DOE et al v. RODGERS, M.H.A. et al

1:12-cv-01229-TFH

2020 | Cited 0 times | District of Columbia | October 30, 2020

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE, et al.,

Plaintiffs, v.

JUDITH ROGERS, M.H.A., et al.,

Defendants.

Civil Action No. 12-01229 (TFH)

MEMORANDUM OPINION The Health Care Quality Improvement Act requires that hospitals file a report with the Department of Health and Human Services whenever a physician voluntarily resigns while under investigation for reasons related to his professional competence or conduct. Long v. HHS, 422 F. Supp. 3d 143, 145 46 (D.D.C. 2019); 42 U.S.C. §§ 11101-152. The report is then an online database, which . . . alert[s] hospitals and other would-be employers of potential issues with the physician Long, 422 F. Supp. 3d at 145 46.

This lawsuit concerns one such report about the plaintiff, Dr. John Doe, a surgeon formerly employed by . The Hospital submitted the report (the Adverse Action Report to the National Practitioner Data Bank in 2009 after Dr. Doe resigned while the Hospital investigated an appendectomy

that he performed. Dr. Doe and his limited liability company, ,

sued the Secretary of the Department of Health and Human Services , , or , the Data Bank, and three officials who administer the Data Bank over their maintenance and continued distribution of the Adverse Action Report.

The Court described the facts of this case in detail in Doe v. Rogers, 139 F. Supp. 3d 120 (D.D.C. 2015) ( , and includes relevant excepts below:

On Friday, October 2, 2009, Dr. Doe commenced a late-night emergency laparoscopic appendectomy on a 14 year old girl who had acute appendicitis. First Am. Compl. ¶¶ 48, 49; Administrative Record 4 (Sealed)] . . . During the surgery, Dr. Doe removed what he characterized as AR 0101 [ECF No. 19 3 (Sealed)] . . . A subsequent s right Fallopian tube. First Am. Compl. ¶ 51 [ECF No. 23]; AR 0142 0143 at ¶ 85 [ECF No. 19 3 (Sealed) ] . . . There is no dispute that Dr. Doe failed to cut and removed it. Pls. Mem. In Oppn to Defs. Mot. to Dismiss 3 4 [ECF No. 45 (Sealed)] . . . . [The following Monday,] the Vice President of Medical Affairs told Dr. Doe that the Hospital was required to report the surgical incident to the New York State Department of Health and that such a report was necessary whenever an organ other than the organ operated is injured. AR 0161 [ECF No. 19 4 (Sealed) ]; AR 0203 [ECF No, 19 5 (Sealed)]. The hospital . . . filed a report that day via the New York Patient Occurrence Reporting and Tracking System suspension 0108 [ECF No. 19 3 (Sealed)]. . . . Later that same day, Dr. Doe executed a letter voluntarily suspending his Peconic Bay Medical Center for the next two weeks effective October 5, 2009 through October 19, 2009, or until mutually agreed upon. I will however, finish the follow-up care on patients that I am currently involved with on the clinical floors without performing any surg 3 (Sealed) ]. Dr. Doe claims that this letter was prompted by his of Tennessee to complete another year of cardiothoracic surgery fellowship in

Two days later, on October 7, 2009, Dr. Doe tendered a short letter of resignation Peconic Bay Medical AR 0113 [ECF No. 19 3 (Sealed)].

On December 3, 2009, about two months after Dr. Doe resigned, the Hospital submitted an Adverse Action Report to the National Practitioner Data Bank. AR 0132 [ECF No. 19 3 (Sealed)]. The Adverse Action Report stated:

In June 2009, the physician commenced practice at the Hospital in thoracic and general surgery. On Friday, October 2, 2009, the physician performed a laparoscopic appendectomy on a 14 year old female. In the course of performing the procedure, the physician inadvertently removed part of one of the patients fallopian lubes. On or about Monday, October 5, 2009, the physician agreed to refrain from exercising his surgical privileges pending the Hospitals investigation of this matter. By letter dated October 7, 2009, the physician advised the Hospital that he resigned from the Hospital effective October 16, 2009. Accordingly, the Hospital took no further action regarding the physicians privileges or employment. However, the Hospitals quality assurance review of this matter indicates departures by the physician from standard of care with regard to the laparoscopic appendectomy that he performed on October 2, 2009. AR 0002 [ECF No. 19 1 (Sealed)]. . . . . Upon discovering the report, Dr. Doe contacted the Hospital and requested that it retract the report because it was factually inaccurate. AR 0008 [ECF No. 19 1 (Sealed) ]; AR 0013 [ECF No. 19 1 (Sealed)]. Dr. Doe also submitted a Subject Statement to the National Practitioner Data Bank and placed the Adverse report and whether the report was submitted in accordance with the [National Practitioner Data Bank No. 23]; see also AR 0018 27 [ECF No. 19 1 (Sealed)].

When the Hospital refused to revise or void the Adverse Action Report, Dr. Doe submitted a letter to the National Practitioner Data Bank requesting that the Secretary of the Department of Health and Human Services review and remove the report. First Am. Compl. ¶ 91 [ECF No. 23]; AR 0007 17 [ECF No. 19 1 (Sealed)]. On June 25, 2012, Judy Rodgers, Senior Advisor for the Division of Practitioner Data Banks at the Department of Health and Human Services, issued a Secretarial Review Decision denying Dr. Does request and stating that o conclude that the Report should not have been filed in the NPDB or that it is not accurate, complete, 73 [ECF No. 19 6 (Sealed)]. Doe, 139 F. Supp. 3d at 129-31.

One month later, the plaintiffs filed this lawsuit alleging that the defendants violated the Administrative Procedures A , sections 522a(g)(1)(A) and (C) of the Privacy Act, and Doe, 139 F. Supp. 3d at 132. After the parties filed dispositive , the Court granted summary judgment on the APA claims except as to the narrow question of whether the statement

indicates departures by the physician from standard of care with regard to the laparoscopic was reportable to the Data Bank. Id. at 153 (quoting ECF No. 19-1 [SEALED]). T constitutional claims and the § 552a(g)(1)(C) Privacy Act claim, but declined to dismiss the plaintiffs contention that the Secretary violated § 552a(g)(1)(A) of the Privacy Act because the Court remanded the reportability issue to the Agency. Id. at 167-68; 170.

The Agency has since issued its decision on remand, and concluded that the Statement is reportable. [ECF No. 86-1 (Sealed)]. That decision is the main subject of the motions now pending before the Court, which include alternative, motion for summary judgment [ECF No. 100], and the plaintiff -motion for summary judgment and opposition to the [ECF No. 103]. Also pending before the Court are three additional motions filed by the plaintiffs two motions to supplement the record, [ECF Nos. 118 & 120], and a , [ECF No. 127]. The defendants have opposed each motion. [ECF Nos. 119, 122 & 128]. I. Regulatory Background

Congress enacted the Health Care Quality Improvement Act address medical malpractice and the need to restrict the ability of

incompetent physicians to move from State to State without disclosure or discovery of the -(2). The Act requires health care entities to report to HHS when inter alia clinical privileges of a physician while the physician is under an investigation by the entity

relating to Id. § 11133(a)(1)(B)(i); see also 45 C.F.R. § 60.12(a)(1)(ii)(A).

When filing reports, the Act requires that health care entities submit physician or practitioner involved, (B) a description of the acts or omissions or other reasons for the action or, if known, for the surrender, and (C) such other information respecting the

extensive description of the acts or omissions or other reasons for the action or, if known, for the surrender. It does, however, require sufficient specificity to enable a knowledgeable observer to H.R. Rep. No. 99-903 at 15 (1986), reprinted in 1986 U.S.C.C.A.N. 6384, 6398. The implementing regulations issued by the Secretary likewise require tha

ter 60.12(a)(3).

II. The nded Administrative Procedures Act Claim

a. The Secretary Found that the Statement was Reportable. In its decision on remand, the Secretary concluded that the Statement was reportable and [ECF No. 86-1 at 2 (SEALED)]. The ovides a more complete history of the Id. at 2. According to the Secretary, not dependent on the results of the investigation are closely related to the reportable

further queriers in making privileging and licensing decisions. The Secretary emphasized that ne of the central purposes of the NPDB is to provide health care entities with better information on which to make licensing and Id.

