Florida Medical Ass'n v. Department of Health, Education, & Welfare (947 F. Supp. 2d 1325, 2013)

United States District Court for the Middle District of Florida 2013-05-31

Crimes and Criminal Procedure Education The Public Health and Welfare

Citations

Full opinion text

ORDER

MARCIA MORALES HOWARD, District Judge.

The issue presented in this case is whether an injunction, entered some 33 years ago, which permanently enjoins the United States Department of Health and Human Services (“HHS”) “from disclosing any list of annual Medicare reimbursements amounts, for any years” that identifies providers of services under Medicare, should be vacated or modified because continued prospective application “is no longer equitable.” Rule 60(b)(5), Federal Rules of Civil Procedure (Rule(s)); see Alley v. U.S. Dep’t of Health and Human Servs., 590 F.3d 1195, 1209-10 (11th Cir.2009). The issue is brought to the Court by Inter-venors Jennifer D. Alley and Real Time Medical Data Inc.’s Motion to Vacate Permanent Injunction (Doc. 55; RTMD Motion), and Intervenor Dow Jones & Company, Inc.’s Motion to Vacate Permanent Injunction. (Doc. 56; Dow Jones Motion). The issues have been extensively briefed, and the parties have submitted evidence in support of their respective positions. The Court heard oral argument on June 20, 2012, (Doc. 65; 06/20/12 Clerk’s Minutes), the transcript of which is incorporated herein. (Doc. 66; Tr.). Additionally, on August 20, 2012, the parties filed post-hearing briefs.

I. Background

A. District Court Proceedings Leading to the Entry of the Permanent Injunction

In March 1977, the Secretary of the United States Department of Health, Education and Welfare, the agency responsible for administering Medicare, released a list identifying physicians or groups of physicians who received $100,000.00 in Medicare reimbursements in 1975. See Fla. Medical Ass’n., Inc. v. Dep’t of Health, Education, and Welfare, 479 F.Supp. 1291, 1297 (M.D.Fla.1979); see also Alley, 590 F.3d at 1198. The disclosure, which was widely publicized, also correlated the gross reimbursements for 1977 Medicare claims with the name of each physician identified. 479 F.Supp. at 1297. The information published was later found to be “inaccurate in many ways.” Id.

Also in March, 1977, the Secretary published in the Federal Register (42 Fed. Reg. 14703) an interim amendment to the rules for disclosure of Social Security records, contained in 20 C.F.R. s 401.1 Et seq., in order to conform the current regulations to the most recent requirements of the Freedom of Information Act. The effect of the amendment to 20 C.F.R. s 401.1 Et seq. was to adopt the principles of the Freedom of Information Act as guiding rules for the disclosure of information by [HHS], 42 Fed.Reg. at 14704. See 20 C.F.R. s 401.3(a).

Id. Then, in November 1977, the Secretary directed its carriers to publish another list, this time identifying all physicians and providers who received medicare reimbursements in 1977. Id.

The list was to include full names of the physicians and their providers, their addresses, the net total amount of Medicare reimbursement paid [directly] ... to each physician or provider, and the net total amount of Medicare reimbursements paid to beneficiaries for ... services furnished by each physician or provider.

Id. On March 24, 1978, Plaintiff Florida Medical Association (the “FMA”) and six individual physicians, on behalf of ah Florida physicians whose patients were Medicare beneficiaries, filed suit to enjoin the scheduled disclosures. Alley, 590 F.3d. at 1198-99; Doc. 59 at 94-100 (FMA Complaint). The FMA described the contested information as follows:

Detailed information on the amount of “assigned” Medicare payments made directly to individual physicians and “unassigned” payments made to individual Medicare beneficiaries on account of physician services are contained in a system of records maintained by defendants Blue Shield and Group Health, Inc., under the control and direction of HEW and the Secretary. The information contained in this system of records is retrievable by the names of individual physicians or groups or physicians, or by some identifying number or symbol particularly assigned to individual physicians or groups of physicians.

FMA Complaint ¶ 11.

In the FMA Complaint, the FMA invoked the Court’s jurisdiction stating that its claims arose “under the Freedom of Information Act, 5 U.S.C. § 552 [“FOIA”], the Privacy Act of 1974, 5 U.S.C. § 552a, 18 U.S.C. § 1905 [the Trade Secrets Act], and the First, Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States.” Id. ¶ 1. It asserted that in 1977, HHS made public the names of physicians or physician groups whose billing exceeded $100,000 or more in Medicare payments in 1975, id. ¶ 12, and that HHS had announced an intention to make additional similar disclosures on April 30, 1978. Id. ¶¶ 13-18. Alleging that further release of such information would violate FOIA, the Privacy Act, the Trade Secrets Act, and the United States Constitution, the FMA Plaintiffs requested that the Court declare “that the threatened disclosure of Medicare payments made on account of billings by members of the class” would be unlawful, and asked the Court to preliminarily and permanently enjoin HHS from disclosing this information. See FMA Complaint at 7; see also Alley, 590 F.3d at 1199.

On April 28, 1978, the Court entered a Temporary Restraining Order, which the parties agreed would remain in place until the Court resolved the case, or June 6, 1978, whichever occurred first. See 479 F.Supp. at'1295. The Court referred the Motion for Preliminary Injunction to the Magistrate Judge who issued findings and recommendations, and the parties filed written objections. Id. On May 16, 1978, the Court heard argument concerning those objections. See id. Having filed cross motions for summary judgment, the parties stipulated that the Court should “consolidate its ruling on the merits in this case with its consideration of Plaintiffs Preliminary Injunction Motion.” Id. Subsequent to that hearing, on June 12, 1978, the Court permitted the American Medical Association (“AMA”) to intervene on behalf of its more than 200 licensed physician members nationwide. Id. As such, the Court recertified the class to include all physicians licensed to practice in Florida and all members of the AMA, if they were providers of Medicare services and would be individually identified by the disclosure of annual medicare reimbursement amounts. Id. at 1295-96.

After giving the parties additional time to submit memoranda, the Court was faced with the possibility that its subject matter jurisdiction might be extinguished if the Temporary Restraining Order expired, and HHS disclosed the information at issue, before the entry of an order resolving the matter. See id. at 1296. As such, the Court issued “what it termed ‘an Ancillary Writ of Injunction,’ ” which the Fifth Circuit Court of Appeals vacated, after concluding that neither the Court’s ancillary jurisdiction, nor the Ml Writs Act, authorized a district court to disregard the requirements of Rule 65 of the Federal Rules of Civil Procedure. Fla. Medical Ass’n., Inc. v. U.S. Dep’t of Health, Education & Welfare, 601 F.2d 199, 202-203 (5th Cir.1979). Nevertheless, HHS agreed not to publish the contested data for a period of time. Id. at 203, n. 4.

