IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT



Appellate Docket No. 04-2550





Citizens for Health, American Psychoanalytic Association, American
Association for Health Freedom, New Hampshire Citizens for Health
Freedom, American Mental Health Alliance, American Association of
Practicing Psychiatrists, Health Administration Responsibility Project,
Congress of California Seniors, National Coalition of Mental Health,
Professionals and Consumers, California Consumer Health Care Council,
American Association of Practicing Psychiatrists, Sally Scofield,
Eugene B. Meyer, Daniel S. Schrager, Morton Zivan, Michaele Dunlap,
Tedd Koren, Jane Doe, Janice Chester, Deborah Peel



        Appellants



    v.



Tommy G. Thompson, Secretary,

        U.S. Department of Health

        and Human Services



        Appellee





Appeal from Summary Judgment Order Issued by

United States District Court for the Eastern District of Pennsylvania



REPLY BRIEF OF APPELLANTS



Peter Winebrake, Esq.

Trujillo Rodriguez &

  Richards, LLC

The Penthouse

226 West Rittenhouse Sq.

Philadelphia, PA  19103    Robert N. Feltoon, Esq.

Conrad, O’Brien,

  Gellman & Rohn, P.C.

1515 Market Street

16th Floor

Philadelphia, PA  19102    James C. Pyles, Esq.

Powers, Pyles, Sutter &

  Verville, P.C.

1875 Eye Str., N.W.

12th Floor

Washington, D.C.  20006



 TABLE OF CONTENTS



    Page



I. Federal Authority Granted by the Amended Privacy Rule

Violates Plaintiffs’ Constitutional Rights to Medical
Privacy        1



A.    Medical Privacy is a Well-Established Fundamental
Right        1

B.    The Amended Rule Impermissibly Grants Federal
Authority to Eliminate Plaintiffs’ Medical Privacy  
     4

C.    The Amended Rule is Not “Wholly
Permissive”        5

    1.    The District Court Was Correct
In Finding That the

        Amended Rule Has a “Determinative
or Coercive Effect”        5



    2.    The Secretary Cannot Authorize
Private Entities to Engage

        in Conduct that Would Violate the
Constitution if the

        Government Engaged in It
Directly        8



D.    The Amended Rule Eliminates Pre-existing Privacy
Rights        13

E.    Other Protections in the Amended Do Not Protect
Privacy        16

F.    The Right of Consent is Essential for Medical
Privacy         18

G.    Plaintiffs Do Not Seek the Secretary’s
Protection        19

II.    The Amended Rule is Inconsistent with the Intent
of Congress         20

A. The Legislative History of HIPAA Does Not Support the

        Amended Rule  
     20

B. HIPAA Should Be Construed Consistently with Other Laws

        and the Agency’s Contemporaneous
Interpretation        23



III.    The Amended Rule is Arbitrary and
Capricious        25

A. The Amended Rule is a Radical Departure from Settled Agency

        Action  
     25

B. The Record Is Devoid of Findings to Support the Complete

        Reversal of Prior Agency
Action        27

C. The Amended Rule Eviscerates Privacy Without Improving

Efficiency        30

IV.    Conclusion        31



Addendum

 TABLE OF AUTHORITIES

    Page

Cases



American Lung Ass’n v. EPA, 134 F.3d 388 (D.C. Cir. 1998)  
 28



Ashcroft v. ACLU, 124 S. Ct. 2783 (2004)    2



Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753 (2001)  
 2



Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856
(1961)    10



Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 106 S. Ct.
3245 (1986)    24-25



E. Hoffman-LaRoche, Ltd. v. Empagran S.A., 124 S. Ct. 2359
(2004)    21, 23



F.E.C. v. Mass. Citizes for Life, Inc., 479 U.S. 238, 107 S. Ct. 616
(1986)    8



Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281
(2003)    14, 19, 21



Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105 (3d
Cir. 1987)    14



Gilmore v. City of Montgomery, Ala., 417 U.S. 556, 94 S. Ct. 2416
(1974)    11



Givens v. Mullikin, 75 S.W.3d 383 (Tenn. 2002)    14



Gruenke v. Seip, 255 F.3d 290 (3d Cir. 2000)    1



Hunt v. Cromartie, 526 U.S. 541, 119 S. Ct. 1545 (1999)  
 8



Intel Corp. v. Advanced Micro Devices, Inc., 124 S. Ct. 2466
(2004)    21, 23



Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923 (1996)  
 2, 15, 21, 31



Lawrence v. Texas, 539, U.S. 558, 123 S. Ct. 2472 (2003)  
 1, 8



Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967)  
 8



M.L.B. v. S.L.J., 519 U.S. 102, 117 S. Ct. 555 (1996)  
 8



McCabe v. Atchison, Topeka & Santa Fe R., 235 U.S. 151, 35 S. Ct.
69 (1914)    10



Motor Vehicles Mftrs Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29,
103 S. Ct. 2856 (1983)    25, 26, 28



Nat’l Abortion Fed’n v. Ashcroft, 2004 WL 555701, *6 (S.D.N.Y.
2004)    15



Nixon v. Condon, 286 U.S. 73, 52 S. Ct. 484 (1932)  
 10, 11



Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251 (D.C. Cir.
2004)    21



Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833,
112 S. Ct. 2791 (1992)    1, 8



