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GALLUP ORGANIZATION v. SCULLY

October 5, 2005.

THE GALLUP ORGANIZATION, AND ROBERT L. NIELSEN, Plaintiffs,
v.
THOMAS A. SCULLY, Administrator, Centers for Medicare and Medicaid Services, AND. JOHN DOES 1-5, Defendants.



The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION

Plaintiffs The Gallup Organization and Robert L. Nielsen bring suit against Thomas A. Scully, Administrator of the Centers for Medicare and Medicaid Services ("CMS") and five unnamed individual federal defendants, alleging violations of Plaintiffs' constitutional rights to free speech, free association, and due process; the Administrative Procedure Act, 5 U.S.C. § 555(c); and CMS's governing laws and regulations. Before the Court is a motion to dismiss for failure to state a claim, or in the alternative a motion for summary judgment, filed by Defendant Scully. Upon consideration of the Plaintiffs' complaint, Defendant's aforementioned motion, Plaintiffs' opposition, Defendant's reply, and the applicable law, the Court shall grant Defendant's Motion for Summary Judgment. Additionally, Plaintiffs request leave to take discovery pursuant to Rule 56(f) in their opposition to Defendant's motion. The Court shall deny Plaintiffs' request.

I: BACKGROUND

  Plaintiff Gallup is a corporation engaged in the business of helping hospitals and other healthcare clients assess patient satisfaction through the use of data collection and polling.*fn1 Compl. ¶ 4. Plaintiff Nielsen is a Managing Partner of Gallup and Gallup's Health Care Program Leader. Compl. ¶ 4. Defendant Scully is the Administrator of the Centers for Medicare and Medicaid Services ("CMS") in the Department of Health and Human Services ("HHS"). Compl. ¶¶ 1, 5. Defendants John Does 1-5 are unidentified, unnamed federal officers or officials whom Plaintiffs claim are responsible for Plaintiffs' injuries. Compl. ¶ 6. Defendants are being sued in their individual capacities. Compl. ¶¶ 5, 6. Plaintiffs are suing Defendants pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Compl. ¶ 1.

  The Complaint alleges that since the summer of 2002, Defendants "have been on a mission," Compl. ¶ 10, to preclude Plaintiffs from the process of developing a new standard for surveys assessing how well Medicaid and Medicare patients are being treated by hospitals and health care professionals. Compl. ¶¶ 7, 8. In late January 2003, CMS submitted a request to the Office of Management and Budget ("OMB") for emergency approval of the use of a new survey instrument. Defendant Scully's Statement of Material Facts as to Which There is No Genuine Dispute ("Def.'s Facts") ¶ 12; Defendant's Exhibit ("Def.'s Exh.") Q.*fn2 A notice was printed in the Federal Register on February 5, 2003 indicating that comments related to the proposed survey must be received by February 20, 2003. Def.'s Exh. R. Plaintiffs contend that Defendants colluded with the National Research Council ("NRC")/Picker, a publicly traded vendor of patient satisfaction survey services, in order to increase NRC/Picker's financial success. Compl. ¶ 1.

  In an email dated March 5, 2003 to Brenda Aguilar of OMB, Mr. Nielsen stated that CMS's alleged "collusion with NRC/Picker is blatant," and requested that OMB "deny emergency status [for approval of the survey] until a thorough investigation can be conducted." Def.'s Exh. X.*fn3 Mr. Scully sent a reply email to Mr. Nielsen and Ms. Aguilar which stated that Mr. Nielsen was "out of line" and that he "should be MUCH more careful with [his] accusations." Def.'s Exh. Y.*fn4 Mr. Scully added that he "would like to investigate" Mr. Nielsen. Def.'s Exh. Y. Mr. Scully further directed a statement at Ms. Aguilar indicating that if she met with Mr. Nielsen, Mr. Scully would not discuss CMS-related issues with her in the future. Def.'s Exh. Y. In an affidavit, Mr. Nielsen affirms that the email sent by Mr. Scully "was an affront to [Mr. Nielsen's] professional and personal reputation . . . and most significantly, it was sent to the White House (OMB) threatening damaging repercussions if [he] were to meet with officials from the government to complain about collusion, namely Ms. Aguilar." Plaintiffs' Exhibit (Pls.' Exh.) 4, ¶ 24. Mr. Nielsen also asserts that Gallup's annual gross income from hospital patient surveys is $25 million and its annual gross income from government contracts is $18 million. Pls.' Exh. 4, ¶¶ 25, 26.

  On March 11, 2003, Mr. Nielsen wrote an email to Thomas Reilly, a CMS employee, attaching a briefing summary developed by Gallup on the new survey instrument. The briefing summary indicates that the methodology used to develop the survey instrument was poorly developed and that it will result in higher costs to hospitals. The briefing summary also states that the "methodology is basically derived from that of a private, publicly traded corporation that has an apparent alliance with CMS." Def.'s Exh. AA. On May 9, 2003, OMB approved the emergency request. Def.'s Exh. BB.

