1 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ADAM BROOK, et al., 

 Plaintiffs,

 v. 

JUDITH ROGERS, M.H.A., et al., 

 Defendants.

Civil Action No. 12-01229 (TFH) 

MEMORANDUM OPINION

The Health Care Quality Improvement Act requires that hospitals file a report with the 

Department of Health and Human Services “whenever a physician voluntarily resigns while 

under investigation for reasons related to his professional competence or conduct.” Long v.

HHS, 422 F. Supp. 3d 143, 145–46 (D.D.C. 2019); 42 U.S.C. §§ 11101-152. The report is then 

posted to the National Practitioner Data Bank, “an online database, which . . . alert[s] hospitals 

and other would-be employers of potential issues with the physician’s credentials.” Long, 422 F. 

Supp. 3d at 145–46. 

This lawsuit concerns one such report about the plaintiff, Dr. Adam Brook, a surgeon 

formerly employed by Peconic Bay Medical Center (the “Hospital”). The Hospital submitted the 

report (the “Adverse Action Report”) to the National Practitioner Data Bank (the “NPDB” or the 

“Data Bank”) in 2009 after Dr. Brook resigned while the Hospital investigated an appendectomy 

that he performed. Dr. Brook and his limited liability company, John Doe PLLC (“the 
2 

plaintiffs”), sued the Secretary of the Department of Health and Human Services (“the 

Secretary”, “HHS”, or “the Agency”), the Data Bank, and three officials who administer the Data 

Bank over their maintenance and continued distribution of the Adverse Action Report. 

The Court described the facts of this case in detail in Doe v. Rogers, 139 F. Supp. 3d 120 

(D.D.C. 2015) (“Doe”), and includes relevant excepts below: 

On Friday, October 2, 2009, Dr. Doe commenced a late-night emergency 

laparoscopic appendectomy on a 14–year–old girl who had acute appendicitis.

First Am. Compl. ¶¶ 48, 49; Administrative Record (“AR”) 0153 [ECF No. 19–

4 (Sealed)] . . . During the surgery, Dr. Doe removed what he characterized as 

an “inflamed band” AR 0101 [ECF No. 19–3 (Sealed)] . . . A subsequent 

pathology report confirmed that the “inflamed band” was part of the patient’s 

right Fallopian tube. First Am. Compl. ¶ 51 [ECF No. 23]; AR 0142–0143 at ¶ 

85 [ECF No. 19–3 (Sealed) ] . . . There is no dispute that Dr. Doe failed to 

recognize the anatomical identity of the “inflamed band” before he intentionally 

cut and removed it. Pls.’ Mem. In Opp’n to Defs.’ Mot. to Dismiss 3–4 [ECF 

No. 45 (Sealed)] . . . .

[The following Monday,] the Vice President of Medical Affairs told Dr. Doe

that the Hospital was required to report the surgical incident to the New York 

State Department of Health and that such a report was necessary whenever an 

organ other than the organ operated is injured. AR 0161 [ECF No. 19–4 (Sealed) 

]; AR 0203 [ECF No, 19–5 (Sealed)]. The hospital . . . filed a report that day via 

the New York Patient Occurrence Reporting and Tracking System 

(“NYPORTS”) and stated in the report that “[t]he physician has been placed on 

suspension pending completion of the investigation and the family notified.” AR 

0108 [ECF No. 19–3 (Sealed)]. . . . 

Later that same day, Dr. Doe executed a letter voluntarily suspending his 

surgical privileges and stating “I will not operate at Peconic Bay Medical Center

for the next two weeks effective October 5, 2009 through October 19, 2009, or 

until mutually agreed upon. I will however, finish the follow-up care on patients 

that I am currently involved with on the clinical floors without performing any 

surgery.” AR 0110 [ECF No. 19–3 (Sealed) ]. Dr. Doe claims that this letter was 

prompted by his discovery “that he was going to have to return to the University 

of Tennessee to complete another year of cardiothoracic surgery fellowship in 

preparation for his Board exam.” First Am. Compl. ¶ 53. 