Prometheus Radio Project v. F.C.C. 373 F. 3d 372 (3d Cir.
2004)    28



Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627 (1967)  
 9, 10, 12



Santa Fe Independent School Dist. v. Doe, 530 U.S. 290,

120 S. Ct. 2266 (2000)……………………………………………………………12   



Sterling v. Borough of Minersville, 232 F.3d 190 (3d Cir.
2000)    1



Texas State Employees Union v. Texas Department of Mental Health 
and Mental

Retardation, 746 S.W.2d 203 (Tex. 1987)    14



Thornburg v. Amer. Coll. of Obst. and Gyn., 476 U.S. 747, 106 S. Ct.
2169

(1986)    1



Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000)  
 1



Tucson Women's Clinic v. Eden, 379 F.3d 531 (9th Cir. 2004)  
 1



United States v. Westinghouse, 638 F.2d 570 (3d Cir. 1980)  
 18



Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479 (1985)  
 11



Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040 (1976)  
 8



Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869 (1977)    1



Yick Wo v. Hopkins, 118 U.S. 355, 6 S. Ct. 1064 (1886)  
 9



Federal Statutes



15 U.S.C. §6502(b)(1)(A)(ii)    23



18 U.S.C. §2710(b)(2)(B)    22



18 U.S.C. §2721(b)(13)    22-23



42 U.S.C. §1320d-5 and 6    7



State Statutes



Ariz. Rev. Stat. §12-2292    13



Code Miss. R. 28 000 080 §17    13



D.C. Code Ann. 7-1202.05    13



16 Del. C. §1232    6



Fla. Admin. Code Ann. r. 4-128.017    13



Ga. Code Ann. §24-9-47(b)    13



Idaho Code §54-4711    13



410 Ill. Comp. Stat. 50/5    13



Iowa Code §228.2    13



Kan. Stat. Ann. §40-3226(a)    13



Md. Code Ann., Health-Gen. §§4-302, 4-303(a)  
 13



Me. Rev. Stat. tit. 22, sec. 1711-C 2    13



Mich. Comp. Laws §330.1748    13



Minn. Stat. §144.335, subd. 3a, 144.651, subd. 16  
 13



Mont. Code Ann. §33-19-306    13



N.D. Cent. Code §26.1-36-12.4    13



N.H. Rev. Stat. §151:21(X)    13



N.J. Stat. Ann. §26:2H-12.8(g), §§ 26:5C-8,
26:2H-2    13



Neb. Rev. Stat. §44-916    13



63 P.S. §422.41(8)    6



S.C. Code of Regulations R 69-58 §17, §44-115-50  
 13



Va. Code Ann. §32.1-127.1:03(A) and (D)(1)    13



Weil’s Code Wy. R. 0044-000-054 §17    13



Other Authorities



“Administration Sets Forth a Limited View on Privacy”, The New York
Times (March 6, 2004)    15



§264 of the Administrative Simplification provisions of
HIPAA    4, 15, 20



Black’s Law Dictionary, 7th ed., 1160.    4



"Health Information:  First-Year Experiences," GAO-04-965, p. 20
(Sept. 2004)    16



"Medical Privacy Falls Victim to Fierce Aborton Fight", USA Today,
Editorial (Feb. 19, 2004)    15



"Medical Record Privacy, The U.S. Injustice Department”, The
Philadelphia Inquirer, Editorial (Feb. 17, 2004)    15



Regulations



45 C.F.R. §164.506(a)    4



45 C.F.R. §164.506(a)    16



45 C.F.R. §164.520(b)(1)    6-7



45 C.F.R. §164.520(c)(2)(i)(A)    16



45 C.F.R. §164.528(a)(1)(iii)    17





 REPLY BRIEF OF APPELLANTS

II. Federal Authority Granted by the Amended Privacy Rule Violates
Plaintiffs’ Constitutional Rights to Medical Privacy



A.  Medical Privacy is a Well-Established Fundamental Right

Several uncontested facts and principles emerge from the briefs filed
by Plaintiffs-Appellants and the Secretary.   The right of
individuals to keep their identifiable health information private in
the absence of a narrowly defined, compelling governmental interest is
a fundamental right deeply rooted in the nation’s history and implicit
in the concept of ordered liberty protected by the Due Process Clause
of the Fifth Amendment.  Lawrence v. Texas, 539 U.S. 558, 123 S.
Ct. 2472 (2003); Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054
(2000); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833, 112 S. Ct. 2791 (1992); Thornburg v. Amer. Coll. of Obst. and
Gyn., 476 U.S. 747, 106 S. Ct. 2169 (1986); Whalen v. Roe, 429 U.S.
589, 605-06, 97 S. Ct. 869, 879 (1977); Gruenke v. Seip, 225 F.3d 290
(3d Cir. 2000); Sterling v. Borough of Minersville, 232 F.3d 190 (3d
Cir. 2000).  See also, Tucson Woman’s Clinic v. Eden, 379 F.3d
531, 551 (9th Cir. 2004).  Pls.’ Br. 10-24, Scrty’s Br. 50.  

The right of individuals to communicate specific types of information
in private without disclosure to the public is protected by the First
Amendment right to freedom of speech unless the government demonstrates
that it used the “least restrictive alternative” in intruding on that
right.  Ashcroft v. ACLU, 124 S. Ct. 2783, 2791 (2004); Bartnicki
v. Vopper, 532 U.S. 514, 121 S. Ct. 1753 (2001).  Pls.’ Br. 26-32;
Scrty’s Br. 50.  The right of patients to have private
communications with psychotherapists is also well-established under the
psychotherapist-patient privilege.  Jaffee v. Redmond, 518 U.S. 1,
116 S. Ct. 1923 (1996).  Pls.’ Br. 41. Health information privacy
is also protected by the laws of many states and is a core concept of
medical ethics.

The Amended Privacy Rule issued by the Secretary adopted a “global,”
rather than a “tailored,” approach eliminating the health information
privacy of all individuals, regardless of their wishes, with respect to
all health information in all routine situations without identifying
any compelling governmental interest.  Pls.’ Br. 24, Scrty’s Br.
43.  Effective April 14, 2003, that Rule authorized thousands of
covered entities and their business associates to use Plaintiffs’
identifiable health information, including private communications with
physicians and psychotherapists, and to disclose it to both public and
private individuals and entities without Plaintiffs’ permission and
against their will.  Thousands of Plaintiffs and their family and
association members are avoiding seeking needed care and making full
disclosures of health information to medical practitioners in an effort
to protect their privacy.  Pls.’ Br. 27-29.    

The Secretary has not distinguished any of the case law or disputed any
of the facts presented by Plaintiffs.  Instead, he has elected to
hinge the defense of the Amended Rule entirely on the District Court’s
mistaken conclusion that the Amended Rule is “wholly permissive,” and
for that reason does not violate Plaintiffs’ fundamental rights to
medical privacy and private communications.  Scrty’s Br. 48; JA
14-15.

B. The Amended Rule Impermissibly Grants Federal Authority to Eliminate
Plaintiffs’ Medical Privacy

After 50 pages portraying the Amended Rule as a benign measure with no
adverse effect on medical privacy, the Secretary admits that the
Amended Rule completely changes the landscape of federal common law and
constitutional law and “provides express authority” for the
nonconsensual use and disclosure of health information for routine
purposes.  Scrty’s Br. 51.

