Florida Health Sciences Center, Inc. v. Secretary, U.S. Department of Health and Human Services ( 2021 )

USCA11 Case: 19-14383 Date Filed: 02/11/2021 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14383
_______________________
D.C. Docket No. 8:18-cv-00238-JSM-CPT
FLORIDA HEALTH SCIENCES CENTER, INC.,
d/b/a Tampa General Hospital,
Plaintiff - Appellee,
PATIENT SAFETY ORGANIZATION OF FLORIDA,
Intervenor - Appellee,
versus
SECRETARY, U.S. DEPARTMENT
OF HEALTH AND HUMAN SERVICES,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 11, 2021)
USCA11 Case: 19-14383 Date Filed: 02/11/2021 Page: 2 of 9
Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.
NEWSOM, Circuit Judge:
This case arises out of an unusual set of circumstances and ultimately turns
on Article III’s requirement of an “imminent injury.” It all started with a surgery
patient who sued a hospital for medical malpractice in Florida state court. In the
course of that state-court litigation, the patient requested that the hospital disclose
certain records. The hospital refused on the ground that disclosure would violate
federal law. The state court nonetheless ordered the hospital to disclose the
records and eventually sanctioned it for failing to do so. In an attempt to get out of
its dilemma, the hospital brought a declaratory-judgment action in federal court
against the federal official charged with enforcing the federal law. The hospital
requested a declaration that its disclosure would violate the federal law and—
counterintuitively—if the disclosure did violate the federal law, an injunction
preventing the federal official from enforcing the law against it. The district court
granted both of the hospital’s requested remedies.
In the meantime, the hospital appealed the original state-court contempt
order and the state court stayed the sanctions. But while that appeal was pending,
the state trial court dismissed the surgery patient’s underlying suit against the
hospital on the merits, thereby obviating the need for any disclosure. Because the
underlying suit was dismissed, the hospital is no longer likely to be required to
2
USCA11 Case: 19-14383 Date Filed: 02/11/2021 Page: 3 of 9
disclose any records, and whatever injury might once have been “imminent”
enough to confer jurisdiction in this case is now too attenuated. Accordingly, we
will vacate and dismiss for lack of jurisdiction.
I
Lawrence Brawley sued Florida Health Sciences Center—which does
business as Tampa General Hospital—after a surgery gone terribly wrong.
Brawley requested Tampa General’s internal records related to a wide range of
adverse medical incidents. Tampa General refused to disclose some of the
requested records because, in its view, doing so would violate the federal Patient
Safety Act.
The Patient Safety Act forbids participating entities, including Tampa
General, from disclosing certain records that qualify as “patient safety work
product.” See 42 U.S.C. § 299b–22(a), (b). An entity that discloses such records
can be fined up to $10,000 per violation by the Secretary of Health and Human
Services. Id. §§ 299b–22(f), 1320a–7a(c). Even when an entity discloses
qualifying records pursuant to a court order, the Secretary may still impose a fine.
See 73 Fed. Reg. 70732, 70791 (Nov. 21, 2008).
After Brawley requested the records, Tampa General brought this action in
federal court against the Secretary of the Department of Health and Human
Services under the Declaratory Judgment Act. Tampa General requested a
3
USCA11 Case: 19-14383 Date Filed: 02/11/2021 Page: 4 of 9
declaration that the disclosure that Brawley requested would violate the Patient
Safety Act and that the Patient Safety Act “preempt[ed]” the state law authorizing
disclosure. Tampa General then requested an injunction providing that even
though Tampa General’s disclosure violated the Patient Safety Act, and even
though the Patient Safety Act preempted contrary state law, the Secretary
nonetheless could not enforce the Patient Safety Act against Tampa General
because Tampa General would violate the Act only to comply with state law. The
district court denied a motion to dismiss for lack of subject-matter jurisdiction
because, in its view, Tampa General faced an imminent injury in the form of the
Secretary’s anticipated enforcement action. Specifically, Tampa General was
likely to be ordered to disclose the records in state court, and if it did disclose the
records, it faced a substantial threat of prosecution by the Secretary.1
While the federal case was proceeding to summary judgment, the state trial
court determined, for its part, that the requested records were not covered by the
Patient Safety Act and ordered Tampa General to disclose them on the authority of
a state constitutional amendment mandating broad disclosure of patient records.
Tampa General refused to disclose the records on the ground that, by doing so, it
could subject itself to an enforcement action and a fine under the Patient Safety
1
After this initial denial on the Secretary’s motion to dismiss, the Patient Safety Organization of
Florida then filed an intervenor complaint that didn’t add any new relevant facts to Tampa
General’s complaint.
4
USCA11 Case: 19-14383 Date Filed: 02/11/2021 Page: 5 of 9
Act. Eventually, the state court held Tampa General in contempt for disobeying its
disclosure order. It imposed sanctions, but Tampa General promptly appealed and
the court stayed the sanctions.
At that point, a representative of the Department of Health and Human
Services gave a declaration that the Department had no intention to penalize any
providers who, like Tampa General, provided records pursuant to a court order.
Even so, a few months later, the district court issued an order granting summary
judgment for Tampa General. The court explained that the injury of federal
enforcement remained “imminent” because Tampa General faced state-court
pressure to disclose and the Secretary, notwithstanding the Department’s
representative’s statement of intent, refused to expressly disavow future
enforcement. The district court declared that the requested disclosure would
violate the terms of the Patient Safety Act and that the Patient Safety Act
“preempt[ed]” the state law authorizing disclosure. The court then permanently
enjoined the Secretary from enforcing the Act against Tampa General. The
Secretary appealed the district court’s order.
