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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
PUBLIC HEALTH AND MEDICAL
PROFESSIONALS FOR TRANSPARENCY ,
Plaintiff,
-against -
FOOD AND DRUG ADMINISTRATION ,
Defendant.
Civil Action No. 4:21-cv-01058 -P
SECOND JOINT REPORT
Plaintiff, Public Health and Medical Professionals for Transparency (“ Plaintiff ”), by and
through its attorneys, and Defendant, the U.S. Food and Drug Administration (“ Defendant or
“FDA ”), by and through its attorney, hereby submit this Joint Report in compliance with the
Court’s Order of November 10 , 2021, ECF No. 1 9 (the “ Order ”):
1. The Order asked the parties to “appraise the Court of whether a scheduling
conference is needed” and if no t to “propose [] deadlines for an expedited briefing schedule , if
necessary .”
2. Defendant’s Position : A scheduling conference is needed with the Court in order
to set a schedule for the processing of records in response to Plaintiff’s Freedom of Information
Act (“FOIA”) request. Setting a processing schedule does not go to the merits of the case, but
instead sets the schedule for the necessary deadlines to govern a FOIA case. The processing
schedule serves as an important precursor to future deadlines in the case, including scheduling for
dispositive motions.
In FOIA cases, a FOIA requestor typically files suit after it has submitted a FOIA request
to an agency an d the agency has not yet processed and produced all responsive records to the Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 1 of 14 PageID 205Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 1 of 14 PageID 205
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requestor. 5 U.S.C. § 552(a)(4)(B). Once a case is filed and the government has answered the
complaint, the parties usually negotiate a schedule by which the government will se arch for,
process, and produce records responsive to the plaintiff’s FOIA request. If the parties are unable
to agree upon a schedule, courts typically enter a processing schedule after considering arguments
for each party’s proposed schedule that were pr esented in a status report or at a scheduling
conference.
A processing schedule is necessary because many different types of information are exempt
from the FOIA, such that the government must redact that information before providing responsive
records t o the plaintiff. See 5 U.S.C. § 552(b)(1) –(b)(9). Reviewing and redacting records for
exempt information is a time -consuming process that often requires government information
specialists to review each page line -by-line. When a party requests a large a mount of records, like
Plaintiff did here, courts typically set a schedule whereby the processing and production of the
non-exempt portions of records is made on a rolling basis.
After the government has completed processing and producing the non -exempt portions of
responsive records to the plaintiff, the parties typically confer as to whether the plaintiff intends to
challenge the adequacy of the government’s search for records or any of the redactions taken to
protect the disclosure of exempt material. If the parties have a dispute over the search or the
exemptions, the parties typically confer and propose a schedule for summary judgment briefing.
Setting a summary judgment schedule before the completion of the production of records is
inefficient for the parties and the Court, as it results in piecemeal briefing and consideration of the Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 2 of 14 PageID 206Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 2 of 14 PageID 206
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merits of the case. Summary judgment briefing in a FOIA case is not the appropriate vehicle to
set a schedule for the release of records.1
In this case, FDA has asses sed that there are more than 329,000 pages potentially
responsive to Plaintiff’s FOIA request. (This page count is under -inclusive of the material
responsive to the request, as it does not include certain types of records that cannot be meaningfully
pagin ated, such as data captured in spreadsheets that contain thousands of rows of data.) The
parties have conferred in good faith concerning a processing schedule, but have been unable to
reach agreement for the reasons set forth in the parties’ Joint Report. See ECF No. 18.
Defendant respectfully requests a scheduling conference with the Court for the Court to set
a schedule for the processing of documents. Defendant proposed a processing schedule in the
Joint Report and resubmits it here for ease of refere nce. FDA proposes to process and produce the
non-exempt portions of the following records by the following dates:
• November 17:
o From Sect ion 5.2 of the Biologics License Application (“BLA”) file :
▪ The Tabular Listing
▪ The Listing of Clinical Sites
o The Repor ts of Postmarketing Experience from Section 5.3.6 of the BLA
file
o One SA S file.2
1 Nor is establishing a briefing schedule for “expedited production” necessary. Any production schedule established
as part of a scheduling conference with the Court will inherently resolve any questions related to the rate of the
agency’s production.
