US v. Custodian of Records

• Decision Date: 15 May 1990
• Docket Number: No. CIV 90-105-R.,CIV 90-105-R.
• Citation: 743 F. Supp. 783
• Parties: UNITED STATES of America, Petitioner, v. CUSTODIAN OF RECORDS, SOUTHWESTERN FERTILITY CENTER, Respondent.
• Court: U.S. District Court — Western District of Oklahoma

743 F. Supp. 783

UNITED STATES of America, Petitioner, v. CUSTODIAN OF RECORDS, SOUTHWESTERN FERTILITY CENTER, Respondent.

No. CIV 90-105-R.

United States District Court, W.D. Oklahoma.

May 15, 1990.

Mary M. Smith, Asst. U.S. Atty., Oklahoma City, Okl., Michael F. Hertz, Ronald H. Clark, Mark D. Polston, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for petitioner.

Robert L. Wyatt, IV, Stephen Jones, Carol Hambrick, Jones, Bryant & Hambrick, Enid, Okl., for respondent.

ORDER DENYING MOTION TO DISMISS AND GRANTING PETITION FOR SUMMARY ENFORCEMENT OF ADMINISTRATIVE SUBPOENA

DAVID L. RUSSELL, District Judge.

Before the Court is a motion filed February 20, 1990 to dismiss the petition for summary enforcement of an administrative subpoena by respondent, Custodian of Records of the Southwestern Fertility Center ("SFC"). Fed.R.Civ.P. 12(b). Petitioner, the Inspector General for the Department of Defense ("DoD IG") responded in opposition on March 6, 1990. Also at issue is the DoD IG's petition filed January 18, 1990 for summary enforcement of administrative subpoena. SFC filed a brief in opposition on April 2, 1990, and DoD IG replied on April 17, 1990.

I. BACKGROUND FACTS AND CONTENTIONS

Drs. Avery and Migliaccio are obstetricians and gynecologists with SFC, 3617 West Gore Boulevard, Lawton, Oklahoma. Both physicians are separately incorporated in Oklahoma. The doctors provide medical care for the Civilian Health and Medical Program of the Uniformed Services ("CHAMPUS"), an agency within DoD that provides primary health benefits for military dependents and retirees. The doctors' practice is commonly known as the "Southwestern Fertility Center," which is a registered name for their clinic in Comanche County, Oklahoma. The name "Southwestern Fertility Center" appears on the doctors' letterhead. The Center is listed in the local phone directory and advertised in local newspapers. The doctors also own a bank account in the name of another registered partnership, A.M. Properties. They have also incorporated part of their practice as A.M. Surgery, Inc. Both doctors use the same IRS identification number when they submit their individual claims to CHAMPUS.

In 1988, CHAMPUS allegedly learned that doctors from the Center may have been reimbursed for reversals of tubal sterilizations, a procedure not covered by CHAMPUS. Wisconsin Physicians Services, which processes claims under a contract with CHAMPUS, reviewed medical records associated with CHAMPUS claims submitted by Dr. Avery. The review allegedly indicated that Dr. Avery may have reversed tubal sterilizations and provided artificial insemination for patients, and then sought reimbursement by designating different, covered, procedures on claim forms for those patients.

In 1988 DoD was advised of possible fraud in connection with CHAMPUS claims filed by the respondent clinic and its doctors. The Federal Bureau of Investigation ("FBI") and DoD's Defense Criminal Investigative Service ("DCIS") are jointly investigating these allegations. Agents interviewed several military dependents covered by CHAMPUS, who allegedly confirmed that doctors at the Center performed reversals of tubal ligations or artificial insemination on them, for which they understood CHAMPUS had paid the Center. The corresponding CHAMPUS claims for these women, prepared by the doctors, did not report these procedures.

On October 26, 1989 the FBI executed a search warrant on the Center at its premises at 3617 West Gore Blvd., Suite C, Lawton, Oklahoma. Agents seized an unknown number of patient files estimated to be in excess of one hundred.¹ On October 27, 1989, the IG's office served an administrative subpoena upon the Custodian of Records for the Center. The subpoena requested the Custodian to produce to a designated agent of the United States, on November 27, 1989, the following: (1) the medical records of specified patients (including electronic data); (2) all billing information presented to CHAMPUS concerning these patients (including electronic data); (3) any videotapes of surgeries performed on these patients; (4) all lists maintained by the physicians and SFC of patients receiving reversals of tubal ligations or artificial insemination procedures, and; (5) records pertaining to employees of the Center.

SFC refused to comply with the subpoena, asserting through counsel, that the subpoenaed documents are the property of the individual physicians, Drs. Avery and Migliaccio. SFC contends that although the FBI and the DoD IG are distinct agencies within the executive branch, by their own admission the FBI and the DCIS are "jointly investigating these allegations."

