HARDY et al v. SHUREN et al

Filing 1

COMPLAINT against NELSON CABRERA, GREGORY CAMPBELL, JOHN AND JANE DOE, ALBERTO GUTIERREZ, MARGARET A. HAMBURG, KIMBERLY A. HOLDEN, WILLIAM MAISEL, RUTH MCKEE, JANINE MORRIS, MICHAEL O'HARA, MARY PASTEL, KATHLEEN SEBELIUS, JEFFREY E. SHUREN, JAMES E. SIMPSON, DONALD J. ST. PIERRE, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES OF AMERICA ( Filing fee $ 350, receipt number 4616042512) filed by EWA M. CZERSKA, PAUL T. HARDY, ROBERT C. SMITH, JULIAN J. NICHOLAS, R. LAKSHMI VISHNUVAJJALA. (Attachments: # 1 Civil Cover Sheet)(rdj)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)

PAUL T. HARDY
14905 Dinsdale Drive
Silver Spring, MD 20906,

)
)
)
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and

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EWA M. CZERSKA
5802 Massachusetts Avenue
Bethesda, MD 20816,

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)
)
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and

Civil Action No. 11-

Filed Sept 28, 2011

)

ROBERT C SMITH
14204 Arbor Forest Drive
Rockville, MD 20850,

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)
)
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and

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JULIAN 1. NICHOLAS
11587 Carowind Lane
San Diego, CA 92131,

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)
)

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and

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R. LAKSHMI VISHNUV AJJALA
1130 Betts Trail Way
Rockville, MD 20854,

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Plaintiffs,

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)

v.

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JEFFREY E. SHUREN

)

Director, Center for Devices and
Radiological Health
U.S. Food and Drug Administration
10903 New Hampshire Avenue
W066-5422
Silver Spring, MD 20993,

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)
)

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JURY TRIAL DEMANDED

~d )

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DONALD 1. ST. PIERRE )

OIVD, CDRH )
Food and Drug Administration )

10903 New Hampshire Avenue )

Silver Spring, MD 20093, )

and )
)

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MICHAEL O'HARA )

Division of Radiological Devices )
Food and Drug Administration )

10903 New Hampshire Avenue )

Silver Spring, MD 20093, )

and ))
JANINE MORRIS
)

)

Urology and Lithotripsy Devices Branch )
Food and Drug Administration )

10903 New Hampshire Avenue )

Silver Spring, MD 20093, )

and )
MARY PASTEL )
)
)

Division of Radiological Devices )
Food and Drug Administration )

10903 New Hampshire Avenue )

Silver Spring, MD 20093, )

and )

)
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GREGORY CAMPBELL )

Division of Biostatistics )
Food and Drug Administration )

10903 New Hampshire Avenue )

Building 1, Room 4239 )

Silver Spring, MD 20993, )

and )
)

)

ALBERTO GUTIERREZ )

Director, OIVD, CDRH )
2

Food and Drug Administration
10903 New Hampshire Avenue
Building 1, Room 4239
Silver Spring, MD 20993,

)
)

)
)
)

and

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KIMBERL Y A. HOLDEN
Assistant Commissioner for Management
Food and Drug Administration
10903 New Hampshire Avenue
Building 1, Room 4239
Silver Spring, MD 20993,

)
)

)
)
)
)
)

and

)

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RUTH MCKEE
Offce of
the Center Director, CDRH
10903 New Hampshire Ave
Silver Spring, MD 20093,

)
)
)
)
)

and

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WILLIAM MAISEL
WO-Building 66- Room 5429
10903 New Hampshire Ave
Silver Spring, MD 20993,

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)
)

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)

and

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NELSON CABRERA )

General Law Division )
Offce of

the General Counsel )

Department of Health and )

Human Services )
330 Independence Avenue, SW Room 4760 )

Washington, DC 20201, )
)

and

JAMES E. SIMPSON
Attorney, General Law Division
Offce of

the General Counsel

U.S. Department of Health and
Human Services

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)
)
)
)
)

)

3

Cohen Building, Room 4748 )

300 Independence Avenue, SW )
Washington, DC 20201, )

and Doe )
)
John and Jane
)

)

Employees 1-99 )

Department of HHS )
10903 New Hampshire Ave )

~d )
Commissioner )
WO~l )
Silver Spring, MD 20993, )
)

)

MARGARET A. HAMBURG )
U.S. Food and Drug Administration )

