Florida Med. Ass'n, Inc. v. Dep't of Health, Education, & Welfare, Case No. 3:78-cv-178-J-34MCR
| Decision Date | 26 September 2011 |
| Docket Number | Case No. 3:78-cv-178-J-34MCR |
| Court | U.S. District Court — Middle District of Florida |
| Parties | FLORIDA MEDICAL ASSOCIATION, INC., et al., Plaintiffs, v. DEPARTMENT OF HEALTH, EDUCATION, & WELFARE, et al., Defendants, DOW JONES & COMPANY, INC., et al., Intervening Defendants. |
This case is before the Court on Dow Jones & Company, Inc.'s Motion to Reopen Case (Doc. 7; Dow Jones' Motion to Reopen), Dow Jones & Company, Inc.'s Motion to Intervene (Doc. 1; Dow Jones' Motion to Intervene), and Jennifer D. Alley and Real Time Medical Data, L.L.C.'s ("RTMD") Motion to Intervene. (Doc. 20; RTMD's Motion to Intervene).1 The motions were referred to the Honorable Monte C. Richardson, United States Magistrate Judge, for a Report and Recommendation regarding an appropriate resolution of the motions. (Doc. 13; 3/01/11 Order). On May 18, 2011, the Magistrate Judge entered aReport and Recommendation (Doc. 37; Report), recommending that Dow Jones' Motion to Intervene, Dow Jones' Motion to Reopen, and RTMD's Motion to Intervene all be granted in full, including permitting the proposed intervenors to assert cross-claims and counterclaims. Report at 14. Thereafter, plaintiffs American Medical Association ("AMA") and Florida Medical Association ("FMA") filed AMA's and FMA's Limited Objections to May 18 Report and Recommendation (Doc. 39; AMA and FMA Objections), and HHS filed the Objection of Defendants Department of Health and Human Services and Kathleen Sebelius to Magistrate Judge's Report and Recommendation. (Doc. 40; HHS Objections). Proposed intervenors Jennifer D. Alley and RTMD filed an Opposition to AMA's and FMA's Limited Objections to May 18 Report and Recommendation (Doc. 41; RTMD Response to AMA and FMA Objections), and proposed intervenor Dow Jones filed Dow Jones & Company, Inc.'s Opposition HHS's Objections to Magistrate Judge's Report and Recommendation. (Doc. 42; Dow Jones' Response to HHS Objection).
The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). If no specific objections to findings of facts are filed, the district court is not required to conduct a de novo review of those findings. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see also 28 U.S.C. § 636(b)(1). The district court must review legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); United States v. Rice, No. 2:07-mc-8-FtM-29SPC, 2007 WL 1428615, at *1 (M.D. Fla. May 14, 2007).
This case was initiated in 1978 by plaintiff FMA, on behalf of their physician members, and later joined by the AMA, seeking to enjoin the Secretary of the Department of Health, Education and Welfare ("HEW"), HHS' predecessor,3 from disclosing information concerning the annual amounts of reimbursements paid to Medicare providers in a way that would disclose the identity of the providers. The Eleventh Circuit, in the case Alley v. U.S. Dep't of Health and Human Servs, 590 F.3d 1195 (11th Cir. 2009), set forth the history of this action as follows:
The story of [this] case starts in March 1977, when the Secretary of . . . [HEW], the agency responsible for administering Medicare, made public a list of physicians and groups of physicians who in 1975 received $100,000.00 or more in reimbursements for providing Medicare services. [Fla. Medical Ass'n, Inc. v. Dep't of Health, Education & Welfare, 479 F. Supp. 1291, 1297 (M.D. Fla. 1979)("FMA").] The disclosure included the gross amounts of reimbursement received by each provider. Id. The information was widely publicized in the news media, and "it was later determined that the information published was inaccurate in many ways." Id. In November 1977 the Secretary directed various carriers to prepare and publish another list, this time of all providers paid Medicare reimbursements in 1977. Id. "The list was to include full names of the physicians and providers, their addresses, the net total amount of Medicare reimbursement paid [directly] . . . to each physician or provider, and the net totalamount of Medicare reimbursements paid to beneficiaries for . . . services furnished by each physician or provider." Id.