2 Plaintiff has requested to receive the SAS files in their native forma t. FDA customarily converts SAS files to PDF
files because PDFs can be redacted to prevent the release of non -exempt information. However, FDA is willing to
produce SAS files to Plaintiff (if it is feasible for FDA to do so) with the parties’ understandi ng that FDA may have
to delete, rather than redact, exempt information from those files to prevent disclosure of exempted information. Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 3 of 14 PageID 207Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 3 of 14 PageID 207
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• December 1: remainder of section 5.2 of the BLA file.
After the December 1 production, FDA proposes to work through the list of documents that
Plaintiff requested FDA prior itize for production in order of priority and process and release the
non-exempt portions of those records to Plaintiff on a rolling basis. FDA proposes to process and
produce the non -exempt portions of responsive records at a rate of 500 pages per month. This rate
is consistent with processing schedules entered by courts across the country in FOIA cases.3
Plaintiff’s request (as set forth below) that FDA process and produce the non -exempt
portions of more than 329,000 pages in four months would force FDA to process more than 80,000
pages per month. Undersigned counsel is not aware of any court ever granting such a request . The
Court should decline to enter Plaintiff’s schedule for numerous reasons.
First, “[r]equiring the agency to process and produce these materials under an abbreviated
deadline raises a significant risk of inadvertent disclosur e of records properly subject to exemption
under FOIA.” Daily Caller v. Dep’t of State , 152 F. Supp. 3d 1, 14 (D.D.C. 2015) . Plaintiff has
requested records that comprise information submitted by the vaccine sponsor (Pfizer -BioNTech).
From FDA’s experie nce with other FOIA requests, such records can be expected to contain both
3 See, e.g. , Documented NY v. U.S. Dep’t of State , No. 20 Civ. 1946 (AJN) (S.D.N.Y.) Dkt. 26 p.2 (denying plaintiff’s
processing rate demand of 2,500 pages per month and adopting Department of State’s proposed 300 pages per month);
NYCLU v. Admin. for Children & Families , No. 20 Civ. 183 (MKV), Dkt. No. 30 (S.D.N.Y. May 5, 2020) (400 pages
per month); Color of Change v. U. S. Dep’t of Homeland Sec. , 325 F. Supp. 3d 447, 451 (S.D.N.Y. 2018) (500 pages
per month); Davis v. U.S. Dep’t of Homeland Sec. , No. 11 -cv-203 (ARR) (VMS), 2013 WL 3288418, at *1 (E.D.N.Y.
June 27, 2013) (500 pages per mon th); Blakeney v. FBI , No. 17 -cv-2288 (BAH), 2019 WL 450678, at *2 (D.D.C. Feb.
5, 2019) (500 pages per month); Colbert v. FBI , No. 16 Civ. 1790 (DLF), 2018 WL 6299966, at *3 (D.D.C. Sept. 3,
2018) (500 pages per month) ; Republican Nat’l Comm. v. U.S. Dep’t of State , No. 16 Ci v. 486 (JEB), 2016 WL
9244625, at *1 (D.D.C. Sept. 16, 2016) (500 pages per month); Energy & Env’t Legal Inst. v. U.S. Dep’t of State , No.
