U.S. v. Bailey

• Decision Date: 06 June 2000
• Docket Number: MC-99-6,MC-99-5,No. 99-4870,99-4870
• Citation: 228 F.3d 341
• Parties: (4th Cir. 2000) In Re: SUBPOENA DUCES TECUM UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DWIGHT L. BAILEY, M.D.; FAMILY HEALTH CARE ASSOCIATES OF SOUTHWEST VIRGINIA, PC, Defendants-Appellants. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 341

228 F.3d 341 (4th Cir. 2000)

In Re: SUBPOENA DUCES TECUM

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DWIGHT L. BAILEY, M.D.; FAMILY HEALTH CARE ASSOCIATES OF SOUTHWEST VIRGINIA, PC, Defendants-Appellants.

No. 99-4870 (MC-99-5, MC-99-6).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: June 6, 2000.

Decided: September 8, 2000.

Appeal from the United States District Court for the Western District of Virginia, at Abingdon.

James P. Jones, District Judge.

[Copyrighted Material Omitted] COUNSEL ARGUED: Dennis Eugene Jones, DENNIS JONES & ASSOCIATES, P.C., Lebanon, Virginia; Jay H. Steele, Lebanon, Virginia, for Appellants. Steven Randall Ramseyer, Assistant United States Attorney, Abingdon, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Abingdon, Virginia, for Appellee.

Before NIEMEYER and WILLIAMS, Circuit Judges, and Robert R. BEEZER, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Williams and Senior Judge Beezer joined.

OPINION

NIEMEYER, Circuit Judge:

In connection with an investigation into federal healthcare offenses, the United States Attorney for the Western District of Virginia issued and served four subpoenas duces tecum on April 29, 1999, under the authority of 18 U.S.C. § 3486, which authorizes the Attorney General or her designee to subpoena records that may be relevant to an investigation into federal healthcare offenses. The doctor and the professional healthcare corporation served with the subpoenas filed a motion to quash them on grounds that (1) they violated the recipients' Fourth and Fifth Amendment rights; (2) they were overly broad and oppressive and therefore unreasonable; and (3) they violated patients' privacy rights. The district court granted the motion to quash as to the personal papers of the doctor and otherwise denied the motion. For the reasons that follow, we affirm.

I

The four subpoenas at issue in this case were directed respectively to (1) "Dr. Dwight L. Bailey or custodian of records Dwight L. Bailey, M.D."; (2) "Dr. Dwight L. Bailey or custodian of records Ridgewood Health Care Clinic"; (3) "Dr. Dwight L. Bailey or custodian of records Family Healthcare Associates of Southwest Virginia, P.C."; and (4) "Dr. Dwight L. Bailey or custodian of records Abingdon Family Healthcare." Family Health Care Associates of Southwest Virginia, P.C., one of those served, is a Virginia professional corporation formed to engage in the delivery of medical services, and it owns and operates Ridgewood Health Care Clinic and Abingdon Family Health Care. The form of each subpoena and the description of documents in each are identical. Each commanded the addressee to appear at the Office of the United States Attorney on May 18, 1999, to produce described documents and "to give testimony concerning the production and authentication of such records." Each subpoena stated that "[t]he production of such records is necessary to the United States Department of Justice's performance of its responsibility to investigate Federal health care offenses, as defined in[18 U.S.C. § 24]" and noted that failure to comply with the subpoena would render the addressee "liable to proceedings in the United States District Court to enforce obedience, pursuant to [18 U.S.C. § 3486(c)]."

Each of the subpoenas required the recipient to produce the following documents for the period from "January, 1992 through the present":

1. All patient records and documentation concerning patients whose services were billed to Medicare, Medicaid, UMWA, Trigon, Blue Cross Blue Shield, U.S. Department of Labor Black Lung Program and CHAMPUS, including complete medical files, patient appointment books, patient billing records, office sign-in sheets, and telephone messages in any form.

2. All purchase records and invoices reflecting Schedule II through V controlled substance purchases, DEA Official Order Forms, records of inventories, dispensing records, DEA Form 41 Registrants Inventory of Drugs Surrendered, DEA Form 106 Reports of Theft or Loss of Controlled Substances.

3. All original accounting and bank records, general ledgers, patient information/insurance cards, cash receipt and disbursement records, business ownership records and other items identifying sources of income from billings. These records include the following: [enumeration omitted].

4. All documents regarding health care plans' requirements for claim filing and record retention, including [enumeration omitted]. All documents regarding the Medicaid requirements for claim filing and record retention, including [enumeration omitted].

