Doe v. Leavitt

• Decision Date: 14 January 2009
• Docket Number: No. 08-1431.,08-1431.
• Citation: 552 F.3d 75
• Parties: John DOE, M.D., Plaintiff, Appellant, v. Michael O. LEAVITT, Secretary of Health and Human Services, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

552 F.3d 75

John DOE, M.D., Plaintiff, Appellant, v. Michael O. LEAVITT, Secretary of Health and Human Services, Defendant, Appellee.

No. 08-1431.

United States Court of Appeals, First Circuit.

Heard November 4, 2008.

Decided January 14, 2009.

Michael A. Duddy, with whom Kelly, Remmel & Zimmerman was on brief, for appellant.

Eric Fleisig-Greene, Attorney, Appellate Staff, with whom Gregory G. Katsas, Assistant Attorney General, Civil Division, Paula D. Silsby, United States Attorney, and Mark B. Stern, Attorney, Appellate Staff, were on brief, for appellee.

Before BOUDIN, SELYA, and STAHL, Circuit Judges.

SELYA, Circuit Judge.

This appeal requires us to construe the word "investigation" as that word is used in a provision of the Health Care Quality Improvement Act (HCQIA), a statute that directs hospitals and other health care entities to report to the Secretary of Health and Human Services (the Secretary) in the event that a physician surrenders his clinical privileges while he is "under an investigation" for suspected incompetence or improper professional conduct. 42 U.S.C. § 11133(a)(1)(B)(i). The question is one of first impression at the federal appellate level.

In the underlying administrative proceeding, the Secretary concluded that an investigation is ongoing for purposes of the HCQIA until the hospital's decisionmaking process runs its course and the hospital either takes a final action or formally closes the probe. The appellant, a physician reported to the Secretary under section 11133(a)(1)(B)(i), challenged the Secretary's interpretation of the word "investigation." The district court rejected this challenge and upheld the Secretary's action. After careful consideration, we affirm.

I. BACKGROUND

Generally speaking, information gathered pursuant to the reporting provisions of the HCQIA is confidential. See id. § 11137(b)(1). But the statute expressly provides that information presented "in a form that does not permit the identification of any particular health care entity, physician, other health care practitioner, or patient shall not be considered confidential." Id. In the case at hand, the protagonists' identities and the specific details of the alleged misconduct are easily separated from the central legal question. Accordingly, we sketch the background of the case with the aid of pseudonyms and generalities. That course allows us to balance two important but sometimes conflicting interests: on the one hand, safeguarding the privacy of physicians and other health care professionals; on the other hand, providing public access to judicial decisions.

On July 26, 2005, an operating room nurse at the XYZ Hospital (the name is fictitious) filed a written complaint against the appellant (a physician whom we refer to by the alias "Dr. Doe"). The complaint charged that the appellant had threatened the nurse.

The following day, the medical staff executive committee temporarily suspended Dr. Doe's privileges and appointed an ad hoc investigating committee (the AHC) to inquire into the nurse's allegations. On August 2, 2005, the AHC reported to the executive committee that the nurse reasonably perceived Dr. Doe's actions as threatening.

Three days later, the executive committee met to discuss both the report and Dr. Doe's status. Following that discussion, the executive committee proposed that Dr. Doe be allowed to return to work so long as he agreed to certain contractual modifications, including provisions for regular proctoring and psychological evaluations. On August 11, Dr. Doe rejected this proposal and voluntarily relinquished his clinical privileges. The Hospital accepted his resignation on August 19.

Believing that Dr. Doe had resigned while "under an investigation," the Hospital reported his resignation to the National Practitioner Data Bank (the NPDB), a data bank established by the Secretary as a repository for reports filed pursuant to the HCQIA. See 45 C.F.R. § 60.1.

On September 19, Dr. Doe requested administrative review of the Hospital's filing. See id. § 60.14. He contended that the Hospital's investigation had ended when the AHC presented its report to the executive committee and, therefore, that he had not resigned while under an investigation. An exchange of views followed.