The Secretary also found that the Act and its implementing regulations require the of concluded investigation could be useful information for future queriers in determining the reasons for Id. practitioner from any wrongdoing, a querier may determine that this provides further evidence Id.

b. Summary Judgment Standard The plaintiffs seek review of Procedures Act, 5 U.S.C. § 701, et seq. judgment is the proper mechanism for

deciding, as a matter of law, whether an agency action is supported by the administrative record

and consistent with the APA standard of review Chiayu Chang v. USCIS, 289 F. Supp. 3d 177, 182 (D.D.C. 2018) (internal quotations omitted). When considering challenges to agency action

Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotations omitted).

The APA requires courts to set aside agenc An agency

for its decision that runs counter to the evidence before the agency, or is so implausible that it

Gresham v. Azar, 950 F.3d 93, 99 (D.C. Cir. 2020) (quoting v. State Farm Mut. Auto. Ins. Co.

State Farm, 463 U.S. at 43.

c. i. The Statement is Reportable Under the Statute.

In the amended complaint and first round of briefing, the plaintiffs argued that the igation did not result in the suspension See Doe, 139 F. Supp. 3d at 132 (identifying the fifth APA argument reportable event because

; First Am. Compl. ¶¶ 120-125 [ECF No. 23]; Pls. Oppn to Defs. Mot.

to Dismiss at 47 [ECF No. 45 (SEALED)]; 3 [ECF No. 56 (SEALED)]. The

Doe, 139 F. Supp. 2d at 153; see id

matter indicates departures by the physician from standard of care with regard to the laparoscopic appendectomy that he perfor 0002 [ECF No. 19-1 (Sealed)]).

The plaintiffs do not address this argument in their filings, and appear to have altogether abandoned this claim a curious position given that it was the subject of the Cou the Agency. Summ. J. at 9 [ECF No. 100] (citing 42 U.S.C. § 11133(a)(3)(B)-(C)). Accordingly, the Court could properly treat the See, e.g., Wilson v. Fed. Express Corp., No. 18-cv-485, 2019 WL 5696874, at *1 (D.D.C. Nov. 4, 2019) (internal

quotations marks omitted).

Even if the Court must consider whether the Act allowed the Hospital to report the results of its investigation, cf Winston & Strawn LLP v. McLean, 843 F.3d 503, 508 (D.C. Cir. 2016), the Court finds that it unambiguously does. The statute requires that when reporting entities accept[] the surrender of clinical privileges of a physician while the physician is under an

42 U.S.C § 11133(a)(1)(B)(i); (a)(3). omething done or th ed. 2019). delineation or explanation of something by an account setting forth the subjects Id. Putting these definitions together, the statute requires a which in this case means a delineation or explanation of the H he was under investigation.

This broad language indicates that the Act provides reporting entities space to include information that it does not explicitly identify in the statute, such as the results of an investigation. ative history. See Doe, 139 F. Supp. 3d at 127 (finding that the Act aims to address the need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physicians previous damaging or ) (quoting 42 U.S.C. § 11101(1)- (2)); Doe 139 F. Supp. 3d at 145 (finding that the Act strict reporting in the event of a resignation during an investigation to ensure patients are ; H.R. Rep. No. 99-903 (stating that § 11133(a)(3) of the Act does not necessarily require an extensive description of the acts or omissions or other reasons for the action or, if known, for the surrender. It does, however, require sufficient specificity to enable a knowledgeable observer to determine clearly the circumstances of the action or surrender. . Providing the results of the investigation enables queriers to more fully understand the circumstances of the incident, and protects patients by providing entities with enough information to make informed hiring decisions. The statute unambiguously allows the Hospital to provide a one-sentence description of the results of their

investigation. 1

v. E.P.A., 489 F.3d 1221, 1228 (D.C. Cir. 2007) (quoting Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 843 (1984)) (stating that if after de novo the agency, must give effect to the unambiguously

ii. The Secretary Did Not Conclude that Dr. Doe Resigned to Escape

Punishment. The plaintiffs challenge the Agency conclusion that investigation could be useful information for future queriers in determining the reasons for surrenders. [ECF No. 86-1 at 2 (SEALED)]; see also id. ( practitioner from any wrongdoing, a querier may determine that this provides further evidence

. The

because is concluded. Summ. J. at 12 [ECF No. 103]. They also contend that

the Secretary concluded that Dr. Doe resigned to escape punishment, even though Dr. Doe

1 remand. Compare Statement falls under 42 U.S.C. § 11133(a)(3)(B)-(C) with [ECF No. 86-1 at 2 (SEALED)] (finding the Statement reportable because the Statute requires that useful results of the investigation . not need to address this delta between the decision on remand and the briefs.

claims that he resigned before the Hospital completed its investigation to complete an additional year of surgery training in Tennessee. Id. at 12-13.

that Dr. Doe left the Hospital in order to escape punishment. It did not reasons for resigning. 2

does imply that a physician will know whether he departed from the standard of care in a given procedure, which could prompt him to resign before an investigation is complete. That is not an irrational notion necessarily know what a hospital will conclude in this regard. Regardless, as the defendants note, HHS did not find that the results of an investigation are a clear indication of the reasons for a surrender, or that Dr. Doe resigned because he knew the Hospital would find that he departed from the standard of care. The Secretary simply concluded that the results may provide further [ECF No. 105]. That and capricious.

iii.

Procedures and Findings in Doe. The plaintiffs spend much of their briefing challenging the Hospitals investigation and findings that he departed from the standard of care. See, e.g., -5, 7- 9, 11 [ECF No. 103]. Their discontent procedures and dispute with its conclusions is not grounds for finding that the

2 The plaintiffs also allege that the Secretary from the standard of care. hat issue. In its previous decision, which is not currently before the Court, the Secretary explicitly stated that he [Dr. Doe] AR 0257 [ECF No. 19-6 (SEALED)]. The [Dr. Doe] departed from the Id.

As the Court discussed in Doe Doe, 139 F. Supp. 3d at 149 (quoting Leal v. Sec , HHS, 620 F.3d 1280, 1284 procedures to dispute the accuracy of the reported information but nowhere does the statute

authorize, or even contemplate, that the Secretary will actually adjudicate the underlying merits Doe, 139 F. Supp. 3d at 148; see also Leal deciding whether incidents listed in the report actually occurred or as an appellate body deciding whether there was sufficient evidence for the reporting hospital to conclude that those actions did

As the defendants contend, in Doe, the Court considered nt. The Court

relating to the surgical incident by gathering the necessary documentation, conferring with the relevant Hospital executives, meeting with the physicians who were involved, reporting the incident to the state health department, and organizing a team to conduct a Root Cause Doe, 139 F. Supp. 3d at 138. The Court also found that the plaintiffs allegations that

Id. at 139; see also id. at 142-

143. ulings are the law of the case; the Court will not revisit them. See United States v. Kpodi, 888 F.3d 486, 491 (D.C. Cir. 2018) (the law-of-the- prevents courts from reconsidering issues that have already been decided in the same case

predicated on the premise that it would be impossible for an appellate court to perform its duties satisfactorily and efficiently and expeditiously if a question, once considered and decided by it, were to be litigated anew in the same case upon ) (internal quotation marks omitted and edits accepted). III. The § 552a(g)(1)(A) Privacy Act Claim

The plaintiffs allege that the defendants have violated § 552a(g)(1)(A) of the Privacy Act by failing to amend the Adverse Action Report. They argue that the Adverse Action Report

including whether the Hospital lied about meetings and committed fraud by tricking Dr. Doe into resigning. at 47. The plaintiffs allege that the following facts support their claims: 1) the Hospital submitted a redacted and incomplete document as proof of an October 2009 meeting of the Medical Staff Performance Improvement Committee, Am. Compl. ¶ 63; 2) the Hospital misdated a memorandum documenting a review meeting on Monday, October 6, 2009, Id.; 3) neither the Attending Gynecology Oncology Surgeon nor the Attending General/Thoracic Surgeon attended an October 14, 2009 meeting of a Root Cause Analysis Committee, Id. ¶ 65; and 4) three surgeons review concluded that Dr. Doe did not depart from the standard of care, id. ¶ 80. According to the plaintiffs, this evidence demonstrates that the Hospital fabricated documents in support of a Id. ¶ 58.

The defendants have again moved to dismiss this claim pursuant to Federal Rule of Civil Procedure 12(b)(6). They assert that the Statement was an opinion, not a fact, and that § 552a(g)(1)(A) of the Privacy Act does not provide for the amendment of opinions or judgments. According to the defendants,

at 11. They also contend that the Court has already determined that the

record does not support the plaintiffs allegations that the Hospital fabricated documents or that its administrators committed fraud. Id. at 10.

a. Legal Standard

i. Motion to Dismiss contain . . . a short and plain statement of the claim showing that the Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6) of the Federal Rules of laim upon To survive a motion to dismiss based on Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct all Id.

