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FLORIDA MEDICAL ASS'N v. DEPT. OF HEALTH, ED., ETC.
479 F.Supp. 1291 (1979)
FLORIDA MEDICAL ASSOCIATION, INC., a Florida Corporation, on behalf of its members, Louis C. Murray, M.D., Jack McCris, M.D., Jere Annis, M.D., O. William Davenport, M.D., Robert E. Windom, M.D., and Charles H. Berchert, M.D., on behalf of themselves and all others similarly situated, Plaintiffs,
and
American Medical Association, on behalf of its members, and Robert B. Hunter, M.D., Frank J. Jirka, Jr., M.D., Lowell H. Steen, M.D., Harold Gurgone, Walter E. Schrange, Plaintiffs (Intervenors),
and
Broward County Medical Society, Amicus Curiae,
v.
DEPARTMENT OF HEALTH, EDUCATION & WELFARE, Patricia R. Harris, Secretary of Health, Education & Welfare, Blue Shield of Florida, Inc., a Florida Corporation, and Group Health, Inc., a Florida Corporation, Defendants.
No. 78-178-Civ-J-S.
United States District Court, M. D. Florida, Jacksonville Division.
October 22, 1979.
William H. Adams, III, Peter L. Dearing, Stephen D. Lobrano, Jacksonville, Fla., for Florida Medical Assoc.
Newton N. Minow, Jack R. Bierig, Bernard D. Hirsh, B. J. Anderson, Chicago, Ill., for American Medical Assoc.
William DeF. Thompson, Fort Lauderdale, Fla., for amicus curiae.
John Power, Sr., Vice President Group Health, Inc., Coral Gables, Fla., for Group Health, Inc.
John Slye, Jacksonville, Fla., for Blue Shield of Florida.
Steve J. Cohen, Miami, Fla., for Broward County Medical Society.
Ernst D. Mueller, Asst. U. S. Atty., Jacksonville, Fla., for HEW.
Barbara Allen Babcock, Leonard Schaitman, Linda Cole, Terrence Jackson, Dept. of Justice, Washington, D. C., Henry R. Goldberg, Vicki Schulkin, Dept. of Health, Ed. & Welfare, Washington, D. C., for defendants.
OPINIONCHARLES R. SCOTT, Senior District Judge. This case presents the question whether the Secretary (`the Secretary') of the United States Department of Health, Education & Welfare (`HEW') may disclose information concerning the annual amounts of reimbursements paid to Medicare providers in a way that would individually identify at least some of those providers. This question
carries with it a clash of two basic rights: (1) the right of citizens to have free access to knowledge about the operations of their government, and (2) their right to be free from unwarranted intrusions by the government into their personal lives and private affairs. Parties and Status of the CasePlaintiff, Florida Medical Association (`FMA') is a voluntary, nonprofit professional association incorporated in the State of Florida. FMA's members are physicians licensed to practice medicine in Florida. FMA has more than 14,000 members who represent approximately 97% of practicing, licensed physicians in the State of Florida. The individual plaintiffs, Louis C. Murray, M.D., Jack McCris, M. D., Jere Annis, M. D., O. William Davenport, M. D., Robert E. Windom, M. D., and Charles E. Berchert, M. D., are physicians residing in the State of Florida and licensed to practice medicine in Florida. Defendant HEW, is an agency of the Executive Branch of the United States government. Defendant, Patricia R. Harris, is the current Secretary of HEW, and was automatically substituted pursuant to Fed.R.Civ.P. 25(d)(1) for Joseph A. Califano, Jr., the former Secretary of HEW. Defendants, Blue Shield of Florida, Inc., (`Blue Shield') and Group Health, Inc., (`Group Health') are Florida corporations licensed to do business in Florida as health insurers. Blue Shield has its principal place of business in Jacksonville, Florida. Broward County Medical Society (`BCMS') is a professional association of physicians practicing in Broward County, Florida, and has been permitted to appear as Amicus Curiae on behalf of plaintiffs in this case. On April 28, 1978, a temporary restraining order was issued, which was extended on May 8, 1978. By agreement of the parties, the temporary restraining order remained in effect until the Court's ruling in this case or June 6, 1978, whichever occurred first. Plaintiffs' preliminary injunction motion was referred to, and heard by, the Magistrate who issued findings and recommendation on May 8, 1978. The parties filed written objections to those findings and recommendation, and the Court heard arguments concerning those objections on May 16, 1978. Additionally, the defendants and plaintiffs have filed cross-motions for summary judgment which are before the Court. Finally, the parties stipulated that the Court should consolidate its ruling on the merits in this case with its consideration of plaintiffs' preliminary injunction motion, pursuant to Fed.R.Civ.P. 65(a)(2). That stipulation provided that the Court, in ruling on the merits in this case, may consider all the evidence admitted at the hearing on plaintiffs' preliminary injunction motion before the Magistrate, as well as all of the pleadings and other documents in the record in this case. Meanwhile, on June 12, 1978, the American Medical Association (`AMA'), on behalf of its members, and three individual physicians, as well as two individual patients, were all allowed to intervene as plaintiffs in this case against HEW and the Secretary. The AMA and the individual plaintiffs had ten days earlier commenced an action virtually identical to this one in the United States District Court for the Northern District of Illinois. A temporary restraining order against the Secretary had been issued on June 5, 1978, by the Northern District of Illinois, and extended on June 12, on the condition that the AMA and the individual plaintiffs "explore appearing in this case." The AMA is a national, voluntary professional association whose membership exceeds 200,000 licensed physicians in all 50 states, four territories, and the District of Columbia.