Indeed, by the Secretary’s own admission, the Amended Privacy Rule did
much more than fail to preserve the right of consent.  It
“replaced” the individual’s right of consent with “regulatory
permission” which conferred federal authority on covered entities and
their business associates to use and disclose virtually any
identifiable health information regardless of Plaintiffs’ wishes. 
JA 1381; Pls.’ Br. 10.  In fact, the statutory provision on which
the Secretary relies states that the privacy standards are to set forth
uses and disclosures that should be “authorized or required” by
regulation.  Section 264(b)(3), JA 39.  In any event, a
commonsense understanding of “regulatory permission” is that it is a
grant of federal regulatory authority.

C. The Amended Rule is Not “Wholly Permissive”

1. The District Court Was Correct In Finding That the Amended Rule Has
a “Determinative or Coercive Effect”

The Secretary argues that the Amended Rule does not violate Plaintiffs’
Fifth and First Amendment rights to medical privacy and private
communications because it allegedly is “wholly permissive” and “does
not compel anyone” to use or disclose Plaintiffs’ health information
without their consent.  Scrty’s Br. 48.   Yet, the
Amended Rule indisputably “compels” Plaintiffs to disclose their past,
present and future identifiable health information to countless public
and private entities and individuals by conferring that very authority
on covered entities.  Every Plaintiff submitted one or more sworn
affidavits (none rebutted by the Secretary) stating that the personal
identifiable health information for themselves, their families, their
patients and their members is being used and disclosed over their
objection by covered entities exercising the authority granted by the
Amended Rule.  JA 45-332, 1476-1485.  

    The Secretary does not contest the District Court’s
finding that the Amended Rule has a “determinative or coercive effect”
on providers (and presumably covered entities subject to the same
provisions).  Scrty’s Br. 51.  While the District Court noted
that covered entities theoretically could provide a consent process,
few had.  JA 10.  The Amended Rule not only grants covered
entities unfettered authority to obtain information without consent and
to ignore or reject any request for a consent process, it also includes
strong disincentives to provide such a process.

    For example, the notice of privacy practices which
the Amended Rule requires covered entities to furnish on the date of
the first service delivery requires a description of each of the
routine uses and disclosures that are authorized without consent by the
Amended Rule, regardless of state law, standards of medical ethics, or
the privacy practices actually adopted by the covered
entity.   45 C.F.R. § 164.520(b)(1).  Thus, there
is a strong incentive for all covered entities simply to adopt the
model described in the Amended Rule as their privacy practices in order
to simplify the notice.  The numerous notices of privacy practices
received by the Plaintiffs since the April 2003 compliance date show
this is precisely what has occurred.  See, e.g., JA 117-120,
193-196, 215-218.

    While the Amended Rule permits covered entities to
provide a consent process by entering into an agreement to restrict
uses and disclosures, it creates a disincentive for them to do so by
providing that “[f]ailure of a covered entity to act in accordance with
an agreed-to restriction is a violation of the Rule.”  67 Fed.
Reg. 53, 213, JA 1383.  Pls.’ Br. 53.  The Secretary has yet
to issue final rules implementing these provisions, but statutory
penalties for violating the Amended Rule range from civil penalties of
$100 to $25,000 and criminal penalties ranging from fines of $50,000
and imprisonment for one year to fines of $250,000 and imprisonment for
up to ten years.  42 U.S.C. § 1320d-5 and 6, JA 35.  So,
covered entities have a strong incentive to avoid a risk of civil and
criminal penalties by never agreeing to a request for
restrictions.  The undisputed evidence shows that no such
“voluntary” restrictions have been permitted.  Pls.’ Br. 26.

2. The Secretary Cannot Authorize Private Entities to Engage in Conduct
that Would Violate the Constitution if the Government Engaged in It
Directly

    There is a broad consensus in Supreme Court case law
that the constitutional validity of a law must be determined by an
examination of its effect, design, application, purpose or
intent.  Pls.’ Br. 36-38.  See, Lawrence v. Texas, 123 S. Ct.
2472, 2478, 2495 (2003) (Scalia, J., The Chief Justice, and Thomas, J.
dissenting but concurring that the “purpose” of a law is always
important to consider).  See also, Hunt v. Cromartie, 526 U.S.
541, 546, 119 S. Ct. 1545, 1549 (1999) (intent); M.L.B. v. S.L.J., 519
U.S. 102,126-27, 117 S. Ct. 555, 569 (1996) (operation); Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 878,
112 S. Ct. 2791, 2821 (1992) (purpose or effect); F.E.C. v. Mass.
Citizens for Life, Inc., 479 U.S. 238, 255, 107 S. Ct. 616, 626 (1986)
(practical effect); Washington v. Davis, 426 U.S. 229, 241-42, 96 S.
Ct. 2040, 2048-49 (1976) (purpose); Loving v. Virginia, 388 U.S. 1, 11,
87 S. Ct. 1817, 1823 (1967) (design).

    The fact that a law authorizes, but does not
require, third parties to curtail the liberties of individuals does not
save it from being constitutionally invalid.  As both Plaintiffs
and amicus Texas Civil Rights Project have shown, the government may
not confer discretion on a third party to deprive individuals of
constitutionally protected fundamental rights, particularly where that
is the clear intent, design and effect of the action taken.  Pls.’
Br. 38; TCRP Br. 13-14.  

    The constitutional analysis in Reitman v. Mulkey,
387 U.S. 369, 87 S. Ct. 1627 (1967) makes clear that the government may
not authorize private actors to extinguish constitutional rights. 
There the Court invalidated a provision in the California Constitution
that conferred “absolute discretion” on private citizens to sell or
refuse to sell their real property to anyone.  The State of
California took the position that the state constitutional provision
was merely a “permissive” provision repealing two state statutes that
had prohibited racial discrimination in the housing market.  The
State argued that it could never repeal such laws if permissive and
neutral provisions were always said to “authorize” and “encourage”
discrimination. Id. at 376.  The Court held it was “quite
proper[]” in considering the constitutionality of a law to examine its
“immediate objective.” its “ultimate effect” and its “historical
context and the conditions existing prior to its enactment.”  Id.
at 373.  (Citing a lengthy line of case law beginning with Yick Wo
v. Hopkins, 118 U.S. 355, 6 S. Ct. 1064 (1886)).

