Seeking an Injunction against HHS and IOM to detemine ME/CFS criteria

[alex3619]

Yes Hip, and it fits the definition of Zombie Science. That is when political or financial interest drive science, rather than evidence and reason.

All this is playing out in the UK, and has been for years. The US is next. After that, the world? At some point it has to be stopped. At some point it will be stopped. How long that will take is one issue, and how much damage it will cause until then is the other. Also there is a secondary issue that these problems resurface again and again, no matter how often they are challenged and beaten. Those supporting hysteria as a diagnosis, for example, have sometimes been jubilant that all those claiming that hysteria is a dead diagnosis have failed, hysteria is still here. Zombie Science, pseudoscience, psychogenic babble, the pseudoscience of economics, its all connected.

There is a very good chance that GWI vets and ME patients can find support in organizations like Black Triangle in the UK.

 

[Chris]

Great work, Hip! and many thanks for providing solid evidence for what may well be behind this--and one wonders too about the point-blank refusal of Dr. Unger to consider two day exercise testing, and her reported statement that "GE is non-negotiable." We are in trouble, unless Lipkin or some group come up with really solid stuff .... but look forward to the publication of the new Mella and Fluge Rituximab study.... What a world we live in!

It might be important to get this information out to the brave researchers who signed that letter, so that they have more ammo with which to defend and strengthen their position--without doing this in public. Does anyone have contact with any of them?
Chris

 

[Iquitos]

These are the contacts for the New ICC. Some will be out of date, not all of them are on the letter to Sebelius and not all those signers are on this list, but it's a start.


Current Author Addresses: (New ICC)

Dr. Carruthers: 4607 Blenheim St., Vancouver, BC, V6L 3A3, Canada. bcarruth@telus.net

Ms. van de Sande: 151 Arbour Ridge Circle NW, Calgary, AB T3G 3V9, Canada. mvandes@shaw.ca

Dr. De Meirleir: Department of Physiology, Vrije University of Brussels, Himmunitas Foundation, Brussels, 1120, Belgium. DE.MEIRLEIR@telenet.be

Dr. Klimas: Department of Medicine, University of Miami, 1201 NW 16 St., Miami, FL 33125, USA. nkdoc123@aol.com

Dr. Broderick: Division of Pulmonary Medicine, Department of Medicine, University of Alberta, WMC 2E4.41 WC Mackenzie Health Sciences Bldg, 8440 – 112 Street, Edmonton, Alberta, T6G 2R7, Canada. gordon.broderick@ualberta.ca

Dr. Mitchell: Lowestoft, Suffolk, NR32 5HD, United Kingdom. terry@gerken.org.uk

Dr. Staines: Public Health Medicine and Neuroimmunology, Queensland Health, Gold Coast Public Health Unit, Southport, Queensland 4215; Faculty of Health Sciences and Medicine, Bond University, Robina, Queensland 4229; Australia. Don_Staines@health.qld.gov.au Dr. Powles: Faculty of Health Sciences, McMaster University and St. Joseph’s Healthcare Hamilton, 50 Charlton Ave E., Hamilton, Ontario L0R 1H2, Canada. ppowles@stjosham.on.ca

Dr. Speight: Southlands Gilesgate, Durham, DH1 1QN, United Kingdom. speight@doctors.org.uk

Dr. Vallings: Howick Health and Medical Centre, 108 Ridge Road, Howick, New Zealand. vallings@xtra.co.nz

Dr. Bateman: Fatigue Consultation Clinic , 1002 East South Temple, Suite 408, Salt Lake City, Utah 84102, USA. fcclinic@xmission.com

Dr. Baumgarten-Austrheim: ME/CFS Center, Oslo University Hospital HF, Pb 4956 Nydalen, N- 0424 Oslo, Norway. uxbaba@ous-hf.no