10903 New Hampshire Avenue )

Silver Spring, MD 20993, )

and )
)

)

KATHLEEN SEBELIUS )
Secretary, Department of

Health and )

Human Services )

200 Independence Ave, SW, Room 120F )

~d )
~d )

Washington, DC 20201, )
)
)

UNITED STATES DEPARTMENT OF )
HEAL TH AND HUMAN SERVICES )

200 Independence Avenue, SW )
Washington, DC 20201, )
)
)

THE UNITED STATES OF AMERICA )
c/o United States Department of Justice )

9th & Pennsylvania Avenue, NW )
Washington, DC 20530, )

Defendants. )

)
)

4

COMPLAINT
Plaintiffs Paul T. Hardy, Ewa M. Czerska, Robert C Smith, Julian J. Nicholas, and R

Lakshmi vishnuvajjala (collectively "Plaintiffs") bring this action against Defendant Kathleen
Sebelius, Margaret Hamburg, Jeffrey E. Shuren, Donald J. St Pierre, William Maisel, Kimberly
A. Holden, Ruth McKee, Nelson Cabrera, James E. Simpson, John and Jane Doe Employees 1-

99, Department of Health and Human Services ("HHS" or "Agency"), and The United States of

America (collectively "Defendants"), in their offcial capacity, pursuant to the Fifth Amendment
of

the United States Constitution, et seq. Defendants have taken and converted private emails
the Fifth Amendment of

without Due Process or Just Compensation in violation of

the United

States Constitution.

JURISDICTION AND VENUE
1. This Court has both subject matter jurisdiction over this action and personal

jurisdiction over Defendants pursuant to 28 U.sC ~ 1331. Venue is appropriate under 28 U.sC

~1391.

PARTIES
2. Plaintiff Paul T. Hardy ("Hardy") is a u.s citizen residing in the State of

Maryland.
3. PlaintiffEwa M. Czerska ("Czerska"), M.D, Ph.D., is a US citizen residing in

the State of Maryland.
4. Plaintiff Robert C Smith ("Smith"), M.D, J.D., is a U.s citizen residing in the

State of Maryland.
5. Plaintiff Julian J. Nicholas ("Nicholas"), M.D., is a US citizen residing in the

State of California.

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6. PlaintiffR. Lakshmi vishnuvajjala ("vishnuvajjala"), Ph.D, is a u.s citizen

residing in the State of Maryland.
7. Defendant Department of Health and Human Services is a United States

Government Agency.

8. Defendant Kathleen Sebelius is a U.S. citizen who works in the District of

Columbia for the Department of Health and Human Services and is being sued in her offcial
capacity

9. Defendant Margaret Hamburg is a U.S. citizen who works in the State of

Maryland for the Department of Health and Human Services and is being sued in her offcial
capacity.
10. Defendant Jefferey E. Shuren is U.S. citizen who works in the State of Maryland

for the Department of Health and Human Services and is being sued in his official capacity.
11. Defendant Kimberly A. Holden is a U.S. citizen who works in the State of

Maryland for the Department of Health and Human Services and is being sued in her official
capacity
12. Defendant Ruth McKee is a U.S citizen who works in the State of

Maryland for

the Department of Health and Human Services and is being sued in her offcial capacity.
13. Defendant Donald J. St Pierre is a U.S. citizen who works in the State of

Maryland for the Department of Health and Human Services and is being sued in his oftìcial
capacity.
14. Defendant William Maisel is a US. citizen who works in the state of

Maryland

for the Department of Health and Human Services and is being sued in his offcial capacity

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15. Defendant Nelson Cabrera is a US. citizen who works in the District of

Columbia

for the Department of Health and Human Services and is being sued in his official capacity.
16. Defendant James E. Simpson is a U.S. citizen who works in the District of
Columbia for the Department of

Health and Human Services and is being sued in his official

capacity.
17. Defendant John and Jane Doe Employees 1-99 work for the Department of Health

and Human Services IT department and are being sued in their official capacity

FACTS
18. Plaintiffs authored personal correspondences which constitute their propert.

19. Plaintiffs' correspondence was sent through electronic communication ("email")

Plaintiffs used their private email accounts, i.e., Gmail and Yahoo. Alternatively, the Plaintiffs
communicated via attachments to their emails.
20. Plaintiffs' email correspondence constitutes the personal propei1y of

the author

("Proprietary Emails").

