO.: 6

MEMORANDUM OPINION

DENYING DEFENDANT'S MOTION TO DISMISS

RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Chris Wright, proceeding pro se, brings this action under the Freedom of Information Act (“FOIA”) against the Department of Health and Human Services (“HHS” or the “agency”), seeking records concerning COVID-19 vaccine safety studies. HHS now moves to dismiss for failure to state a claim on the basis that Mr. Wright's four-item request fails to reasonably describe the records sought. Because HHS did not notify Mr. Wright at the administrative level about its concerns with the scope of his request as required by agency's own FOIA regulations, the Court will deny HHS's motion to dismiss. The Court will also address some of the parties' remaining arguments in an effort to facilitate prompt resolution of this dispute.

II. BACKGROUND

Mr. Wright is a self-described blogger who is interested in the safety of the COVID-19 vaccine. Compl. ¶ 3, ECF No. 1. On November 11, 2021, he submitted a four-item FOIA request to HHS via its online FOIA submission site. Compl. at 5-6 (“FOIA Request”), ECF No. 1.^[1] The request sought “all records that refer or relate, in any way, to the items listed below,” but curiously, no records were listed on that page-only definitions and other background information. Id. at 5. Instead, the records appeared on the second page of the request, under the heading “Records to be Produced:”

1) Decision memo(s) or other records regarding further studies of [the Vaccine Adverse Event Reporting System or “VAERS”] COVID vaccine adverse reaction reports, setting forth the decision(s) and underlying rationale(s)[;]

2) Any and all further studies of adverse reactions to COVID vaccines that have been conducted[;]

3) Any and all records discussing adverse reactions to COVID vaccines after the decision memo(s)[;]^[2]

...

4) Any and all records previously released under same or similar FOIA requests.

Id. at 6. HHS acknowledged the request on the same day and assigned it a case number. Compl. ¶ 5. HHS subsequently referred the request to one of its components, the Center for Disease Control and Prevention (“CDC”), which also assigned the request a case number. Id. ¶ 6; CDC Letter at 13 (Nov. 16, 2021), ECF No. 8-1.^[3] Mr. Wright requested a status update, and CDC responded that it was currently conducting a search. CDC Letter at 15 (Jan. 4, 2022). After Mr. Wright submitted a request for expedited processing on March 7, 2022, CDC responded the next day with four interim response letters. Compl. ¶ 6; CDC Letter at 16 (Mar. 8, 2022) (“First Interim Release”); CDC Letter at 18 (Mar. 8, 2022) (“Second Interim Release”); CDC Letter at 19 (Mar. 8, 2022) (“Third Interim Release”); CDC Letter at 20 (Mar. 8, 2022) (“Fourth Interim Release”).

The First Interim Release, corresponding to Item 1 of the request, informed Mr. Wright that no responsive records existed but recommended that he submit a request directly to the Food and Drug Administration (“FDA”). First Interim Response at 16. The Second Interim Response, corresponding to Item 2 of the request, provided Mr. Wright a public link to CDC's website containing studies of COVID-19 vaccines. Second Interim Response at 18. The Third Interim Response, corresponding to Item 4 of the request, indicated that CDC had located 13 pages of responsive records and decided it would disclose them in full. Third Interim Response at 19. The Fourth Interim Response, corresponding to Item 3 of the request, informed Mr. Wright that CDC was “unable to process your request as it is currently stated” and asked him to “substantially narrow[]” the scope of Item 3 because it was “unduly burdensome.” Fourth Interim Response at 20.

After Mr. Wright sent another follow-up inquiry, Wright Email at 21 (Mar. 21, 2022), CDC informed him the next day that “the agency responded to the portions of your request which were reasonably described, in our first, second and third interim releases,” CDC Letter at 22 (Mar. 22, 2022). CDC further noted that it would keep his request “on hold” until he agreed to narrow the scope of Item 3. Id. Mr. Wright provided a response on April 4, 2022, in which he revised Item 3 to read as follows:

records created after the decision memo(s) discussing or containing analysis of mortality as an adverse reaction to COVID vaccines, with search terms derived from the concept of mortality including, but not limited to ‘death', ‘deaths', ‘dying', ‘died', ‘dead', ‘kill', ‘killing', and ‘murder'.

Wright Letter at 2 (Apr. 4, 2022); FOIA Request at 6. Mr. Wright again sought expedited processing. Wright Letter at 1 (Apr. 4, 2022). He also claimed that his request was “mishandled” because although he “directed [it] to HHS as a whole,” only one HHS component, CDC, responded to his request. Id. On April 7, 2022, CDC acknowledged Item 3's “narrowed scope” in a short letter. CDC Letter at 23 (Apr. 7, 2022). According to Mr. Wright, besides the April 7 acknowledgement from CDC, he has not received any communication from HHS or CDC after April 4, 2022 concerning his FOIA request. Compl. ¶ 6. On May 18, 2022, Mr. Wright brought suit in this Court. See generally id.

III. LEGAL STANDARD

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim” in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). A court considering such a motion presumes that the complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C. 2000).

Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2009)). This means that a plaintiff's factual allegations “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555. Still, “[a] document filed pro se is ‘to be liberally construed,' and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).

“Under FOIA, an agency is only obligated to release nonexempt records if it receives a request that ‘reasonably describes such records.'” Evans v. Fed. Bureau of Prisons, 951 F.3d 578, 583 (D.C. Cir. 2020) (quoting 5 U.S.C. § 552(a)(3)(A)). “[A]lthough ‘FOIA cases typically and appropriately are decided on motions for summary judgment,' a motion under Rule 12(b)(6) is the appropriate vehicle for determining whether a plaintiff's request reasonably describes the records sought[.]” Gun Owners of Am., Inc. v. FBI, 594 F.Supp.3d 37, 42-43 (D.D.C. 2022) (citations omitted)); see Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Just., 922 F.3d 480, 487-88 (D.C. Cir. 2019) (“[T]o plead a plausible claim that an agency has ‘improperly' withheld its records, we require a plaintiff . . . to allege that it made a procedurally compliant request.”).

IV. ANALYSIS

HHS urges the Court to dismiss the Complaint because Mr. Wright's FOIA request does not “reasonably describe[]” the records sought and therefore fails to state a claim. 5 U.S.C. § 552(a)(3)(A); accord 45 C.F.R. § 5.24(b)(1)(ii), (b)(2) (HHS regulation). The parties do not dispute this is the relevant legal standard. According to HHS, Mr. Wright's request does not reasonably describe the records he seeks because it contains the overbroad phrase “refer or relate, in any way”; lacks adequate search limits; and imposes an unreasonable burden on the agency. Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss (“Mot.”) at 5-12, ECF No. 6-1. Mr. Wright counters that: there is no bright-line rule for what phrases render a request overbroad; his request is limited and specific; and his request seeks not only records referring or relating to the four items, but also the underlying documents themselves. Pl.'s Opp'n to Def.'s Mot. to Dismiss (“Opp'n”) at 3-20, ECF No. 8. Mr. Wright also argues that despite his good-faith efforts to communicate with the agency, HHS violated its own FOIA regulations by never informing him at the administrative level about its concerns with the scope of his request. Id. at 20-23.

The Court starts with Mr. Wright's last argument. FOIA provides that an agency administering the FOIA statute may issue “published rules stating . . . procedures to be followed.” 5 U.S.C. § 552(a)(3)(A). HHS's briefing acknowledges that one such regulation provides “Requests must reasonably describe the records sought and contain sufficient information to enable the FOIA office to contact you and transmit records to you. If we determine that a request does not meet these requirements, we will attempt to contact...