    The Court first affirmed the lower court’s ruling
that the state was not required by the 14th Amendment to adopt a law
prohibiting private discrimination in housing.  The Court,
however, then confirmed that the state constitutional provision
“expressly authorized . . . the private right to discriminate . .
.  [and] . . . would encourage and significantly involve the State
in private racial discrimination contrary to the Fourteenth
Amendment.”  Id. at 376.  According to the Court, the state
constitutional provision “struck more deeply and widely” than merely
repealing the prior antidiscrimination statutes because it authorized
private discriminations to enjoy a far different status in that
“[t]hose practicing racial discriminations need no longer rely solely
on their personal choice,” but can “invoke express [governmental]
authority, free from censure or interference of any kind from official
sources.”  387 U.S. at 377, 87 S. Ct. at 1632.

The Court observed that this assessment was no different than
“considering a permissive state statute as an authorization to
discriminate” as it had done many times in the past.  387 U.S. at
379-80, 87 S. Ct. at 1633, citing McCabe v. Atchison, Topeka &
Santa Fe R., 235 U.S. 151, 35 S. Ct. 69 (1914); Nixon v. Condon, 286
U.S. 73, 52 S. Ct. 484 (1932); Burton v. Wilmington Parking Authority,
365 U.S. 715, 81 S. Ct. 856 (1961) and other cases.  According to
the Court, a constitutional violation occurred with respect to what
otherwise would have been a purely private act when the state
government “elected to place its power . . . and prestige behind the
admitted discrimination . . .”.  Id. (quoting the holding in
Burton.).  The Court concluded that the California state
constitutional amendment “was intended to authorize, and does
authorize” unconstitutional discrimination.  387 U.S. at 381, 87
S. Ct. at 1634.

    Similarly, the constitutional rights of individuals
were violated when a state authorized, but did not require, a privately
organized political party to determine who could vote in party
primaries, and the party exercised that authority to exclude
minorities.  Nixon v. Condon, 286 U.S. 73, 82, 84, 88, 52 S. Ct.
484, 486-87 (1932) (Power that is not delegated by a private entity,
but rather “by virtue of an authority originating or supposed to
originate in the mandate of the law,” must be exercised “in submission
to the mandates of equality and liberty that bind officials
everywhere.”).

    In another example, the constitutional rights of
individuals were violated when a municipality permitted, but did not
require, exclusive use of public recreational facilities by private
schools that excluded minorities.  Gilmore v. City of Montgomery,
Ala., 417 U.S. 556, 568, 570, 94 S. Ct. 2416, 2423-24 (1974) (The
constitutional rights of individuals “can neither be nullified openly
and directly by state legislators or state executive or judicial
officers, nor nullified indirectly by them through evasive schemes . .
. whether attempted ‘ingeniously or ingenuously’”).

    The constitutional rights of school children were
violated when a state authorized, but did not require, public schools
to provide a period of silence for meditation or voluntary
prayer.  Wallace v. Jaffree, 472 U.S. 38, 40, 58, 105 S. Ct. 2479,
2481, 2491 (1985) (“The unrebutted evidence of . . . intent” showed
that the state law was intended to promote religion in public schools
in violation of the Establishment Clause of the First
Amendment.).  See also, Santa Fe Independent School Dist. v. Doe,
530 U.S. 290, 309, 120 S. Ct. 2266, 2278 (2000).

So too in this case, the Secretary may not effectively extinguish the
Plaintiffs’ fundamental right to medical privacy and liberty by
authorizing, without requiring, the nonconsensual use and disclosure of
all health information in routine circumstances.  The Amended Rule
has “struck more deeply and widely” than merely eliminating the
requirement that private parties obtain consent from other private
parties before using and disclosing their identifiable health
information.  The Amended Rule was intended to authorize, and
admittedly does authorize, the use and disclosure of Plaintiffs’ health
information to both public and private parties under the power and
prestige of the federal government.  As in Reitman, the authority
to violate Plaintiffs’ fundamental right to personal privacy “is now
one of the basic policies of [the federal government].”  387 U.S.
at 381, 87 S. Ct. at 1634.

If this Court were to uphold the constitutional validity of the Amended
Rule, the adverse consequences for constitutional rights generally, as
well as the constitutional right to liberty and privacy, would be
difficult to overstate.  States presumably could grant “regulatory
permission” to property owners to enter into restrictive covenants and
refuse to sell or rent land to minorities.  Political parties
could obtain “regulatory permission” to exclude minorities from voting
in primary elections.  Municipalities could grant “regulatory
permission” for the exclusive use of public facilities by private
schools that do not admit minority students, and the state (or federal
government) could grant “regulatory permission” to public schools to
require students to engage in “meditation or voluntary
prayer.”   A ruling that such “wholly permissive” regulations
are valid would conflict with at least seventy years of constitutional
jurisprudence.

D. The Amended Rule Plainly Eliminates Pre-existing Privacy Rights

The Secretary’s argument that the Amended Privacy Rule only provides
authority for providers to do what they have always been free to do is
also inaccurate.  Scrty’s Br. 51.  At least 21 states have
medical privacy laws that prohibit the use and disclosure of health
information without patient consent unless otherwise “authorized” or
“provided” by law.   Several states, like South Carolina,
Virginia and Wyoming, have general laws requiring consent but permit
nonconsensual disclosures to the extent authorized under federal law,
in order to minimize conflict and confusion.  Thus,
notwithstanding HIPAA’s legislative design to the contrary, broad
federal authorization under the Amended Rule for nonconsensual uses and
disclosures reduces or eliminates pre-existing state privacy law
protections.

Further, health information privacy in many states has been protected
under tort law theories “such as invasion of privacy and breach of
confidential relationship” and as implied contracts between providers
and patients.  65 Fed. Reg. 82,473/2, JA 344; Givens v. Mullikin,
75 S.W.3d 383, 407 (Tenn. 2002).  Medical privacy has long been
protected under state and federal constitutional common law based on
whether the individual in the specific situation traditionally has a
“reasonable expectation” of privacy.  See, Ferguson v. City of
Charleston, 532 U.S. 67, 78, 121 S. Ct. 1281, 1288 (2003); NASW Amicus
Br. 9, citing, Fraternal Order of Police v. City of Philadelphia, 812
F.2d 105, 112-113 (3d Cir. 1987).  See also, Texas State Employees
Union v. Texas Department of Mental Health and Mental Retardation, 746
S.W.2d 203, 205-06 (Tex. 1987).  A national policy of authorized
nonconsensual uses and disclosures in routine situations erodes the
“reasonable expectation” of medical privacy that forms the basis for
traditional privacy protections under tort, contract and constitutional
law.