On October 22, 1979, the late Senior District Judge Charles R. Scott granted Plaintiffs’ request for injunctive relief. See generally 479 F.Supp. 1291 (“FMA Injunction Order”). Examining competing public and private interests, Judge Scott determined that the proposed disclosure, “at least in the individually identifying manner,” was covered by FOIA Exemption 6, and thus, the disclosure would violate the Privacy Act. Id. at 1311. That same day, the Court issued a Final Declaratory Judgment and Permanent Injunction which: ■

1. ... permanently enjoined [HHS] from disclosing any list of annual Medicare reimbursement amounts, for any years, which would personally and individually identify those providers of services under the Medicare program who are members of the recertified class in this case.

2. Any such disclosure of annual Medicare, reimbursement amounts, for any years, in a manner that would personally and individually identify the providers of services under the Medicare program who are members of the recer-tified class in this case is declared to be contrary to federal law.

Fla. Medical Ass’n., Inc. v. Dep’t of Health, Education & Welfare, No. 78-178 (M.D.Fla. Oct. 22, 1979) (see Doc. 59 at 25-26)(“1979 FMA Injunction”).

B. Post-Injunction Developments

1. 1980: HHS Policy Modification

On November 28, 1980, HHS published in the Federal Register a modification of its policy on disclosure of amounts paid to individual physicians under the Medicare program following, and in light of, “federal court decisions.” 45 Fed. R. 79172 (Nov. 28, 1980)(“1980 HHS Notice”). Referring to the 1977 policy statement found at 42 Fed.Reg. 14703, (“preamble to the interim rules of the Social Security Administration for disclosure of information”), which stated that disclosure would not constitute an unwarranted invasion of the individual physician’s privacy, the 1980 HHS Notice announced that two federal courts, “have concluded that the disclosures do constitute an unwarranted invasion of personal privacy of the individual physicians and the Secretary has been enjoined from disclosing the amounts of payment to individual physicians.” Id. (citing “Fla. Medical Ass’n., Inc. v. Dep’t of Health Ed. and Welfare, M.D. Fla. 1980 [sic]” and “The Amer. Ass’n. of Councils of Med. Staffs of Private Hosp., Inc. v. Health Care Financing Admin., E.D. La.1980)”. The 1980 HHS Notice stated that an appeal had not been taken from the courts’ injunctions, and that

The Secretary has considered the competing interests and has concluded that the public interest in the individually identified payment amounts is not sufficient to compel disclosure in view of the privacy interests of the physicians found compelling by the courts.

See 1980 HHS Notice.

2. 1982: Injunction Modification

On December 2, 1982, Judge Scott clarified the 1979 FMA Injunction, at the request of HHS, to ensure that the injunction would not prevent HHS from disclosing individual payment information, with respect to physicians suspected of unlawful acts, to federal, state or local law enforcement agencies. Fla. Medical Ass’n. Inc. v. Dep’t of Health, Education, and Welfare, No. 78-178-Civ-J-S (M.D.Fla. Dec. 2, 1982) (the “Modification Order”). The Court observed that it had prohibited disclosure by HHS of “Medicare payment information about individually-named physicians,” finding “that such disclosure was not required by the [FOIA], 5 U.S.C. § 552, pursuant to the exemption set forth in 5 U.S.C. § 552(b)(6), and in fact was prohibited by the Privacy Act, 5 U.S.C. § 552a.” Id. In ruling on HHS’s motion, Judge Scott explained that the permanent injunction

was premised upon federal statutory grounds. 479 F.Supp. at 1311, n. 10. The sort of disclosure which the decision addressed was that which is prohibited by the Privacy Act without the prior written consent of the affected individual. 479 F.Supp. at 1306-1307. Hence, the Court’s injunction did not cover disclosure pursuant to the Law Enforcement Exception, or any other exception set forth in subsection (b) of the Privacy Act, since the statute, by its terms, does not prohibit such disclosure, even where no written consent is obtained. On the other hand, any disclosure made without the prior consent or the affected individual, which does not fall within the specific exceptions set forth in subsection (b) is prohibited by the Privacy Act and by the Court’s injunction.

Id. at 3. Accordingly, as construed by the Court, the 1979 FMA Injunction would not to prohibit disclosure by HHS of Medicare payment information to law enforcement agencies “where such disclosure is authorized under 5 U.S.C. § 552a(b)(7).” Id. No appeal was taken.

3. HHS’ Disclosure of Information to Intervenor Alley 2002-2007

Intervenor Jennifer Alley (“Alley”) is the owner of Intervenor Real Time Medical Data, LLC (collectively “RTMD”), a “business that uses Medicare claims data to assist hospitals and other clients with their marketing and strategic planning efforts.” Alley, 590 F.3d at 1200; see also (Doc. 55-1; Alley Decl. ¶¶ 2-6). , On June 20, 2001, RTMD submitted a formal FOIA request to the HHS Center for Medicare Services (“CMS”) seeking Medicare claims data, including physicians’ names and addresses, diagnosis codes, patient discharge status and the type of bill submitted. Alley Decl. ¶ 10. CMS granted the request. “In June 2003, RTMD began submitting FOIA requests for Medicare inpatient data for the state of Alabama, which were granted from 2003 to 2007.” Id. ¶ 12. Also, during 2003, RTMD submitted a FOIA request for Medicare data for the states of Tennessee, Georgia, Florida and Mississippi. Id. ¶ 13. CMS denied RTMD’s - multi-state FOIA requests, saying they would be too time-consuming to fulfill. Id. ¶ 14-15. RTMD appealed that denial. Id. ¶ 16. During the processing of the appeal, CMS continued to fulfill RTMD’s FOIA requests for Alabama Medicare data on a regular and timely basis. Id. ¶ 18.

Because of CMS’ delay in resolving RTMD’s appeal regarding the request for multistate data, on January 11, 2007, RTMD filed a FOIA complaint in the United States District Court for the Northern District of Alabama seeking the requested information. . Id. ¶ 20; ' see also Alley, 590 F.3d at 1198. In response, HHS contended that the data requested was exempt from disclosure under . Exemption 6 of FOIA. Alley Decl. ¶ 21. The Alabama District Court concluded that this Court’s 1979 FMA Injunction did not apply to the records sought by Alley and RTMD, and that “disclosure would not constitute a clearly unwarranted invasion of privacy under Exemption 6.” Thus, the Court ordered HHS to disclose the documents. Alley, 590 F.3d at 1201,

HHS appealed, and on December 18, 2009, the Eleventh Circuit reversed the trial court. See generally Alley, 590 F.3d 1195. Citing GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 387, 100 S.Ct. 1194, 63 L.Ed.2d 467 (1980), the court' explained “an agency does not improperly withhold information when a federal district court has enjoined the agency from disclosing the information.” Alley, 590 F.3d at 1203. In accordance with the Supreme Court’s GTE Sylvania decision, the court stated that “an injunction issued by one court against the disclosure of information may not be collaterally attacked in another court in a FOIA lawsuit seeking disclosure of that information.” Id. at 1203. Instead, “the appropriate forum in which to challenge the validity of the order is the district court that issued it.” Id. at 1204 (citing Wagar v. U.S. Dep’t of Justice, 846 F.2d 1040, 1047 (6th Cir.1988)). In áccordanee with these principles, the Eleventh Circuit provided the following procedural roadmap for this case:

The rule that a FOIA lawsuit may not be used to collaterally attack an injunction prohibiting disclosure of certain records does not mean there is no remedy for the party seeking these records. It means that the party must first succeed in having the issuing court modify or vacate the injunction barring disclosure. If that court .refuses, the party may appeal ■ that refusal. A direct attack, instead of a collateral one, is the proper procedure.

