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Burmeister Wins Lawsuit: Court Rules Government Must Produce IOM Documents

  [ 24 votes ]   [ 1 Comment ]
By Jeannette Burmeister • • September 4, 2014

Burmeister Wins Lawsuit: Court Rules Government Must Produce IOM Documents
Editor's Comment: On January 9, 2014, Attorney Jeannette Burmeister filed a federal lawsuit against HHS and NIH in the U.S. District Court for the Northern District of California for failure to comply with the requirements of the Freedom of Information Act (FOIA) regarding documents she requested relating to the Institute of Medicine (IOM) “study” of diagnostic criteria for myalgic encephalomyelitis/chronic fatigue syndrome. On September 2, the Court ordered the government to comply with Attorney Burmeister’s request. You can read the full complaint here.

Reprinted with the kind permission of Jeannette Burmeister.

US District Court: HHS/NIH Violated Federal Law in Response to FOIA Request for IOM Documents

By Jeannette Burmeister

I am pleased to give an update on my FOIA lawsuit:

Yesterday, the United States District Court for the Northern District of California ruled that HHS and NIH (government) violated the Freedom of Information Act (FOIA) when they improperly withheld documents from me in response to my FOIA request regarding HHS’s contract with the Institute of Medicine (IOM) for the study of diagnostic criteria for ME/CFS.
Accordingly, the Court granted my motion for summary judgment and ordered the government “to produce, within 60 days, all documents responsive to [my] request that are not covered by any exemption to FOIA’s disclosure requirements.” [emphasis added] The Court also denied the government’s motion for summary judgment asking for a dismissal of my lawsuit.
I believe that holding HHS and NIH legally responsible for their violation of federal law is a tremendous victory for our patient population. However, since this litigation is ongoing, I will not, at this time, be able to comment further or answer any questions beyond the following details and quotes from the Court’s ruling. Although there will hopefully be more good news before the case is over.

In January of this year, I sued the government under FOIA for failure to respond to my FOIA request for documents regarding the HHS-IOM contract. I have been represented in this legal action by the global law firm of Baker & McKenzie LLP. Only after my filing of the lawsuit (and after the statutory time period for their response had lapsed) did the government produce a meager amount of documents despite the fact that my FOIA request was very broad.

It was apparent that the government’s search for responsive documents was woefully inadequate, as obviously existing documents covered by my request that would have been easily available to the government and that a reasonable document search would have uncovered were not provided. The Court agreed and held that the search was the result of “obviously an unreasonably narrow interpretation of Burmeister’s request.” [emphasis added] The Court further states, “Indeed, [the HHS FOIA specialist] explains in her supplemental declaration that a broader search (the one the government should have conducted given the actual language of Burmeister’s request) ‘is a completely different type of search and presumably would have resulted in a much larger production.’” [emphasis added]
The Court goes on to address the unreasonably narrow interpretation of my FOIA request by the government in more detail:

“And [the HHS FOIA specialist] is correct about that. For example, without listing every document that could be responsive to Burmeister’s actual request, it is obvious that all records relating to the original effort by HHS to enter into a sole-source contract with the Institute of Medicine, and documents relating to the subsequent decision to change course and proceed with a task order in response to expressions of concern by members of the public about the manner in which HHS was proceeding, would be responsive. Such records exist, but the government did not provide them to Burmeister.

“Because [the HHS FOIA specialist’s] supplemental declaration demonstrates that the government adopted an unreasonably narrow interpretation of Burmeister’s request, because [the HHS FOIA specialist] concedes she would have performed a much broader search had she interpreted the request correctly, and because that search would have uncovered additional records responsive to the request, the government has ‘improperly withheld agency records’ in violation of FOIA.” [emphasis added]

The Court then addresses the government’s meritless claim that my lawsuit is moot due to the government’s production of some documents after the complaint was filed despite the fact that the document search was inadequate:

“To avoid this conclusion, the government argues that Burmeister’s lawsuit should be dismissed as moot. Specifically, the government contends that even if Burmeister had the right to file her lawsuit because HHS failed to respond to her request within the time period required by FOIA, its subsequent production to Burmeister moots the lawsuit, even if the production was deficient. At the hearing on this motion, counsel for the government insisted that the case law compels this result – he argued that even if the production was deficient, the case law required that the lawsuit be dismissed as moot and that Burmeister be left to submit a response to the government’s production explaining how she believed it was deficient, so that the government would have a chance to remedy the deficiencies. However, the case law says exactly the opposite of what counsel for the government represented at the hearing,” namely, “To moot a FOIA claim, however, the agency’s production must give the plaintiff everything to which he is entitled. [emphasis added] Otherwise, there remains some ‘effective relief’ that can be provided the plaintiff, and the case is not moot.”

