United States District Court, D. Columbia
October 5, 2005.
THE GALLUP ORGANIZATION, AND ROBERT L. NIELSEN, Plaintiffs,
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
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.
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
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).
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 [and]
from speaking to officials at OMB. . . ." Compl. ¶ 11.
First, the constitutional violation alleged, as gleaned from
all of the pleadings, is that Plaintiffs' right to petition their
government for redress of grievances and their right to free
speech were violated. Plaintiffs' Memorandum of Points and
Authorities in Opposition to Defendant Scully's Motion to
Dismiss, or in the Alternative, for Summary Judgment ("Opp'n") at
14. While not stated in the Complaint, Defendant notes, and
Plaintiffs agree in their Opposition, that the claimed violation
stems from a March 5, 2003 string of emails between Mr. Nielsen,
Brenda Aguilar of the OMB, and Mr. Scully. Memorandum of Points
and Authorities in Support of Defendant Scully's Motion to
Dismiss or, in the alternative, for Summary Judgment ("Def.'s
Memo") at 15; Opp'n at 15; Def.'s Exh. X. In an email to Ms.
Aguilar, Mr. Nielsen accuses CMS of being involved in "blatant"
collusion with NRC/Picker and requests that OMB deny CMS's
emergency status request until Plaintiffs' claims could be
investigated. Def.'s Exh. X. In response, Mr. Scully sent a reply
email to Mr. Nielsen and Ms. Aguilar, stating that "I would like
to investigate" Mr. Nielsen and that Mr. Nielsen "should be MUCH
more careful" with his accusations. Def.'s Exh. Y. Mr. Scully
also stated that if Ms. Aguilar met with Gallup then "it would be
the last time [he] ever speak[s] to [Ms. Aguilar] about CMS
issues." Def.'s Exh. Y.*fn6 Defendant assumes that it is
this response from Mr. Scully that Plaintiffs are alleging is
retaliatory, and thus a violation of their rights to free speech,
in their Complaint. Def.'s Memo at 15. Plaintiffs confirm that this assumption is correct in their
Opposition. Opp'n at 15.
In this case, Defendant does not contend that Mr. Nielsen's
initial email to Ms. Aguilar does not qualify as protected free
speech. Def.'s Memo at 17. However, in order to demonstrate that
a party's first amendment rights have been violated, a court must
determine (as indicated by Plaintiffs themselves in their
Opposition) that (1) plaintiff was exercising his first amendment
rights when filing a grievance, and (2) defendant's response was
sufficiently severe as to constitute actionable retaliation.
Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 584 (D.C.
Cir. 2002); Opp'n at 15. In answering the second question, a
court should determine whether defendant's actions were "`likely
to deter a person of ordinary firmness from [the] exercise [of
the right of free speech].'" Toolasprashad, 286 F.3d at 585
(quoting Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir.
1996), rev'd on other grounds, 523 U.S. 574 (1998)). Here,
while the email reply written by Mr. Scully may have been
offensive to Plaintiffs, nothing was proffered in the pleadings
or exhibits indicating that Ms. Aguilar then refused to meet with
Mr. Nielsen. Neither the Complaint, Plaintiffs' Opposition, nor
the exhibits allege that Mr. Scully's comments influenced Ms.
Aguilar's actions toward Plaintiffs or that there were any other
adverse consequences for Plaintiffs resulting from the email.
Since Plaintiffs have not alleged any repercussions resulting
from Mr. Scully's email, there is nothing that can then be found
to cause a person of ordinary firmness to refrain from filing
grievances against Mr. Scully. Moreover, six days after the email
exchange with Mr. Scully, Mr. Nielsen sent an email to another
CMS employee attaching a document that was going to be released
to the public accusing CMS of having an improper alliance with a
publicly traded, private corporation, i.e. NRC/Picker. Def.'s
Exh. AA. Obviously, Plaintiffs were not deterred from speaking
out and continuing their critical commentary. Plaintiffs have not demonstrated retaliation.