The Amended Privacy Rule also jeopardizes the federal common law
psychotherapist-patient privilege that has been recognized as essential
for effective psychotherapy.  Jaffee v. Redmond, 518 U.S. 1, 10,
116 S. Ct. 1923, 1928 (1996).   Privileges may be recognized
as a matter of common law under Rule 501 of the Federal Rules of
Evidence if Congress has not spoken to the issue.  According to
one court, the Amended Privacy Rule, implementing HIPAA, “speaks
directly” to the question of medical privileges by not recognizing
any.  Nat’l Abortion Fed’n v. Ashcroft, 2004 WL 555701, *6
(S.D.N.Y. 2004).

E. Other Provisions in the Amended Rule Do Not Protect Privacy

The broad grant of federal authority in the Amended Rule undermines
most of the other “privacy” measures cited by the Secretary.  See,
Scrty’s Br. 33-34.  While the Amended Rule ostensibly does not
preempt “more stringent” state privacy laws, it makes it impossible for
individuals to assert their rights under those laws because covered
entities are authorized to use and disclose their health information
without providing prior notice or an opportunity for the individual to
object.  45 C.F.R. § 164.506(a).  The Rule requires
notice of privacy practices to be given only once, “at the date of the
first service delivery” after the April 14, 2003 compliance date (45
C.F.R. § 164.520(c)(2)(i)(A)), but authorizes infinite disclosures
of an individual’s information regardless of when or whether any notice
is given.   

Another facet of the “protection” cited by the Secretary is that the
Rule requires covered entities to make a “good faith effort” to get
patients to acknowledge they have received the notice of privacy
practices in order “to discuss privacy practices and concerns with
providers.”  Scrty’s Br. 34; 67 Fed. Reg. 53,211/1, JA 1381. 
It is difficult to see how any meaningful discussion could take place
when the Amended Rule authorizes all health information to be used and
disclosed without notice, and any accurate notice would have to inform
individuals that the federal government has granted the covered entity
the right to use and disclose their health information regardless of
their “concerns.”

Individuals also have little ability to assert their state privacy
rights to remedy past violations because covered entities are expressly
excused from providing any accounting of past disclosures for routine
purposes.  45 C.F.R. § 164.528(a)(1)(iii).  

The nationwide disclosure authority conferred by the Amended Rule also
creates a mechanism for covered entities to circumvent “more stringent”
state laws.  Covered entities, such as health plans and
clearinghouses, which believe their “efficiency” is hampered by more
stringent state privacy laws, can electronically transmit health
information to states that do not have such laws and then be free to
exercise their new federal authority unencumbered by more stringent
protections.  The privacy policies of the Amended Rule, which the
Secretary contends are merely a “floor” of protections, thereby also
become a national ceiling.

Moreover, the Secretary has now taken the position that more stringent
state laws have no effect in any administrative or judicial cases
involving federal issues even if the individual is not a party to the
case.  Pls.’ Br. 51-52.  Thus, more stringent state privacy
laws may now be avoided at the whim of any federal litigant who wishes
to invoke the Amended Rule.

The Secretary also claims that a covered entity may obtain consent for
routine uses and disclosures under the Amended Rule.  Scrty’s Br.
34.  However, a consent process is completely “optional on the
part of all covered entities,” and virtually no covered entity has
exercised that option after the compliance date.  67 Fed. Reg.
53,211/1, JA 1381; JA 10; Pls.’ Br. 26.  

So, the Amended Rule both renders Plaintiffs more vulnerable to privacy
violations by eliminating their ability to give or withhold consent,
and facilitates the violation of their medical privacy by granting
express federal authority to covered entities to use and disclose their
health information repeatedly with no notice or permission and against
their will.

F.    The Right of Consent is Essential for Medical
Privacy

Although the Secretary argues that consent has never been the
equivalent of medical privacy, (Scrty’s Br. 36, n.9), this Court has
long acknowledged that medical privacy essentially is “the right to be
let alone” and includes “control over knowledge about oneself.” 
United States v. Westinghouse, 638 F.2d 570, 576 n.5 (3d Cir.
1980).  HHS similarly noted in the Original Rule that the right of
medical privacy is the claim of individuals to control when, how, and
to what extent information about them is communicated and that
“maintaining control” over the disclosure of one’s personal information
is “fundamental” to liberty.  65 Fed. Reg. 82,465/1, JA 336; Pls.’
Br. 15.  Thus, the core element of medical privacy is the ability
to exercise some control over one’s health information through the
ability to give or withhold consent.  See, Ferguson v. City of
Charleston, 532 U.S. at 78, 121 S. Ct. at 1288 (the “reasonable
expectation of [medical] privacy” is that health information will not
be shared without “consent”).  Some control over personal
information is essential for privacy, and consent is the means of
exercising that control and, thereby, the right to privacy.

G.    Plaintiffs Do Not Seek the Secretary’s Protection

    The Secretary incorrectly states that Plaintiffs’
principal contention is that the Amended Rule is constitutionally
invalid because it did not go far enough in protecting their medical
privacy.  Scrty’s Br. 52.  In fact, Plaintiffs charge that
the Amended Rule is invalid because it renders them defenseless and
affirmatively violates their fundamental right to medical
privacy.  Accordingly, the Supreme Court cases cited by the
District Court and the single case mentioned by the Secretary are
inapplicable.  Plaintiffs do not ask for the Secretary’s
protection.  To the contrary, they ask this Court to preserve
their fundamental constitutional right, “as against the government, to
be let alone.”  Pls.’ Br. 10, 35.

III. The Amended Rule is Inconsistent with the Intent of Congress

A. The Legislative History of HIPAA Does Not Support the Amended Rule

The Secretary asks this Court to accept his unsupported assertion that,
when Congress enacted §264 of the Administrative Simplification
section of HIPAA, it intended to authorize the Secretary to adopt a
national health privacy policy that would conflict with federal common
law, most state privacy laws and 2,400 years of medical ethics. 
Scrty’s Br. 36.  