Id. The Eleventh Circuit further instructed that if Alley wished to raise issues regarding whether the 1979 FMA Injunction should be vacated or modified, “she can do so before the United States District Court for the Middle District of Florida in a proceeding to alter or vacate the injunction; we will not decide those issues here.” Id. at 1209-10. In so holding, the Eleventh Circuit commented on the breadth of the 1979 Permanent Injunction, stating:

[T]he FMA injunction simply is not limited to reimbursement amounts under the old payment system. It plainly bars disclosure of “Medicare reimbursement amounts,” without any qualification regarding the methodology used in setting those amounts.

Alley, 590 F.3d at 1209.

RTMD submitted another FOIA request for the Alabama Medicare data on April 13, 2007. This request was denied and RTMD and Alley have not received any FOIA data since that denial. Alley Decl. ¶¶ 22, 23. Nevertheless, Alley states:

In that nearly six years, CMS provided RTMD with Medicare data for approximately 5 million claims. To my knowledge, not one single physician ever objected to the disclosure of any information contained within that data.

Id. ¶ 24.

4. Wall Street Journal Investigation 2009

Intervenor Dow Jones and Company, Inc. (“Dow Jones”) is the publisher of The Wall Street Journal, a nationally distributed newspaper. In 2009, the Journal began working with a nonprofit journalism organization, Center for Public Integrity (“Cpi”), investigate Medicare data, known as the Limited Data Set Files (“LDS Files”), maintained by the CMS, an HHS agency. (Doc. 1-2; Allen Decl. ¶ 5). The Journal sought access to the Carrier Standard Analytic File (“Carrier File”), a subset of the LDS Files. According to Dow Jones, the Carrier File has “essentially limitless potential to help expose fraud, waste, and abuse in the Medicare system.” Allen Decl. ¶ 3.

In June 2009, CPI submitted a FOIA request to HHS, requesting portions of the LDS Files. When HHS did not respond to the request, CPI filed a FOIA suit in the United States District Court for the District of Columbia. Allen Decl. ¶¶ 5, 6; Tamman Decl. ¶¶ 5, 6. However, the parties voluntarily dismissed the FOIA suit on January 27, 2010, after reaching a settlement. Allen Decl. ¶ 6. As part of the settlement, “Dow Jones and CPI were able to negotiate to purchase from HHS a portion of the Carrier File which contained all billings for a randomly selected 5% of Medicare recipients,” and some other sample files, pursuant to a standardized Data Use Agreement (“Agreement”) with CMS, signed by Dow Jones and CPI. The Agreement provided that “Dow Jones would not disseminate information derived from the LDS Files if the information could be reasonably used to deduce an individual doctor’s identity.” Allen Decl. ¶¶ 6, 7; Tam-man Decl. ¶¶ 8, 9; see (Doc. 1-3 at 24; Agreement). The Agreement further provided that Dow Jones could “challenge, at any time in the future, the legal basis for denying public access to, or prohibiting dissemination of, information derived from the files [specified] ... or any other information.” Agreement, Attachment A, ¶ A-4; see also Allen Decl. ¶ 7; Tamman Decl. ¶ 18. Based upon the information it was able to obtain, the Wall Street Journal published a series of articles about Medicare between April and December, 2010, and. February and April, 2011, touching upon possible fraud, waste, and abuse by Medicare providers. Allen Decl. ¶¶ 8-10; Tamman Decl. ¶¶ 10, 11; (Doc. 1-3; Schoofs Decl. ¶¶ 2-6); (Doc. 19; Dow Jones Supplemental Exhibits). Dow Jones contends that the 1979 FMA Injunction caused HHS to limit access to data from the LDS Files, which interfered with, and continues to interfere with the Journal’s reporting, on Medicare. Allen Decl. ¶¶ 15-18, 21, 22, 25; see also Tamman Decl. ¶¶ 6, 12-16; Schoofs Decl. ¶¶ 7-28.

C. The Current Posture

On January 25, 2011, Dow Jones filed a Motion to Intervene in this case, pursuant to Rule 24, in order for it to seek to vacate the 1979 FMA Injunction. (Doc. 1; Dow Jones Motion to Intervene at 1). RTMD filed a similar Motion to Intervene on April 18, 2011. (Doc. 20; RTMD Motion to Intervene). The Court granted Dow Jones’ and RTMD’s Motions to Intervene, allowing them to each file a motion, pursuant to Rule 60, to modify or vacate the 1979 FMA Injunction. The pending motions to vacate followed.

II. The Parties ’ Arguments

In the RTMD Motion, RTMD argues that the 1979 FMA Injunction should be vacated pursuant to Rule 60, because the balance between the physicians’ privacy interests in maintaining Medicare reimbursements confidential and the public interest in disclosure of Medicare reimbursement amounts has changed greatly since 1979, making continued enforcement of the 1979 FMA Injunction a “manifest injustice.” RTMD Motion at 15. Additionally, RTMD contends that the physicians’ privacy interest in reimbursement amounts has been further reduced by the “Qualified Entity Program” created by the Patient Protection and Affordable Care Act of 2009, as amended by the Health Care and Education Reconciliation Act of 2010, because CMS will disclose identifying Medicare Part B data to qualified entities to create provider performance reports and will publish those reports even if the providers suggest that the Medicare data is erroneous. RTMD Response at 9-10; RTMD Reply at 9. RTMD also notes that HHS’s disclosure of Medicare data to RTMD from 2003 through 2007 resulted in no complaints by physicians. RTMD Response at 13. Thus, RTMD urges the Court to re-cálibrate what it argues is a reduced privacy interest in light of “Mo-day’s urgent public interest in disclosure,” based upon the ballooning cost of Medicare (“$510 billion in 2010, with an anticipated 5.6% annual increase in costs over the next decade”); the possibility that disclosure will help expose fraud and abuse (“between 3% and 10% of total health care expenditures are lost to fraud on an annual basis”); and the need for “healthcare strategic planning.” Id. at 15-16.

