Thursday, November 6, 2008

US v. Janet Chandler PhD_Chicago

UNITED STATES of America ex rel. Janet CHANDLER, Ph.D., Plaintiff-Appellant, Cross-Appellee, v. COOK COUNTY, Illinois,

Dellwood Farms, Inc. v. Cargill, Inc.
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B. Discovery

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DISCUSSION

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The False Claims Act establishes civil penalties for "[a]ny person" who, inter alia, "knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval," or who "conspires to defraud the Government by getting a false or fraudulent claim allowed or paid." 31 U.S.C. sec. 3729(a)(1), (3). Such a person "is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains be cause of the act of that person." Id. sec. 3729(a). The FCA may be enforced by the Attorney General, id. sec. 3730(a), or by a private person, known as a relator, who brings a quitam suit "for the person and for the United States Government . . . in the name of the Government," id. sec. 3730(b). A quitam suit is filed in camera, and remains under seal for sixty days. Id. sec. 3730(b)(2). The relator must present all material evidence to the Government; during the sixty day period, the Government may intervene and proceed with the action itself. Id. If the Government declines to assume responsibility for the suit, the relator may proceed on his own. Id. sec. 3730(b)(4)(B). If the suit is successful, the relator receives a portion of the Government's award. Id. sec. 3730(d). If the Government takes over, the relator will receive between 15 and 25 percent of the Government's proceeds, "depending upon the extent to which the person substantially contributed to the prosecution of the action," plus reasonable expenses. Id. sec. 3730(d)(1). If the relator proceeds on his own, he will receive between 25 and 30 percent of the proceeds, plus reasonable expenses. Id. The quitam relator is also protected by a "whistleblower" provision which provides relief to any employee who suffers retaliation for bringing a claim under the FCA or assisting an employee-relator who does so. Id. sec. 3730(h). The whistleblower protection extends to any relator who brings a claim in good faith, whether or not it is successful.

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The central holding of Stevens is that states are not within the FCA's definition of "person" because of the "longstanding interpretive presumption that 'person' does not include the sovereign." Stevens, 529 U.S. at 780. "The presumption is 'particularly applicable where it is claimed that Congress has subjected the States to liability to which they had not been subject before.'" Id. at 781 (quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 64 (1989)). This presumption is applied to protect the states because of their dignity as sovereigns within our system of federalism. It is akin to the clear statement rule which requires "that if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute." Will, 491 U.S. at 65 (internal citations and quotations omitted). The presumption cuts the other way for municipalities. See Monell v. Dep't of Soc. Serv., 436 U.S. 658, 685-89 (1978). The Supreme Court has never imposed this same requirement on Congressional efforts to make municipal entities amenable to federal legislation. Cf. Bd. of Trustees v. Garrett, 531 U.S. 356, 368-69 (discussing the different requirements for imposing federal liability on states and municipalities); Monell, 436 U.S. at 701 (stating that absent a clear statement to the contrary, municipalities were presumptively included within the meaning of the term "person"). Such constitutional concerns applicable to states do not apply to municipalities. Therefore, there is no such rule of construction applicable here. Cf., Garrett, 531 U.S. at 368-69 ("[Cities and counties] are subject to private claims for damages under the ADA without Congress' ever having to rely on sec. 5 of the Fourteenth Amendment to render them so. It would make no sense to consider constitutional violations on their part . . . when only the States are the beneficiaries of the Eleventh Amendment."); Alden v. Maine, 527 U.S. 706, 756 (1999) ("The second important limit to the principle of sovereign immunity is that it bars suits against States but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State."). The rationale of Stevens simply cannot support the interpretation that Cook County wishes to place on it.

III

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"Mandamus may not be used to get around the limitations on the appealability of interlocutory orders." Mulay Plastics, Inc. v. Grand Trunk Western R.R. Co., 742 F.2d 369, 371 (7th Cir. 1984). However, the circumstances here present the necessary predicate for such an extraordinary remedy. The district court's discovery order implicates regulations protecting the confidentiality and integrity of federally-funded substance abuse programs. See 42 U.S.C. sec. 290dd-2; 42 C.F.R. sec.sec. 2.11, 2.63-64. If Cook County is correct, allowing Dr. Chandler's representatives to view the unredacted patient records would cause serious harm to those patients' privacy rights and to the federal programs protected by a comprehensive regulatory scheme. Congress and the Department of Health and Human Services have made it clear that regulations are necessary to protect "the patient, the physician- patient relationship, and the treatment programs." See 42 C.F.R. sec. 2.64(d). It is not only the privacy rights of individual patients that are at stake here, but also the continued effectiveness and viability of important substance abuse treatment programs. See United States v. Smith, 789 F.2d 196, 205-06 (3d Cir. 1986) (noting that "there is a public interest in maintaining the confidentiality of patient records" in drug and alcohol treatment programs). Patients will be less willing to seek treatment if patient confidentiality is not strictly protected. The First Circuit, in upholding the validity of sec. 2.63 wrote: "The purpose of [the statute] is clear. Congress recognized that absolute confidentiality is an indispensable prerequisite to successful alcoholism research. Moreover, confidentiality is necessary to encourage successful alcoholism treatment. Without guarantees of confidentiality, many individuals with alcohol problems would be reluctant to participate fully in alcoholism programs." Whyte v. Conn. Mut. Life Ins. Co., 818 F.2d 1005, 1010 (1st Cir. 1987); see also Mosier v. Am. Home Patient, Inc., 170 F. Supp.2d 1211, 1214 (N.D. Fla. 2001) (noting that "this particular privilege is a strong one"). The same is true of drug treatment. In short, because important private and public rights will be irretrievably compromised if the County is correct but the information is nevertheless released prior to the entry of a final judgment, mandamus is an appropriate remedy.

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Conclusion

No. 00-4110 REVERSED and REMANDED

No. 01-1810 MANDAMUS ISSUED

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