According to the Court, the government’s argument that I did not exhaust my administrative remedies and, thus, my lawsuit should be dismissed also fails:

“The government also contends Burmeister’s lawsuit should be dismissed for failure to exhaust her administrative remedies with respect to her claim that the agency’s search was inadequate. Specifically, the government argues that it responded to Burmeister’s request on January 7, two days before Burmeister sued, and that Burmeister should have objected to HHS about the adequacy of the response before filing the lawsuit. But the government’s response was not postmarked until January 8, and Burmeister credibly asserts she did not receive it until several days after she filed her complaint. Nor, in any event, was the government’s response a final or complete one – in other words, it was not a real response. The real response (which was, as discussed above, inadequate) came on February 3. Because the government failed to timely respond to Burmeister’s records request, and because Burmeister did not receive a final decision from the government until after she filed this lawsuit, her case is properly before the Court.” [emphasis added]

The 60-day period the Court allowed for the government to produce all documents responsive to my request (and not exempt under FOIA from production) runs on November 3. Let’s hope that the Court’s ruling will be a wake-up call for the government and a reminder that it is not above the law.

Jeannette Burmeister is an Attorney at Law licensed to practice law in California and Germany. Before contracting ME in 2006, she was an attorney at Baker & McKenzie, LLP. (She was disabled at age 34.) Ms. Burmeister writes a blog, “Thoughts About ME,” in which she discusses topical issues concerning the ME/CFS community.

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Bravo for Jeannette and for ME patients everywhere!
Posted by: richcarson
Sep 5, 2014
This is BIG news! Every informed patient knows that the Health and Human Services' NIH and CDC have essentially ignored their responsibility of investigating MECFS, and have not made a single attempt to change the HORRIBLE name that the CDC* gave our disease in 1988--Chronic FATIGUE Syndrome. It's trivializing, dismissive, and hurtful to patients.

Now HHS/NIH has gone so far as to break the law in an attempt to prevent patients from learning the government's true intentions about hiring the IOM "investigation" of ME that everybody has been talking about this year.

Jeannette Burmeister, a very ill ME patient who also happens to be a disabled attorney, and who is married to an attorney, sought to get the truth about the IOM/MECFS debacle by requesting information about the IOM/HHS/NIH decision. How did the government respond? By ignoring her, treating her poorly, and ultimately, breaking the law in doing so. Patients know this routine well.

So she fought back--something I encourage all patients to do--by suing HHS and NIH for the illegal way they ignored her request for the official documents involved in the decision to hire IOM.

What did her fight yield? First, victory, because the court agreed that the government broke the law in ignoring her very reasonable and very legal requests. Second, patients will now have the chance to learn the true motivation behind hiring IOM--that the government did without getting bids from other organizations, and without involving patients, and by ignoring a huge group of more than 30 of the world's leading MECFS experts who implored the government to simply change the diagnostic criteria to the Canadian criteria (which requires PEM--post exertional malaise--which, incredibly; to rename the disease Myalgic Encephalomyelitis--the medical name by which the disease has been called for more than half a century in most countries of the world. ME and CFS are the same diseases if you include PEM.

This is but a tiny spanking that the government well deserves over the abysmal way they have treated the 1.25 million ME patients in the USA. My feelings is that heads should roll at HHS, and whoever is responsible for constantly repressing ME patients by stepping on suggestions for adequate funding and a reasonable name change should be fired. Shame on HHS and NIH.

I should mention that the organization that treated MECFS patients the worst initially, the CDC, is trying to make up for their decades of abuse, and they are doing a pretty good job. In fact, they had five representatives at the biannual IACFS/ME conference at Stanford/San Francisco earlier this year--representing a huge turnaround. I credit the relatively change of attitude to the relatively new CDC director, Thomas R. Frieden.

The old CDC--in 1988-- did several things to damage patients: first, they called the disease chronic fatigue syndrome. What the were they thinking? Second, CDC employees STOLE more than $10 million dollars out of the paltry CDC's MECFS research fund allocation; and third, they simply didn't investigate the disease in any kind of a reasonable way, because their mindset was that CFS is a non disease and is more likely a psychological disorder. It's good to see the CDC finally showing interest in MECFS. Now they can start by lobbying to change the name to Myalgic Encephalomyelitis, and by issuing a public apology for the horribly way they ignored and belittled the disease.

As for Jeannette, I give her a huge pat on the back for her efforts, not only for me, but for every patient in the USA. Thank you Jeannette. -Rich Carson, ProHealth founder
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