Dow Jones takes a similar approach in the Dow Jones Motion. It argues that the 1979 FMA Injunction should be vacated, pursuant to Rule 60, because “the factual and legal landscape” have changed dramatically since 1979. Dow Jones Motion at 5. As to the factual changes, Dow Jones first argues that providers no longer set their own “reasonable fees.” Id. at 6. Second, the 1979 FMA Injunction has been construed to reach all physician providers, whether corporate or individual, well beyond the membership of the FMA and AMA. Id. at 7 (citing Alley v. HHS, No. CV-07-BE-0096-E (N.D.Ala. March 30, 2011) (Doc. 139 at 9). Next, Dow Jones focuses upon the public interest in disclosure of the Medicare data, noting that since 1979, Medicare “has grown twenty-fold in nominal dollars, and nearly threefold as a percentage of the total federal budget.” Id. at 9 (emphasis omitted) (citing Doc. 56-1; Sparrow Decl. ¶ 20)). Additionally, Dow Jones emphasizes the prevalence of Medicare fraud, citing both published statistics and specific examples. Id. at 10-11 (citations omitted). Pointing to expert testimony, its own news stories which were based on the limited data made available by its Data Use Agreement with CMS, a United States Department of Justice investigation, and other media investigations uncovering Medicare fraud, Dow Jones contends that the reimbursement data can be used to uncover Medicare fraud. Id. at 11-15. Moreover, Dow Jones argues that any privacy interest providers claim in the Medicare reimbursement data is belied by the fact that similar data is routinely made available to the public. Id. at 15-16; see also Dow Jones Reply at 11-12. As such, according to Dow Jones, “[tjhese changes have ... fundamentally altered the calculus so that the privacy interests of physicians no longer clearly outweigh the compelling public interest in monitoring a program that now consumes one out of every eight federal dollars.” Dow Jones Reply at 3. Additionally, citing News-Press v. U.S. Dep’t. of Homeland See., 489 F.3d 1173 (11th Cir. 2007), Dow Jones argues that the law has changed, and that now, the Eleventh Circuit “ ‘disfavors privacy claims by those who receive a governmental benefit,’ ” and that Exemption 6 to FOIA was meant to protect “intimate details,” and not federal payments. Dow Jones Motion at 20-21; see also Dow Jones Reply at 7, 9-10.

Plaintiffs AMA and FMA oppose the motions to vacate the 1979 FMA Injunction, arguing that neither the facts nor law have changed since 1979, inasmuch as the Privacy Act and FOIA Exemption 6 remain the same; the revenues that individual physicians receive for their services to Medicare patients continue to be private information; and the public interest in preventing Medicare fraud has not changed since 1979. AMA and FMA Response at 1-2. Thus, according to Plaintiffs, the Intervenors have not made a “clear showing of grievous wrong” justifying vacatur of the 1979 FMA Injunction pursuant to Rule 60. See id. at 7, 31 (citing United States v. Swift, 286 U.S. 106, 119, 52 S.Ct. 460, 76 L.Ed. 999 (1932)). Plaintiffs further contend that there has been no “significant” modification of the law, citing to the recent decision of Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of Health and Human Sews., 554 F.3d 1046 (D.C.Cir.2009). Id. at 9-11. Likewise, Plaintiffs argue that there has been no change in facts which diminishes the physicians’ privacy interest in their personal financial information. Id. at 17. As to the public interest, Plaintiffs argue that the Intervenors have not established how the release of the data would uncover massive fraud, not already being investigated by law enforcement authorities. Id. at 28-31.

HHS’s position is driven by the procedural posture of this case, and what it argues is a subsequent significant change in the law which HHS contends makes prospective enforcement of the 1979 FMA Injunction no longer equitable. HHS argues that the Court in 1979 exceeded the limits of the remedies which are now recognized to be authorized by the Privacy Act and the Administrative Procedures Act (“APA”) by issuing a broad permanent injunction “barring potentially similar disclosures in the future.” HHS Response at 1. Specifically, HHS argues that the Court entered the 1979 FMA Injunction based upon its belief that the Privacy Act “authorized Courts to issue broad injunctions” to prevent disclosure of information that is subject to the Privacy Act. Id. at 2. However three years after the entry of the Injunction, the Eleventh Circuit Court of Appeals decided Edison v. Dep’t of Army, 672 F.2d 840 (11th Cir.1982), in which it held that the Privacy Act does not authorize injunctive relief against a government agency to prevent it from disclosing information. Id. This, says HHS, constitutes a significant change in the law warranting vacatur of the 1979 FMA Injunction, pursuant to Rule 60. HHS Response- at 1. HHS also argues that the APA could not have empowered the Court “to issue a permanent injunction reaching potential future disclosures that were not yet contemplated at the time of the Court’s decision,” but rather was available only for judicial review of HHS’s decision to disclose the 1977 data. Id. at 2. Thus, HHS concludes that “as a consequence of the Eleventh Circuit’s ruling in Edison, there is no longer any statutory basis for the 1979 .permanent injunction.” Id. at 16 (“Edison therefore amounts to a significant change in law that makes continued enforcement of the 1979 injunction improper.”).

Regardless of the Court’s decision on the pending motions, however, HHS notes that invalidation of the 1979 FMA Injunction will not result in immediate release of provider reimbursement data. Instead, a person or entity seeking the data would have to submit a FOIA request, and “[f]or years, it has been the position of HHS that the Privacy Act and a complementary provision of [FOIA], 5 U.S.C. § 552(b)(6), do not permit the release of the data at issue here.” Id. at 2-3 (citing HHS’ position in the case Consumers’ Checkbook, 554 F.3d at 1056).

In their Reply Briefs, Intervenors Dow Jones and RTMD agree that the Eleventh Circuit, in Edison, eliminated the statutory basis for the 1979 FMA Injunction. ■ Further, they argue that the broad injunctive relief granted is not authorized by the Privacy Act, FOIA, or the APA. Dow Jones Reply at 3-5; Dow Jones Supplement at 1-3; RTMD Reply at 1, n. 1. Thus, they contend, continued enforcement of the 1979 FMA Injunction is no longer supported by law.

Plaintiffs, however, disagree. They argue that in entering the 1979 FMA Injunction, the Court was reviewing agency action pursuant to the APA, and that because the Court determined that the disclosure was contrary to law under FOIA and the Privacy Act, the Court had the authority, under the APA, “to enjoin such unlawful disclosure.” AMA and FMA Reply at 3,’ 4; see also Tr. at 8-14. As such, according to Plaintiffs, the Edison case, which holds that the Privacy Act, standing alone, does not provide a private right of action to enjoin agency disclosure, does not constitute a “significant change in the law” for Rule 60 purposes, because “the APA does provide such a right of action.” Id. at 4. Plaintiffs argue that the breadth of the HHS forward-looking 1977 rule authorizing release of Medicare provider financial information underscores that HHS’s disclosure was “continuing,” and thus, a forward-reaching injunction was, and still is, appropriate. AMA and FMA Reply at 4. Even if applicable, Plaintiffs contend that Edison does not represent a change in the law because an earlier case, Cell Associates, Inc. v. Nat’l Institutes of Health, 579 F.2d 1155 (9th Cir.1978), cited by Judge Scott in the FMA Injunction Order, 479 F.Supp. at 1305-06, had previously held that the Privacy Act did not provide for injunctive relief. AMA and FMA Reply at 10. To this end, Plaintiffs argue that “ ‘Rule 60(b)(5) may not be used to challenge the legal conclusions on which a prior judgment or order rests.’ ” Id. at 4 (quoting Home v. Flores, 557 U.S. 433, 447, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009)).