  Plaintiffs allege that Defendants deprived Plaintiffs of their constitutional rights to free speech, free association, and due process by preventing Plaintiffs from speaking out about the alleged collusion between Defendant Scully and Picker, by preventing Plaintiffs from speaking to OMB officials about alleged unlawful government activity, and by preventing Plaintiffs from associating with competitors they alleged to be likewise harmed by collusion between Defendant Scully and Picker. Compl. ¶¶ 1, 11. Plaintiffs' complaint includes three counts. The first is a request for damages for not less than $5,000,000.00, in which Plaintiffs request economic, compensatory, and punitive damages, due to Defendants' alleged violation of Plaintiffs' constitutional rights to free speech, free association, and due process; the Administrative Procedure Act, 5 U.S.C. § 555(c); and CMS's own governing laws and regulations. Compl. ¶¶ 16-18. The second count is for declaratory judgment determining that Defendants' actions are unlawful based on Defendants' alleged violations of Plaintiffs' constitutional rights to free speech, free association, and due process; the Administrative Procedure Act, 5 U.S.C. § 555(c); and CMS's own governing laws and regulations. Compl. ¶¶ 22, 23. The final count is a request in the alternative for injunctive relief to prevent Defendants from further violating Plaintiffs' constitutional rights to free speech, free association, and due process; the Administrative Procedure Act, 5 U.S.C. § 555(c); and CMS's own governing laws and regulations. Compl. ¶ 25. For the reasons set forth below, this Court will grant Defendant Scully's Motion for Summary Judgment on each of the counts.

  II: LEGAL STANDARD

  A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The adverse party's pleadings must evince the existence of a genuine issue of material fact. See id. at 247-48. To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficiently admissible evidence such that a reasonable trier-of-fact could find for the nonmoving party. See id.; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987). Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment. Rather, the nonmoving party bears the affirmative duty to present, by affidavits or other means, specific facts showing that there is a genuine issue for trial. See id. at 1248-49. The adverse party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

  III: DISCUSSION

  In Defendant Scully's Motion for Summary Judgment ("Def.'s Motion"), he asserts the affirmative defense of qualified immunity. As an initial matter, Mr. Scully must meet the criteria of a person generally entitled to assert a defense of qualified immunity. In Harlow v. Fitzgerald, the Supreme Court held that qualified immunity generally applies to executive officials. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). The Court in Crawford-El v. Britton reiterated this standard when it stated that "the defense [of qualified immunity] protects all officers in the executive branch of government performing discretionary functions." Crawford-El v. Britton, 523 U.S. 574, 587 (1998). Here, it is not disputed that Mr. Scully is the duly appointed Administrator of CMS, which is a division within HHS. Compl. ¶¶ 1, 5; Def.'s Facts ¶ 1. It is common knowledge that HHS is an administrative agency, within the executive branch of government. Further, it is not alleged in the Complaint or in any other pleading that Mr. Scully was acting in a way other than under his discretionary function. Mr. Scully therefore meets the requirement of being an officer in the executive branch acting under his discretionary function such that he can legitimately raise the defense of qualified immunity.

  The Court explicitly clarified the analytical structure to be used to assess a qualified immunity claim in Siegert v. Gilley. The threshold question for a court to consider in analyzing a qualified immunity defense is whether petitioner in the case has "failed to allege the violation of a clearly established constitutional right" in the first place. Siegert v. Gilley, 500 U.S. 226, 231 (1991). A court must determine both whether plaintiff has asserted a constitutional right clearly established at the time that defendant acted and whether plaintiff has proffered facts demonstrating that defendant violated such a right before proceeding any further in the qualified immunity analysis. Id. at 232-33. Because Plaintiffs' iterated facts do not demonstrate that Defendant's actions violated Plaintiffs' constitutional rights, the Court shall grant Defendant's Motion for Summary Judgment without proceeding further with the qualified immunity analysis.*fn5 It should be noted that since Plaintiffs did not demonstrate a violation of any constitutional claim as an initial matter, the Court need not reach the question raised by Plaintiffs as to whether qualified immunity can be used as a defense to an equitable claim for relief if a constitutional claim has been established in a Bivens action. Nor is it necessary for the Court to consider the question raised by the Defendant as to whether a plaintiff may request equitable relief (as opposed to simply requesting damages) in a Bivens action in the first place. A. Freedom of Speech

  In their Complaint, Plaintiffs state that their constitutional rights were violated when Defendant prevented "Plaintiffs from speaking out about the collusion between Scully and Picker ...


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