Two days later, on October 7, 2009, Dr. Doe tendered a short letter of resignation 

that stated “[e]ffective October 16, 2009, I resign from Peconic Bay Medical

Center.” AR 0113 [ECF No. 19–3 (Sealed)].
3

On December 3, 2009, about two months after Dr. Doe resigned, the Hospital 

submitted an Adverse Action Report to the National Practitioner Data Bank. AR 

0132 [ECF No. 19–3 (Sealed)]. The Adverse Action Report stated:

In June 2009, the physician commenced practice at the 

Hospital in thoracic and general surgery. On Friday, October 

2, 2009, the physician performed a laparoscopic 

appendectomy on a 14–year–old female. In the course of 

performing the procedure, the physician inadvertently 

removed part of one of the patient’s fallopian lubes. On or 

about Monday, October 5, 2009, the physician agreed to 

refrain from exercising his surgical privileges pending the 

Hospital’s investigation of this matter. By letter dated October 

7, 2009, the physician advised the Hospital that he resigned 

from the Hospital effective October 16, 2009. Accordingly, 

the Hospital took no further action regarding the physician’s 

privileges or employment. However, the Hospital’s quality 

assurance review of this matter indicates departures by the 

physician from standard of care with regard to the 

laparoscopic appendectomy that he performed on October 2, 

2009.

AR 0002 [ECF No. 19–1 (Sealed)].

. . . . Upon discovering the report, Dr. Doe contacted the Hospital and requested 

that it retract the report because it was factually inaccurate. AR 0008 [ECF No. 

19–1 (Sealed) ]; AR 0013 [ECF No. 19–1 (Sealed)]. Dr. Doe also submitted a 

Subject Statement to the National Practitioner Data Bank and placed the Adverse 

Action Report in a disputed status “challenging both the factual accuracy of the 

report and whether the report was submitted in accordance with the [National 

Practitioner Data Bank’s] reporting requirements.” First Am. Compl. ¶ 89 [ECF 

No. 23]; see also AR 0018–27 [ECF No. 19–1 (Sealed)].

When the Hospital refused to revise or void the Adverse Action Report, Dr. Doe

submitted a letter to the National Practitioner Data Bank requesting that the 

Secretary of the Department of Health and Human Services review and remove 

the report. First Am. Compl. ¶ 91 [ECF No. 23]; AR 0007–17 [ECF No. 19–1 

(Sealed)]. On June 25, 2012, Judy Rodgers, Senior Advisor for the Division of 

Practitioner Data Banks at the Department of Health and Human Services, 

issued a Secretarial Review Decision denying Dr. Doe’s request and stating that 

the Secretary found that “[t]here is no basis on which to conclude that the Report 

should not have been filed in the NPDB or that it is not accurate, complete, 

timely or relevant,” AR 0268–73 [ECF No. 19–6 (Sealed)].

Doe, 139 F. Supp. 3d at 129-31.
4 

One month later, the plaintiffs filed this lawsuit alleging that the defendants violated the 

Administrative Procedures Act (“APA”), sections 522a(g)(1)(A) and (C) of the Privacy Act, and 

the plaintiffs’ constitutional rights. Doe, 139 F. Supp. 3d at 132. After the parties filed

dispositive motions (the “first round of briefing”), the Court granted the defendants’ motion for 

summary judgment on the APA claims except as to the narrow question of whether the statement 

in the Adverse Action Report that “‘the Hospital’s quality assurance review of this matter 

indicates departures by the physician from standard of care with regard to the laparoscopic 

appendectomy that he performed on October 2, 2009’” (“the Statement”) was reportable to the 

Data Bank. Id. at 153 (quoting ECF No. 19-1 [SEALED]). The Court dismissed the plaintiffs’ 

constitutional claims and the § 552a(g)(1)(C) Privacy Act claim, but declined to dismiss the 

plaintiffs’ contention that the Secretary violated § 552a(g)(1)(A) of the Privacy Act because the 

Court remanded the reportability issue to the Agency. Id. at 167-68; 170. 

The Agency has since issued its decision on remand, and concluded that the Statement is 

reportable. [ECF No. 86-1 (Sealed)]. That decision is the main subject of the motions now 

pending before the Court, which include the defendants’ renewed motion to dismiss or, in the 

alternative, motion for summary judgment [ECF No. 100], and the plaintiffs’ cross-motion for 

summary judgment and opposition to the defendants’ motion [ECF No. 103]. Also pending 

before the Court are three additional motions filed by the plaintiffs—two motions to supplement 

the record, [ECF Nos. 118 & 120], and a motion for reargument and for the Court’s recusal, 

[ECF No. 127]. The defendants have opposed each motion. [ECF Nos. 119, 122 & 128]. 

I. Regulatory Background 

Congress enacted the Health Care Quality Improvement Act (the “Act” or “HCQIA”) to 

address the “increasing occurrence of medical malpractice” and “the need to restrict the ability of 
5

incompetent physicians to move from State to State without disclosure or discovery of the 

physician’s previous damaging or incompetent performance.” 42 U.S.C. § 11101(1)-(2). The Act 

requires health care entities to report to HHS when inter alia, they “accept[] the surrender of 

clinical privileges of a physician while the physician is under an investigation by the entity 

relating to possible incompetence or improper professional conduct.” Id. § 11133(a)(1)(B)(i); see 

also 45 C.F.R. § 60.12(a)(1)(ii)(A). 