On May 25, 2007, the Secretary issued a written decision in which he ruled that the Hospital appropriately had reported the appellant to the NPDB. The Secretary premised this ruling on a statement that "[a]n investigation is ... considered ongoing until the health care entity's decision making authority takes a final action or formally closes the investigation." Because the executive committee had neither taken a final disciplinary action nor formally closed its inquiry when Dr. Doe resigned, the Secretary found that Dr. Doe was still "under an investigation" at that moment. Consequently, the Hospital had a duty to report the resignation under 42 U.S.C. § 11133(a)(1)(B)(i).

The appellant challenged this ruling in a suit brought against the Secretary under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. The parties cross-moved for judgment on the administrative record. The district court, in a sealed opinion, ruled in the Secretary's favor. This timely appeal ensued.

II. ANALYSIS

We review the district court's decision de novo, applying the same standards to the Secretary's final action that the district court was bound to apply. See Mass. ex rel. Div. of Marine Fisheries v. Daley, 170 F.3d 23, 28 (1st Cir.1999); Assoc'd Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.1997). We will reverse only if the Secretary's determination was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). We are not married to the lower court's reasoning but may uphold its decision on any ground made manifest by the record. See InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir.2003).

The sole issue on appeal is the propriety of the Secretary's interpretation of the word "investigation" as that word is used in the HCQIA reporting provision, quoted in the margin.¹ The Secretary has determined that an investigation is ongoing (and, therefore, a matter is under investigation) until a health care entity makes a final decision or formally closes the probe, even if the entity is no longer gathering facts but is merely deliberating about what course of action it should follow.

The appellant argues that the Secretary has cast too wide a net. He maintains that the word "investigation," as used in the statute, refers only to the fact-gathering phase of the inquiry.

In dealing with these dueling interpretations, a threshold question looms: What level of deference, if any, is due to the Secretary's interpretation? We tackle that question first and then proceed to the merits.

A. The Deference Question.

It cannot be gainsaid that the Secretary possesses authority to promulgate regulations implementing the HCQIA. See, e.g., 42 U.S.C. § 11136. Withal, the Secretary has not exercised this rulemaking authority to set forth his interpretation of the word "investigation." Instead, the Secretary's interpretation must be gleaned from (i) an agency manual, the NPDB Guidebook (the Guidebook), issued in September of 2001, and (ii) the Secretary's decision in this case. The appellant contends that these "informal" interpretations do not warrant deference under the familiar rubric of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), but must be evaluated under the more neutral framework limned in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The Secretary counters that Chevron offers the appropriate frame of reference. The district court nimbly sidestepped this question, vouchsafing that the Secretary's interpretation of the word was unimpugnable regardless of what level of deference attached.

In the aftermath of the Court's opinion in United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), the level of deference owing to informal agency interpretations is freighted with uncertainty. See Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L.Rev. 1443, 1457-69 (2005) (reviewing divergent applications of Mead by various courts of appeals). The Mead Court seems to have contemplated the application of Chevron deference to most statutory interpretations that are the fruit of notice-and-comment rulemaking or formal adjudications. See Mead, 533 U.S. at 229-31, 121 S.Ct. 2164; but cf. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Serv., 545 U.S. 967, 1004, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (Breyer, J., concurring) (stating that "the existence of a formal rulemaking proceeding" is not "a sufficient condition for according Chevron deference to an agency's interpretation of a statute"). In some ways, however, Mead is unhelpful: for instance, the decision does not clarify the circumstances in which Congress should be deemed to have intended an informal agency interpretation to carry the force of law and, thus, attract Chevron deference. See Mead, 533 U.S. at 231, 121 S.Ct. 2164. Mead indicates, however, that even if an informal agency interpretation is deemed not to warrant Chevron deference, it may nonetheless lay claim to a lesser degree of deference under the Skidmore banner. Id. at 234, 121 S.Ct. 2164.

The case at hand falls into this gray area. The Guidebook is an agency manual. It is not a product of notice-and-comment rulemaking, nor was it ever published in the Federal Register, which makes only a glancing reference to it, see Notice Announcing Opening Date of NPDB, 55 Fed.Reg. 31,239-01 (Aug. 1, 1990). Given these facts, we do not believe that the Guidebook is entitled to Chevron deference. See Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000); ...