Appeals Court Blocks DEA's Attempt To Bury Lawsuit Settlement Terms

from the you-serve-the-public,-remember? dept

The government wants secrecy just because and the Sixth Circuit Appeals Court isn't having it. The government entity requesting extra secrecy with zero justification is the DEA. And it's likely requesting it so other doctors it's abused won't come asking for similar settlements.

The specifics of the case trace back almost two decades. Two doctors -- both working for the Henderson County Community Hospital in Tennessee -- surrendered their prescription licenses to the DEA while working through their own chemical addictions. One doctor, Tom McDonald, surrendered his all the way back in 1999. The other doctor suing the DEA, John Woods, surrendered his to the DEA in 2012. Both were reinstated a few years later -- McDonald's in 2002 and Woods in 2014. Since that point, they've worked without incident at HCCH. (And prior to that, as well.)

Things changed in 2016 when the DEA showed up and ordered them to stop working until they'd obtained a waiver from the agency. This sudden enforcement effort was prompted by the addition of this clause to US code in 2014. In McDonald's case, there was 12 years of uninterrupted good behavior before the rule changed. It was Woods' more recent reinstatement that may have triggered this burst of regulatory activity. Whatever the case, it meant the two doctors were out of work until the DEA decided their years of service without abusing prescription pads meant something.

The doctors sued and, eventually, a settlement was agreed to. This is what the Sixth Circuit's short, pointed order [PDF] discusses. The DEA wanted the settlement sealed. In support of this argument, it offered non sequiturs. The judges don't like the DEA's quasi-arguments and say as much:

McDonald and Woods attached a copy of this agreement to their motion to dismiss the petition for review. The government in turn moved to keep the agreement under seal. We apply “a strong presumption in favor of openness as to court records.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (internal quotation marks omitted). The party seeking to seal a record document therefore must “analyze in detail” why the information in that document should stay secret.

The government does not even attempt to do that here. Rather than identify information too sensitive to remain public, the government argues that the agreement does not need to remain so—specifically because it binds only the parties and no rule required the parties to file it. That argument gets exactly backwards our operative presumption, which is that “[t]he public has a strong interest in obtaining the information contained in the court record.”

A case like this -- involving a settlement reached with the government after the DEA was hit with a restraining order against further enforcement -- is definitely in the public interest. The medical field requires a lot of education and ongoing training. Wiping out someone's livelihood because rules were changed years after the fact (at least in McDonald's case) to require DEA paperwork never needed prior to 2014 is the wrong way to handle regulatory matters.

The DEA had years of work history and two voluntary relinquishments as evidence these doctors could be trusted to mete out medical care and prescriptions. But it ignored all of that to do some "letter of the law" busywork. As the court points out, the public interest for those in the medical field is immense. Burying the settlement is burying information crucial to working doctors in similar situations.

That interest is particularly strong where the information pertains to an agency’s interpretation of a regulation. Other doctors would no doubt be interested to know that the DEA does not plan to treat them like it treated McDonald and Woods.

So, some desk jockey at the agency cross-ref'd a couple of databases post-rule change and agents headed out to make medical care worse by depriving hospitals and clinics of medical staff with clean track records (minus some missteps where the medical professionals were responsible enough to take themselves out of the prescription loop until their own addictions were under control). That's the Drug War being compounded by random enforcement, something that springs from a desire to look like you're making a difference but without having to make any real effort. Of course other doctors want to know how the DEA is going to handle stuff that wasn't a problem for decades, especially when they've made every effort to comply with massive amounts of regulation.

The DEA doesn't want people to know how to fight back against bureaucratic busybodying. That's the only reason it wanted the settlement buried. The problem was it couldn't come up with a plausible reason to do so when forced to argue it in court.


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  • icon
    Anonymous Anonymous Coward (profile), 26 Jul 2018 @ 4:27pm

    We're from the Government, we're here to help

    Isn't it funny how employees of a government by the people and for the people think everything they do should be kept secret from the people (well maybe except your tax bill)? While it appears to be true, it certainly isn't funny.

    reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 26 Jul 2018 @ 4:42pm

      Re: We're from the Government, we're here to help

      If you were embezzling from the company, you wouldn't tell your boss about it, would you?

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 26 Jul 2018 @ 4:47pm

        Re: Re: We're from the Government, we're here to help

        Only if my boss was in on it. Which seems to be a big problem with our public employees. They are all in on it. Well, many if not most.

        Oh, and they don't see us as their boss, even though we pay them.

        reply to this | link to this | view in chronology ]

        • icon
          JoeCool (profile), 27 Jul 2018 @ 6:58am

          Re: Re: Re: We're from the Government, we're here to help

          Somehow they went from civil servants to civil rulers... who don't happen to be very civil, either.

          reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 26 Jul 2018 @ 4:59pm

    Article 1, Section 10, Clause 1

    How exactly is a regulation created by an executive branch agency in charge of enforcing criminal (as opposed to civil) laws not tripping over the constitutional prohibition on ex post facto laws when changing the rules like this so they retroactively affect people who have already completed their punishments?

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 26 Jul 2018 @ 5:41pm

    'Nope, not a single other person before you. So, ready to cave?'

    The DEA doesn't want people to know how to fight back against bureaucratic busybodying.

    How, and I imagine more importantly that it's possible to win against them. If someone believes, or is led to believe that they have no choice but to do what the DEA demands then they are much less likely to fight back. On the other hand if they are able to see others that have pushed back and won then they're much more likely to do so.

    reply to this | link to this | view in chronology ]

    • identicon
      TripMN, 26 Jul 2018 @ 7:11pm

      Re: 'Nope, not a single other person before you. So, ready to cave?'

      Well, I mean, you wouldn't want people to know they have rights. You let them know and they start exercising them. Suddenly everyone has rights and the government has to actually follow its own rules.

      And we can't have that.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jul 2018 @ 7:52pm

    Um... that document doesn't point to what you think it does

    The link in the text above, does point to changed CFR.

    However: The doctor's restraining order indicates that they were being hit with 21 C.F.R. § 1301.76(a) As best I can find, the linked CFR change affects 21 C.F.R. § 1301.76(c).

    For reference: See here.

    (c) talks about registrants distributing without being registered as a distributor. (a) prohibition is the bit that says "no can do" for anyone who "...has surrendered a DEA registration for cause."

    So... what have I missed?

    reply to this | link to this | view in chronology ]

  • identicon
    Tin-Foil-Hat, 27 Jul 2018 @ 8:36am

    Fiscal Sink

    The DEA has the opposite of the Midas Touch and we're paying for the privilege.

    reply to this | link to this | view in chronology ]


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