17 Civ. 340 (D.D.C.), Minute Order of August 22, 2017 (300 pages per month); Judicial Watch, Inc. v. U.S. Dep’t of
State, No. 17 Civ. 205 (D.D.C.), Minute Order of June 30, 2017 (300 pages every four weeks); Am. Ctr. for Law &
Justice v. U.S. Dep’t of State , No. 16 Civ. 2516 (D.D.C.), Minute Order of June 27, 2017 (process 400 pages per
month); Citizens United v. U.S. De p’t of State , No. 16 Civ. 67 (D.D.C.), Dkt. 17 at 3 (declining “to adopt Plaintiff’s
proposed production order of 2000 pages per month” and instead holding State “to its 300 -page commitment”);
Freedom Watch v. Bureau of Land Mgmt. , No. 16 Civ. 2320 (D.D.C. ), Minute Order of June 13, 2017 (500 pages
every 30 days); Citizens United v. U.S. Dep’t of State , No. 15 Civ. 1720 (D.D.C.), Dkt. 11 ¶ 10 (500 pages every four
weeks); Judicial Watch, Inc. v. U.S. Dep’t of State , No. 15 Civ. 687 (D.D.C.), Minute Order of April 4, 2017 (500
pages per month). Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 4 of 14 PageID 208Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 4 of 14 PageID 208
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confidential business and trade secret information of Pfizer or BioNTech and personal p rivacy
information of patient s who participated in clinical trials. FDA is required to protec t certain
information under the law and t his type of information is exempt from production under the FOIA.
See 5 U.S.C. § 552(b) (4), (b)(6) ; F.B.I. v. Abramson , 456 U.S. 615, 621 (1982) (“Congress realized
that legitimate governmental and private interests could be harmed by release of certain types of
information and provided nine specific exemptions under which disclosure could be refused. ”).
To ensure protection of this information, and other information subject to withholding under the
FOIA ex emptions, FDA must carefully review and, if necessary, redact exempt information on a
line-by-line basis. See Daily Caller , 152 F. Supp. 3d at 14 (stating that the government has a
“responsibility” when processing FOIA requests to “safeguard[] pot entially sensitive
information”). This type of review for more than 329,000 pages will necessarily require time if
the agency is going to be able to perform the careful analysis necessary to protect sensitive
information.
Second, the FDA does not have the person nel or resources in its FOIA office to process
Plaintiff’s FOIA request at a rate of more than 80,00 0 pages per month. Plaintiff’s FOIA request
is being processed by the Access Litigation and Freedom of Information Branch (the “Branch”) in
FDA’s Center fo r Biologics Evaluation and Research (“CBER”). The Branch has a total of ten
employees, including the director and two trainees. It is currently responsible for processing a
total of approximately 400 currently pending FOIA requests, including Plaintiff’s . CBER is
currently involved in 6 active FOIA litigation matters . By processing and making interim
respo nses based on 500 -page increments , FDA will be able to provide more pages to more
requesters, thus avoiding a system where a few large requests monopolize finite processing
resources and where fewer requesters’ requests are being fulfilled. Simply put, processing Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 5 of 14 PageID 209Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 5 of 14 PageID 209
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resources are finite. Increasing the volume to more than 80 ,000 pages per month (if such rate is
even possible – and it likely is not) , as Plaintiff request s, would result in Plaintiff monopolizing
essentially all of FDA’s resources and leaving little resources to process other FOIA requests .
Indeed, the D.C. Cir cuit has recognized that another agency ’s policy of processing 500 pages per
request per month “serves to promote efficient responses to a larger number of requesters.” Nat’l
Sec. Counselors v. Dep’t of Justice , 848 F. 3d 467, 471 –72 (D.C. Cir. 2017); see also Elec. Privacy
Info. Ctr. v. Dep’t of Justice , 15 F. Supp. 3d 32, 47 (D.D.C. 2014) (denying motion for preliminary
injunction requesting immediate production of documents pursuant to FOIA request and noting
that allowing the plai ntiff “to jump to the head of the line would upset the agency’s processes and
be detrimental to t he other expedited requesters”); Daily Caller , 152 F. Supp. 3d at 14 (stating that
“the plaintiff ’s effort to jump to the head of the FOIA processing line would work a significant
burden on both the agency and numerous interested parties ”).