-pleaded factual allegations of the complaint as true and draw all reasonable inferences from those allegations in Banneker Ventures v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015). The

Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (internal quotation marks omitted and edits accepted).

ii. § 552a(g)(1)(A) of the Privacy Act Under the Privacy Act, an Upon receiving such a request, an agency may either correct any portion of that record, or inform

the individual of its refusal to do so, and provide, inter alia, the reason for the refusal. Id. §

ew of that decision. Id. at § 552a(d)(3). Section 552a(g)(1)(A) of the Privacy Act the subsection at issue here then . . . makes a determination under subsection (d)(3) of this section not to amend an record in accordance with his request, or fails to make such

b. The Plaintiffs have Failed to State a Claim under 5 U.S.C. § 552a(g)(1)(A).

their Privacy Act claim does not survive a motion to dismiss because the Statement is surgery. 3

-

3 The defendants correctly note that the Court considered the allegations in the context of their APA claims and found them unavailing. See Doe, 139 F. Supp. 3d at 139- other evidence in the administrative record to typographical errors should be attributed to document fabrication, the fact the minutes of the Medical Staff Performance Improvement Committee meeting were reda

[a]s far as the Court can tell, the only thing of any consequence that was redacted in the id might not have attended the Root Cause Analysis Committee meeting, alone, is an insufficient basis for the Secretary to conclude that the meeting was non-existent so the Adverse Action Report must be However, motion to dismiss the remaining Privacy Act claim -pleaded factual allegations of the complaint as true and draw all . Banneker Ventures, 798 F.3d at 1129.

Mueller v. Winter, 485 F.3d 1191, 1197 (2007) (quoting McCready v. Nicholson¸465 F.3d 1, 19 (D.C. Cir. 2006)). It is true that f a subjective judgment is based on a demonstrably false factual premise . . . the Privacy Act compels the agency to correct or remove the judgment from the complaining individuals record. Mueller, 485 F.3d at 1197 (quoting White v. Office of Pers. Mgmt., 787 F.2d 660, 662 (D.C. Cir. 1986)). But the plaintiffs do not point to a demonstratively false factual premise that would compel the Agency to correct or remove the Statement. ations as true and granting reasonable inferences in their

work, and its documentation of that review. 4

However, it would be unreasonable for the Court to , or that the Hospital did not conclude that he departed from the standard of care. Dr. Doe conducted an appendectomy. First Am. Compl. ¶ 49. During the course of that appendectomy, he removed an inflamed band that was Fallopian tube. Id. ¶ 51. The Hospital conducted a review of the procedure and reported to the Agency that it concluded that departed from the standard of care. Id. ¶¶ 57; 61-65. That Mueller dismiss the remaining Privacy Act claim will be granted. IV. Additional Claims.

In their motion, the plaintiffs raise a slew of other issues that the Court has either already adjudicated, or that are not properly before the Court given the discrete issue on remand. The

4 Although the Court accepts the plaintiffs well-plead factual allegations as true, the Court does not , which are legal conclusions. Iqbal, 556 U.S. at 678.

plaintiffs raise a series of constitutional claims. See, e.g., -28 (raising constitutional violations under the APA and the Fifth Amendment, including alleging The Court already adjudicated the plaintiffs constitutional claims and will not revisit those

rulings. See Doe, 139 F. Supp. 3d at 153-167 (considering plaintiff Due Process claims); 168-69 (Bill of Attainer claims); 169-171 (Eight Amendment claims); Kpodi, 888 F.3d 486, 491 (D.C. Cir. 2018) (the law-of-the- prevents courts from reconsidering issues that have already been decided in the same case

The plaintiffs also cite three additional Privacy Act sections that are not properly before the Court and that the plaintiffs did not raise in their Amended Complaint. -45 (citing 5 U.S.C. §§ 552a(e)(2), (e)(5) and (e)(6)). Although a court errs when it

pro se represented by counsel when they filed their Amended Complaint and during the first round of

briefing. Brown v. Whole Foods Mkt. Grp., 789 F.3d 146, 152 (D.C. Cir. 2015) (internal quotation marks omitted). Accordingly, the Court will not consider the plaintiffs new Privacy Act arguments.

The plaintiffs also argue that the Court must true regarding all their claims and allow them to proceed to discovery. -8 [ECF No. 108]. Not only do the plaintiffs seek to relitigate the standard that the Court has already applied to its APA claims in Doe, this argument also misstates the standard of review for APA claims, which the Court has previously discussed. See supra § II(b).

V. The -Record Evidence

The plaintiffs have filed two motions to supplement the record, along with a motion for reargument based on new evidence.

a. Legal Standard Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir.

2008) (quoting 5 U.S.C. § 706) The record consists of the order involved, any findings or reports on which that order is based, and the pleadings, evidence, and other parts of the Id. (internal quotation marks omitted). It is -letter administrative law that in an Administrative Procedure Act case, a reviewing court CTS

Corp. v. EPA., 759 F.3d 52, 64 (D.C. Cir. 2014) (quoting Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013) (internal edits accepted). An agency is Oceana v. Pritzker, 217 F. Supp. 3d 310, 316 (D.D.C. 2016) (internal quotation marks omitted). For that reason, of the administrative record is the exception, not the Pac. Shores Subdivision v. U.S. Army Corps of Eng , 448 F. Supp. 2d 1, 5 (D.D.C. 2006).

There are two ways a plaintiff may seek to augment the body of materials reviewed by the district court in an APA case, both of which are often, and confusingly, referred to as the administrative record. Am. Petroleum Tankers Parent v. United States, 952 F. Supp. 2d 252, 261 (D.D.C. 2013). First, a party may seek to to the volume of the administrative record with documents the agency Earthworks v. United States of the Interior, 279 F.R.D. 180, 185 (D.D.C. 2012); see also Am. Petroleum Tankers

Parent, 952 F. Supp. 2d at 261 (describing this supplementation as seeking to evidence that should have been properly a part of the administrative record but was excluded by the (internal quotation marks omitted). Second, a party may seek to add extra-record evidence that was initially before the agency but that the plaintiff believes should nonetheless be included in the administrative Am. Petroleum Tankers Parent, 952 F. Supp. 2d at 261 (internal quotation marks omitted).

Under the first justification for supplementing the record, more accurately described as completion of the administrative record, the moving party must rebut the presumption of administrative regularity and show that the documents to be included were before the agency Pac. Shores Subdivision, 448 F. Supp. 2d at 6; see also Oceana, 217 F. Supp. 3d at 316 party seeking completion must present non-speculative, concrete evidence to support their belief that the specific documents allegedly missing from the administrative record were directly or indirectly considered by the actual decision makers involved in the challenged agency (internal quotation marks omitted).

Under the second justification, courts generally do not allow parties to add extra-record evidence they can demonstrate unusual circumstances justifying a departure from this general Am. Wildlands, 530 F.3d at 1002 (internal quotation marks omitted). The record be supplemented in three instances: (1) if the agency or negligently excluded documents that may have been adverse to its (2) if background information was needed determine whether the agency considered all the relevant or (3) if the failed to explain administrative action so as to frustrate judicial City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010) (quoting Am. Wildlands, 530 F.3d at 1002); see also Theodore Roosevelt Conservation P ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010)

The APA limits judicial review to the administrative record except when there has been a strong showing of bad faith or improper behavior or when the record is so bare that it prevents ternal quotation marks omitted). These exceptions may most . . . be invoked to challenge gross procedural deficiencies. Hill Dermaceuticals, 709 F.3d at 47. Because the plaintiffs seek to supplement the administrative record with documents that were not before the Agency, the Court will analyze the requests as requests to add extra-record evidence.

b. The Plaintiffs Second Motion to Supplement the Record In the plaintiffs Second Motion to Supplement the Record, they seek to add a June 2011 -counsel to the Data Bank attaching a complaint the plaintiffs had filed in the Eastern District of New York in 2010. . to Suppl. R., Ex. 1 [ECF No. 118-1]. Portions of that complaint are already in the record, AR at 140-45 [ECF No. 19-3 (SEALED)], but the plaintiffs seek to add the entire complaint to the record to demonstrate that they alleged to the Agency that the Hospital committed fraud. l. R. at 5-6. in Doe was procured by fraud, and, moreover, the Administrative Record is devoid of evidence

sufficient to establish the elements of such a Doe, 139 F. Supp. 3d at 149. Attempting to relitigate issues that the Court has already resolved does not fall under the unusual circumstances required to add extra-record evidence. The Court will deny this motion.

c. The Plaintiffs Third Motion to Supplement the Record The plaintiffs also seek to supplement the administrative record with documents related to what they Data Bank file in 2010.