When filing reports, the Act requires that health care entities submit “(A) the name of the 

physician or practitioner involved, (B) a description of the acts or omissions or other reasons for 

the action or, if known, for the surrender, and (C) such other information respecting the 

circumstances of the action or surrender as the Secretary deems appropriate.” 42 U.S.C. §

11133(a)(3). According to the legislative history, this section “does not necessarily require an 

extensive description of the acts or omissions or other reasons for the action or, if known, for the 

surrender. It does, however, require sufficient specificity to enable a knowledgeable observer to 

determine clearly the circumstances of the action or surrender.” H.R. Rep. No. 99-903 at 15

(1986), reprinted in 1986 U.S.C.C.A.N. 6384, 6398. The implementing regulations issued by the 

Secretary likewise require that entities report “a description of the acts or omissions or other 

reasons for privilege loss, or, if known, for surrender,” the “action taken, date the action was 

taken, and effective date of the action” and other information the Secretary may require “after 

publication in the Federal Register and after an opportunity for public comment.” 45 C.F.R. § 

60.12(a)(3).
6

II. The Plaintiffs’ Remanded Administrative Procedures Act Claim 

a. The Secretary Found that the Statement was Reportable.

In its decision on remand, the Secretary concluded that the Statement was reportable and 

denied the plaintiffs’ request to strike it from the Adverse Action Report. [ECF No. 86-1 at 2

(SEALED)]. The Secretary found that the Statement “provides a more complete history of the 

events relevant to [Dr. Brook’s] resignation while under investigation.” Id. at 2. According to the 

Secretary, while Dr. Brook’s “report was based on a resignation while under investigation and 

was not dependent on the results of the investigation,” the results “are closely related to the 

reportable event,” put queriers on “better notice of the facts and circumstances of the reported 

action,” and “are clearly types of information that could assist further queriers in making 

privileging and licensing decisions.” The Secretary emphasized that “[o]ne of the central 

purposes of the NPDB is to provide health care entities with better information on which to make 

licensing and privileging decisions.” Id. 

The Secretary also found that the Act and its implementing regulations require the 

reporting, if known, “of the reasons for the surrender,” and concluded that “the results of an 

investigation could be useful information for future queriers in determining the reasons for 

surrenders.” Id. The Secretary went on to note that “[i]f, for instance, an investigation exonerates 

practitioner from any wrongdoing, a querier may determine that this provides further evidence 

that a practitioner’s resignation was not motivated by a desire to escape punishment.” Id.

b. Summary Judgment Standard

The plaintiffs seek review of the Secretary’s decision under the Administrative 

Procedures Act, 5 U.S.C. § 701, et seq.. “Summary judgment is the proper mechanism for 

deciding, as a matter of law, whether an agency action is supported by the administrative record 
7 

and consistent with the APA standard of review.” Chiayu Chang v. USCIS, 289 F. Supp. 3d 177, 

182 (D.D.C. 2018) (internal quotations omitted). When considering challenges to agency action 

under the APA, instead of applying Federal Rule of Civil Procedure 56(a)’s summary judgment 

standard, “the district judge sits as an appellate tribunal. The entire case on review is a question 

of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal 

quotations omitted). 

The APA requires courts to set aside agency actions that are “arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “An agency 

action that ‘entirely failed to consider an important aspect of the problem, offered an explanation 

for its decision that runs counter to the evidence before the agency, or is so implausible that it 

could not be ascribed to a difference in view or the product of agency expertise’ is arbitrary and 

capricious.” Gresham v. Azar, 950 F.3d 93, 99 (D.C. Cir. 2020) (quoting Motor Veh. Mfrs. Ass’n 

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “The scope of review under the 

‘arbitrary and capricious’ standard is narrow, and a court is not to substitute its judgment for that 

of the agency.” State Farm, 463 U.S. at 43. 

c. The Secretary’s Decision was not Arbitrary and Capricious. 

i. The Statement is Reportable Under the Statute. 