Third, the Court should flatly reject Plaintiff’s specious argument that because the scientists
reviewing Pfizer’s Biologics License Application could do so on an expedit ed timeframe, the
government information specialists should be able to do so in the same period of time . As should
be apparent, the review conducted by FDA scientists when considering to approve a product is
entirely different from the review conducted by FDA government information specialists when
considering whether FDA must keep certain information confidential. Moreover, FDA’s FOIA
office does not have nearly the same level of personnel or resources dedicated to process FOIA
requests as FDA has marsha led to review license applications for live -saving products in the
middle of a pandemic.
Fourth , contrary to Plaintiff’s argument , FDA’s regulations do not require or suggest that
FDA will release all publicly releasable data immediately after a biologics license application is Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 6 of 14 PageID 210Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 6 of 14 PageID 210
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approved. When read in context, it is clear that FDA’s regulations establish when information in
a biological product file is held in strict confidence by the agency and when certain data can be
released to the public, for instance in response to standard processing of a request submitted under
the Freedom of Information Act. See generally 21 C.F.R. § 601.51. Put another way, the
regulations establish the point in time when records that may previously have been unavailable for
public disclosure lose their status as confidential and thus become available for public release
“immediately” upon occurrence of the triggering event. Specifically, under 21 C.F.R. § 601.51,
the existence of a biological product file will not be disclosed by FDA prior to BLA approval
unless it has been previously disclosed or acknowledged, and no data or information in that file is
available for public disclosure. 21 C.F.R. § 601.51(b, c). If the existence of the biological product
file has been acknowledged before a license has been issued, FDA generally still will not make
information and data in the file available for public disclosure prior to issuance of a BLA
license. 21 C.F.R. § 601.51(d). Once a license has been issued, however, certain data and
information in the biological product file become “immediately” available for public
disclosure. 21 C.F.R. § 601.51(e). That means that if a properly submitted FOIA request is
received for data and information listed in 21 C.F.R. § 601.51(e), FDA may publicly release such
information in response to such request, without need for additional agency action to reclassify as
public ly releasable data and information that had previously been deemed confidential under this
regulation .
Fifth, although Plaintiff takes issue with the amount of time it will take to process 329,000
pages at a rate of 500 pages per month, such a result is du e to its own broad FOIA request. Courts
do not waiver from the standard 500 page per month processing rate even when a FOIA request
would take years to process. See, e.g. , Colbert v. F.B.I. , No. 16 -CV-1790 (DLF), 2018 WL Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 7 of 14 PageID 211Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 7 of 14 PageID 211
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6299966, at *3 (D.D.C. Sept. 3, 2 018) (permitting a processing rate of 500 pages per month for
71,00 0 responsive records). FDA has invited Plaintiff to narrow its request by specifying records
it no longer wants FDA to process and release, and Plaintiff has declined to do so. If Plainti ff
decides to request fewer records, then FDA will be able to com plete its processing at an earlier
date.
Finally, t his case is not about a vaccine mandate or whether Pfizer can be held liable . This
is a FOIA case where the only relevant issue at this stage in the litigation is setting a reasonable
processing schedule. FDA’s proposed schedule of 500 pages per month is consistent with
schedules set by courts across the country, including in cases where the underlying records were
of national signif icance. It adequately balances the interests of the Plaintiff in responsive records
with the interests of the vaccine sponsor in the protection of its confidential information, the
interests of clinical trial participants in the protection of their person al privacy information, and
the interests of other FOIA requesters whose requests are being processed alongside Plaintiff’s.