Mot. to Suppl. R. at 1 [ECF No. 120]. The first document contains email correspondence between individuals at the NPDB in 2012. Id. at 21-23 (Ex. 1). The

Id. at 23. The second document is a letter dated October 12, 2012 from a staff member at the NPDB to the Vice President of Medical Affairs at the Hospital concluding that the explanation for file [was] consistent with the Id. at 25 (Ex. 2). The final document contains June 2012 email correspondence between HHS employees speaking disparagingly about Dr. Doe. Id. at 26-27 (Ex. 3).

The allegations is not before the Court in this litigation. However, by seeking to supplement the record with the first two documents, the Data Bank alleged bias against Dr. Doe in this litigation. Mot. to Suppl. R. at 9. The plaintiffs Adverse Action Report was unauthorized; 2) the Hospital lied to the Data Bank when selecting its reasons for the inquiry and later asserting that it queried the file because it did not save a copy of the Adverse Action Report it submitted to the Hospital; and 3) the s acceptance of that lie demonstrates its bias against Dr. Doe in [A]gency makes evidence to the contrary. Supp. of Third Mot. to Suppl. R. at 13-15 [ECF No. 123].

The plaintiffs do not demonstrate how their request falls into any of the three narrow exceptions to the presumption that the Agency has properly designated the administrative record. They do not argue that the Agency excluded documents adverse to its decision; indeed, these

documents do not address the decision at issue in this case. They do not argue that these emails provide background information to allow the Court to determine if the Agency considered relevant factors. They also do not contend that supplementing the record with these documents is A failure to explain its actions. City of Dania Beach, 628 F.3d at 590. These allegations are unsubstantiated and only tenuously relate to the issues before the Court. They do not demonstrate that the Agency is biased, and fall far short of the strong showing of bad faith necessary to support supplementation of the record with extra-record evidence. Theodore Roosevelt Conservation P ship, 616 F.3d at 514.

The plaintiffs also argue decisions of bias against them. at 5. In doing so, they

largely re-argue claims that this Court already considered in Doe, such as whether the Vice President of Medical Affairs tricked Dr. Doe into thinking he was not under investigation, and whether the Hospital fabricated the documents it submitted to the Agency. See, e.g., id. at 22; Doe, 139 F. Supp. 3d

at 145 (addressing the was not voluntary because it was induced by fraud); id. at 139-140 (finding that the Secretary The plaintiffs disagree with the not enough to warrant the consideration of extra- Standing Rock Sioux Tribe v. U.S. Army Corp of Engineers, 255 F. Supp. 3d 101, 125 (D.D.C. 2017).

administrative record with Exhibit 3 when it denied a previous motion to supplement the record

during a telephone hearing. Minute Entry, May 16, 2016. At that time, the Court expressed

dismay at the unprofessional nature of the emails, but found that they did not warrant supplementing the administrated record. That ruling is the law of the case, and the Court shall not disturb it. See LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) law-of-the- case doctrine[ ] [provides that] the same issue presented a second time in the same case in the same court should lead to the same

d. The The plaintiffs have moved for reargument based on what they assert is new evidence

obtained in 2016 from the separate litigation against the Hospital in New York state court. Mot. for Rearg. [ECF No. 127]. They seek to add to the record the following documents: the second two pages of the Quality Management Case Report submitted to the Agency by the Hospital, id. Ex. 2 [ECF No. 127-3], the 2009 Summary Report for Sentinal Event, id. Ex. 3 [ECF No. 127-4], and deposition testimony from the then-Vice President for Quality Management, id. Ex. 4 [ECF No. 127-5]. The plaintiffs rely on these documents to support their assertions that Hospital employees lied on documentation the Hospital submitted to the Agency, and that the Agency consequently relied on incomplete documents. See, e.g., id. at 2-12

These documents were not available to the Agency when it issued its two decisions the plaintiffs obtained the documents in December 2016, over a year after the Agency issued its most recent decision in this case. to Mot. for Rearg. at 4 [ECF No. 128]. Although Agency counsel told the plaintiffs the Agency would consider the documents, the plaintiffs declined to submit them to the Agency before filing them before the Court. Id. at 5. The plaintiffs contend that forcing them to present the documents to the Agency first will cause further,

unnecessary delays. They also argue that the Agency will rule against them of its Reply in Supp. of Mot. for Rearg. at 3 [ECF No. 129].

By attempting to submit new evidence directly to the Court, the plaintiffs request that the Court bypass the Agency, review the documents submitted, and find that the Adverse Action Report should be struck from the Data Bank. But courts allow litigants to submit extra- record evidence in APA cases to more effectively review agency action, not to allow litigants to bypass agency review. See Marcum v. Salazar, 751 F. Supp. 2d 74, 79 (D.D.C. 2010) (noting context, it may sometimes be appropriate to resort to extra- record information to enable judicial review to become effective. ) (quoting Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989) (edits accepted). The Agency did not have the documents that the plaintiffs seek to add to the record when it made its decisions, and, as the Court has already emphasized, it should have before it neither more nor less information than did the agency when it made its decision. CTS Corp., 759 F.3d at 64 (quoting Hill Dermaceuticals, 709 F.3d at 47). The Court will not consider these documents before the Agency has reviewed them. See Butte Cty., California v. Chaudhuri, 197 F. Supp. 3d 82, 91 (D.D.C. 2016), aff d, 887 F.3d 501 (D.C. Cir. 2018) (denying a motion to add extra-record evidence and noting that limiting review to the record actually before the agency is to guard against courts using new evidence to convert the arbitrary and capricious standard into effectively de novo (internal quotation marks omitted and edits accepted). For those reasons, the plaintiffs request for reargument will be denied. VI.

Finally, the plaintiffs request that the Court recuse itself from this case. They argue that the Court has shown bias against them by making incorrect legal rulings, and because of the

. at 31-33. The defendants oppose the request. to Mot. for Rearg. at 13-15.

a. Legal Standard 5

. He shall

disqualification under § 455(a) is an objective one. The question is whether a reasonable and informed observer would question the judge In re Brooks, 383 F.3d 1036, 1043 (D.C. Cir. 2004) (quoting United States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001)).

s views have become Cobell v. Kempthorne, 455 F.3d 317, 332 (D.C. Cir. 2006) (quoting Liteky v. United States, 510 U.S. 540, 551 (1994)). and the moving party must demonstrate by clear and convincing evidence that disqualification is required by Walsh v. FBI, 952 F. Supp. 2d 71, 75 (D.D.C. 2013) (citation omitted). prejudice in certain instances . . . unfavorable judicial rulings alone almost never constitute a United States v. Hite, 769 F.3d 1154, 1172 (D.C. Cir. 2014).

b. Recusal is Not Warranted. The plaintiffs assert that the Court made two errors in its previous rulings that

Rearg. at 33. Second, the 5

U.S.C § 455, which governs the recusal of federal judges.

President of Medical Affairs mistakenly told Dr. Doe that the Hospital commenced an investigation only state regulators. Id. at 32.

Not findings incorrect, they do not provide any evidence to support their assertion that these supposed errors demonstrate bias. 6 Hite, 769 F.3d at 1172 (citation omitted). The plaintiffs also allege, without support, that the

Court has inserted its personal views in its decisions. Reply in Supp. of Mot. for Rearg. at 2 [ECF No. 129] C seeking to impose its personal view that it is better to sacrifice a few physicians who were denied due process and were victims of sham peer review than to risk subjecting the NPDB system to . 7

However, t opinions formed by the judge on the basis of facts introduced or events occurring in the course of . . . proceedings . . . do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible Liteky, 510 U.S. at 555. Rather than demonstrating that the Court is

in this case, and conclude, without support, that the rulings stem from bias. Their dissatisfaction In re Kellogg Brown & Root, Inc., 796 F.3d 137, 151 (D.C. Cir. 2015) (quoting Cobell, 455 F.3d at 331).

6 For example, the Court found that the right to practice a chosen profession was not a fundamental right Doe, 139 F. Supp. 3d at 157. 7 indulgence towards

Supp. of Cross Mot. & Opp. at 10, 14.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DOE, et al.,

Plaintiffs, v.