III. Standard of Review: Rule 60

Rule 60(b) provides a district court the discretion to utilize equitable power to relieve a burden or imposition placed upon a party by injunction or declaratory judgment, and to prevent an “ ‘inequitable operation of a judgment.’ ” Cano v. Baker, 435 F.3d 1337, 1339-40 (11th Cir.2006) (citation omitted). “A motion for Relief under Rule 60(b) must be shaped to the specific grounds for modification or reversal enumerated in the Rule, and it may not be a mere general plea for relief.” Wendy’s Int’l, Inc. v. Nu-Cape Constr., Inc., 169 F.R.D. 680, 686-87 (M.D.Fla.1996).

Specific to the instant action, Rule 60(b)(5) allows a district court to vacate or modify a permanent injunction when “ ‘it is no longer equitable that the judgment should have prospective application Reynolds v. McInnes, 338 F.3d 1221, 1226 (11th Cir.2003) (citation omitted). While “Rule 60(b)(5) may not be used to challenge the legal conclusions on which a prior judgment or order rests, ... the Rule provides a means by which a party can ask a court to modify or vacate a judgment or order if ‘a significant change either in factual conditions or in law renders continued enforcement ‘detrimental to the public interest.’ ” Horne v. Flores, 557 U.S. 433, 447, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009) (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384, 112 S.Ct. 748, 116 L.Ed;2d 867 (1992)).

In Rufo, the Supreme Court set forth a two-step analysis for determining whether modification of existing injunctive relief is warranted. First, the “party seeking the modification of [an injunction] bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Rufo, 502 U.S. at 383, 112 S.Ct. 748. The moving party may satisfy this burden by showing “a significant cha nge either in factual conditions or in law.” Id. at 384, 112 S.Ct. 748. In this regard, “the question is whether any change in factual or legal circumstances renders continued enforcement of the original order inequitable.” Home, 557 U.S. at 457, 129 S.Ct. 2579. Second, if the moving party satisfies this initial burden, it must show that “the proposed modification is suitably tailored to the changed circumstance.” Rufo, • 502 U.S. at 391, 393, 112 S.Ct. 748; see also Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1563-64 (11th Cir.1994). The Eleventh Circuit has summarized the Rufo factors for modification as follows:

Modification may be considered when (1) a significant change in facts or law warrants change and the proposed modification is suitably tailored to the change, (2) significant time has passed and the objectives of the original agreement have not been met, (3) continuance is no longer warranted, or (4) a continuation would be inequitable and each side has legitimate interests to be considered.

Jacksonville Branch, NAACP v. Duval County Sch. Bd., 978 F.2d 1574, 1582 (11th Cir.1992) (citing Rufo, 502 U.S. at 391-92, 112 S.Ct. 748); see also In re Consol. ‘Non-Filing Insurance’- Fee Litig., 431 Fed.Appx. 835, 840-41 (11th Cir.2011). Under Rule 60(b)(5), a court “applies a flexible standard to determine whether changed circumstances dictate that [an injunction] should be modified.” In re Consol. Litig., 431 Fed.Appx. at 840 (citing Rufo, 502 U.S. at 380, 112 S.Ct. 748). However, relief under the Rule is not available where continued enforcement “is no longer convenient,” nor may the Rule “be used to challenge the legal conclusions on which a prior judgment or order rests.” Home, 557 U.S. at 447, 129 S.Ct. 2579. Nevertheless, a flexible standard of review is necessary because prospective injunctions, such as the one at issue here, “often remain in place for extended periods of time [and] the likelihood of significant changes occurring during the life of the decree is increased.” - Rufo, 502 U.S. at 380,112 S.Ct. 748.

IV. Discussion

When Alley and RTMD intervened in this action for the purpose of vacating the permanent injunction, they did so based predominantly on their contention that the factual circumstances existing at the time the 1979 FMA Injunction was entered have changed so dramatically that its continued enforcement would constitute a manifest injustice. HHS responded to their motions, agreeing that the 1979 FMA Injunction should be vacated. However, HHS argued that the legal (rather than the factual) landscape has Changed in that the legal basis upon which the Court relied in granting the injunction, the Privacy Act, no longer exists, and Intervenors have now embraced that position as well. Not surprisingly, Plaintiffs, well satisfied with the status quo, argue that neither the factual circumstances nor the legal circumstances have changed, and that the injunctive relief was, and remains, permissible under the APA.

The Court will first consider whether a change in the law has occurred that renders continued enforcement of the 1979 FMA Injunction inequitable. Given the parties’ contentions, critical to this inquiry is a determination of the true legal basis supporting the 1979 FMA Injunction. Thus, the Court must resolve the parties competing interpretations of the legal basis underpinning the 1979 FMA Injunction. This requires a detailed review of the FMA Injunction Order

A. The FMA Injunction Order

In the FMA Injunction Order, Judge Scott framed the case before him as presenting the question of whether the Secretary of HHS “may disclose information concerning the annual amounts of reimbursements paid to Medicare providers in a way that would individually identify at least some of the providers.” FMA, 479 F.Supp. at 1294. Discussing the factual background, the Court recounted HHS’s 1977 publication of “a list containing the names of physicians or groups of physicians whose services rendered during 1975 totaled $100,000.00,” and that the information was “widely publicized.” Id. at 1297.

The Court noted that

[a]lso in March, 1977, the Secretary published in the Federal Register (42 Fed. Reg. 14703) an interim amendment to the rules for disclosure of Social Security records, contained in 20 C.F.R. § 401.1 Et seq., in order to conform the current regulations to the most recent requirements of the [FOIA], The effect of the amendment to 20 C.F.R. § 401.1 Et seq. was to adopt the principles of the [FOIA] as guiding rules for the disclosure of information by HEW. 42 Fed. Reg. at 14704. See 20 C.F.R. s 401.3(a).

Id. Consistent with this amendment “[i]n November 1977, the Secretary directed the various carriers, with whom HHS had contracted to prepare and publish by April 30, 1978, a list of all physicians and providers for whose services Medicare reimbursements had been paid in 1977.” Id. By filing the action, Plaintiffs asked the Court to “enjoin the Secretary’s disclosure of this information, and to declare that the proposed disclosure is unlawful.” Id. (emphasis added). • .

Judge Scott began his analysis by confirming the federal court’s subject matter jurisdiction over the claims. In doing so, he first rejected the suggestion that the Medicare Act proscribed the Court’s jurisdiction to review the challenged actions. Id. at 1298. Judge Scott explained that Plaintiffs contested the proposed disclosure based upon independent federal statutes (“the Privacy Act, the FOIA, the Trade Secrets Act, and the Social Security Act”), as well as on constitutional grounds. Id. As such, he concluded “for controversies (1) premised upon statutory and constitutional provisions other than the Medicare Act, and (2) concerning agency and officer conduct based upon statutes other than the Medicare Act, the Court'has original subject matter jurisdiction under 28 U.S.C. § 1331(a).” Id. at 1298-99. Judge Scott further noted that pursuant to the Administrative Procedure Act, 5 U.S.C. § 706, the Court had jurisdiction to review “Plaintiffs’ claim that the Secretary’s decision; and proposed conduct, do not measure up to the appropriate standard for agency action.” Id. (citing Chrysler Corp. v. Brown, 441 U.S. 281, 315 and n. 47, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979)).