Dr. Bell: 77 South Main Street, Lydonville NY 14098, NY, USA. dsbellmd@yahoo.com

Dr. Carlo-Stella: Menocchio 10, I-27100, Pavia, Italy. nickics@libero.it

Dr. Chia: Harbor-UCLA Medical Center, University of California, Los Angeles, CA 90024; EV Med

Research, 25332 Narbonne Ave. #170, Lomita, CA 90717, USA. evmed@sbcglobal.net

Dr. Darragh: ‘Tarabeag’, Hill of Tara, Tara, Co Meath, Ireland ; Chemical & Environmental Science Department, University of Limerick, Limerick, Ireland. daratara@eircom.net

Dr. Jo: Pain Clinic, Konyang University Hospital, Daejeon, Korea. pandjo@paran.com

Dr. Lewis: CFS Discovery, Donvale Specialist Medical Centre, Suite 8, 90 Mitcham Road, Donvale, Victoria 3111, Australia. dplewis@cfsdiscovery.oc.au

Dr. Light: Depts. of Anesthesiology, Neurobiology and Anatomy, 3C 444 SOM, University of Utah, 30N 1900E, Salt Lake City, Utah 84132, USA. alan.light@hsc.utah.edu

Dr. Marshall-Gradisnik: Faculty of Health Sciences and Medicine, Bond University, Robina, Queensland 4229, Australia. smarshal@bond.edu.au

Dr. Mena: Depart. Medicina Nuclear, Clinica Las Condes, Santiago, Chile. imenamd@gmail.com

Dr. Miwa: Miwa Naika Clinic, Shintomicho 1-4-3, Toyama 930-0002, Japan. k-3wa@pm.ctt.ne.jp

Dr. Murovska: A. Kirchenstein Institute of Microbiology and Virology, Riga Stradins University, Ratsupites St. 5, Riga, Latvia, LV-1067. modra@latnet.lv

Dr. Pall: Dept. of Biochemistry and Basic Medical Sciences, Washington State University, 638 NE 41st Ave., Portland, OR 97232 USA. martin_pall@wsu.edu

Ms. Stevens: Pacific Fatigue Laboratory, Department of Sport Sciences, University of the Pacific, 3601 Pacific Avenue, Stockton, CA 95211, USA. sstevens@pacific.edu

 

[Chris]

Thanks, Iquitos, though there are not too many of this list who signed the letter to HHS, unfortunately. I have found the letter, and will start writing to a few of the signers with appeals that if they find the info relevant and of interest, they might forward it to those others on the list with whom they are in contact.

I will keep you informed of any responses I get--so far have written to Gordon Broderick and Alan Light. Chris

 

[justinreilly]

Not saying this litigation isn't worth it, I don't have enough info or expertise to make that call.

You may know that I am a fan of lobbying congress for ME. personally, I would prefer to go down that road. Litigation is or should be generally a last resort, though sometimes necessary. I would prefer to see the money that it would take to litigate go to a start of a lobbying fund so we can build up some ongoing political capital in congress. Find a member of congress or two who, after being educated, agree with our position and convey it to HHS. Much thanks to Bob Miller for starting up this type of work, which we can build on.

A problem with the litigation approach here is that courts like to award damages when appropriate, not order an entity to do or not do something because of what's called informal noncompliance. HHS has more money than us so it can better afford to weather a lawsuit. Say they are enjoined to break the contract, then HHS will just find some other way to get back at us that will be difficult or impossible to litigate.

On the other hand, if we keep mounting pressure from congress, it will be harder for HHS to be informally noncompliant.

 

[jspotila]

Not saying this litigation isn't worth it, I don't have enough info or expertise to make that call.

You may know that I am a fan of lobbying congress for ME. personally, I would prefer to go down that road. Litigation is or should be generally a last resort, though sometimes necessary. I would prefer to see the money that it would take to litigate go to a start of a lobbying fund so we can build up some ongoing political capital in congress. Find a member of congress or two who, after being educated, agree with our position and convey it to HHS. Much thanks to Bob Miller for starting up this type of work, which we can build on.