JUDITH ROGERS, M.H.A., et al.,

Defendants.

Civil Action No. 12-01229 (TFH)

MEMORANDUM OPINION The Health Care Quality Improvement Act requires that hospitals file a report with the Department of Health and Human Services whenever a physician voluntarily resigns while under investigation for reasons related to his professional competence or conduct. Long v. HHS, 422 F. Supp. 3d 143, 145 46 (D.D.C. 2019); 42 U.S.C. §§ 11101-152. The report is then an online database, which . . . alert[s] hospitals and other would-be employers of potential issues with the physician Long, 422 F. Supp. 3d at 145 46.

This lawsuit concerns one such report about the plaintiff, Dr. John Doe, a surgeon formerly employed by . The Hospital submitted the report (the Adverse Action Report to the National Practitioner Data Bank in 2009 after Dr. Doe resigned while the Hospital investigated an appendectomy

that he performed. Dr. Doe and his limited liability company, ,

sued the Secretary of the Department of Health and Human Services , , or , the Data Bank, and three officials who administer the Data Bank over their maintenance and continued distribution of the Adverse Action Report.

The Court described the facts of this case in detail in Doe v. Rogers, 139 F. Supp. 3d 120 (D.D.C. 2015) ( , and includes relevant excepts below:

On Friday, October 2, 2009, Dr. Doe commenced a late-night emergency laparoscopic appendectomy on a 14 year old girl who had acute appendicitis. First Am. Compl. ¶¶ 48, 49; Administrative Record 4 (Sealed)] . . . During the surgery, Dr. Doe removed what he characterized as AR 0101 [ECF No. 19 3 (Sealed)] . . . A subsequent s right Fallopian tube. First Am. Compl. ¶ 51 [ECF No. 23]; AR 0142 0143 at ¶ 85 [ECF No. 19 3 (Sealed) ] . . . There is no dispute that Dr. Doe failed to cut and removed it. Pls. Mem. In Oppn to Defs. Mot. to Dismiss 3 4 [ECF No. 45 (Sealed)] . . . . [The following Monday,] the Vice President of Medical Affairs told Dr. Doe that the Hospital was required to report the surgical incident to the New York State Department of Health and that such a report was necessary whenever an organ other than the organ operated is injured. AR 0161 [ECF No. 19 4 (Sealed) ]; AR 0203 [ECF No, 19 5 (Sealed)]. The hospital . . . filed a report that day via the New York Patient Occurrence Reporting and Tracking System suspension 0108 [ECF No. 19 3 (Sealed)]. . . . Later that same day, Dr. Doe executed a letter voluntarily suspending his Peconic Bay Medical Center for the next two weeks effective October 5, 2009 through October 19, 2009, or until mutually agreed upon. I will however, finish the follow-up care on patients that I am currently involved with on the clinical floors without performing any surg 3 (Sealed) ]. Dr. Doe claims that this letter was prompted by his of Tennessee to complete another year of cardiothoracic surgery fellowship in

Two days later, on October 7, 2009, Dr. Doe tendered a short letter of resignation Peconic Bay Medical AR 0113 [ECF No. 19 3 (Sealed)].

On December 3, 2009, about two months after Dr. Doe resigned, the Hospital submitted an Adverse Action Report to the National Practitioner Data Bank. AR 0132 [ECF No. 19 3 (Sealed)]. The Adverse Action Report stated:

In June 2009, the physician commenced practice at the Hospital in thoracic and general surgery. On Friday, October 2, 2009, the physician performed a laparoscopic appendectomy on a 14 year old female. In the course of performing the procedure, the physician inadvertently removed part of one of the patients fallopian lubes. On or about Monday, October 5, 2009, the physician agreed to refrain from exercising his surgical privileges pending the Hospitals investigation of this matter. By letter dated October 7, 2009, the physician advised the Hospital that he resigned from the Hospital effective October 16, 2009. Accordingly, the Hospital took no further action regarding the physicians privileges or employment. However, the Hospitals quality assurance review of this matter indicates departures by the physician from standard of care with regard to the laparoscopic appendectomy that he performed on October 2, 2009. AR 0002 [ECF No. 19 1 (Sealed)]. . . . . Upon discovering the report, Dr. Doe contacted the Hospital and requested that it retract the report because it was factually inaccurate. AR 0008 [ECF No. 19 1 (Sealed) ]; AR 0013 [ECF No. 19 1 (Sealed)]. Dr. Doe also submitted a Subject Statement to the National Practitioner Data Bank and placed the Adverse report and whether the report was submitted in accordance with the [National Practitioner Data Bank No. 23]; see also AR 0018 27 [ECF No. 19 1 (Sealed)].

When the Hospital refused to revise or void the Adverse Action Report, Dr. Doe submitted a letter to the National Practitioner Data Bank requesting that the Secretary of the Department of Health and Human Services review and remove the report. First Am. Compl. ¶ 91 [ECF No. 23]; AR 0007 17 [ECF No. 19 1 (Sealed)]. On June 25, 2012, Judy Rodgers, Senior Advisor for the Division of Practitioner Data Banks at the Department of Health and Human Services, issued a Secretarial Review Decision denying Dr. Does request and stating that o conclude that the Report should not have been filed in the NPDB or that it is not accurate, complete, 73 [ECF No. 19 6 (Sealed)]. Doe, 139 F. Supp. 3d at 129-31.

One month later, the plaintiffs filed this lawsuit alleging that the defendants violated the Administrative Procedures A , sections 522a(g)(1)(A) and (C) of the Privacy Act, and Doe, 139 F. Supp. 3d at 132. After the parties filed dispositive , the Court granted summary judgment on the APA claims except as to the narrow question of whether the statement

indicates departures by the physician from standard of care with regard to the laparoscopic was reportable to the Data Bank. Id. at 153 (quoting ECF No. 19-1 [SEALED]). T constitutional claims and the § 552a(g)(1)(C) Privacy Act claim, but declined to dismiss the plaintiffs contention that the Secretary violated § 552a(g)(1)(A) of the Privacy Act because the Court remanded the reportability issue to the Agency. Id. at 167-68; 170.

The Agency has since issued its decision on remand, and concluded that the Statement is reportable. [ECF No. 86-1 (Sealed)]. That decision is the main subject of the motions now pending before the Court, which include alternative, motion for summary judgment [ECF No. 100], and the plaintiff -motion for summary judgment and opposition to the [ECF No. 103]. Also pending before the Court are three additional motions filed by the plaintiffs two motions to supplement the record, [ECF Nos. 118 & 120], and a , [ECF No. 127]. The defendants have opposed each motion. [ECF Nos. 119, 122 & 128]. I. Regulatory Background

Congress enacted the Health Care Quality Improvement Act address medical malpractice and the need to restrict the ability of

incompetent physicians to move from State to State without disclosure or discovery of the -(2). The Act requires health care entities to report to HHS when inter alia clinical privileges of a physician while the physician is under an investigation by the entity

relating to Id. § 11133(a)(1)(B)(i); see also 45 C.F.R. § 60.12(a)(1)(ii)(A).

When filing reports, the Act requires that health care entities submit physician or practitioner involved, (B) a description of the acts or omissions or other reasons for the action or, if known, for the surrender, and (C) such other information respecting the

extensive description of the acts or omissions or other reasons for the action or, if known, for the surrender. It does, however, require sufficient specificity to enable a knowledgeable observer to H.R. Rep. No. 99-903 at 15 (1986), reprinted in 1986 U.S.C.C.A.N. 6384, 6398. The implementing regulations issued by the Secretary likewise require tha

ter 60.12(a)(3).

II. The nded Administrative Procedures Act Claim

a. The Secretary Found that the Statement was Reportable. In its decision on remand, the Secretary concluded that the Statement was reportable and [ECF No. 86-1 at 2 (SEALED)]. The ovides a more complete history of the Id. at 2. According to the Secretary, not dependent on the results of the investigation are closely related to the reportable

further queriers in making privileging and licensing decisions. The Secretary emphasized that ne of the central purposes of the NPDB is to provide health care entities with better information on which to make licensing and Id.