1. 42 U.S.C. § 1395c et seq. (1976). 2. 42 U.S.C. § 1395i-2 establishes the eligibility criteria for individuals to receive benefits. 3. 42 U.S.C. § 1395j et seq. (1976). 4. 42 U.S.C. § 1395x(u) defines `provider of services'. 5. 42 U.S.C. § 1395u(a)-(f) (Supp.1978). 6. 42 U.S.C. § 1395x(v)(1)(A), together with the Secretary's regulations, 42 C.F.R. §§ 405.460 and 405.461, establish the criteria for determining reimbursable "reasonable costs." 7. While plaintiffs' claims in this case involve Medicare reimbursement information, plaintiffs have no unique interest in that information in itself. Plaintiffs' interest, which they assert as arising under several federal statutory and constitutional provisions, is in the preservation of their right of privacy. Any other body of information which the government proposed to disclose in an individually-identifying way, without the affected individuals' prior consent, would precipitate the same privacy interest that plaintiffs assert.
The substantive claims and issues which plaintiffs raise, to protect and enforce their privacy interest, stem from federal statutes and constitutional provisions, and are therefore independent of the Medicare Act. It is over those claims and issues that 28 U.S.C. § 1331(a) supplies federal question subject matter jurisdiction. 8. 5 U.S.C. § 552a(g)(1)(D) of the Privacy Act is a general grant of a right of action to individuals covered by the Act. Jurisdiction is expressly conferred upon the district courts for civil actions against federal agencies that fail "to comply with any other provision" or "any other rule promulgated" under the Privacy Act, when such failure adversely affects the individual.
In contrast, 5 U.S.C. § 552a(g)(4)(A) is an express waiver of sovereign immunity by Congress, creating a right to obtain a damage remedy from the United States when one of its agencies intentionally or wilfully acts in violation of the Privacy Act and its applicable implementing regulations. The general grant of a right of action, and of corresponding jurisdiction in the district courts, under § 552a(g)(1)(D) confers the subject matter jurisdiction upon the Court to issue injunctive and declaratory relief. The specific creation of a right to obtain damages against the United States, under § 552a(g)(4)(A), is a special waiver of sovereign immunity for the recovery of damages from the government, under egregious circumstances where a federal agency has acted with an intentional or wilful disregard for, and violation of, the provisions of the Privacy Act. The two provisions are not inevitably conflicting. Courts have a duty to interpret statutes so that all of the provisions can be reconciled into a harmonious whole, without internal conflict or repugnancy, if possible. Citizens to Save Spencer County v. EPA, 195 U.S.App.D.C. 30, 56-57, 600 F.2d 844, 870-71 (D.C.Cir.1979); National Bank & Trust Co. v. United States,589 F.2d 1298, 1302 (7th Cir. 1978); SCM Corp. v. Langis Foods, Ltd., 176 U.S.App.D.C. 194, 200, 539 F.2d 196, 202 (D.C.Cir.1976); Bailey v. United States,511 F.2d 540, 545-46, 206 Ct.Cl. 169, 112 U.S.App.D.C. 295, 301, (1975); Montgomery Charter Service, Inc. v. Washington Metropol. Area Transit Comm'n, 117 U.S.App. D.C. 34, 38, 325 F.2d 230, 234 (D.C.Cir.1963); Maiatico v. United States, 112 U.S.App.D.C. 295, 301, 302 F.2d 880, 886 (D.C.Cir.1962); Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Sheppard,123 F.2d 773, 775 (5th Cir. 1942), cert. denied 316 U.S. 704, 62 S.Ct. 1309, 86 L.Ed. 1772 (1942). 9. The Trade Secrets Act, 18 U.S.C. § 1905, provides:
Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment. 10. Because the Court's decision is premised upon federal statutory grounds, it is unnecessary for the Court to consider and reach plaintiffs' claims which are based upon federal constitutional grounds.
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