Federal Court awards $139,147 in Attorneys’ Fees Against HHS and NIH in IOM FOIA Case

The U.S. District for the Northern District of California awarded me today–having won my FOIA lawsuit–my entire attorneys’ fees in the amount of $139,147. Judge Vince Chhabria ordered the defendants, HHS and NIH, to pay me these fees. Please see below for a copy of the order.

In the Court’s order, the Judge noted:

Ms. Burmeister is clearly the prevailing party in the litigation. Moreover, as outlined in the order granting Ms. Burmeister’s motion for summary judgment, the government’s conduct throughout its dispute with Ms. Burmeister was unreasonable.  Ms. Burmeister stood to gain nothing financially from her attempt to obtain documents at issue from the government, and she conferred a benefit on the public through her successful effort to obtain a ruling against the government. [emphasis added]

The defendants’ conduct in this matter has been absolutely deplorable. They have fought tooth and nail trying to avoid compliance with federal law and to delay production of relevant documents relating to the IOM project as long as possible. Throughout the entire proceedings, the defendants have acted unreasonably and shamefully, really, in their relentless attempts to circumvent their obligations under FOIA. Their inexcusable conduct has put me through the wringer, which has had a direct and dramatic impact on my health. I will share with the community, at a later time, details of the many instances of the defendants’ appalling actions in this matter. But here is a high-level list:

The defendants failed to make a determination in response to my FOIA request (from more than a year ago, seeking documents relating to the IOM contract with HHS) within the 20 business days required by FOIA. I waited several weeks and sent them one last communication notifying them that legal action was imminent. When they still did not respond, I brought my suit pro se, i.e. I was representing myself in an attempt to avoid attorneys’ fees. After I filed the lawsuit, defendants produced a mere 88 pages, only 22 relating specifically to the IOM (one of them blank), for a very high-priority and extraordinarily controversial $1 million project. It was clear that their search and production of documents was woefully inadequate (as the Court later agreed when it granted my motion for summary judgment). The defendant’s subsequent response to my complaint was, once again, late. It was then that I realized that they had no intention of complying with the law in response to my entirely reasonable and very straightforward FOIA request, even faced with a lawsuit. Therefore, I hired the law firm of Baker & McKenzie LLP.

Every taxpayer dollar spent by HHS and NIH in this lawsuit–every single one–was caused by the government’s appalling tactics. Instead of remedying the inadequate search and production, they went into full-blown attack mode, filing a meritless and unwarranted motion, making frivolous legal arguments, making false statements under penalty of perjury, misrepresenting my statements and actions, misrepresenting legal authority, etc. They went so far as to accuse me of lying under penalty of perjury, which shows their mindset very clearly: Since they had no qualms about blatantly misrepresenting the facts, they thought accusing me of the same might work. It didn’t.

A few days ago, in response to the Judge’s order from September to produce all documents  I sought, Counsel for defendants delivered about 4,300 pages of supposedly responsive documents demonstrating very clearly the laughable number of documents originally produced. A cursory review of those documents shows that their misrepresentations–again made under penalty of perjury and in opposing Counsel’s motions–were far worse than it initially appeared. It is also obvious that this new production is again inadequate and does not comply with FOIA in many respects.

The community will be extremely interested in seeing the documents that they produced recently. I will make every effort to publish those of interest (I will save myself the energy of publishing the NICE guidelines or the IOM Gulf War Report from earlier this year.) as quickly as possible, but my health has been very poor as a result of this litigation, so I ask for some patience.

I want to thank Patricia Carter, the owner of MECFS Forums, for providing a helpful declaration in support of my attorneys’ fees motion. I also want to especially thank Eileen Holderman, the former and most effective patient representative on CFSAC in its history, for her invaluable assistance, including providing a declaration in support of my motion. Finally, my sincere thanks go to my attorneys, Bruce Jackson, Edward Burmeister and Christina Wong, as well as paralegal, Nada Hitti, and assistant, Chris von Seeburg, for their unflagging efforts and excellent representation in this case.

PS: I owe the entire amount to Baker & McKenzie and I would have had to pay it regardless of whether the Court had awarded me the fees. I guess what I am trying to say is that I don’t get to keep the money, just to avoid a misunderstanding on that front.

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54 Responses to Federal Court awards $139,147 in Attorneys’ Fees Against HHS and NIH in IOM FOIA Case

  1. congratulations! let’s party! :’P

  2. Katharina says:

    Yay! Congrats, Jeannette! And take care of yourself!

  3. Jane says:

    Thank you!!!!!

  4. Rivka says:

    Wow!!! Just wow!! We gotta use the courts more often in our efforts to get justice for our community. So so so sorry for the toll this has taken on yr health. — Rivka

  5. CC says:

    Whoot! I’m so glad!! Now please take care of yourself! I know what this has cost you physically! Will send peaceful, healing energy to you! Thank you for being our voice!