The Secretary also found that the Act and its implementing regulations require the of concluded investigation could be useful information for future queriers in determining the reasons for Id. practitioner from any wrongdoing, a querier may determine that this provides further evidence Id.

b. Summary Judgment Standard The plaintiffs seek review of Procedures Act, 5 U.S.C. § 701, et seq. judgment is the proper mechanism for

deciding, as a matter of law, whether an agency action is supported by the administrative record

and consistent with the APA standard of review Chiayu Chang v. USCIS, 289 F. Supp. 3d 177, 182 (D.D.C. 2018) (internal quotations omitted). When considering challenges to agency action

Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotations omitted).

The APA requires courts to set aside agenc An agency

for its decision that runs counter to the evidence before the agency, or is so implausible that it

Gresham v. Azar, 950 F.3d 93, 99 (D.C. Cir. 2020) (quoting v. State Farm Mut. Auto. Ins. Co.

State Farm, 463 U.S. at 43.

c. i. The Statement is Reportable Under the Statute.

In the amended complaint and first round of briefing, the plaintiffs argued that the igation did not result in the suspension See Doe, 139 F. Supp. 3d at 132 (identifying the fifth APA argument reportable event because

; First Am. Compl. ¶¶ 120-125 [ECF No. 23]; Pls. Oppn to Defs. Mot.

to Dismiss at 47 [ECF No. 45 (SEALED)]; 3 [ECF No. 56 (SEALED)]. The

Doe, 139 F. Supp. 2d at 153; see id

matter indicates departures by the physician from standard of care with regard to the laparoscopic appendectomy that he perfor 0002 [ECF No. 19-1 (Sealed)]).

The plaintiffs do not address this argument in their filings, and appear to have altogether abandoned this claim a curious position given that it was the subject of the Cou the Agency. Summ. J. at 9 [ECF No. 100] (citing 42 U.S.C. § 11133(a)(3)(B)-(C)). Accordingly, the Court could properly treat the See, e.g., Wilson v. Fed. Express Corp., No. 18-cv-485, 2019 WL 5696874, at *1 (D.D.C. Nov. 4, 2019) (internal

quotations marks omitted).

Even if the Court must consider whether the Act allowed the Hospital to report the results of its investigation, cf Winston & Strawn LLP v. McLean, 843 F.3d 503, 508 (D.C. Cir. 2016), the Court finds that it unambiguously does. The statute requires that when reporting entities accept[] the surrender of clinical privileges of a physician while the physician is under an

42 U.S.C § 11133(a)(1)(B)(i); (a)(3). omething done or th ed. 2019). delineation or explanation of something by an account setting forth the subjects Id. Putting these definitions together, the statute requires a which in this case means a delineation or explanation of the H he was under investigation.

This broad language indicates that the Act provides reporting entities space to include information that it does not explicitly identify in the statute, such as the results of an investigation. ative history. See Doe, 139 F. Supp. 3d at 127 (finding that the Act aims to address the need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physicians previous damaging or ) (quoting 42 U.S.C. § 11101(1)- (2)); Doe 139 F. Supp. 3d at 145 (finding that the Act strict reporting in the event of a resignation during an investigation to ensure patients are ; H.R. Rep. No. 99-903 (stating that § 11133(a)(3) of the Act does not necessarily require an extensive description of the acts or omissions or other reasons for the action or, if known, for the surrender. It does, however, require sufficient specificity to enable a knowledgeable observer to determine clearly the circumstances of the action or surrender. . Providing the results of the investigation enables queriers to more fully understand the circumstances of the incident, and protects patients by providing entities with enough information to make informed hiring decisions. The statute unambiguously allows the Hospital to provide a one-sentence description of the results of their

investigation. 1

v. E.P.A., 489 F.3d 1221, 1228 (D.C. Cir. 2007) (quoting Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 843 (1984)) (stating that if after de novo the agency, must give effect to the unambiguously

ii. The Secretary Did Not Conclude that Dr. Doe Resigned to Escape

Punishment. The plaintiffs challenge the Agency conclusion that investigation could be useful information for future queriers in determining the reasons for surrenders. [ECF No. 86-1 at 2 (SEALED)]; see also id. ( practitioner from any wrongdoing, a querier may determine that this provides further evidence

. The

because is concluded. Summ. J. at 12 [ECF No. 103]. They also contend that

the Secretary concluded that Dr. Doe resigned to escape punishment, even though Dr. Doe

1 remand. Compare Statement falls under 42 U.S.C. § 11133(a)(3)(B)-(C) with [ECF No. 86-1 at 2 (SEALED)] (finding the Statement reportable because the Statute requires that useful results of the investigation . not need to address this delta between the decision on remand and the briefs.

claims that he resigned before the Hospital completed its investigation to complete an additional year of surgery training in Tennessee. Id. at 12-13.

that Dr. Doe left the Hospital in order to escape punishment. It did not reasons for resigning. 2

does imply that a physician will know whether he departed from the standard of care in a given procedure, which could prompt him to resign before an investigation is complete. That is not an irrational notion necessarily know what a hospital will conclude in this regard. Regardless, as the defendants note, HHS did not find that the results of an investigation are a clear indication of the reasons for a surrender, or that Dr. Doe resigned because he knew the Hospital would find that he departed from the standard of care. The Secretary simply concluded that the results may provide further [ECF No. 105]. That and capricious.

iii.

Procedures and Findings in Doe. The plaintiffs spend much of their briefing challenging the Hospitals investigation and findings that he departed from the standard of care. See, e.g., -5, 7- 9, 11 [ECF No. 103]. Their discontent procedures and dispute with its conclusions is not grounds for finding that the

2 The plaintiffs also allege that the Secretary from the standard of care. hat issue. In its previous decision, which is not currently before the Court, the Secretary explicitly stated that he [Dr. Doe] AR 0257 [ECF No. 19-6 (SEALED)]. The [Dr. Doe] departed from the Id.

As the Court discussed in Doe Doe, 139 F. Supp. 3d at 149 (quoting Leal v. Sec , HHS, 620 F.3d 1280, 1284 procedures to dispute the accuracy of the reported information but nowhere does the statute

authorize, or even contemplate, that the Secretary will actually adjudicate the underlying merits Doe, 139 F. Supp. 3d at 148; see also Leal deciding whether incidents listed in the report actually occurred or as an appellate body deciding whether there was sufficient evidence for the reporting hospital to conclude that those actions did

As the defendants contend, in Doe, the Court considered nt. The Court

relating to the surgical incident by gathering the necessary documentation, conferring with the relevant Hospital executives, meeting with the physicians who were involved, reporting the incident to the state health department, and organizing a team to conduct a Root Cause Doe, 139 F. Supp. 3d at 138. The Court also found that the plaintiffs allegations that

Id. at 139; see also id. at 142-

143. ulings are the law of the case; the Court will not revisit them. See United States v. Kpodi, 888 F.3d 486, 491 (D.C. Cir. 2018) (the law-of-the- prevents courts from reconsidering issues that have already been decided in the same case

predicated on the premise that it would be impossible for an appellate court to perform its duties satisfactorily and efficiently and expeditiously if a question, once considered and decided by it, were to be litigated anew in the same case upon ) (internal quotation marks omitted and edits accepted). III. The § 552a(g)(1)(A) Privacy Act Claim

The plaintiffs allege that the defendants have violated § 552a(g)(1)(A) of the Privacy Act by failing to amend the Adverse Action Report. They argue that the Adverse Action Report

including whether the Hospital lied about meetings and committed fraud by tricking Dr. Doe into resigning. at 47. The plaintiffs allege that the following facts support their claims: 1) the Hospital submitted a redacted and incomplete document as proof of an October 2009 meeting of the Medical Staff Performance Improvement Committee, Am. Compl. ¶ 63; 2) the Hospital misdated a memorandum documenting a review meeting on Monday, October 6, 2009, Id.; 3) neither the Attending Gynecology Oncology Surgeon nor the Attending General/Thoracic Surgeon attended an October 14, 2009 meeting of a Root Cause Analysis Committee, Id. ¶ 65; and 4) three surgeons review concluded that Dr. Doe did not depart from the standard of care, id. ¶ 80. According to the plaintiffs, this evidence demonstrates that the Hospital fabricated documents in support of a Id. ¶ 58.

The defendants have again moved to dismiss this claim pursuant to Federal Rule of Civil Procedure 12(b)(6). They assert that the Statement was an opinion, not a fact, and that § 552a(g)(1)(A) of the Privacy Act does not provide for the amendment of opinions or judgments. According to the defendants,

at 11. They also contend that the Court has already determined that the

record does not support the plaintiffs allegations that the Hospital fabricated documents or that its administrators committed fraud. Id. at 10.

a. Legal Standard

i. Motion to Dismiss contain . . . a short and plain statement of the claim showing that the Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6) of the Federal Rules of laim upon To survive a motion to dismiss based on Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct all Id.

