RAJ Enterprises of Central Florida LLC v. Select Laboratory Partners Inc
Filing
29
ORDER. Plaintiff's Motion for Declaratory Relief (Doc. 26) is DENIED. See Order for details. Signed by Magistrate Judge Philip R. Lammens on 6/11/2015. (JWM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
RAJ ENTERPRISES OF CENTRAL
FLORIDA LLC,
Plaintiff,
v.
Case No: 5:14-cv-344-Oc-30PRL
SELECT LABORATORY PARTNERS
INC
Defendant.
ORDER
Upon referral, this case involving breach of a clinical laboratory management contract is
before the Court for consideration of Plaintiff’s Motion for Declaratory Relief and for the
Deposition of Anne Bowers, an employee of the state of Florida. For the reasons explained
below, the undersigned declines to grant Plaintiff’s request for a “declaration approving of the
deposition” of Ms. Bowers. (Doc. 26).
I.
BACKGROUND
Plaintiff, the owner of a clinical laboratory, has brought suit for breach of contract against
Defendant, a management services company specializing in clinical laboratories.
In brief,
Plaintiff alleges that Defendant’s mismanagement and failure to obtain the necessary licenses for
its laboratory resulted in Plaintiff’s loss of revenue for approximately four months. (Amended
Complaint, Doc. 6).
As Plaintiff recites, the State of Florida Agency for Health Care Administration (“AHCA”)
is the agency responsible for the state-law licensure of clinical laboratories that provide lab services
within the state. § 483.051(1), Fla. Stat.; Rule 59A-7.024(1), Fla.Admin.Code. Plaintiff further
recites that AHCA has the dual responsibility of acting as an agent of the federal Department of
Health and Human Services (“HHS”) to provide inspection and certification services regarding
clinical laboratories doing business in Florida on behalf of HHS under the Clinical Laboratory
Improvement Amendments of 1988 (“CLIA”), and under federal Medicare law. § 483.061(1)(a),
Fla. Stat.; 42 USC § 263a; 42 CFR § 493. CLIA and Medicare information is generally subject
to HHS Touhy protections against disclosure pursuant to 45 CFR § 2.3. See, e.g., Boca Raton
Community Hospital, Inc. v. Tenet Healthcare Corp., 2006 WL 1523234, * 1 (S.D. Fla. 2006).
The HHS Touhy regulations require that as a provision of the exhaustion of administrative
remedies, a litigant seeking HHS information from an HHS employee, where the United States is
not a litigant in the case, must petition the Agency Head of HHS and have such request denied,
prior to seeking relief from a court. See United States ex rel. Pogue v. Diabetes Treatment Centers
of America, Inc., 474 F.Supp.2d 75, 79-80 (D. D.C. 2007).
Plaintiff wishes to take the deposition of Anne Bowers, an ACHA employee who
conducted a survey and issued a “Survey Report,” in order to discover state law licensure
deficiencies noted in the Survey Report. Plaintiff contends that it does not seek any CLIA
information, Medicare information, or any other federal information pursuant to such deposition.
Nonetheless, Plaintiff states that its attempts to set the deposition of Ms. Bowers have been
thwarted by AHCA who has informed counsel that that HHS would not permit such a deposition
to take place, based upon the Touhy limitations inherent in Anne Bowers’ dual AHCA-HHS roles.
Accordingly, Plaintiff “moves the Court for a declaration that AHCA employee Anne Bowers may
be made subject to deposition pursuant to the attached subpoena in order to obtain her testimony
regarding the aforementioned AHCA state-law licensure Survey and Survey Report.”
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II.
DISCUSSION
Here, Plaintiff’s preemptive request for a declaration authorizing the proposed deposition
of Ms. Bowers is both unusual and not contemplated by the Federal Rules of Civil Procedure.
What Plaintiff requests is effectively an advisory opinion, and without the benefit of the real parties
in interest being heard – Ms. Bowers, her employer, the State of Florida, and perhaps the United
States. Plaintiff does not state whether it has exhausted its administrative remedies by petitioning
the agency head of HHS, and has had that request denied. Rather, it appears that Plaintiff believes
that step unnecessary and that the Touhy regulations are not applicable in the instant case.
Likewise, it appears that Plaintiff has not actually issued a subpoena to Ms. Bowers, although
presumably the parties have discussed the prospect of her deposition, and Plaintiff has provided a
proposed subpoena (Doc. 26-1), with no date specified. The Court notes that the discovery
deadline is July 1, 2015.
In other words, this matter has not yet progressed to a point that warrants action by the
Court, as would typically be appropriate, for example, in considering a motion for protective order
or to quash brought pursuant to Rule 26 or Rule 45 of the Federal Rules of Civil Procedure.
In support of its position, Plaintiff cites Forgione v. HCA, Inc., 954 F.Supp.2d 1349 (N.D.
Fla. 2013). The Forgione case originated in state court as a wrongful death action, wherein
plaintiffs attempted to subpoena three ACHA employees.
Id. at 1350.
The United States
removed the action to federal court for the purpose of contesting the enforcement of the subpoenas.
Id. The United States argued that the subpoenaed individuals at issue were acting under the
direction of federal agencies in completing a survey assessing compliance with certain Medicare
and Medicaid health care provider requirements, and therefore were subject to the HHS Touhy
regulations governing their testimony. Id. Ultimately, the court found that the regulation in
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question, 45 C.F.R. § 2.2(3), could not be used to nullify the subpoenas, and denied the motion to
quash. Id. at 1360.
Theoretically, Forgione may prove relevant, or even persuasive, to the instant case.
However, Forgione was decided upon the United States’ motion to quash subpoenas served upon
state employees. Id. Moreover, in Forgione, plaintiff had previously directed a formal request
to the CMS Administrator, pursuant 45 C.F.R. § 2.1(a)(b)(c), for permission to depose the three
individuals concerning their factual findings from their investigation, and had been denied. Id. at
1351. Indeed, given the weighty considerations at issue1 and the current posture of the case, it
would be inappropriate to grant Plaintiff’s requested “declaration” at this juncture.
III.
CONCLUSION
Accordingly, upon due consideration, Plaintiff’s Motion for Declaratory Relief (Doc. 26)
is DENIED.
DONE and ORDERED in Ocala, Florida on June 11, 2015.
Copies furnished to:
Counsel of Record
Unrepresented Parties
1
The Federal Housekeeping Act, 5 U.S.C. § 301, permits federal agencies to prescribe
regulations establishing conditions for the production or disclosure of agency information, including
testimony by agency employees. See United States ex rel. Touhy v. Ragen, 340 U.S. 462, 469-70, 71 S.Ct.
416, 95 L.Ed. 417 (1951) (upholding Attorney General's regulations restricting production of Justice
Department documents); Moore v. Armour Pharm. Co., 927 F.2d 1194, 1197 (11th Cir.1991), (noting that
since Touhy, “an unbroken line of authority directly supports [the] contention that a federal employee may
not be compelled to obey a subpoena contrary to his federal employer's instructions under valid agency
regulations” (internal quotations omitted; alteration in original).
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