By Ken Stone
In apparently the first legal action on the issue, Arthur West of Olympia is suing the Department of Health and Human Services and its secretary, Alex Azar, in an effort to preserve the accuracy of COVID-19 information shared with the public.
On Tuesday, he paid $26 to overnight a complaint to 333 Constitution Avenue N.W. — the federal court in the nation’s capital.“There’s a 50-50 chance it will get there tomorrow, but it’s guaranteed by Thursday at 12,” West said in a phone interview. (He missed the shipping cutoff by 10 minutes.)
The suit involves “sort of an obscure use of NEPA,” the National Environmental Policy Act, he said.
It alleges that Azar and the HHS violated NEPA and “took an arbitrary and capricious administrative action by radically restructuring the activities of the HHS and CDC in regard to the critical function of coronavirus data collection.” The CDC also is being sued.
Among other things, the West complaint wants a court to void the recent HHS guidelines and protect the status quo — data going to the Centers for Disease Control and Prevention.
The Department of Health and Human Services didn’t immediately respond to a request for comment.
On Friday, 45 Democratic U.S. senators including California’s Dianne Feinstein and Kamala Harris and nearly 70 House members sent letters objecting to the changes.
“We are deeply concerned about new guidance set forth by the Trump Administration indicating that COVID-19 hospital data will be sent to the Department of Health and Human Services (HHS), rather than the U.S. Centers for Disease Control and Prevention (CDC), and urge you to rescind it immediately,” said the House letter, addressed to Azar.
The senators’ letter, sent to Vice President Mike Pence and Coronavirus Task Force Coordinator Dr. Deborah Birx, sought the same about what it called “your confusing and harmful changes to hospital reporting requirements.”
“These changes pose serious challenges to the nation’s response by increasing the data
management burden for hospitals, potentially delaying critical supply shipments, compromising
access to key data for many states, and reducing transparency for the public,” the senators wrote.
Plaintiff West was troubled as well “because it was so out of the blue,” he said.
“You’ve seen [President Trump say] that he wanted to slow the testing down so it wouldn’t look like people had it… We’ve heard about him minimizing it lately,” West said. “He wants everybody to go back to school.”
So West, 59, thinks it’s possible the reporting changes could prevent the dissemination of accurate COVID-19 numbers.
He says his suit, costing $400 to file, points to a reversal of agency policy, “an irreversible commitment of resources,” and “arguably some possible foreseeable impacts to human health and the environment.”
West isn’t an attorney but will eventually need one who can practice in the D.C. court.He expects to file an injunction motion next week with the aim of having a judge order a halt to the change made by a July 10 “Guidance Document” concerning COVID-19 data reporting.
“It’s just another crazy thing that our executive and Pence are doing,” West said. “I don’t think there was an administrative process behind it at all. It was like a letter telling them what to do.”
West argues he has standing to sue because he “travels within the State of Washington for professional, leisure, recreation, educational and entertainment purposes. He has a recognized federal bird watching interest, and a connection to the animals and plants in the environment. Accurate information from the CDC in regard to the prevalence of the coronavirus is essential for him to preserve his health and enjoy these activities and amenities.”
On April 2, West and his fledgling Washington League for Increased Transparency and Ethics, or WASHLITE, sued Fox News in an effort to stop what the nonprofit watchdog group called “false and deceptive content” about coronavirus.
On May 27, that suit was thrown out on First Amendment grounds by King County Superior Court Judge Brian McDonald. It’s now on appeal.
West notes how the pandemic has grown more serious.
“I never in my wildest dreams imagined we’d be in this much trouble in July,” he said. “We keep sliding down further. … Now they’re taking some action that makes it so there’s a chance that the correct figures won’t be reported? Not if I have anything to say about it.”
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