5. All records of any controlled substance samples provided to Dr. Dwight L. Bailey, M.D. by wholesale drug companies, manufacturers, or their representatives. All documents regarding proper uses and contraindications for controlled substances, including [enumeration omitted].

Dr. Bailey and Family Health Care Associates of Southwest Virginia, P.C. (collectively "Bailey") commenced this action in the district court by filing identical motions to quash the subpoenas under Federal Rule of Criminal Procedure 17(c). Bailey, who asserted that he was a target of the government's criminal investigation, contended that compliance with the subpoenas would require him to risk self incrimination and to produce more than 15,000 patient files alone, consisting of between 750,000 and 1.25 million pages of material. He grounded his motion on contentions that (1) compliance with the subpoenas would "involve a risk of substantial and real testimonial self incrimination" in violation of the Fifth Amendment; (2) the subpoenas were overly broad and disruptive of his medical practice; (3) the government had no probable cause to support the issuance of the subpoenas and therefore production of the requested material would constitute an unreasonable and unlawful seizure in violation of the Fourth Amendment; (4) the production of the subpoenaed material would violate his "patients' right of privacy in matters governed by the physician-patient privilege"; and (5) compliance with the subpoenas would be unreasonable and oppressive and could not be completed in the three-weeks' time allowed.

Following separate hearings before a magistrate judge and a district judge, the district court granted Bailey's motion"insofar as [the] subpoenas compel[led] the production of Dr. Bailey's personal financial records from Dr. Bailey." It denied the motion in all other respects but directed the parties to confer "to arrange the production of the documents requested . . . with the exception of any patient files and the items identified in item No. 4 . . . . The U.S. Attorney shall notify the movants, if, and when, he determines the need to review particular patient files or any items identified in item No. 4 of [each subpoena]."

Bailey elected to copy the subpoenaed documents before producing them, expending for "labor, equipment and supply costs" an amount that he claims exceeded $40,000. At the same time, he noticed this appeal. Contrary to the government's suggestion, however, Bailey's compliance with the subpoenas does not render this appeal moot. See Reich v. National Eng'g & Contracting Co., 13 F.3d 93, 97-98 (4th Cir. 1993).

On appeal, Bailey argues three points: (1) the subpoenas violated Bailey's Fourth Amendment rights because the government failed to show probable cause that the documents sought are relevant and material to its criminal investigation; (2) the subpoenas were not sufficiently limited in scope and therefore were oppressive and unreasonable; and (3) the subpoenas violated privacy rights of Bailey's patients. He did not, in his brief on appeal, continue to make a Fifth Amendment challenge. We address Bailey's points in order.

II

At the outset, we address our jurisdiction to review Bailey's challenge where the district court denied his motion to quash.

Ordinarily, one served with a subpoena may not appeal the denial of his motion to quash without first resisting the subpoena and being held in contempt. See United States v. Ryan, 402 U.S. 530, 532 (1971) (citing Cobbledick v. United States, 309 U.S. 323 (1940)). This rule has developed in the context of grand jury proceedings, where the "necessity for expedition in the administration of the criminal law" serves as its justification. Id. at 533.

The appeal ability of district court orders enforcing subpoenas issued by government agencies in connection with administrative investigations has been regarded differently, however. See Reich v. National Eng'g & Contracting Co., 13 F.3d 93, 95 (4th Cir. 1993). These orders are considered "final" for purposes of 28 U.S.C. § 1291 because there is no ongoing judicial proceeding that would be delayed by an appeal. See id. at 95-96; see also Cobbledick, 309 U.S. at 330 (recognizing that district court's order enforcing administrative subpoena was immediately reviewable because the proceeding out of which the order arose "may be deemed self-contained, so far as the judiciary is concerned").

Although the instant appeal arises in the context of a motion to quash, rather than a motion to enforce, the same principle applies. Despite the criminal implications, the subpoenas challenged in this case were administrative subpoenas issued by an administrative agency pursuant to 18 U.S.C. § 3486, which is entitled "Administrative subpoenas in Federal health care investigations," and there are no ongoing judicial proceedings in the case. In fact, the district court's order directed the clerk to close the case. Therefore, consistent with our decision in Reich, we hold that jurisdiction exists under 28 U.S.C. § 1291 to review Bailey's challenge to the district court's denial of his motion to quash the § 3486 subpoenas.

III

The subpoenas in this case were issued on the...