With respect to the Privacy Act, Judge Scott determined that “by asserting that the Secretary’s decision and proposed conduct violates the conditions for disclosure provided by the Privacy Act, plaintiffs invoke the Court’s jurisdiction conferred under 5 U.S.C. § 552a(g)(l)(D) of the Privacy Act to consider alleged violations of it.” 479 F.Supp. at 1299. He explained that section 552a(g)(l)(D) “is a general grant of a right of action to individuals covered by the [Privacy] Act,” in contrast to 5 U.S.C. § 552a(g)(4)(A), which “is an express waiver of sovereign immunity by Congress, creating a right to obtain a damage remedy from the United States when one of its agencies intentionally or wilfully acts in violation of the Privacy Act....” Id. at 1299 n. 8. Additionally, in discussing the extent of the Court’s jurisdiction under the Privacy Act, Judge Scott stated

The general grant of a right of action, and of corresponding jurisdiction in the district courts, under § 552a(g)(l)(D) confers the subject matter jurisdiction upon the Court to issue injunctive and declaratory relief.

Id.

Firm in the conclusion that the Court had subject matter jurisdiction over Plaintiffs’ claims, Judge Scott turned to the merits of the case. Judge Scott analyzed Plaintiffs’ various statutory claims, determining first that the Trade Secrets Act, 18 U.S.C. § 1905, did not afford an implied private civil right of action to enjoin disclosures which might violate the statute. Id. at 1299-1300. Next, he found that the Social Security Act, 42 U.S.C. § 1306 authorized the Secretary to promulgate implementing regulation 20 C.F.R. § 401.1 et seq., which would permit disclosure of the Medicare reimbursement information at issue. Thus, he concluded that “that statute [the Social Security Act] would not prohibit, but would permit” the disputed disclosure. Id. at 1300-1301.

In the next section of the opinion,, titled “C. FOIA & Mandatory Disclosure,” 479 F.Supp. at 1301, Judge Scott addressed the applicability of FOIA, observing that “FOIA is. exclusively a statute of sweeping, mandatory disclosure.... ” Id. (citing Chrysler Corp., 441 U.S. at 290, 99 S.Ct. 1705). Indeed, the Court explained that “unless the disclosure of [the] information falls within the scope of one of the FOIA’s exemptions, it may not be prohibited.” Id. However, as to the Plaintiffs’ ability to rely on FOIA as a basis to enjoin disclosure, Judge Scott stated:

[E]ven if the information which the Secretary proposes to disclose should fall within one of the exemptions to the FOIA’s obligatory disclosure provisions, those exemptions do not provide a legal basis for enjoining disclosure. In other words, the disclosure provisions of the FOIA are mandatory; but the exemptions from mandatory disclosure, in themselves, are discretionary. In short, the FOIA exemptions do not forbid the disclosure of information, and therefore do not authorize an inverse-FOIA action for injunctive relief.

Id. (citing Chrysler Corp., 441 U.S. at 285, 99 S.Ct. 1705 and Westchester Gen. Hosp., Inc. v. HEW, 464 F.Supp. 236, 238-39 (M.D.Fla.1979) (Scott, J.)). As such, the Court determined that FOIA did not provide a basis to enjoin the proposed disclosure.

Judge Scott then proceeded to determine whether the information at issue fell within a FOIA exemption such that its disclosure could lawfully be prohibited. In sections titled “D. FOIA & Exemption 3” and “E. FOIA & Exemption 4,” the Court concluded' that neither FOIA Exemption 3 nor Exemption 4 protected the information that was the subject of Plaintiffs’ action. See 479 F.Supp. at 1302-1303. Next, Judge Scott turned to “FOIA & Exemption 6.” He explained that this exemption “relieves from the mandatory disclosure of the FOIA ‘personnel and medical files and similar files’ when such disclosure ‘would constitute a clearly unwarranted invasion of personal privacy.’ ” Id.; see also 5 U.S.C. § 552(b)(6). Judge Scott first determined that the “similar files” provision of Exemption 6 should be given “broad interpretative scope,” and thus, concluded that “the list of annual reimbursements to Medicare providers which the [HHS] Secretary proposes to disclose is information included within the term ‘similar files’ of Exemption 6.” 479 F.Supp. at 1303-1304. Next, the Court balanced the “competing public and private interests at stake,” id. at' 1304, and found that “the Secretary’s proposed disclosure, at least in the individually identifying manner that she intends, is included within Exemption 6 of the FOIA, because it amounts to ‘similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,’ ” id. " at 1305 (quoting 5 U.S.C. § 552(b)(6)).

Having found that the information at issue fell within a FOIA exception, the Court turned its analysis from FOIA to the Privacy Act. See 479 F.Supp. at 1305 (“G. Exemption 6 & the Privacy Act”). Judge Scott first explained that once it has been determined that information is exempt from disclosure under FOIA Exemption 6 because its disclosure would “ ‘constitute a clearly unwarranted invasion of personal privacy’ the relationship of' Exemption 6 to the Privacy' Act becomes significant.” Id. “[I]nformation exempted under Exemption 6, from the mandatory disclosure provisions of the FOIA, becomes protected from disclosure by the Privacy Act.” Id. at 1305. The Court determined: ■ ■

Thus, since the Privacy Act expressly defers to the mandatory disclosure provisions of the . FOIA, 5 U.S.C. § 552a(b)(2), information which is not exempt under Exemption 6 from disclosure would receive no Privacy Act protection. But if the release of information would “constitute a clearly unwarranted invasion of personal privacy,” entitling that information to the benefit of Exemption 6, then that same standard would apply to the Privacy Act’s bar against disclosure without “the prior written consent of, the individual to whom the record pertains.” 5 U.S.C. § 552a(b) [additional, citations omitted.] It1 is not that the Privacy Act was intended to establish any absolute right of privacy, ...; but for those personal privacy rights which would be invaded in a clearly unwarranted manner by the disclosure of individually identifying information, not only does Exemption 6 of the FOIA relieve that information from obligatory disclosure, but the Privacy Act forbids its disclosure without the affected individual’s “prior written consent.”

479 F.Supp. at 1306. As such, Judge Scott stated,

Having concluded that the [HHS] Secretary’s proposed disclosure, in an individually identifying manner, of the annual amounts of reimbursements to providers of services under the Medicare Act, would “constitute a clearly unwarranted invasion of personal privacy,” and is therefore included within Exemption 6 of the FOIA, the Court further holds that the release of such individually identifying information, without the “prior written consent” of those individually identified providers, is prohibited by the Privacy Act.