3. Plaintiff’s Position : Plaintiff agrees with the Defendant’s position that the Court
may enter a production schedule based on the ar guments in this Joint Report or do so at a
conference. Plaintiff seeks the records submitted to the FDA by Pfizer to license its COVID -19
vaccine (the “ FOIA request ”)4 and requests an order requiring the FDA to produce all documents
4 The FOIA request requested: “All data and information for the Pfizer Vaccine enumerated in 21 C.F.R. § 601.51(e)4
with the exception of publicly available reports on the Vaccine Adverse Events Reporting System.4” Th e CFR provision
referenced in the FOIA request provides, in relevant part, as follows: “After a license has been issued, the following data
and information in the biological product file are immediately available for public disclosure unless extraordinary
circumstances are shown: (1) All safety and effectiveness data and information. (2) A protocol for a test or study . . . (3 )
Adverse reaction reports. . . (4) A list of all active ingredients and any inactive ingredients . . . (5) An assay method or
other analytical method . . . (6) All correspondence and written summaries of oral discussions relating to the biological
product file . . . (7) All records showing the manufacturer’s testing of a particular lot . . . (8) All records showing th e
testin g of and action on a particular lot by the [FDA].” The FOIA request also explained that “For the avoidance of
doubt, the FOIA Request includes but is not limited to all of the data and information in the biological product file, as
defined in 21 C.F.R. § 601.51(a), for the Pfizer Vaccine enumerated in 21 C.F.R. § 601.51(e) with the exception of
publicly available reports on the Vaccine Adverse Events Reporting System.” Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 8 of 14 PageID 212Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 8 of 14 PageID 212
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responsive to its FOI A request no later than March 3, 2022 . This 108 -day period is the same
amount of time it took the FDA to review the responsive documents for the far more intricate task
of licensing Pfizer’s Covid -19 vaccine (the “ Pfizer vaccine ”).
Plaintiff is an organization comprised of over 30 accomplished academics, professors , and
scientists from the medical schools and related departments of our most prestigious universities ,
including Yale, Harvard, UCLA, and Brown . These academics and scientists represent a cross
section of every discipline relevant to the licensure of the Pfizer vaccine and include many of the
best our country has to offer when it comes to reviewing and assessing the appropriateness and
validity of the FDA’s decision -making in licensing th is product .
The ability of a majority of Americans to participate in civil society, and even exercise
basic liberty rights, are now contingent on receiving this product. For example, the White House’s
recent Covid -19 Action Plan5 and executive orders6 have made receipt of this product a condition
of employment7 for more than 6 million federal workers and contractors,8 22 million healthcare
professionals,9 84 million private sector employees,10 and the enlisted and reserve members of our
5 https://www.whitehouse.gov/covidplan/#testing -masking (last visited November 15, 2021).
6 See https://www.whitehouse.gov/briefing -room/presidential -actions/2021/09/09/executive -order -on-ensuring -
adequate -covid -safety -protocols -for-federal -contractors/ (Executive Order of Ensuring Adequate COVID Safety
Protocols for Federal Contractors) (last visited November 15, 2021); https://www.whitehouse.gov/briefing -
room/presidential -actions/2021/09/09/executive -order -on-requiring -coronavirus -disease -2019 -vaccination -for-
federal -employees/ (Executive Order on Requiring Coronavirus Disease 2019 Vaccin ation for Federal Employees)
(last visited November 15, 2021).
7 See, e.g. , https://www.osha.gov/laws -regs/regulations/standardnumber/1910/1910.501 (Emergency Temporary
Standard requiring employers with 100 or more employees to implement vaccination m andates) (last visited
November 12, 2021); https://www.whitehouse.gov/briefing -room/presidential -actions/2021/09/09/executi ve-order -
on-requiring -coronavirus -disease -2019 -vaccination -for-federal -employees/ (Executive Order on Requiring
Coronavirus Disease 2019 Vaccination for Federal Employees) (last visited November 12, 2021).
8 https://thehill.com/opinion/finance/438242 -the-federal -government -is-the-largest -employer -in-the-nation (last
visited November 12, 2021).
9 https://www.census.gov/library/stories/2021/04/who -are-our-health -care-workers.html#:~:text= There%20 were%
2022 %20million%20workers,American%20Community%20Survey%20(ACS) (last visited November 12, 2021).