Plaintiffs therefore have failed to demonstrate that their
constitutional right to free speech was violated by Defendant's
actions. Defendant is thus entitled to summary judgment on this
claim under the first prong of the qualified immunity analysis
clarified in Siegert for failure to demonstrate the violation
of a constitutional right.
B. Freedom of Association
This claim also appears to arise from the March 5, 2003 email
exchange between Mr. Nielsen and Mr. Scully, although it is not
so stated in the Complaint. Similarly, it is only after Defendant
gives flesh to the claim in his Memorandum that the Court is able
to recognize the claim. Plaintiffs, however, do not respond to
Mr. Scully's arguments against the claim in their Opposition.
In order for Plaintiffs to allege a violation of their
constitutional right to free association, Plaintiffs must
establish that their individual right to associate with others
has been violated in some way by Defendant's actions. See
Hoffman v. Jeffords, 175 F. Supp. 2d 49, 56 (D.D.C. 2001)
(finding that plaintiffs' claim dealing with freedom of
association failed because "plaintiffs have made no effort to
explain how their individual right to associate with others was
affected"). However, Plaintiffs' Complaint merely states that
some violation occurred, but states neither when the violation
happened, who violated the right, nor in what manner the
violation occurred. The Opposition does not address this claim
other than to generally allege that Plaintiffs' association with
OMB was disturbed by Defendant. Opp'n at 14. What is lacking is
Plaintiffs' substantiation of how their right to associate was
affected. Plaintiffs speculate that their reputation and
opportunities for future employment or contracts with the
government could be affected. Opp'n at 13. However, they offer no information to
support this claim. Moreover, Plaintiffs themselves must have
been injured, not other non-parties such as their competitors. It
is therefore irrelevant that Plaintiffs' competitors refused to
provide affidavits. Opp'n at 15; Pls.' Exh. 1, ¶ 7. In fact, the
one competitor who did submit an affidavit failed to indicate
that he had suffered any adverse action because he had objected
to Mr. Scully's alleged preferential treatment of the NRC/Picker
model. Pls.' Exh. 3. It is impossible from the Complaint and from
Plaintiffs' Opposition to determine on what basis Plaintiffs'
freedom of association was violated. Since Plaintiffs have failed
to state that a constitutional violation occurred, Defendant is
entitled to summary judgment based on the first prong of
qualified immunity analysis on this claim as well.
C. Due Process
In Plaintiffs' Complaint, they merely allege that their due
process rights were violated. The Complaint again does not state
how, when, or by whom. Furthermore, the Complaint fails to assert
a property or liberty interest to which Plaintiffs are entitled
that was consequently deprived as a result of Defendant's alleged
actions. Defendant assumed in his Memorandum that Plaintiffs'
alleged due process violation stems from the March 5, 2003 email
because Plaintiffs believe it to be defamatory. Def.'s Memo at
20. Plaintiffs seized upon this approach in their Opposition and
claimed that the statements made by Mr. Scully were defamatory,
resulting in an injury to Plaintiffs' reputation and in
"deprivation of future government opportunity." Opp'n at 13. But,
as has been the pattern, Plaintiffs proffered nothing in their
pleadings to persuade this Court that actual government
employment or contracts have been lost or that Plaintiffs'
reputation has been in any way injured. While they state the
correct standard, that loss of government opportunity coupled with injury to reputation is a
loss of protected liberty interest, and thus a violation of due
process, see Joint Anti-Fascist Refugee Comm. v. McGrath,
341 U.S. 123, 185-86 (1951) (stating that loss of future opportunity
to obtain government employment due to a finding of disloyalty
without a hearing is a violation of due process) (Jackson, J,
concurring), Plaintiffs have failed to allege how they have
indeed suffered such an injury. They reveal their annual income
from government work but do not state that this income has
declined. Opp'n at 12; Pls.' Exh. 4, ¶ 26. They indicate how much
they earn by conducting hospital surveys, but they do not
indicate that these revenues have fallen. Opp'n at 13; Pls.' Exh.