  6. salkeela says:

    Wow ….
    Well done Jeannette… and thank you!

  7. Congratulations!!!!!! A Job Well Done!!!!! Way To Go!!!!!! 🙂

  8. Reblogged this on The Other Side Of The Stretcher and commented:
    A BIG BIG Contratulations To Jeannette Burmeister Who Showed Everyone It is Not Impossible To Be The Govt With An FOIA Lawsuit!!!
    And Attorney’s Fees Too!!!! 🙂

  9. oniricale says:

    Very happy for you Jeannette. Thank you so so much for following this through.
    Wishing you a peaceful and restful time with your loved ones to celebrate and recover from the impact.

  10. This is wonderful, Jeannette! You have done a great service for everyone who suffers from
    M.E. This is an amazing achievement. And you are most welcome for any contribution I may
    have made to this. It was my pleasure to help.

  11. Gabby says:

    Mazel tov!!! Sweet justice, although I’m sure it has had a tremendous toll. Thank you to all involved in this effort. HHS and NIH should be really ashamed of themselves for taking advantage of sick patients. They held back over 4,000 documents? Give me a break. I can’t wait to see what these will show.

  12. Ess says:

    Ohhh, Jeannette, we are so happy and proud of you for all your efforts!! You won big time!! Kudos to your excellent legal team and key advocates standing with you–Patricia Carter and Eileen Holderman!!

    The defendants’ –HHS and NIH– conduct shows their deceit and bullying tactics–and this conduct, as you say, is absolutely deplorable!

    Take good care of you–we are cheering you on!!

  13. Grail says:

    I’m just blown away by what you’re uncovering and accomplishing. You’re doing something so powerful and inspiring. Extreme gratitude and awe are just a bit of what I feel about this. Thank you. I am not sure what else to say. Your efforts on behalf of all suffering from this and our carers, and future patients – you’re a hero.

  14. catherinelyn says:

    Once again, thank you so much for your work on this…and a big CONGRATUALTIONS!

  15. Congratulations!! Let’s hope that you’ve wounded them enough to be the beginning of the end of this fiasco.

  16. Wow. This is huge. I hope this sends a big message to the UK researchers who consistently deny FOI requests purely because they deem them ‘vexatious’ and claim that they are harassment.

    Just wow. This is amazing. Thank you so much for fighting for us. I can only imagine the impact on your health though; I hope you are able to rest and recover.

    You have given me hope, and that’s priceless. Again, thank you.

  17. Anonymous says:

    Congratulations !!.. & thank you so much I know the toll it as taken on your health .. Bless you now rest up & take care of you & your lovely family. :):):). X

  18. Carrie says:

    Congratulations and a heartfelt thanks to you, Jeannette, Bruce Jackson, Edward Burmeister, Christina Wong, Nada Hitti and Chris von Seeburg. You are my heroes!

    This is groundbreaking!! Now they know they are not above the law and ME patients are entitled to justice as much as anyone else.

    Shame on them for making this case so difficult and depleting your health unnecessarily. In my heart, that is criminal.

    I hope you can take some time to care for yourself now, Jeannette. We are all so grateful for your efforts. ❤

  19. Liz Willow says:

    I love the permanent record the judge’s ruling leaves: “Ms. Burmeister is clearly the prevailing party in this litigation. Moreover, as outlined in the order granting Ms. Burmeister’s motion for summary judgment, the government’s conduct throughout its dispute with Ms. Burmeister was unreasonable. Ms. Burmeister stood to gain nothing financially from her attempt to obtain documents at issue from the government, and she conferred a benefit on the public through her successful effort to obtain a ruling against the government.”

    I couldn’t agree more. The government’s “unreasonable” conduct has, of course, cost you a huge amount of your disease-compromised energy, a price the law does not recognize nor will compensate you for. Please rest up. Thank you and congratulations on your victory, counselor!

  20. Anonymous says:

    Congratulations! And heartfelt thanks to all involved.

  21. Awesome! Not a headline we see every day! Hope you are being very gentle with yourself. You’ve accomplished a great feat for our community and it’s time for you to take care of you.

  22. Reblogged this on Short Blogs for the Distracted……… and commented:
    Makes for very interesting reading….

  23. 2bye says:

    Congratulations! Big win for you and the ME/CFS community.

  24. Thank you… your selfless determination will no doubt inspire more to fight x

  25. Congratulations! Hope you feel better soon.
    Take care

  26. Reblogged this on Sunshinebright and commented:
    Jeannette Burmeister was awarded, in summary judgment, attorneys’ fees in her suit against HHS and NIH for failing to follow the government’s FOIA law. Unfortunately, it has cost her quite a blow to her health. Jeannette, you have the heartfelt congratulations and thanks of all M.E. sufferers and their advocates.