-pleaded factual allegations of the complaint as true and draw all reasonable inferences from those allegations in Banneker Ventures v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015). The

Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (internal quotation marks omitted and edits accepted).

ii. § 552a(g)(1)(A) of the Privacy Act Under the Privacy Act, an Upon receiving such a request, an agency may either correct any portion of that record, or inform

the individual of its refusal to do so, and provide, inter alia, the reason for the refusal. Id. §

ew of that decision. Id. at § 552a(d)(3). Section 552a(g)(1)(A) of the Privacy Act the subsection at issue here then . . . makes a determination under subsection (d)(3) of this section not to amend an record in accordance with his request, or fails to make such

b. The Plaintiffs have Failed to State a Claim under 5 U.S.C. § 552a(g)(1)(A).

their Privacy Act claim does not survive a motion to dismiss because the Statement is surgery. 3

-

3 The defendants correctly note that the Court considered the allegations in the context of their APA claims and found them unavailing. See Doe, 139 F. Supp. 3d at 139- other evidence in the administrative record to typographical errors should be attributed to document fabrication, the fact the minutes of the Medical Staff Performance Improvement Committee meeting were reda

[a]s far as the Court can tell, the only thing of any consequence that was redacted in the id might not have attended the Root Cause Analysis Committee meeting, alone, is an insufficient basis for the Secretary to conclude that the meeting was non-existent so the Adverse Action Report must be However, motion to dismiss the remaining Privacy Act claim -pleaded factual allegations of the complaint as true and draw all . Banneker Ventures, 798 F.3d at 1129.

Mueller v. Winter, 485 F.3d 1191, 1197 (2007) (quoting McCready v. Nicholson¸465 F.3d 1, 19 (D.C. Cir. 2006)). It is true that f a subjective judgment is based on a demonstrably false factual premise . . . the Privacy Act compels the agency to correct or remove the judgment from the complaining individuals record. Mueller, 485 F.3d at 1197 (quoting White v. Office of Pers. Mgmt., 787 F.2d 660, 662 (D.C. Cir. 1986)). But the plaintiffs do not point to a demonstratively false factual premise that would compel the Agency to correct or remove the Statement. ations as true and granting reasonable inferences in their

work, and its documentation of that review. 4

However, it would be unreasonable for the Court to , or that the Hospital did not conclude that he departed from the standard of care. Dr. Doe conducted an appendectomy. First Am. Compl. ¶ 49. During the course of that appendectomy, he removed an inflamed band that was Fallopian tube. Id. ¶ 51. The Hospital conducted a review of the procedure and reported to the Agency that it concluded that departed from the standard of care. Id. ¶¶ 57; 61-65. That Mueller dismiss the remaining Privacy Act claim will be granted. IV. Additional Claims.

In their motion, the plaintiffs raise a slew of other issues that the Court has either already adjudicated, or that are not properly before the Court given the discrete issue on remand. The

4 Although the Court accepts the plaintiffs well-plead factual allegations as true, the Court does not , which are legal conclusions. Iqbal, 556 U.S. at 678.

plaintiffs raise a series of constitutional claims. See, e.g., -28 (raising constitutional violations under the APA and the Fifth Amendment, including alleging The Court already adjudicated the plaintiffs constitutional claims and will not revisit those

rulings. See Doe, 139 F. Supp. 3d at 153-167 (considering plaintiff Due Process claims); 168-69 (Bill of Attainer claims); 169-171 (Eight Amendment claims); Kpodi, 888 F.3d 486, 491 (D.C. Cir. 2018) (the law-of-the- prevents courts from reconsidering issues that have already been decided in the same case

The plaintiffs also cite three additional Privacy Act sections that are not properly before the Court and that the plaintiffs did not raise in their Amended Complaint. -45 (citing 5 U.S.C. §§ 552a(e)(2), (e)(5) and (e)(6)). Although a court errs when it

pro se represented by counsel when they filed their Amended Complaint and during the first round of

briefing. Brown v. Whole Foods Mkt. Grp., 789 F.3d 146, 152 (D.C. Cir. 2015) (internal quotation marks omitted). Accordingly, the Court will not consider the plaintiffs new Privacy Act arguments.

The plaintiffs also argue that the Court must true regarding all their claims and allow them to proceed to discovery. -8 [ECF No. 108]. Not only do the plaintiffs seek to relitigate the standard that the Court has already applied to its APA claims in Doe, this argument also misstates the standard of review for APA claims, which the Court has previously discussed. See supra § II(b).

V. The -Record Evidence

The plaintiffs have filed two motions to supplement the record, along with a motion for reargument based on new evidence.

a. Legal Standard Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir.

2008) (quoting 5 U.S.C. § 706) The record consists of the order involved, any findings or reports on which that order is based, and the pleadings, evidence, and other parts of the Id. (internal quotation marks omitted). It is -letter administrative law that in an Administrative Procedure Act case, a reviewing court CTS

Corp. v. EPA., 759 F.3d 52, 64 (D.C. Cir. 2014) (quoting Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013) (internal edits accepted). An agency is Oceana v. Pritzker, 217 F. Supp. 3d 310, 316 (D.D.C. 2016) (internal quotation marks omitted). For that reason, of the administrative record is the exception, not the Pac. Shores Subdivision v. U.S. Army Corps of Eng , 448 F. Supp. 2d 1, 5 (D.D.C. 2006).

There are two ways a plaintiff may seek to augment the body of materials reviewed by the district court in an APA case, both of which are often, and confusingly, referred to as the administrative record. Am. Petroleum Tankers Parent v. United States, 952 F. Supp. 2d 252, 261 (D.D.C. 2013). First, a party may seek to to the volume of the administrative record with documents the agency Earthworks v. United States of the Interior, 279 F.R.D. 180, 185 (D.D.C. 2012); see also Am. Petroleum Tankers

Parent, 952 F. Supp. 2d at 261 (describing this supplementation as seeking to evidence that should have been properly a part of the administrative record but was excluded by the (internal quotation marks omitted). Second, a party may seek to add extra-record evidence that was initially before the agency but that the plaintiff believes should nonetheless be included in the administrative Am. Petroleum Tankers Parent, 952 F. Supp. 2d at 261 (internal quotation marks omitted).

Under the first justification for supplementing the record, more accurately described as completion of the administrative record, the moving party must rebut the presumption of administrative regularity and show that the documents to be included were before the agency Pac. Shores Subdivision, 448 F. Supp. 2d at 6; see also Oceana, 217 F. Supp. 3d at 316 party seeking completion must present non-speculative, concrete evidence to support their belief that the specific documents allegedly missing from the administrative record were directly or indirectly considered by the actual decision makers involved in the challenged agency (internal quotation marks omitted).

Under the second justification, courts generally do not allow parties to add extra-record evidence they can demonstrate unusual circumstances justifying a departure from this general Am. Wildlands, 530 F.3d at 1002 (internal quotation marks omitted). The record be supplemented in three instances: (1) if the agency or negligently excluded documents that may have been adverse to its (2) if background information was needed determine whether the agency considered all the relevant or (3) if the failed to explain administrative action so as to frustrate judicial City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010) (quoting Am. Wildlands, 530 F.3d at 1002); see also Theodore Roosevelt Conservation P ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010)

The APA limits judicial review to the administrative record except when there has been a strong showing of bad faith or improper behavior or when the record is so bare that it prevents ternal quotation marks omitted). These exceptions may most . . . be invoked to challenge gross procedural deficiencies. Hill Dermaceuticals, 709 F.3d at 47. Because the plaintiffs seek to supplement the administrative record with documents that were not before the Agency, the Court will analyze the requests as requests to add extra-record evidence.

b. The Plaintiffs Second Motion to Supplement the Record In the plaintiffs Second Motion to Supplement the Record, they seek to add a June 2011 -counsel to the Data Bank attaching a complaint the plaintiffs had filed in the Eastern District of New York in 2010. . to Suppl. R., Ex. 1 [ECF No. 118-1]. Portions of that complaint are already in the record, AR at 140-45 [ECF No. 19-3 (SEALED)], but the plaintiffs seek to add the entire complaint to the record to demonstrate that they alleged to the Agency that the Hospital committed fraud. l. R. at 5-6. in Doe was procured by fraud, and, moreover, the Administrative Record is devoid of evidence

sufficient to establish the elements of such a Doe, 139 F. Supp. 3d at 149. Attempting to relitigate issues that the Court has already resolved does not fall under the unusual circumstances required to add extra-record evidence. The Court will deny this motion.

c. The Plaintiffs Third Motion to Supplement the Record The plaintiffs also seek to supplement the administrative record with documents related to what they Data Bank file in 2010.