SFC further contends that the enforcement of the IG subpoena would be unnecessarily duplicative and would extend the interference with the doctors' respective practices although the search warrant was issued with the intent of reducing interferences to a minimum.

Additionally, SFC contends that each doctor has claims pending with CHAMPUS, and this investigation is a subterfuge to avoid payment of those claims to the doctors or to attempt to force a settlement of those claims.

II. PROCEDURAL HISTORY

DoD IG filed its petition for summary enforcement of administrative subpoena on January 18, 1990. That same date DoD IG filed a motion for SFC to show cause why the subpoena duces tecum should not be summarily enforced. On January 23, 1990, this Court issued an Order requiring SFC to respond to the motion for show cause within fifteen days, with a reply to be filed seven days thereafter, and discovery was stayed. On February 6, 1990, this Court enlarged the time for filing the response until February 20, 1990. On that date SFC filed the motion to dismiss now at issue. On February 28, 1990 the Court enlarged the time for DoD IG's reply deadline, and a reply was filed on March 6, 1990.

Thereafter on March 15, 1990, SFC filed a motion for clarification of briefing schedule and leave to file brief. In that pleading SFC argued that it did not receive a copy of this Court's January 23, 1990 Order, and only became aware of it on March 7, 1990.

SFC requested permission to file a response brief in opposition to the summary enforcement of the administrative Order. That request was granted on March 23, 1990, and the brief was filed on April 2, 1990. On March 15, 1990, SFC filed a motion for leave to file its answer. That motion was also granted on March 23, 1990. Therefore, the motion to dismiss involving procedural challenges, and the petition for summary enforcement involving substantive matters are both ripe for adjudication.

III. MOTION TO DISMISS

A. Delegation of Power To Issue Subpoena

SFC argues that the subpoena issued by Deputy Inspector General Derek Vander Schaaf should be quashed because the Inspector General is not authorized to delegate the power to issue subpoenas under 5 U.S.C. App. 3 § 6. Section 6(a)(4) of the Inspector General Act provides that the Inspector General is authorized "to require by subpena sic the production of all information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence necessary in the performance of the functions assigned by this Act...." Id. at § 6(a)(4). The Inspector General is given broad discretion to delegate his powers under section 6(a)(7), which provides that the Inspector General is authorized "to select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the Office...." Id. at § 6(a)(7).

SFC argues that Congress specifically chose not to delegate the power to issue subpoenas because it expressly authorized delegation in subsections 6, 7, and 8. 5 U.S.C. App. 3 § 6(a)(6)-(8). To support its argument, SFC relies on Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895 (1942), superseded by statute as stated in, Donovan v. National Bank of Alaska, 696 F.2d 678 (9th Cir.1983). In Cudahy Packing, the Supreme Court held that the Federal Trade Commission Administrator could not delegate his subpoena power under the Fair Labor Standards Act. The Court relied on the legislative history of the Act, which showed that Congress had specifically eliminated a provision granting the authority to delegate the subpoena power. Id. 315 U.S. at 366, 62 S.Ct. at 656. Therefore, Congress did not intend delegation authority to be implied in the statute.

Cudahy Packing is distinguishable from the instant case. Unlike the Fair Labor Standards Act the legislative history of the Inspector General Act does not reveal that Congress expressly rejected a delegation provision regarding subpoena powers. See S.Rep. No. 95-1071, reprinted in, 1978 U.S.Code Cong. & Admin.News pp. 2676, 2709. Rather, the Senate Report only shows that Congress provided for delegation specifically in subsections 6, 7, and 8 to prevent denial of such authority. Therefore, there is no evidence that Congress did not intend to allow delegation of the subpoena power.

Furthermore, several courts have found that Cudahy Packing is an isolated case and confined to the Fair Labor Standards Act, and that the authority to delegate subpoena power is implied in other statutes. Cf., e.g., Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 119-23, 67 S.Ct. 1129, 1133-35, 91 L.Ed. 1375 (1947) (Emergency Price Control Act); Donovan v. National Bank of Alaska, 696 F.2d at 681-82 (Employee Retirement Security Act); NLRB v. John S. Barnes Corp., 178 F.2d 156, 159 (7th Cir.1949) (National Labor Relations Act); see generally Smith v. Fleming, 158 F.2d 791, 791-92 (10th Cir. 1946) (per curiam) (Emergency Price Control Act). The courts noted that the legislative history of these statutes did not show that Congress expressly rejected a delegation provision for subpoena powers. Therefore, this Court finds that the Inspector General was impliedly authorized to delegate the power to issue...