4, ¶ 25. They state that their reputation was "spotless," but
fail to show that it is now anything less than spotless. Opp'n at
12. Since Plaintiffs cannot show that any constitutional
violation occurred, Mr. Scully is entitled to summary judgment
based on the first prong of qualified immunity analysis on this
claim as well.
D. The APA and Administrative and Statutory Violations
While Plaintiffs contend that they are entitled to relief not
only for constitutional violations but for APA, administrative,
and statutory violations, they fail again to back up their
claims. In fact, Plaintiffs flatly concede that the APA claim
cannot stand on a Bivens action, see Def.'s Memo at 23; Opp'n
at 16, so dismissal of that claim is appropriate.
As for the administrative and statutory violations, the
Complaint fails to enumerate the alleged violations or the source
of the governing law. Plaintiffs again fail to clarify any such
claims in the Opposition. Therefore, since no specific statutory
or administrative violations have been asserted, any such claims
are dismissed. E. Prayers for Relief
Plaintiffs set forth three prayers for relief in the Complaint,
requesting damages, a declaratory judgment, and injunctive relief
(in the alternative). Compl. at 5-8. The Court granted summary
judgment for Defendant on all of Plaintiff's claims;
consequently, all of Plaintiffs prayers for relief are denied.
F. Discovery under Rule 56(f)
Plaintiffs attached the affidavit of Adam Augustine Carter,
their attorney, to their Opposition, pursuant to Federal Rule of
Civil Procedure 56(f). Pls.' Exh. 1, ¶¶ 1, 2. In their
Opposition, they state that "the Plaintiffs are not able to
present by affidavit or deposition all the facts essential to
justify Plaintiffs' opposition, and [are] seeking leave of the
Court to take discovery in order to do so." Opp'n at 1. The first
argument Plaintiffs raise in their pleadings for why they seek
56(f) discovery is to prove their competitors fear of retaliation
from Mr. Scully. Opp'n at 15. Attorney Carter asserts in his
affidavit that Gallup's competitors were unwilling to swear out
affidavits about their meetings with Mr. Scully. Pls.' Exh. 1, ¶
7. Attorney Carter concludes in his affidavit that this
unwillingness to submit affidavits correlates to a fear of
retaliation from Mr. Scully. Id. This Court notes that whether
or not Plaintiffs' competitors fear retaliation from Mr. Scully
is simply not relevant to the issue at bar: whether Mr. Scully
retaliated against Plaintiffs. Additional discovery to determine
whether Plaintiffs' competitors have been retaliated against or
fear retaliation has no bearing on whether Plaintiffs' have
suffered an injury.
The second reason Plaintiffs claim they need Rule 56(f)
discovery is because "[w]ithout discovery there is no way to know
whether or not Gallup has been `black listed' or debarred by Scully or CMS from government contracting." Opp'n at 12. In its
pleadings and exhibits, Plaintiffs merely speculate that they
have lost opportunities as a result of the email exchange with
Mr. Scully. Plaintiffs assert that their annual income from
government contracts is $18 million. Opp'n at 12; Pls.' Exh. 4, ¶
26. If they had been black listed or debarred, presumably their
annual income from government contracts would have declined.
There is no evidence presented that this has occurred. There is
no indication that Plaintiffs have been denied any government
contract for any reason, let alone an improper one. Plaintiffs
are merely speculating that they might be black listed or
debarred, but from the evidence presented it has not yet
happened. Plaintiffs fail to support their claim that they need
Rule 56(f) discovery; therefore the request is denied.
For the reasons set forth above, Defendant's Motion for Summary
Judgment is granted on the grounds that Plaintiffs have not
demonstrated that their constitutional rights were violated in
any way by Defendants.
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