A problem with the litigation approach here is that courts like to award damages when appropriate, not order an entity to do or not do something because of what's called informal noncompliance. HHS has more money than us so it can better afford to weather a lawsuit. Say they are enjoined to break the contract, then HHS will just find some other way to get back at us that will be difficult or impossible to litigate.

On the other hand, if we keep mounting pressure from congress, it will be harder for HHS to be informally noncompliant.

The other point to be clear on with an injunction (if memory serves) is that you not only have to have a cause of action (meaning the right to sue the government under a specific law), and not only the imminent risk of irreparable harm, but you have to show that there is a significant likelihood of your success in the lawsuit.

 

[Ecoclimber]

The other point to be clear on with an injunction (if memory serves) is that you not only have to have a cause of action (meaning the right to sue the government under a specific law), and not only the imminent risk of irreparable harm, but you have to show that there is a significant likelihood of your success in the lawsuit.

No, Not true Jennie,
You can seek injunctive relief against a Federal Agency to prevent them from initiating a specific cause of action.

No not true that damages must be shown. The recent filing was seeking injunctive relief in a CA case to prevent the Federal crackdown on marijuana dispensaries. It does not require an award of damages.
http://santee.patch.com/groups/poli...-diego-dispensaries-seek-injunction82c199d679

See:
http://federalpracticemanual.org/node/12

Lets assume your position is correct. It will at least give pause to the IOM process, puts us on legal record and perhaps give pause to HHS to reconsider the consequences if the Injunction for Relief was granted.

It's a strategy Jennie.

 

[Iquitos]

Not saying this litigation isn't worth it, I don't have enough info or expertise to make that call.

You may know that I am a fan of lobbying congress for ME. personally, I would prefer to go down that road. Litigation is or should be generally a last resort, though sometimes necessary. I would prefer to see the money that it would take to litigate go to a start of a lobbying fund so we can build up some ongoing political capital in congress. Find a member of congress or two who, after being educated, agree with our position and convey it to HHS. Much thanks to Bob Miller for starting up this type of work, which we can build on.

A problem with the litigation approach here is that courts like to award damages when appropriate, not order an entity to do or not do something because of what's called informal noncompliance. HHS has more money than us so it can better afford to weather a lawsuit. Say they are enjoined to break the contract, then HHS will just find some other way to get back at us that will be difficult or impossible to litigate.

On the other hand, if we keep mounting pressure from congress, it will be harder for HHS to be informally noncompliant.

Harry Reid, Senator from Nevada, is educated on mecfs and supportive. Maybe we need to petition him on our behalf. (When he isn't trying to negotiate with the hostage-taking House of Representatives to get the government shut-down ended.)

 

[Nielk]

There is something you can do if you don't like or feel comfortable with what is happening with the HHS/IOM contract. Your action will make a difference. Every letter, e-mail, phone call, signing of petition matters. They all get read and there is power in quantity.

If you would like HHS to cancel the IOM contract, please take action. Please write to your representatives in congress HERE. You can sign the petition to stop the IOM contract HERE. The petition in support of the expert's letter is HERE.

 

[justinreilly]

The other point to be clear on with an injunction (if memory serves) is that you not only have to have a cause of action (meaning the right to sue the government under a specific law), and not only the imminent risk of irreparable harm, but you have to show that there is a significant likelihood of your success in the lawsuit.

This sounds right to me, though my legal brain is quite rusty and I am no longer practicing.

 

[justinreilly]

No, Not true Jennie,
You can seek injunctive relief against a Federal Agency to prevent them from initiating a specific cause of action.

No not true that damages must be shown. The recent filing was seeking injunctive relief in a CA case to prevent the Federal crackdown on marijuana dispensaries. It does not require an award of damages.
http://santee.patch.com/groups/poli...-diego-dispensaries-seek-injunction82c199d679

See:
http://federalpracticemanual.org/node/12

Lets assume your position is correct. It will at least give pause to the IOM process, puts us on legal record and perhaps give pause to HHS to reconsider the consequences if the Injunction for Relief was granted.