Mot. to Suppl. R. at 1 [ECF No. 120]. The first document contains email correspondence between individuals at the NPDB in 2012. Id. at 21-23 (Ex. 1). The

Id. at 23. The second document is a letter dated October 12, 2012 from a staff member at the NPDB to the Vice President of Medical Affairs at the Hospital concluding that the explanation for file [was] consistent with the Id. at 25 (Ex. 2). The final document contains June 2012 email correspondence between HHS employees speaking disparagingly about Dr. Doe. Id. at 26-27 (Ex. 3).

The allegations is not before the Court in this litigation. However, by seeking to supplement the record with the first two documents, the Data Bank alleged bias against Dr. Doe in this litigation. Mot. to Suppl. R. at 9. The plaintiffs Adverse Action Report was unauthorized; 2) the Hospital lied to the Data Bank when selecting its reasons for the inquiry and later asserting that it queried the file because it did not save a copy of the Adverse Action Report it submitted to the Hospital; and 3) the s acceptance of that lie demonstrates its bias against Dr. Doe in [A]gency makes evidence to the contrary. Supp. of Third Mot. to Suppl. R. at 13-15 [ECF No. 123].

The plaintiffs do not demonstrate how their request falls into any of the three narrow exceptions to the presumption that the Agency has properly designated the administrative record. They do not argue that the Agency excluded documents adverse to its decision; indeed, these

documents do not address the decision at issue in this case. They do not argue that these emails provide background information to allow the Court to determine if the Agency considered relevant factors. They also do not contend that supplementing the record with these documents is A failure to explain its actions. City of Dania Beach, 628 F.3d at 590. These allegations are unsubstantiated and only tenuously relate to the issues before the Court. They do not demonstrate that the Agency is biased, and fall far short of the strong showing of bad faith necessary to support supplementation of the record with extra-record evidence. Theodore Roosevelt Conservation P ship, 616 F.3d at 514.

The plaintiffs also argue decisions of bias against them. at 5. In doing so, they

largely re-argue claims that this Court already considered in Doe, such as whether the Vice President of Medical Affairs tricked Dr. Doe into thinking he was not under investigation, and whether the Hospital fabricated the documents it submitted to the Agency. See, e.g., id. at 22; Doe, 139 F. Supp. 3d

at 145 (addressing the was not voluntary because it was induced by fraud); id. at 139-140 (finding that the Secretary The plaintiffs disagree with the not enough to warrant the consideration of extra- Standing Rock Sioux Tribe v. U.S. Army Corp of Engineers, 255 F. Supp. 3d 101, 125 (D.D.C. 2017).

administrative record with Exhibit 3 when it denied a previous motion to supplement the record

during a telephone hearing. Minute Entry, May 16, 2016. At that time, the Court expressed

dismay at the unprofessional nature of the emails, but found that they did not warrant supplementing the administrated record. That ruling is the law of the case, and the Court shall not disturb it. See LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) law-of-the- case doctrine[ ] [provides that] the same issue presented a second time in the same case in the same court should lead to the same

d. The The plaintiffs have moved for reargument based on what they assert is new evidence

obtained in 2016 from the separate litigation against the Hospital in New York state court. Mot. for Rearg. [ECF No. 127]. They seek to add to the record the following documents: the second two pages of the Quality Management Case Report submitted to the Agency by the Hospital, id. Ex. 2 [ECF No. 127-3], the 2009 Summary Report for Sentinal Event, id. Ex. 3 [ECF No. 127-4], and deposition testimony from the then-Vice President for Quality Management, id. Ex. 4 [ECF No. 127-5]. The plaintiffs rely on these documents to support their assertions that Hospital employees lied on documentation the Hospital submitted to the Agency, and that the Agency consequently relied on incomplete documents. See, e.g., id. at 2-12

These documents were not available to the Agency when it issued its two decisions the plaintiffs obtained the documents in December 2016, over a year after the Agency issued its most recent decision in this case. to Mot. for Rearg. at 4 [ECF No. 128]. Although Agency counsel told the plaintiffs the Agency would consider the documents, the plaintiffs declined to submit them to the Agency before filing them before the Court. Id. at 5. The plaintiffs contend that forcing them to present the documents to the Agency first will cause further,

unnecessary delays. They also argue that the Agency will rule against them of its Reply in Supp. of Mot. for Rearg. at 3 [ECF No. 129].

By attempting to submit new evidence directly to the Court, the plaintiffs request that the Court bypass the Agency, review the documents submitted, and find that the Adverse Action Report should be struck from the Data Bank. But courts allow litigants to submit extra- record evidence in APA cases to more effectively review agency action, not to allow litigants to bypass agency review. See Marcum v. Salazar, 751 F. Supp. 2d 74, 79 (D.D.C. 2010) (noting context, it may sometimes be appropriate to resort to extra- record information to enable judicial review to become effective. ) (quoting Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989) (edits accepted). The Agency did not have the documents that the plaintiffs seek to add to the record when it made its decisions, and, as the Court has already emphasized, it should have before it neither more nor less information than did the agency when it made its decision. CTS Corp., 759 F.3d at 64 (quoting Hill Dermaceuticals, 709 F.3d at 47). The Court will not consider these documents before the Agency has reviewed them. See Butte Cty., California v. Chaudhuri, 197 F. Supp. 3d 82, 91 (D.D.C. 2016), aff d, 887 F.3d 501 (D.C. Cir. 2018) (denying a motion to add extra-record evidence and noting that limiting review to the record actually before the agency is to guard against courts using new evidence to convert the arbitrary and capricious standard into effectively de novo (internal quotation marks omitted and edits accepted). For those reasons, the plaintiffs request for reargument will be denied. VI.

Finally, the plaintiffs request that the Court recuse itself from this case. They argue that the Court has shown bias against them by making incorrect legal rulings, and because of the

. at 31-33. The defendants oppose the request. to Mot. for Rearg. at 13-15.

a. Legal Standard 5

. He shall

disqualification under § 455(a) is an objective one. The question is whether a reasonable and informed observer would question the judge In re Brooks, 383 F.3d 1036, 1043 (D.C. Cir. 2004) (quoting United States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001)).

s views have become Cobell v. Kempthorne, 455 F.3d 317, 332 (D.C. Cir. 2006) (quoting Liteky v. United States, 510 U.S. 540, 551 (1994)). and the moving party must demonstrate by clear and convincing evidence that disqualification is required by Walsh v. FBI, 952 F. Supp. 2d 71, 75 (D.D.C. 2013) (citation omitted). prejudice in certain instances . . . unfavorable judicial rulings alone almost never constitute a United States v. Hite, 769 F.3d 1154, 1172 (D.C. Cir. 2014).

b. Recusal is Not Warranted. The plaintiffs assert that the Court made two errors in its previous rulings that

Rearg. at 33. Second, the 5

U.S.C § 455, which governs the recusal of federal judges.

President of Medical Affairs mistakenly told Dr. Doe that the Hospital commenced an investigation only state regulators. Id. at 32.

Not findings incorrect, they do not provide any evidence to support their assertion that these supposed errors demonstrate bias. 6 Hite, 769 F.3d at 1172 (citation omitted). The plaintiffs also allege, without support, that the

Court has inserted its personal views in its decisions. Reply in Supp. of Mot. for Rearg. at 2 [ECF No. 129] C seeking to impose its personal view that it is better to sacrifice a few physicians who were denied due process and were victims of sham peer review than to risk subjecting the NPDB system to . 7

However, t opinions formed by the judge on the basis of facts introduced or events occurring in the course of . . . proceedings . . . do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible Liteky, 510 U.S. at 555. Rather than demonstrating that the Court is

in this case, and conclude, without support, that the rulings stem from bias. Their dissatisfaction In re Kellogg Brown & Root, Inc., 796 F.3d 137, 151 (D.C. Cir. 2015) (quoting Cobell, 455 F.3d at 331).

6 For example, the Court found that the right to practice a chosen profession was not a fundamental right Doe, 139 F. Supp. 3d at 157. 7 indulgence towards

Supp. of Cross Mot. & Opp. at 10, 14.

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