The Secretary cites no statutory language or legislative history in
support of his position.  He does not deny that the legislative
history cited by Plaintiffs shows a clear Congressional intent “to give
individuals control over who actually has access to their medical
records.”  Pls.’ Br. 39.  Nor does he dispute that HHS
concluded in issuing the Original Rule that patient control over health
information is the essence of medical privacy and that privacy is
essential both for access to quality health care, and for the improved
efficiency and effectiveness of the health care system intended by
Congress.  Pls.’ Br. 38.  The Secretary simply claims he has
the power to authorize nonconsensual uses and disclosures for routine
situations because the statute gives him “broad rulemaking
authority.”  Scrty’s Br. 35.  

It is well-established that courts and governmental agencies must give
effect to the express intent of Congress and that courts “must exhaust
the traditional tools of statutory construction to determine whether
Congress has spoken to the precise question at issue.”  Nuclear
Energy Institute, Inc. v. EPA, 373 F.3d 1251, 1269 (D.C. Cir.
2004).   Such tools clearly include an examination of the
legislative history, the agency’s prior statutory interpretations, and
consistency with the laws of this and other countries.  E.
Hoffman-LaRoche, Ltd. v. Empagran S.A., 124 S. Ct. 2359, 2365-66, 2371
(2004); Intel Corp. v. Advanced Micro Devices, Inc., 124 S. Ct. 2466,
2480-81 (2004).  Even the absence of evidence of congressional
intent can be a determinative indicator when an agency seeks to embark
on a sweeping change in past practice or “diverges from any realistic
meaning of the [statute].”  Nuclear Energy Inst., 373 F.3d at
1270; Intel Corp, 124 S. Ct. at 2480.

The legislative history reveals the intent that “privacy should come
first” and should not be sacrificed to the interest in “reduced
business costs.”  Pls.’ Br. 39.  In issuing the final
Original Rule, HHS noted that Congress recognized the exceptional
importance of privacy standards by separating out those standards from
the directive to establish regulatory standards for the electronic
transmission of health information so that privacy standards could be
subject to Congressional action.  65 Fed. Reg. 82,469/3, JA
340.  Congress also provided a “failsafe” mechanism under which
the Secretary was required to issue privacy standards by regulation if
Congress failed to act within 36 months of the enactment of
HIPAA.  65 Fed. Reg. 82,470/1, JA 341.  HHS concluded in
issuing the final Original Rule that “[t]he Congress recognized that
adequate protection of the security and privacy of health information
is a sine qua non of the increased efficiency of information exchange
brought about by the electronic revolution . . .”.  65 Fed. Reg.
82,474/2, JA 345.

Further, HHS noted that the Administrative Simplification provisions of
HIPAA were enacted “against the backdrop of decades of
privacy-enhancing statutes.”  65 Fed. Reg. 82,469/1, JA 340. 
Many of those statutes require the individual’s consent for the use or
disclosure of identifiable personal information.  For example, the
Video Privacy Protection Act (1988) requires a video tape service
provider to obtain “the informed, written consent of the consumer” in
order to release personally identifiable information concerning any
consumer.  18 U.S.C. § 2710(b)(2)(B).  The Drivers’
Privacy Protection Act (1994) provides that a State department of motor
vehicles cannot disclose personal information about any individual in
most situations unless the requester demonstrates it has “obtained the
written consent of the individual to whom the information
pertains.”  18 U.S.C. § 2721(b)(13).  The Children’s
Online Privacy Protection Act (1998) requires the operator of a web
site that collects personal information about children to obtain
“verifiable parental consent.”  15 U.S.C. §
6502(b)(1)(A)(ii).  The Secretary has cited no basis to assume
that Congress intended to provide less privacy protection for highly
personal and sensitive health information than for personal video
rental or drivers’ license information.

Indeed, if Congress had intended for the Secretary to adopt a national
health privacy policy that runs counter to 2,400 years of medical
ethics, it would have included legislative language to this
effect.  Intel Corp., 124 S. Ct. at 2480.  This conclusion is
clear in light of the backdrop of Congressional concern about the
threats to personal privacy when HIPAA was enacted in 1996.

B. HIPAA Should Be Construed Consistently with Other Laws and the
Agency’s Contemporaneous Interpretation

Even if §264 were found to be ambiguous, it should be construed to
avoid conflict with the laws of other countries because courts may
assume that Congress takes account of such laws.  This rule of
construction “helps the potentially conflicting laws of different
nations work together in harmony—a harmony particularly needed in
today’s highly interdependent commercial world.”  E.
Hoffman-LaRoche Ltd. v. Empagran, 124 S. Ct. at 2366.

As HHS concluded in adopting the final Original Rule, it is “important
for the U.S. to join the rest of the developed world in establishing
basic medical privacy protections,” citing the 1995 EU Data Privacy
Directive.  65 Fed. Reg. 82,469/2, JA 340.  The EU Data
Privacy Directive, §33 states that data which by their nature are
capable of infringing “fundamental freedoms or privacy” should not be
used or disclosed “unless the data subject gives his explicit
consent.”  JA 360.  The United States has issued “Safe Harbor
Privacy Principles” for entities doing business with EU countries which
provide for “Choice (i.e., consent)” and an “opt-in” mechanism for
“personal information specifying medical or health conditions.” 
65 Fed. Reg. 82,486/3, n. 1; 65 Fed. Reg. 45,667-68, JA 362-63. 
HHS found that the Original Rule and the EU directive were consistent
and “based on common principles of fair information practices.” 
65 Fed. Reg. 82,487/1.  The Secretary did not address the apparent
conflict with the EU directive when he reversed his policy on consent
in the Amended Rule.  The Original Rule’s interpretation of
Congressional intent, therefore, should be given deference for this
reason as well.

He further asserts that the proposed Original Rule, which would have
authorized nonconsensual disclosures had it been adopted, was a more
contemporaneous interpretation of the statute and, therefore, is
entitled to greater deference.  Scrty’s Br. 48, n.12. 
However, “[i]t goes without saying that a proposed regulation does not
represent an agency’s considered interpretation of the statute  .
. .”.  Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833,
845, 106 S. Ct. 3245, 3253 (1986).  Thus, the final Original
Rule’s recognition of the traditional right of consent represents the
agency’s “considered” contemporaneous interpretation of the statute and
is entitled to deference.

