Labor & Employment Law Daily HHS, CDC allegedly failed to fulfill statutory duties in response to COVID-19 pandemic
Wednesday, November 4, 2020

HHS, CDC allegedly failed to fulfill statutory duties in response to COVID-19 pandemic

By Pamela Wolf, J.D.

The federal government has purportedly shown a “pattern of misconduct and neglect in response to a pandemic that has cost hundreds of thousands of lives in this country and has inflicted pain, suffering and illness upon millions more.”

A New York public charter school and its administrator, a community health organization and its CEO and public health advocate, a New York City Councilmember, and an infectious disease researcher at the only COVID-19 hospital in Central Brooklyn have filed a federal lawsuit against the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention (and the HHS Secretary and the CDC Director) to compel them to “fulfill duties that they have unlawfully failed to perform during the ongoing public health emergency” precipitated by the COVID-19 pandemic.

While the focus of the lawsuit is the defendants’ violations of the Administrative Procedure Act (APA) by the illegal conduct alleged, the court action also points to a “pattern of misconduct and neglect in response to a pandemic that has cost hundreds of thousands of lives in this country and has inflicted pain, suffering and illness upon millions more.” The plaintiffs say that the irreparable injury is clear.

The three-count complaint raises claims under the APA, the Regulatory Flexibility Act, the Mandamus Act, and the All Writs Act.

Pandemic and All-Hazards Preparedness and Advancing Innovation Act. COVID-19’s devastating impact on the United States was not inevitable, according to the plaintiffs. It was purportedly foreseen by the federal government. Last year, with broad, bipartisan support, the Congress passed, and President Trump signed, the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019 (S. 1379), which mandates the creation of a “biosurveillance network” to provide “near real-time” information on the progress of public health emergencies like the current pandemic, and prescribes numerous pandemic response measures, the plaintiffs observed.

Congress designated the federal government as the body that coordinates the data collection and reporting necessary so that Congress, local governments, the public, and the plaintiffs can mitigate public health risks effectively and efficiently, according to the complaint.

Mandatory duties unfulfilled. However, the federal government is not doing so. Instead, HHS and the CDC “react to the pandemic by shifting their responsibilities to local governments and private entities, refusing to empower the public with information and access it needs, and shutting their doors to experienced input that would produce a more resilient response,” the plaintiffs allege. The defendants are thus unlawfully withholding and unreasonably delaying the numerous duties mandated by Congress—duties that while always present, are expanded and amplified during a public health emergency.

The law is clear, according to the plaintiffs, that these duties are mandatory: the plaintiffs and the public are entitled to the information and participation that Congress granted to them and that the defendants are unlawfully withholding.

Federal government failures. The complaint alleges three categories of HHS and CDC failures of duties required by statute:

1. Failing to carry out biosurveillance duties;
2. Failing to fulfill reporting obligations (including the data collection required to prepare required reports); and
3. Declining to allow the public to participate in formulating policy responses.

These obligations are subject to specific deadlines that the defendants have failed to meet, according to the complaint.

“Biosurveillance network.” The plaintiffs contend that the defendants have failed create a “biosurveillance network” with the “near real-time” capability “to share data and information to enhance early detection of, rapid response to, and management of, potentially catastrophic infectious disease outbreaks…” Notably, the CDC defines pandemic biosurveillance to mean a national program of testing and contact tracing—responsibilities that the Trump Administration has outright shunned, according to the plaintiffs.

Reporting and stakeholder participation. The defendants have also allegedly disregarded their obligations to provide the public with reports and information on the government’s emergency plans, public health threats, and public health disparities based on race and ethnicity. Further, the defendants have denied stakeholders the right to participate in pandemic preparations, according to the complaint.

Impacts on plaintiffs. These failures to fulfill the defendants’ statutory obligations “affect every single American in some form,” the plaintiffs allege. They particularly and concretely impact the plaintiffs, all of whom “have clear interests, play important roles in New York City’s response to the pandemic, and suffer directly from the federal government’s failures.” Further, the plaintiffs serve predominantly Black and Latinx communities who have been hardest hit by the direct and collateral costs of the COVID-19 pandemic, the complaint states. “With the fall and winter threatening a second wave, the City will be hard hit again by infections and deaths, and all Plaintiffs will be on the frontlines of the City’s response in its schools, in its streets, in its policy community, and in its hospitals,” states the complaint.

Relief sought. The plaintiffs are asking the court for declaratory and injunctive relief to compel the defendants to;

  • Perform the withheld Biosurveillance duties, expressly intended to respond to public health emergencies like the Covid-19 pandemic and whose deadlines have lapsed;
  • Perform the withheld reporting duties and participation duties, also relevant to responding to COVID-19;
  • Perform sufficient public health surveillance to meet their future reporting obligations and other statutory mandates; and
  • Undertake the required data collection and reporting.

Among other things, the plaintiffs have also requested that the court impose a scheduling order with mandatory deadlines for the completion of these duties, and that it place the relief under court supervision or receivership to ensure the federal government’s timely and complete execution of the relief ordered by the court.

The plaintiffs filed their lawsuit in the Southern District of New York; the case is No. 1:20-cv-09144.

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