Alley, 590 F.3d at 1198. Plaintiff FMA and six individual physicians, on behalf of all Florida physicians whose patients were Medicare beneficiaries, brought this class action to enjoin the scheduled disclosures. Id. at 1198-99. The AMA intervened as a plaintiff representing more than 200,000 licensed physician members nationwide, and the class of plaintiffs was recertified to include all physicians licensed to practice in Florida and all members of the AMA, if they were providers of Medicare services and would be individually identified by the disclosure of annual Medicare reimbursement amounts. Id. at 1199. The plaintiffs claimed that the then-impending disclosures were not required by the Freedom of Information Act ("FOIA"), citing to Exemption 6 which protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6); see Alley, 590 F.3d at 1999. Plaintiffs also contended that the proposed disclosures would violate the Privacy Act, 5 U.S.C. § 522a. Id.
Examining competing public and private interests, the Court, Senior District Judge Charles R. Scott, determined on October 22, 1979, that the proposed disclosure, "at least in the individually identifying manner," was covered by FOIA Exemption 6, and that the proposed disclosure would violate the Privacy Act. FMA, 479 F. Supp. at 1305. Specifically, the Court determined that:
the Secretary's proposed disclosure of a list of annual reimbursements to individually identified providers of services under the Medicare Act (1) is exempt from required disclosure under the FOIA because it would "constitute a clearly unwarranted invasion of personal privacy"; (2) is prohibited by the Privacy Act from disclosure, without the prior written consent of each affected individual; and (3) if the guidelines andregulations . . . would otherwise authorize such disclosure, they are contrary to the Privacy Act and without force and effect.
Id. at 1311. That same day, the Court issued a Final Declaratory Judgment and Permanent Injunction which:
Fla. Medical Ass'n, Inc. v. Dep't of Health, Education & Welfare, No. 78-178 (M.D. Fla. Oct. 22, 1979)("1979 FMA Injunction").4
Proposed intervenor Jennifer Alley is the owner of proposed intervenor RTMD, a "business that uses Medicare claims data to assist hospitals and other clients with their marketing and strategic planning efforts." Alley, 590 F.3d at 1200; see also (Doc. 20-1; Alley Decl. ¶ 3). In 2003, Alley filed a FOIA request with HHS seeking disclosure of data regarding all Medicare claims paid in 2002 for procedures performed in Florida, Georgia, Mississippi and Tennessee, specifically Current Procedural Terminology (CPT) codes for each medicalservice and procedure for which Medicare had paid a claim, as well as the physician's name and address. See Alley, 590 F.3d at 1200; Alley Decl. ¶ 10. The agency denied the request, and after having exhausted her administrative remedies, Alley filed a FOIA lawsuit in January 2007, in the United States District Court, Northern District of Alabama, seeking to compel HHS to disclose the requested records. Alley, 590 F.3d at 1198, 1200; Alley Decl. ¶¶ 10-17. In response to Alley and RTMD's Complaint, HHS asserted that the documents requested were exempt from disclosure under Exemption 6 of FOIA, and "to avoid running afoul of the 1979 FMA decision." Alley, 590 F.3d at 1200-01; Alley Decl. ¶ 18. The Alabama District Court concluded that this Court's 1979 FMA injunction did not apply to the records sought by Alley and RTMD, that "disclosure would not constitute a clearly unwarranted invasion of privacy under Exemption 6," and, as such, ordered HHS to disclose the documents requested. Alley, 590 F.3d at 1201.
HHS appealed, and on December 18, 2009, the Eleventh Circuit reversed the trial court. Citing GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 387 (1980), the court noted that "an agency does not improperly withhold information when a federal district court has enjoined the agency from disclosing the information." Alley, 590 F.3d at 1203. In accordance with the Supreme Court's GTE Sylvania decision, the court stated that "an injunction issued by one court against the disclosure of information may not be collaterally attacked in another court in a FOIA lawsuit seeking disclosure of that information." Id. at 1203. Instead, "the appropriate forum in which to challenge the validity of the order is the district court that issued it." Id. at 1204 (citing Wagar v. U.S. Dep't of Justice, 846 F.2d1040, 1047 (6th Cir. 1988)). Following these principles, the Eleventh Circuit provided the following procedural roadmap for this case:
The rule that a FOIA lawsuit may not be used to collaterally attack an injunction prohibiting disclosure of certain records does not mean there is no remedy for the party seeking these records. It means that the party must first succeed in having the issuing...
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