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National Coalition of Mental Health Professionals and Consumers, Inc. |
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an educational foundation and advocacy organization serving mental health consumers and professionals |
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NCMHPC | |
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National Coalition of Mental Health Professionals and Consumers, Inc. |
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an educational foundation and advocacy organization serving mental health consumers and professionals |
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Sent: Thu, 8 Dec 2005 16:37:17 -0500 Subject: FW: Outline of research on Citizens for Health case Dear all, I am attaching for your review, an outline of the research I have done to date on the possible bases for a rehearing petition and a certiorari petition for Supreme Court review in the Citizens for Health case. After carefully reviewing the decision and the case law on which it is based, I am surprised at how carelessly reasoned and written it is. I am listing below the points that could be raised in a rehearing petition. The attached memorandum elaborates on each of these points. I hope this is helpful. Potential Points to Raise on Rehearing 1. The Court failed to obtain briefing on the state action issue when it had the opportunity. The state action issue was not raised by the government or by the Court, so it was not directly addressed by the Plaintiffs. The Court could have asked the parties to address the issue when it requested additional briefing on several points after the oral argument. The errors in the decision show that additional briefing on this point would have been beneficial and would have brought recent Supreme Court and Third Circuit case law to the Court's attention. 2. The Court acknowledges that Plaintiffs have a constitutionally protected right to medical privacy but then concludes that no such right existed under federal law prior the Amended Rule. The Court notes that the boundaries of the constitutional right to privacy have not been exhaustively delineated, but there is no doubt that it encompasses the right to have some control over the disclosure of one's health information in routine situations. 3. The Court misstates the Plaintiffs' argument and then applies the wrong state action test. The Court states that the Plaintiffs' argument is that private entities have violated their medical privacy, but Plaintiffs actually alleged that covered entities, including the federal government, have violated the Plaintiffs' medical privacy through the use of "regulatory permission" granted by the Amended Rule to use and disclose their health information without their permission and over their objection. The Court then uses an "actor-centered" test rather than an "action-centered" test to determine whether state action is present. This is an action-centered case where Plaintiffs contest an action that has been taken that injures their medical privacy. This not an "actor-centered" case where the suit is against a private actor based on an allegation that he acted on behalf of the federal government. In action-centered cases like this one, all Plaintiffs have to show is that the action taken by the government "authorized", "encouraged", or "supported" the injury to the Plaintiffs and that the federal government's "fingerprints" are on the action. That is undisputed in this case. The distinction between "action-centered" and "actor-centered" state action cases was outlined in a Third Circuit case from a different panel of judges issued a month and a half before the Citizens case. See Leshko v. Servis, 423 F.3d 337 (3rd Cir., September 9, 2005). 4. The Court announces an unprecedented and unsupported new state action test that undermines many constitutional rights and existing case law. The Court holds that state action cannot exist, and therefore no constitutional challenge can be made, if the government codifies into federal law action that private entities might have had the power to take without federal authorization. So the constitutionality of a federal law authorizing searches and seizures by private citizens without cause could not be challenged if the federal government were merely codifying action that private citizens could have taken on their own. This would appear to allow the elimination of any constitutional right under federal law as long as the government could locate some precedent in private conduct. 5. The Court misconstrues cases cited by the Plaintiffs that showed that state action is can be present in any case where the intent, objective or effect of a law is to encourage or support private conduct that infringes individual liberties. The Court finds that state action was found in those cases only because the law at issue authorized conduct that had previously been prohibited by state law. Quotes from the cases show that the Court simply misread the cases. 6. The Court cites no case where state action was not found under the circumstances of this case. The Court found that the Plaintiffs had suffered "injury in fact" to their medical privacy, that the injuries were directly traceable to the the Amended Rule and that enjoining the Rule would redress Plaintiffs' injuries. The Court found that Plaintiffs sued the appropriate party in filing their action against the Secretary. The Court also agreed that all of the facts alleged by the Plaintiffs in their complaint and in more than 25 affidavits and thousands of pages of exhibits must be taken as true. The Court found that private entities are using the grant of "regulatory permission" under the Amended Rule as a "new federal seal of approval" for the non-consensual use and disclosure of Plaintiffs' health information, that this practice began on the April 14, 2003 implementation date of the Rule, and that covered entities are relying on the Amended Rule to ignore privacy protections under State law. Under these facts and circumstances, it is difficult to conclude that the federal government's "fingerprints" are not on the action. Jim Pyles James C. Pyles Powers, Pyles, Sutter and Verville, P.C. 1875 Eye Street, NW Washington, D.C. 20006 e-mail: jim.pyles@ppsv.com Telephone (202) 466-6550 Fax (202) 785-1756 And a link to the petition: http://www.patientprivacyrights.org/site/Ecard?ecard_id=1041 |
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