10 https://www.cnbc.com/2021/11/0 4/osha -federal -vaccine -mandate -covers -84-million -workerswhat -to-know.html
(last visited November 12, 2021). Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 9 of 14 PageID 213Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 9 of 14 PageID 213
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armed forces.11 There are few whose livelihood, education, service, and participation in civil society
are not contingent on a government requirement to receive this product. On this basis alone, basic
liberty and government transparency demand that the documents and data submitted by Pfizer to
license this product be made available to Plaintiff and the public forthwith, precisely as contemplated
by federal regulations.12
The acute need for transparency regard ing this product is heightened by the fact that the
secretary of Health and Human Services (“ HHS ”), the FDA’s parent department, has granted
Pfizer complete immunity from financial liability for any injury caused by its product. If injured
-- including su ffering one of the injuries even f ederal health authorities admit occur from Pfizer’s
product -- the injured individual effectively has no recourse . Pursuant to the declaration from the
secretary of HHS, Pfizer cannot be sued by anyone receiving this prod uct for any injury. 42 U.S.C.
§ 247d -6d. Pfizer also cannot be sued for willful misconduct regarding this product unless HHS,
which has been promoting this product, agree s to bring such a claim. 42 U.S.C. § 247d -6d(c)(5) .13
It should not be that the p ublic is deprived access ing the documents and data submitted by Pfizer
to license this product when at the same time the public are being mandated to receive this product
with no ability to sue Pfizer for compensation if they suffer any adverse reaction .
The FDA has proposed to produce 500 pages per month which , based on its calculated
number of pages , would mean it would complete its production in nearly 55 years – the year 2076 .
Until the entire body of documents provided by Pfizer to the FDA are made available , an
11 https://www.americaspromise.org/us -military -demographics#:~:text=Military %20Service%20Member%20Data
,were%202.1%20active%20duty%20members (last visited November 12, 2021).
12 See 21 CFR § 601.51(e).
13 Reports have recently surfaced that the FDA was aware of concerns about unsound practices in connection with
clinical trials for the Pfizer Vaccine, but that FDA failed to properly investigate these claims.
https://www.bmj.com/content/37 5/bmj.n2635 (last visited November 12, 2021). Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 10 of 14 PageID 214Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 10 of 14 PageID 214
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appropriate analysis by the independent scientists that are members of Plaintiff is not possible.
Would the FDA agree to review and license this product without all the documents ? Of course
not. These independent , world -renowned scientis ts should be provided the same forthwith.
The entire purpose of the FOIA is to assure government transparency. It is diff icult to
imagine a greater need for transparency th an immediate disclosure of the documents relied upon
by the FDA to license a produ ct that is no w being mandated to over 100 million American s under
penalty of losing their careers, their income, their military service status, and far worse.
It took the FDA precisely 108 days from when Pfizer started producing the records for
licensure on May 7, 2021,14 to when the product was licensed on August 23, 2021 .15 We assume ,
as the FDA has stated , that it conducted an intense, robust, thorough and complete review and
analysis of those documents in order to assure that the Pfizer vaccine was safe and effective for
licensure. The FDA now has an equally important task of making those documents available to
the Plaintiff in this case and the publi c at large in at least the same timeframe.
The FDA’s own regulations envision and reflect upon the importance of making this
information public as soon as a vaccine is licensed . Its regulations provide that it is to make
“immediately available” all docum ents underlying licensure of a vaccine. 21 C.F.R. § 601.51(e).
The FDA knew the intense public interest in that data and information. It should have been
preparing to release it simultaneous ly with the licensure. Instead , it has done the opposite. Desp ite
the passage of 84 days since licensure and 192 days since Pfizer started producing the records for
14 https://www.pfizer.com/news/press -release/press -release -detail/pfizer -and-biontech -initiate -rolling -submission -
biologics (Pfizer announces that it initiated rolling submission of its biologics license application on May 7, 2021)
(last visited November 12, 2021).
15 https:// www.fda.gov/news -events/press -announcements/fda -approves -first-covid -19-vaccine (FDA announces that
it approved Pfizer’s COVID -19 vaccine on August 23, 2021) (last visited November 12, 2021). Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 11 of 14 PageID 215Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 11 of 14 PageID 215
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licensure , the FDA has not released a single doc ument submitted by Pfizer for the licensure of its
Covid-19 va ccine . Not one page.