It's a strategy Jennie.

I don't think Jennie was saying damages (awardable money) needed to be shown, but that some irreparable harm would occur that in fact could not be satisfactorily ameliorated with an award of damages (ie money). Not saying this couldn't be shown. Not too sure one way or another on that.

 

[justinreilly]

A reason courts dont like to give injunctive relief that is related to the informal noncompliance issue, is that courts are almost always very back logged on cases and giving injunctive relief leaves the door open to further time consuming litigation about whether or not the defendant actually complied sufficiently with the order. with money damages, on the other hand, it is very easy for a court to tell if the judgment was satisfied.

 

[justinreilly]

To do this, we would need a pretty big pool of money, by our standards, even before we began. A private practice lawyer would want a retainer and would be unwilling to take a case on if he felt we might run out of money halfway thru. Which is also a deal breaking danger for us too- we would need to have enough to ride out a suit beforehand. I think it is very unlikely we could raise that money in our present circumstances.

Getting someone to take this on pro bono is also unlikely, in my opinion. Again, perhaps not impossible, but I think the energy would best be spent elsewhere, IMO, lobbying congress.

 

[justinreilly]

FYI, if you are very curious about this issue, an 8 page Primer on Injunctive Relief in Federal and State Court:

http://www.munsch.com/content/newsroom/documents/a_primer_....pdf

 

[Izola]

True. From what little I recall from law school, government agencies can't get in trouble for doing their job, even if they do a piss poor job of it. I think the reasoning is that there is political recourse available instead.

yeah, the governmental immunity arose with queens & kings protecting their riches. It came to the U.S. on ships.

Our Federal and Supreme Courts have gone back and forth with contradicting and convoluted reasoning and rationale enough to give you whiplash and vertigo. My conclusion was that Federal governmental immunity boiled down to, basically, who was on the Court, whose pocket you were trying to pick and who was trying to pick it. (late 70's).

Then there are laws that lift some of the veil on some immunities. It may be a simple task to determine whether, in this instance, since the IOM contract process has overstepped some legal niceties in the process, but no decisions are yet final, the court might stop them, or not. I'd check it out but don't have West Law. And I don't have my decades old analysis because an AAG at the State AG's office borrowed my only copy and did not return it. And I no longer have much more than a brainstem.

 

[Ecoclimber]

There are exceptions to the sovereign immunity bar. Federal Tort Claims Act (“FTCA”) allows certain kinds of lawsuits against federal employees who are acting within the scope of their employment. RICO allows for suing employees or head of agencies but not a Federal agency or the government for egregious, illegal and unlawful acts committed in violation of the Constitution, Federal Law or Statute.
As an example, this is an article that talks about a group of lawyers filing a lawsuit against the EPA.
http://www.denverpost.com/ci_23694176/analysis-lawyers-gear-up-lobby-sue-mccarthy-heads

There are various causes of action that can brought against a Federal agency including injunctive relief. Federal officials are not immune from a lawsuit based on specific actions as outlined in previous Supreme Court rulings.

Federal Tort Claims Act, 28 U.S.C. § 1346(b)(illustrating one of the limited circumstances in
which Congress has passed legislation waiving sovereign immunity

28 U.S.C. § 1346(b)(1), giving the
federal district courts jurisdiction over claims against the United States

There is also classic CONSPIRACY AGAINST RIGHTS (18 USC 241) and DEPRIVATION RIGHTS UNDER COLOR OF LAW (18 USC 242) violations.

Besides, it’s a moot point if filing against the IOM. They are not a Federal Agency!

There are legal nonprofit advocacy groups, Common Cause etc., that have sufficient resources who have sued the Federal Government and the IOM for previous breaches of law.