IV. The Amended Rule is Arbitrary and Capricious

A. The Amended Rule is a Radical Departure from Settled Agency Action

The Secretary does not dispute that a settled course of agency behavior
is entitled to a presumption that it best implements the intent of
Congress.  Pls.’ Br. 42-43; Motor Vehicles Mftrs Ass’n v. State
Farm Mut. Ins. Co., 463 U.S. 29, 41-42, 103 S. Ct. 2856, 2866
(1983).  He simply contends that the right of consent in the
Original Rule was unsettled because he reopened the rulemaking within
two months of its adoption in December 2000.  Scrty’s Br.
46.  The Secretary suppresses the fact, however, that he
affirmatively elected to put the Original Rule into effect on April 14,
2001 after the rulemaking he conducted from February 26 through March
30, 2001.  Pls.' Br. 46-47.  The Secretary then kept the
Original Rule in effect until he made the Amended Rule effective twenty
months later on October 15, 2002.  JA 1376.  In putting the
Original Rule into effect, the Secretary announced that he and the
President were taking a “bold and definitive step to protect the rights
of citizens to keep their medical records confidential” and that this
action was intended to “give patients…more control over how their
personal information is used.”  JA 831; Pls.’ Br. 47.  The
Original Rule was at least as settled a course of agency action as the
safety standard in Motor Vehicles which was rescinded before its
compliance date.  463 U.S. at 37-38, 103 S. Ct. at 2863-64.

The Secretary also glosses over the fact that in adopting a policy in
the Amended Rule of substituting control by covered entities for
control by individuals over their health information in routine
situations, he adopted the very approach that had been rejected twice,
once by his predecessor and once by him.  65 Fed. Reg. 82,473/3,
67 Fed. Reg. 53,183/1, JA 344, 1377.  Unlike Motor Vehicles where
a new Secretary attempted to rescind a rule adopted by his predecessor,
the Secretary in this case has reversed his own decision.

The Secretary also fails to mention that all of the concerns that he
cited as support for reversing himself in the Amended Rule actually
were brought to his attention in the February 26 to March 30, 2001
rulemaking he conducted before he put the Original Rule into
effect.  Pls.’ Br. 46-47.   He stated that an “expedited
review” of these comments allowed him to determine that it was
“appropriate” to put the Original Rule into effect on April 14,
2001.  67 Fed. Reg. 53,183; JA 1377.  While he asserts in his
brief that he reversed himself because of “unintended consequences”
brought to his attention, he admittedly put the Original Rule into
effect only after determining the provisions of the rule “would protect
patients’ privacy without creating unanticipated consequences that
might harm patients’ access to health care or quality health care . .
.”.  67 Fed. Reg. 53,183 JA 1377 (emphasis added).

Sometime between the April 14, 2001 effective date of the Original Rule
and the August 14, 2002 publication date of the Amended Rule, the
Secretary radically changed his approach to medical privacy.  In
adopting the Original Rule, the Secretary (and his predecessor)
concluded the individual’s ability to exercise his right to medical
privacy was necessary for effective, high quality health care and a
“sine qua non” of the efficiency intended by Congress.  65 Fed.
Reg. 82,467, 82,474, JA 338, 345.  Eighteen months later, however,
the Secretary had come to believe medical privacy and efficiency were
in irreconcilable conflict, and privacy had to give way to the desire
for “enhanced efficiency.”  Scrty’s Br. 37.

B. The Record Is Devoid of Findings to Support the Complete Reversal of
Prior Agency Action

Neither the District Court decision, the preamble to the Amended Rule
nor the Secretary’s brief suggest any change in the statute,
Congressional intent, or factual circumstances.  In order for a
rule to survive scrutiny under the Administrative Procedure Act’s
arbitrary and capricious standard, particularly where an agency has
reversed its “former views,” the agency must set forth a basis of facts
and findings in support of that reversal.  Pls.’ Br. 43. 
Prometheus Radio Project v. F.C.C., 373 F.3d 372, 390 (3d Cir. 2004)
citing Motor Vehicle Mfts. Ass’n, 463 U.S. at 29, 103 S. Ct. at
2856.  Courts cannot be compelled to guess at the theory
underlying the agency’s action, and an agency has the “heaviest of
obligations” to explain every step in its reasoning where individuals’
lives and welfare hang in the balance.  American Lung Ass’n v.
EPA, 134 F.3d 388, 392 (D.C. Cir. 1998).  

The Amended Rule literally leaves the Court to guess what new facts or
changed circumstances occurred between April 14, 2001 and August 14,
2002 that would have justified such a radical reversal.  Further,
the Court is left to guess why the right to medical privacy which was
identified as synonymous with the trust that is essential for quality
health care was abruptly viewed as subordinate to “enhanced efficiency”
for covered entities.  JA 338.  The Court must also guess why
it was necessary to eliminate the ability of all individuals to control
the use and disclosure of their health information in all routine
situations when the Secretary’s principal concern related to first
encounters.  Scrty’s Br. 39.

The Court also is left to guess why the Secretary did not cite any
example in the history of the country of a patient who was unable to
obtain needed health care because a covered entity could not obtain
consent.  Pls.’ Br. 47-48.  The Secretary responds that it is
“highly misleading” for Plaintiffs to point out this omission because
the Original Rule was amended before the final compliance date and, in
any event, some state laws permit some nonconsensual disclosures. 
Scrty’s Br. 42.  This is hardly a sufficient explanation for the
lack of a factual basis to support the reversal of a major health
privacy policy since it ignores HHS’ own findings that (a) most
providers obtain consent before using and disclosing a patient’s health
information, (b) prior consent has been required under the standards of
medical ethics throughout the history of medicine, (c) many states have
statutory or common law requiring prior consent, (d) federal common law
has long recognized a psychotherapist-patient privilege which cannot be
waived without the patient’s consent, and (e) there is an established
expectation among patients that their health information will not be
used or disclosed for routine purposes without their consent.  65
Fed. Reg. 82,464/3, 82,472-74, JA 335, 343-45.  These findings
make it far more likely that the right of consent has enhanced, rather
than impeded, access to quality health care.  

The Secretary also does not dispute that the California statute that he
used as a model for the Amended Rule actually provides a general right
of consent like the Original Rule and that the only survey evidence
cited in support of the Amended Rule was the same survey HHS cited for
the opposite proposition in support of the Original Rule.  Pls.’
Br. 53-56.  These two errors seriously undermine the basis for the
Amended Rule which erroneously stated “[t]he fact that there is a State
law that has been using a similar model for years provides us
confidence that this is a workable approach.”  67 Fed. Reg.
53,211/1, JA 1381.  There was nothing in the state law or the
survey that should have inspired this confidence.