21. These Proprietary Emails are afforded full property rights.
22. The Proprietary Emails were sent through protected communications from an

author's personal email account and sent directly to the recipient's private email account
23. Plaintiffs corresponded on their own time and intended that their Proprietary

Emails be private.
24. The Proprietary Emails were password protected and communicated via the

internet in an encrypted format using a personal private email account

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25. Plaintiffs sent and received the Proprietary Emails on their own time, intending

these private emailsnotberead.taken.maintained or copied by HHS and converted into a

system of records.

the authors, took the

26. Defendants without knowledge, consent, or notice of

the Defendants.

Proprietary Emails and converted them into the property of

27. Defendants thereafter stored the Proprietary Emails on a variety of records

systems controlled by the Defendants, again without knowledge of, consent of, or notice to the
authors.
28. Defendants have used and continue to use the Proprietary Emails for their own

benefit without consent
the Plaintiffs compensated for their Proprietary Emails.

29. At no time were any of

Plaintiffs, making the property part of

the

taking Proprietary Emails of

30. Defendants engaged in a wide scale practice of

their databases, and using the documents as if

they were

the owners, without giving Plaintiffs compensation or Due Process.

FIRST CAUSE OF ACTION

(Fifth Amendment- Due Process and Takings Clause)
31. Plaintiffs repeat and re-allege the facts contained in the paragraphs set forth

above
32. Defendants violated the Due Process Clause and the Takings Clause of

Amendment of

the Fifth

the United States Constitution.

33. Defendants took Plaintiffs' Proprietary Emails and subsequently converted them

into their system of records without Due Process of Law.

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34. Defendants took the Plaintiffs' Proprietary Emails and subsequently converted

them into their system of records without any compensation.
35. As authors of

these Proprietary Emails, Plaintiffs have the right to prevent

communication to other persons, and control their use and distribution.
36. By unlawfully converting, communicating, controlling, using and distributing

their Proprietary Emails, Defendants violated Plaintiffs' property rights.
their Proprietary Emails.

37. Plaintiffs were not compensated for the taking of

PRAYER FOR RELIEF
WHEREFORE, Paul T. Hardy, Ewa M. Czerska, Robert C Smith, Julian J. Nicholas, and
R. Lakshmi vishnuvajjala pray that this Court:
(1) Order all Defendants to return the Proprietary Emails to each respective plaintiff;

(2) Order all Defendants to delete and expunge any original, copies, excerpts, or

the Proprietary Emails, converted or otherwise, from their system of

summaries of

records;

(3) Order all Defendants to return Plaintiffs' Proprietary Emails in an expedited

fashion;
(4) Prohibit all Defendants from using the property of Plaintiffs in any manner

whatsoever.
(5) Order all Defendants to inform all third parties to whom Defendants may have

provided, sent, communicated, summarized, excerpted or told about the Proprietary Emails that

the Proprietary Emails were obtained illegally, and request the third parties delete and expunge
the Proprietary Emails and their copies, summaries, or excerpts.
(6) Order all Defendants to inform all third parties to whom Defendants may have

provided, sent, communicated, summarized, excerpted or told about the Proprietary Emails that

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the Proprietary Emails were obtained illegally, and request the third parties provide the
Proprietary Emails to (Plaintiffs).
(7) Order all Defendants to make a complete accounting of all Third Parties provided

with the Proprietary Emails, and provide that accounting to Plaintiffs.
(8) Order all Defendants to make a complete accounting of every record system in

which the Proprietary Emails have been stored, and provide that accounting to Plaintiffs.
(9) Order all Defendants to make a full accounting of all people who received,

transmitted, excerpted, summarized or otherwise saw or manipulated the Proprietary Emails.
(10) Enjoin all Defendants from all such future takings;

(11) Order all Defendants to expunge any and all documents for which they used the

correspondences in question unless the author voluntarily consents to such use.

(12) Order Defendants to pay all Plaintiffs' attorneys fees and costs.
(13) Grant all equitable, injunctive and declaratory relief permitted under the Fifth
Amendment;
(14) Grant such other relief as the Court may deem just and proper;

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mik
Stephen M. Kohn, Esq
DC Bar #411513

sk(ikkc.com
David K. Colapinto
DC Bar #416390

dc(ikkc.com
Kohn, Kohn & Colapinto, LLP
3233 P Street, NW

Washington, DC 20007
202-342-6980 phone
202-342-6984 fax

Attorneys for Plaintiff
Dated Sept 28, 2011

JURY TRIAL DEMANDED

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