Contacting these groups would be the best way of pursuing a cause of action as mentioned in a previous post. There are a number of attorneys in this community that should be initiating contact with these advocacy groups for advice.

There is also a possibility to raise funds via the internet similar to kickstarter programs. There is considerable expense in filing a lawsuit. You don't need Lexis-Nexis, Pacer etc.to research case law even those programs are available at county law librarys. You can Google relevant case law.

There has filed several formal complaints with the OIG, Office of Inspector General, of HHS concerning irregularities and violations of Federal Laws, Statutes, and Procedures that have not been adjudicated. Personally, I believe that a policy decision has been already dictated by the executive branch and they are willing to take the hit on the adverse publicity. I believe that it started with the GWV patient community and will cycle through various patient communities involving chronic illnesses and diseases. Fibromyalgia will be next based on this outcome and then the Lyme community etc. Shifting the health policy of America from symptom base criteria to evidence base criteria, will result in a CMI.

If you feel this is a concern for you and want to volunteer your services to help out, contact any of the members who have been active in this movement!

Filing a lawsuit is about the only way at this stage to temporarily stop the IOM contract, but it must be initiated quickly as the clock is ticking.

 

[justinreilly]

Sovereign immunity is pretty shady, the fox guarding the chicken coop.

Regardless, I don't think its a problem for us here. As I understand it, it is immunity from awards of damages (ie money), but wouldn't bar an action for injunctive relief where no damages were sought. This is off the top of the ok noggin.

My health is such that I would not be able to spearhead such an effort in the short timeframe we are talking about. There are six people who might potentially lead this: Eco, Jeannette, Jennie, Wally, Lois Hart and Patricia Carter.

Eco, I think you said your health is to tenuous to lead this. Am I correct?

Jeannette seemed neutral, saying if someone contributed a large amount of money, then it could be a viable idea. This was pre-Canary-Kickstarter. I think our eyes got opened a little to the possibility of fundraising for non-medical action on ME. I am more optimistic about it. though we don't know if people got all tapped out from Canary or if a different idea would elicit a different response. Eco, perhaps this is something to bring up with her again now.

Jennie posted here or liked a post that was discouraging of the idea, iirc. Plus I believe she believes a little too much in allowing the administrative processes to take their course and things will work out ok.

Wally has some gusto, fight and organizational and execution skills from what we are seeing with the protests. Eco, she would be someone I would ask.

Lois Hart repd Dr. Judy for a short time. I don't know if she participates in the advocacy community under a handle.

Patricia Carter hasn't previously expressed interest in this type of thing, and she is busy with her forum, but who knows, she may be open to it. Eco, if you want me to ask her let me know.

Maybe I have left someone out.

If the others think this is a good idea and are ready to lead this I will pitch in as able.

Just generally speaking, as we mature as a movement, we are getting closer to the "place" where some litigation might be appropriate and feasible.

 

[justinreilly]

yeah, the governmental immunity arose with queens & kings protecting their riches. It came to the U.S. on ships.

Our Federal and Supreme Courts have gone back and forth with contradicting and convoluted reasoning and rationale enough to give you whiplash and vertigo. My conclusion was that Federal governmental immunity boiled down to, basically, who was on the Court, whose pocket you were trying to pick and who was trying to pick it. (late 70's).

Then there are laws that lift some of the veil on some immunities. It may be a simple task to determine whether, in this instance, since the IOM contract process has overstepped some legal niceties in the process, but no decisions are yet final, the court might stop them, or not. I'd check it out but don't have West Law. And I don't have my decades old analysis because an AAG at the State AG's office borrowed my only copy and did not return it. And I no longer have much more than a brainstem.

Izola, are/were you proficient in the dark arts (law)?

 

[Starfive]

Does anyone know of a site like kick starter for raising legal funds...perhaps a site where lawyers can browse for cases in their zones of interest. And donors could help fund good legal causes. Would be a good addition to the web.

 

[justinreilly]

That's a great question.