Mandate s of this liability -free product are ongoing and expanding as we debate in this Joint
Report . School -age children are now being mandated to take this product.16 Even 108 days from
today to produce is far too long, hence Plaintiff respectfully urge s that March 3, 2022 be set as the
absolute outside date by which the FDA be compelled to produce these documents. The FDA is
an org anization comprised of more than 18,000 people17 with a budget of $6 billion .18 It has itself
said that there is nothing more impo rtant than the licensure of this vaccine and being transparent
about this vaccine . This request is precisely why the need for transparency is so critical and why
Congress enacted FOIA . If the FDA claims its obligations under FOIA are too burdensome, it
should take its complaint s to Congress – not this Court.
For the Americans that will lose their job, income, career, military status, education, or
worse, for refusing a federal mandate requiring this pro duct, they do not get to argue that it is too
burdensome to comply with federal law. That is not an excuse that individuals get to make when
a federal law requires them to do something. The FDA should similarly be afforded no such safe
harbor. Certainly not on an issue this important. Again, if the FDA finds complying with federal
law burdensome, its recourse is with Congress.
In any event, t he FDA should welcome making these do cument s available to the Plaintiff
if it is confident in the analysis and re view it conducted. The fact that it has fought tooth and nail
16 See, e.g., https://www.nbcsandiego.com/news/local/san -diego -unified -school -district -vaccine -mandate/2729909/ .
17 https://www.fda.gov/about -fda/fda -basics/how -many -people -are-employed -fda-and-what -areas -do-they-work (last
visited November 12, 2021).
18 https://www. fda.gov/about -fda/fda -basics/fact -sheet -fda-glance (last visited November 12, 2021). Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 12 of 14 PageID 216Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 12 of 14 PageID 216
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and taken such an absurd and unconscionable position of waiting until the year 2076 to complete
the production further heightens the grave need to have the se documents produced forthwith.
Plaintiff respectfully request s that the Court enter an order requiring the FDA to produce
all documents and data submitted by Pfizer on a rolling basis such that all of it shall be produced
on or before March 3, 2022, which is 108 days from toda y. To require less is to render FOIA
meaningless, the FDA’s promise of transparency a lie, and to send a signal to every American that
while the federal executive branch is shielding Pfizer from any liability for injuries from its product
and requiring employ ers, schools , hospitals and the military to expel those that don’t receive this
product, it is protecting the very documents Pfizer provided to our taxpayer -funded health agency
to obtain licensure to be able to sell this product. That simply should not b e and highlight s why
FOIA and equity demand the relief Plaintiff request s herein.
Dated: Novem ber 15, 2021
SIRI & GLIMSTAD LLP
/s/ Aaron Siri
Aaron Siri , NY Bar No. 4321790
Elizabeth A. Brehm , NY Bar No. 4660353
Gabrielle G. Palmer , CO Bar No. 48948
200 Park Avenue
17th Floor
New York, New York 10166
Tel: (212) 532 -1091
Fax: (646) 417 -5967
[email protected]
[email protected]
[email protected]
Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 13 of 14 PageID 217Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 13 of 14 PageID 217
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HOWIE LAW, PC
/s/ John Howie
John Howie
Texas Bar Number: 24027239
2608 Hibernia Street
Dallas, Texas 75204
Tel: (214) 622 -6340
[email protected]
Attorneys for Plaintiff
BRIAN M. BOYNTON
Acting Assistant Attorney General
Civil Division
ELIZABETH J. SHAPIRO
Deputy Director
Federal Programs Branch
/s/ Courtney D. Enlow
COURTNEY D. ENLOW
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Room 12102
Washington, D.C. 20005
Tel: (202) 616 -8467
Email: [email protected]
Counsel for Defendant
Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 14 of 14 PageID 218Case 4:21-cv-01058-P Document 20 Filed 11/15/21 Page 14 of 14 PageID 218