Id. at 1306-1307.

Finding that the Privacy Act prohibited the release of individually identifiable Medicare provider reimbursements, Judge Scott considered HHS’s challenge to Plaintiffs’ standing to invoke the protection of, and obtain relief under, the Privacy Act. Id. at 1307-10 (“H. Plaintiffs Standing as Individuals Under the Privacy Act”). In support of the contention that Plaintiffs had no such standing, HHS pointed to an Office of Management and Budget (“OMB”) regulation and its own corresponding HHS regulation (45 C.F.R. § 5b.l(e)). Id. at 1307-08. However, the Court concluded that “[a]n individual has ■ Privacy Act rights in all his or her capacities, including business relationships and activities,” id. at 1309, and thus, Plaintiffs had standing under the Privacy Act as “individuals concerned about disclosure of their ‘personalized’ financial information.” Id. at 1310. In so doing, the Court held:

There can no longer be any doubt that the Secretary’s proposed disclosure of annual Medicare - -reimbursements amounts, in a way that will identify individual Medicare providers and their amounts of reimbursements, runs afoul of, and therefore is prohibited by, the Privacy Act.

Id. at 1311. As such, the Court held that HHS’s regulation, 45 C.F.R. § 5b.l(e), and the corresponding OMB guideline, which would restrict Privacy Act protection to “individuals,” and exclude sole proprietor-ships, partnerships, or corporations, see id. at 1307-1311, “are inconsistent with the [Privacy Act] statute that they purport to implement; and to that extent they are null and void.” Id. at 1311. With that, Judge Scott concluded the opinion stating:

In conclusion, the Court holds that the Secretary’s proposed disclosure of a list of annual reimbursements to individually identified providers of services under the Medicare Act (1) is exempt from required disclosure under the FOIA because it would “constitute a clearly unwarranted invasion of personal privacy”; (2) is prohibited by the Privacy Act from disclosure, without the prior written consent of each affected individual; and (3) if the guidelines and regulations of OMB and HEW would otherwise authorize and allow such disclosure, they are contrary to the Privacy Act and without force and effect. A permanent injunction on behalf of plaintiffs and the recer-tified class that they represent will be issued.

Id. at 1311 (internal footnote omitted).

That same day, and for the reasons set forth in the Court’s opinion, Judge Scott issued the 1979 FMA Injunction.

B. The Legal Basis of the 1979 FMA Injunction

Although in the FMA Injunction Order, Judge Scott determined that the Court had subject matter jurisdiction over Plaintiffs’ lawsuit pursuant to the Privacy Act, FOIA, the Trade Secrets Act, the Social Security Act, and the Administrative Procedures Act (APA), review of the Court’s reasoning in granting relief confirms that entry of the 1979 FMA Injunction was grounded in Judge Scott’s application of the Privacy Act. Indeed, nothing about the FMA Injunction Order suggests otherwise.

After determining that Plaintiffs were unable to obtain relief pursuant to the Trade Secrets Act, and the Social Security Act, Judge Scott addressed FOIA. 479 F.Supp. at 1299-1301. He readily concluded that FOIA exemptions “do not forbid the disclosure of information, and therefore do not authorize an inverse FOIA action for injunctive relief.” Id. Nevertheless, Judge Scott also recognized that “unless'the disclosure of [the] information falls within the scope of one of the FOIA’s exemptions, it may not be prohibited. Id. (emphasis added). Thus, despite finding that FOIA itself would not provide a basis for the relief sought by Plaintiffs, the Court had to consider whether the information at issue fell within the scope of a FOIA exemption.

After careful consideration, Judge Scott determined that the proposed disclosure fell within Exemption 6, as constituting a “ ‘clearly unwarranted invasion of personal privacy.’ ” He then turned to the Privacy Act and concluded that “[information exempted under Exemption 6, from the mandatory disclosures provisions of the FOIA, becomes protected from disclosure by the Privacy Act.” Id. at 1305;' see also id. at 1306 (same conclusion, after analyzing legislative history of the Privacy Act). As such, the Court held that release of Medicare reimbursement information in an individually identifying manner without prior consent of the providers “is prohibited by the Privacy Act.” Id. at 1306-07. Then, in response to HHS’s contention that Plaintiffs lacked standing to obtain relief under the;,Privacy Act, Judge Scott rejected the OMB guideline and corresponding HHS regulation as being “contrary to the Privacy Act and without force and effect.” Id. at 1311. Thus, his entry of injunctive relief was driven by a determination that release of individually identifiable Medicare provider reimbursement information was a violation of the Privacy Act, that the Plaintiffs had standing to challenge such a violation, and that the Privacy Act “confers the subject matter jurisdiction upon the Court to issue injunctive and declaratory relief.” Id. at 1299 n. 8. On that basis, Judge Scott granted a “permanent injunction on behalf of plaintiffs.” Id. at 1311 and n. 10 (Court’s decision premised upon “federal statutory grounds”).

Despite Judge Scott’s reasoned analysis, Plaintiffs, citing to the AMA Complaint, argue that they brought “challenges to specific ‘final agency actions’ ” as contemplated by the APA. AMA and FMA Supplement at 3. In the AMA and FMA Supplement, Plaintiffs identify the “1977 rule [providing] for disclosure of ‘payments to individual physicians under the Medicare program’ ” published at 42 Fed.Reg. 14703-04, as the challenged agency action. Id. at 1-2. Pointing to the APA, they argue

Faced with the agency’s rule stating its intent to disclose physician-identifying Medicare reimbursement records on an ongoing basis, this Court acted well within its authority when it permanently enjoined the agency, from carrying out those announced disclosures.

Id. at 2; see also Tr. at 11-18.

The failure in Plaintiffs’ reasoning is that nothing in the FMA Injunction Order suggests that the Court reviewed the validity of HHS’s proposed disclosure as a final agency action challenged under the APA. No doubt, Judge Scott was well aware of the standard for reviewing agency action as some nine months before the entry of the FMA Injunction Order, and while the Court had this matter under advisement, Judge Scott decided Westches-ter Gen. Hosp., Inc. v. HEW, 464 F.Supp. 236 (M.D.Fla.1979) in which he discussed the standard as well as the analysis at length. See 464 F.Supp. at 251-258. In. Westchester, the plaintiff challenged a proposed disclosure of its cost reports, under an HHS published regulation, as prohibited by the Trade Secrets Act. See id. at 238. Reviewing HHS’ proposed disclosure regulation, Judge Scott noted that to be valid,

an administrative regulation must meet three substantive standards. First, an administrative regulation must have a statutory source as its basis for issuance ... Second, administrative regulations in order to be valid must also be consistent with, and not contrary to, “the statute under which they are promulgated” ... Finally, an administrative regulation must be reasonably related to advancing “the purposes of the enabling legislation.”