Meanwhile, and importantly here, while Tampa General’s appeal of the
contempt order was pending in state appellate court, the state trial court dismissed
Brawley’s suit on the merits. As a result, the state trial court dissolved its
contempt order for failure to disclose, and Tampa General dismissed its appeal of
5
USCA11 Case: 19-14383 Date Filed: 02/11/2021 Page: 6 of 9
that order. Brawley separately appealed the dismissal of his case on the merits,
and the parties are now briefing that merits appeal. See Brawley v. Smith, No.
2D20-120 (Fla. Dist. Ct. App.).
II
We must review jurisdictional questions sua sponte and de novo. Patel v.
Hamilton Med. Ctr., Inc., 967 F.3d 1190, 1193 (11th Cir. 2020). Article III
standing, a jurisdictional requirement, must exist throughout the full course of
litigation. Hollingsworth v. Perry, 570 U.S. 693, 705 (2013). To have Article III
standing based on an anticipated injury, Tampa General must establish that an
injury is “imminent.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158
(2014). If an anticipated injury is “certainly impending,” or if the threat of the
anticipated injury is “credible” or “substantial,” it is imminent. Whitmore v.
Arkansas, 495 U.S. 149, 158 (1990); Babbitt v. Farm Workers, 442 U.S. 289, 298
(1979); Driehaus, 573 U.S. at 164. An anticipated injury is not imminent, by
contrast, if it depends on “a highly attenuated chain of possibilities.” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 410 (2013).
Two cases illustrate the kind of attenuation that renders an anticipated injury
insufficiently imminent for Article III purposes. In Clapper, the anticipated injury
consisted of government agents listening to the plaintiffs’ phone calls pursuant to
authority vested in them under the Foreign Intelligence Surveillance Act. Id. at
6
USCA11 Case: 19-14383 Date Filed: 02/11/2021 Page: 7 of 9
401. The Supreme Court held that the plaintiffs’ injury wasn’t imminent because
although they intended to make phone calls with foreign correspondents who were
within the scope of the challenged statute, the government agents would actually
listen to those phone calls—and thereby injure the plaintiffs—only if five
conditions obtained: (1) among their many possible foreign targets, the agents tried
to listen to the plaintiffs’ foreign correspondents’ calls, (2) the agents tried to listen
to those correspondents’ calls under the authority of the FISA rather than by some
other means, (3) FISA judges authorized the agents to listen to the calls, (4) the
agents successfully implemented the technology enabling them to listen to the
phone calls, and (5) these specific plaintiffs were on the other line in the calls that
the agents listened to. Id. at 410.
In City of Los Angeles v. Lyons, the anticipated injury consisted of being
choked by the city police. 461 U.S. 95, 97–98 (1983). The Supreme Court held
that the injury wasn’t sufficiently imminent, even where the plaintiff had been
choked by the police once before, because there was no evidence that police
officers choked law-abiding citizens regularly or that the city ordered police
officers to act in that manner, making it unlikely to happen to the plaintiff in the
near future. Id. at 105.
Here, the parties and the district court conceive of the anticipated injury as
the Secretary’s enforcement action against Tampa General under the Patient Safety
7
USCA11 Case: 19-14383 Date Filed: 02/11/2021 Page: 8 of 9
Act. As things stand today, in order for that injury to occur, a cascade of
conditions must obtain. Most apparently, (1) the state appellate court must reverse
the state trial court’s dismissal of Brawley’s lawsuit, (2) Brawley must again
request the same patient records, (3) the trial court must again compel disclosure of
those records, (4) Tampa General must acquiesce under the threat of contempt
sanctions, and (5) the Secretary must elect to pursue an enforcement action against
Tampa General despite its representative’s statements to the contrary. In addition,
(6) the parties must not settle the underlying lawsuit, (7) the relevant statutes and
constitutional amendments must remain untouched, and (8) the Florida Supreme
Court must not revisit its interpretation of the Patient Safety Act so as to affect the
litigation. Accordingly, the threat of the Secretary’s enforcement action against
Tampa General does not presently pose the sort of “certain[ty],” “credib[ility],” or
“substantial[ity]” required to constitute an imminent injury. See Whitmore, 495
U.S. at 158; Babbitt, 442 U.S. at 298; Driehaus, 573 U.S. at 164. 2
2
When an action arises under the Declaratory Judgment Act, a jurisdictional requirement like
standing can also be satisfied if a suit by the defendant against the plaintiff concerning the same
issue would have satisfied that requirement. See, e.g., Patel, 967 F.3d at 1195 (explaining that
“jurisdiction [under the DJA] turns on whether [the defendant] could file a coercive action
arising under federal law”) (quotation marks omitted); Household Bank v. JFS Grp., 320 F.3d
1249, 1259 (11th Cir. 2003) (“[A] federal district court has subject-matter jurisdiction over a
declaratory judgment action if . . . the defendant could file a coercive action arising under federal
law.”); see also, e.g., Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671–72 (1950).
Accordingly, Tampa General might have argued that we had jurisdiction because the Secretary
was facing an imminent injury. The only injury that the Secretary was facing was Tampa
General’s violation of the Patient Safety Act because violations of federal law injure the federal
government so as to authorize suit. See Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529
U.S. 765, 771 (2000) (explaining that a violation of federal law injures the United States’s
8
USCA11 Case: 19-14383 Date Filed: 02/11/2021 Page: 9 of 9
III
Because Tampa General has failed to demonstrate that it currently faces an
imminent injury, we lack jurisdiction over this case. We VACATE the district
court’s declarations and injunction and DISMISS Tampa General’s suit for lack of
jurisdiction.
sovereignty). Of course, the Secretary’s injury occurs regardless of whether the Secretary elects
to pursue an enforcement action, so this injury is one step more imminent than Tampa General’s.
But it is likewise too attenuated to satisfy Article III.
9