  27. Alanamous says:

    I wanted to copy my comment here so that anyone outside the ME/CFS community might consider the ramifications which others who interact with persons at a clear disadvantage are inflicting on their opponent. Most who do are aware of it at least on some level psychologically.

    I am so excited, yet so sad at the same time. What is most contemptuous is that in any dealings with individuals with chronic illness, especially those with compounding exhaustion, pain, or any other symptoms which are exacerbated through exertion, stress, or similar circumstances, I feel as though if anyone who knowingly commits unlawful acts against persons with such an illness and forces them to fight even harder for their rights, the act is criminally malicious and should be punished as such. If someone is aware that it is a great detriment to the individual they are fighting, and they continue to purposely make things difficult on the individual, the willful privation is cruel and in excess to just withholding one civil liberty.

    • Ess says:

      Well said, Alanamous, inflicting further medical harm and hardship on an individual patient as well as a patient community “is criminally malicious and should be punished as such.”

    • Bravo! It would be great if a lesson was learned by our government by all of this, but I will not hold my breath (besides, it is too great a waste of my energy.)

  28. Mary Schweitzer says:

    WOW!

    >

  29. Linda Mills says:

    Way to go!!!!! You are a real hero, Jeannette. Now, would you please rest for a while? 🙂

  30. Ren says:

    Thank you, Burmeisters and the Baker & McKenzie crew, for working to help end HHS’ continued marginalization of individuals with ME/CFS.

    To paraphrase an HHS official who resigned earlier this year… HHS (and/or its components) is remarkably dysfunctional, seriously flawed, secretive, autocratic, unaccountable, and intensely political: http://news.sciencemag.org/people-events/2014/03/top-u.s.-scientific-misconduct-official-quits-frustration-bureaucracy

    In response to the Burmeister victory, HHS should terminate its obstructionist employees: “Sanctions may be taken against individual agency employees who are found to have acted arbitrarily or capriciously in improperly withholding records…” http://www.justice.gov/usao/eousa/foia_reading_room/usam/title3/usa00137.htm#137

    This behavior is a national embarrassment!

  31. justinreilly says:

    Nice! Congratulations!

    I am sorry your health has suffered.

    Thank you to the lawyers, especially Ed!

  32. Anonymous says:

    This just makes my day. Thanks Jeannette!

  33. Kathy D. says:

    Congratulations, Jeanette, and thanks to you and your awesome legal team. It just shows sometimes you can fight City Hall — and win!
    Now I hope we can utilize this victory to push HHS and NIH to take ME/CFS seriously and do something, instead of setting up fruitless committees and spewing irrelevant and unhelpful — in fact, damaging — information and treatments. And spending taxpayers’ money to do so, instead of using it for research and treatments for our community.
    You have done a great thing for all of us!
    Take care of yourself and take time to recover – although, I’m sure you are combing those 4,300 pages. Gosh, and instead of all of those documents and hiring of lawyers to defy your legal claims, they could just take this disease seriously and look at the scientific and medical evidence, increase the research funds and get busy trying to help us.

  34. Anne Keith says:

    Spectacular … except for the part about it costing you so much of your health. Given that HHS absolutely KNEW what stress does to ME patients (based on their own assertions), I wish there could be a further penalty assessed against the responsible (make that, irresponsible) individuals. Congratulations on the complete vindication.

  35. Magdalena says:

    you’re absolutely amazing! a million heartfelt thank yous! ❤
    feel better soon, i'm keeping good thoughts for you in my heart.

  36. Polly says:

    Congratulations, Jeannette. Thanks for a job well done!

  37. James Hall says:

    Thank You Jeannette for all your efforts on our behalf and this amazing slap in the face to all those involved in trying to sweep us under the carpet again!!!

  38. Well done. Superb work and I’m sorry for the impact on your health and the significant risk you had to incur in order to seek this justice, and to hold the government to account. It is a deserved win. I just hope that the government stops being obstructive and reviews their position in light of this and make changes to the way they act toward the patient community. I have my doubts that they will, but that is still my hope. Again, really well done.

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  40. Erica F. says:

    Congrats! Doin’ the happy dance for you! 😀

    I just hope they don’t drag their feet with the actual payment and make you jump through more hoops to get reimbursed.

  41. Cheshire (France) says:

    Congratulations and thank you so much!
    What you’re doing has also strong implications for all of us living abroad, as what’s happening in the us may have great influence on other governments.

  42. fly says:

    Fantastic, truly amazed.

  43. Lisa Petrison says:

    Brava Jeannette!

  44. Romy says:

    Amazing and inspirational work and such a well-deserved victory – congratulations and THANK YOU and your legal team!

  45. Job well done. Now, get your much-needed rest!

  46. Robin Mize says:

    This makes my day! Happy for you! So Great!!

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