Id. at 252 (internal quotations and citations omitted). Nothing in the FMA Injunction Order suggests that the Court engaged in such an analysis of HHS’s proposed disclosure or of the regulation authorizing the disclosure, 42 Fed.Reg. 14703-04. Compare 464 F.Supp. at 253-254 (determining the validity of 20 C.F.R. § 422.435(c) by first determining its statutory source, then its consistency with the scope of the statute (at 256) and the published amendment authorizing that disclosure at (256-257)). Indeed, he had no reason to do so. In Chrysler Corp., the Court, having determined that neither FOIA nor the Trade Secrets Act provided a right of action to enjoin a proposed disclosure, identified the APA as the proper vehicle for seeking such relief. Judge Scott, however, determined that the Privacy Act authorized a grant of injunctive relief. Thus, review of the proposed disclosure under the APA was unnecessary.

Moreover, the analysis found in the final section of the Court’s opinion entitled, “H. Plaintiffs’ Standing as Individuals Under the Privacy Act” further confirms that Judge Scott did not enjoin HHS’s proposed disclosure based upon a conclusion that 42 Fed.Reg. 14703-04 was a final agency action contrary to law, but rather did so because the proposed disclosure violated the Privacy Act. See 479 F.Supp. at 1307. In the FMA Injunction Order, after concluding that the proposed disclosure would violate the Privacy Act, Judge Scott addressed HHS’s contention that Plaintiffs lacked standing to obtain relief under the Privacy Act. In support of this contention HHS relied on the OMB guideline and corresponding HHS regulation (45 C.F.R. § 5b.l(c)), which excluded, individuals acting in an entrepreneurial capacity (e.g. as sole proprietorships, partnerships or corporation) from the protections of the Privacy Act.

Identifying the issue as “whether, as a matter of law, Plaintiffs are excluded from the class of individuals whose interests the statute (the Privacy Act) was designed to protect,” Judge Scott initially concluded from the facial definition of the term “individual” that Plaintiffs would appear to be included within the scope of the statute’s protection. Next, upon review of the cited regulations, the Court explained:

Insofar as Plaintiffs individually identified privacy interests with economic, business concerns of their sole proprietorship-like practices, the OMB guideline and HHS regulation would deny Plaintiffs’ standing to assert the protections of the Privacy Act. Hence, the legal lines of the issue are unmistakably drawn. Only if the OMB guideline and HHS regulation are in conflict with the purpose of the statute itself are Plaintiffs entitled to rely wpon the Privacy Act to prevent the Secretary’s proposed disclosure.

479 F.Supp. at 1308. The Court then undertook a review of the OMB guideline and HHS regulation in accordance with the standards for reviewing administrative regulations. See id. at 1308-1311. Ultimately, the Court determined that the OMB guideline and corresponding HHS regulation (45 C.F.R. § 5b.l(e)) were in conflict with the Privacy Act “and to that extent null and void.” Id. at 1311.

Thus, with respect to the OMB guideline and the HHS regulation (45 C.F.R. § 5b.l(e)), the Court did engage in an analysis of the validity of the agency action. The Court did so for the specific purpose of addressing HHS’s challenge to Plaintiffs’ entitlement to rely on the protections of the Privacy Act to prevent HHS’s proposed disclosure. Judge Scott did not conduct such a review, indeed he had no reason to conduct such a review, of HHS’s proposed disclosure or of 42 Fed. Reg. 14703-04 because he determined that § 552a(g)(l)(D) authorized injunctive and declaratory relief. Moreover, although the Court rejected the OMB guideline and corresponding HHS regulation as invalid, that rejection did not provide a basis for enjoining HHS’s proposed disclosure. Instead, rejection of the guideline and regulation simply established that Plaintiffs had standing under the Privacy Act, and thus, cleared the way for the Plaintiffs “to rely upon the Privacy Act to prevent the Secretary’s proposed disclosure.” 479 F.Supp. at 1308,1311.

Upon careful review of the FMA Injunction Order, the Court is convinced that Judge Scott granted the relief at issue here as a remedy available for violation of the Privacy Act. Plaintiffs suggestion that in granting such relief, Judge Scott acted pursuant to the APA simply finds no support in the record or Judge Scott’s decision. Moreover, if there was any question as to the legal basis for the 1979 FMA Injunction, Judge Scott answered it three years later. In the Modification Order, Judge Scott reiterated his conclusion that disclosure of Medicare payment information about individually-named physicians was “prohibited by the Privacy Act.” Modification Order at 1 (citing 479 F.Supp. at 1303-1311); see also id. at 3. In granting the modification to clarify that HHS could release Medicare reimbursement information to law enforcement agencies, “where such disclosure is authorized under 5 U.S.C. § 552a(B)(7),” Judge Scott stated that the 1979 FMA Injunction

was premised upon federal statutory grounds. 479 F.Supp. at 1311, n. 10. The sort of disclosure which the decision addressed was that which is prohibited by the Privacy Act without the prior written consent of the affected individual. 479 F.Supp. at 1306-1307. Hence, the Court’s injunction did not cover disclosure pursuant to the Law Enforcement Exception, or any other exception set forth in subsection (b) of the Privacy Act, since the statute, by its terms, does not prohibit such disclosure, even where no written consent is obtained. On the other hand, any disclosure made without the prior consent or the affected individual, which does not fall within the specific exceptions set forth in subsection (b) is prohibited by the Privacy Act and by the Court’s injunction.

Modification Order at 3; see 5 U.S.C. § 552a(b).

In consideration of the foregoing, the Court concludes that in entering the 1979 FMA Injunction, Judge Scott embraced the Privacy Act as providing the Court with jurisdiction to enter broad declaratory and injunctive relief enjoining HHS from forever releasing individually identifiable Medicare provider reimbursement information. Having found that the Secretary’s proposed disclosure would violate the Privacy Act, the Court entered the 1979 FMA Injunction as a remedy authorized by the Privacy Act. 479 F.Supp. at 1299 n. 8,1311; 1979 FMA Injunction.

C. Has There Been a Signifícant Change in Law?

This Court has determined that the 1979 FMA Injunction was premised upon a finding that HHS’s proposed disclosure violated the Privacy Act, and that the Court was authorized by the Privacy Act to enjoin such action, thus the Court must next consider the contention of the Intervenors and HHS that since the entry of the injunction, Privacy Act law has changed such that the Privacy Act would no longer permit the entry of such injunctive relief. As previously discussed, these parties contend that the Eleventh Circuit’s decision in Edison v. Dept, of the Army, 672 F.2d 840 (11th Cir.1982), constitutes that significant change in the legal landscape which compels the conclusion that the current injunction, premised on the Privacy Act,, cannot continue to stand.

In 1982, the Eleventh Circuit for the first time considered the breadth of remedies authorized by the Privacy Act. See Edison, 672 F.2d at 846. In Edison, the plaintiff, an individual who had been passed over for a promotion, contended that the Army Board of Correction of Military records, acted arbitrarily and capriciously by failing to timely correct errors in his personnel records and sending his records to á promotion board. See id. at 841. After exhausting his administrative remedies, the plaintiff filed a complaint alleging violations of the accuracy of