C. The Amended Rule Eviscerates Privacy Without Improving Efficiency

Finally, the Secretary argues that the Amended Rule was necessary to
improve the efficiency of the health delivery system.  Scrty’s Br.
27-29, 37.  However, the “flexibility” the Rule professes to give
to covered entities to disclose identifiable health information with or
without the individuals’ permission undermines the “floor” of federal
privacy standards that Congress intended be established to assure
patients that their privacy would be protected.  JA 342.  The
notices of privacy rights that a patient might have received on the day
before and the day after the Amended Rule’s compliance date are
illustrative.

Before the Amended Rule:  

“Consistent with established standards of medical ethics and state law,
I will use and disclose your identifiable health information for
routine purposes only to the extent that you give your consent.”



    After the Amended Rule:

“The federal government has granted me ‘regulatory permission’ to use
and disclose any of your identifiable personal medical information for
the past, present, or future to a broad range of ‘covered entities’ and
their ‘business associates’ for certain routine purposes without your
consent and over your objection.  You have a right to seek a
consent process by requesting an agreement to restrict uses and
disclosures, but the federal government gives me the right to deny that
request for any reason or for no reason.  Disclosures without your
consent are prohibited by my profession’s standards of medical ethics,
but those standards do not have the force and effect of law.  You
may have a right under state law to not have your identifiable health
information used and disclosed without your consent, but only if the
state law and the federal Privacy Rule are in conflict and the state
law confers ‘more stringent’ privacy protections and only if your
records are not sought in any federal proceeding regardless of whether
you are a party.  The identifiable health information that I am
authorized by federal law to use and disclose includes any information
related to what I determine to be a routine purpose regardless when it
was placed in your medical record and regardless whether it is needed
to provide medical services to you. You have no right under the federal
Privacy Rule to notice of these uses and disclosures or to request an
accounting.  This information may be used and disclosed to limit,
terminate or determine the cost of health insurance for you and your
family, for certain marketing activities and for certain business
reasons that have nothing to do with any health care service you may
have requested in the past or may request in the future.”



In fact, this hypothetical notice is quite similar to the notices that
Plaintiffs actually have received since April 14, 2003.  JA 58,
79, 110, 118, 122, 128, 144, 155, 223, 248, 250, 254, 257, 265,
290.  As the Supreme Court has noted, uncertain medical privacy is
little better than none at all.  Jaffee v. Redmond, 518 U.S. at
18, 116 S. Ct. at 1932.

V. Conclusion

Neither the District Court’s holding nor the Secretary’s brief obscure
the plain fact that the Amended Privacy Rule eliminates Plaintiffs’
rights to medical privacy in most situations.  Nor can there be
any doubt that the Rule is having an adverse impact on the trust
essential for access to effective health care.  The Amended Rule
eliminates the privacy of Plaintiffs’ past, present and future health
information regardless whether they protest, pay out of pocket or avoid
the health care system altogether.  Plaintiffs’ unrebutted
affidavits and numerous national surveys in the record show that
individuals value medical privacy even to the point of avoiding medical
care.  CACC Br. 10.  That is hardly surprising since medical
care preserves health for the present while medical privacy preserves
hope and opportunity for the future.  JA 338.

By eliminating Plaintiffs’ right of consent and granting federal
“regulatory permission” for the use and disclosure of their health
information, the Amended Rule, under the guise of being “wholly
permissive,” in fact, eliminates Plaintiffs’ privacy rights under
federal common law, state statutory and common law, and traditional
standards for the ethical practice of medicine.  

The decision in this case may well determine whether law-abiding
individuals who pose no public health threat continue to have a
“reasonable expectation” of a right to medical privacy in routine
situations.  If they do not have such a right with respect to
information about their physical, mental and genetic make up, it is
difficult to imagine they would have a right to privacy for any
personal information.  Accordingly, the right to personal privacy,
and therefore liberty, will be extinguished in the city where it was
first recognized.  

Plaintiffs ask this Court to restore and preserve the status quo of
medical privacy and consent which has existed throughout the history of
the country and medicine prior to the adoption of the Amended
Rule.  They ask this Court to uphold their right, as to the
government, to be let alone.

              
         Respectfully submitted,

              
         James C. Pyles

              
         Powers, Pyles Sutter &
Verville, P.C.

              
         1875 Eye Street, NW

              
         Washington, D.C. 20006

              
         (202) 466-6550



              
         Counsel for Appellants



Dated:  November 8, 2004

 CERTIFICATE OF SERVICE



    I HEREBY CERTIFY that on this 8TH day of November,
2004, two copies of the foregoing Reply Brief of Appellants were served
by hand delivery upon counsel:

Charles Scarborough

Mark B. Stern

U.S. Department of Justice

Civil Division, Appellate Staff

950 Pennsylvania Avenue, N.W.

Room 7244

Washington, D.C. 20530-3001



            James Gilligan

            United States
Department of Justice

            Civil Division

            20
Massachusetts Avenue, N.W.

            Room 7136

            Washington,
D.C.  20001



And by first-class mail to:



    Sharon J. Arkin

    Robinson, Calcagnie & Robinson

    620 Newport Center Drive, 7th Floor

    Newport Beach, CA  92660



    Susan L. Burke

    Stacy Alison Fols

    Montgomery, McCracken, Walker & Rhoads, LLP

    123 South Broad Street

    Philadelphia, PA  19109



     David P. Felsher

    488 Madison Avenue, 11th Floor

    New York, NY  10022



    John Gould

    Jonathan Martel

    Arnold & Porter, LLP

    555 Twelfth Street, N.W.

    Washington, D.C.  20004



    M. Duncan Grant

    Pepper Hamilton LLP

    3000 Two Logan Square

    18th & Arch Streets

    Philadelphia, PA  19103



    Sheri Joy Nasya Tolliver

    Texas Civil Rights Project

    Michael Tigar Human Rights Center

    1405 Montopolis Drive

    Austin, TX  78741









    James C. Pyles

    POWERS, PYLES, SUTTER & VERVILLE, P.C.

    1875 Eye Street, N.W.

    Twelfth Floor

    Washington, D.C.  20006-5409

    (202) 466-6550

    (202) 785-1756 Fax