In the amended complaint and first round of briefing, the plaintiffs argued that the 

Statement was not reportable because the Hospital’s investigation did not result in the suspension 

of Dr. Brook’s privileges. See Doe, 139 F. Supp. 3d at 132 (identifying the fifth APA argument 

raised by the plaintiffs as the assertion that “the Hospital’s quality assurance review was not a 

reportable event because it did not result in the suspension of Dr. Brook’s privileges given that 

he had already resigned.”); First Am. Compl. ¶¶ 120-125 [ECF No. 23]; Pls.’ Opp’n to Defs.’ 
8

Mot. to Dismiss at 47 [ECF No. 45 (SEALED)]; Pls.’ Reply at 23 [ECF No. 56 (SEALED)]. The 

Court concluded that the Secretary did not address this argument, “likely because Dr. [Brook]

raised it so obliquely . . . that it may not have seemed apparent,” and remanded the issue for the 

Secretary’s consideration. Doe, 139 F. Supp. 2d at 153; see id. at 170 (“remand[ing] to the 

Secretary to consider whether the statement that ‘the Hospital’s quality assurance review of this 

matter indicates departures by the physician from standard of care with regard to the 

laparoscopic appendectomy that he performed on October 2, 2009’ is reportable.”) (quoting AR 

0002 [ECF No. 19-1 (Sealed)]).

The plaintiffs do not address this argument in their filings, and appear to have altogether 

abandoned this claim—a curious position given that it was the subject of the Court’s remand to 

the Agency. The plaintiffs also do not respond to the Secretary’s argument that the Statement is 

reportable pursuant to two of the Act’s provisions. Defs.’ Mot. Summ. J. at 9 [ECF No. 100] 

(citing 42 U.S.C. § 11133(a)(3)(B)-(C)). Accordingly, the Court could properly treat the 

plaintiffs’ argument that the Statement was not reportable under the Act as conceded. See, e.g., 

Wilson v. Fed. Express Corp., No. 18-cv-485, 2019 WL 5696874, at *1 (D.D.C. Nov. 4, 2019) 

(“When a party responds to some but not all arguments raised on a Motion for Summary 

Judgment, a court may fairly view the unacknowledged arguments as conceded.”) (internal 

quotations marks omitted). 

Even if the Court must consider whether the Act allowed the Hospital to report the results 

of its investigation, cf Winston & Strawn LLP v. McLean, 843 F.3d 503, 508 (D.C. Cir. 2016), 

the Court finds that it unambiguously does. The statute requires that when reporting entities 

“accept[] the surrender of clinical privileges of a physician while the physician is under an 

investigation,” they submit a “description of the acts or omissions or, if known, the reason for the 
9 

surrender.” 42 U.S.C § 11133(a)(1)(B)(i); (a)(3). An “act” is defined as “[s]omething done or 

performed, esp. voluntary; a deed.” Black’s Law Dictionary (11th ed. 2019). A “description” is 

a “delineation or explanation of something by an account setting forth the subject’s 

characteristics or qualities.” Id. Putting these definitions together, the statute requires a 

“delineation or explanation” of “something done or performed”—which in this case means a 

delineation or explanation of the Hospital’s acceptance of Dr. Brook’s resignation while he was

under investigation. 

This broad language indicates that the Act provides reporting entities space to include 

information that it does not explicitly identify in the statute, such as the results of an 

investigation. This interpretation is supported by the statute’s purpose and legislative history. See 

Doe, 139 F. Supp. 3d at 127 (finding that the Act aims to address the “need to restrict the ability 

of incompetent physicians to move from State to State without disclosure or discovery of the 

physician’s previous damaging or incompetent performance”) (quoting 42 U.S.C. § 11101(1)-

(2)); Doe 139 F. Supp. 3d at 145 (finding that the Act “clearly manifests a policy that favors 

strict reporting in the event of a resignation during an investigation to ensure patients are 

protected and to prevent physicians from skirting peer review”); H.R. Rep. No. 99-903 (stating 

that § 11133(a)(3) of the Act “does not necessarily require an extensive description of the acts or 

omissions or other reasons for the action or, if known, for the surrender. It does, however, 

require sufficient specificity to enable a knowledgeable observer to determine clearly the 

circumstances of the action or surrender.”). Providing the results of the investigation enables 

queriers to more fully understand the circumstances of the incident, and protects patients by 

providing entities with enough information to make informed hiring decisions. The statute 

unambiguously allows the Hospital to provide a one-sentence description of the results of their 
10 

investigation.

1 See Nat’l Ass’n of Clean Air Agencies v. E.P.A., 489 F.3d 1221, 1228 (D.C. Cir. 

2007) (quoting Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 843 (1984)) (stating that if after 

“examin[ing] a statute de novo, ‘employing traditional tools of statutory construction,’” the court 

finds that the “‘intent of Congress is clear,’” it “accord[s] the agency’s interpretation [of a 

statute] no deference, ‘for the court, as well as the agency, must give effect to the unambiguously 

expressed intent of Congress.’”). 

ii. The Secretary Did Not Conclude that Dr. Brook Resigned to Escape 

Punishment. 

The plaintiffs challenge the Agency’s conclusion that “[t]he results of an investigation 

could be useful information for future queriers in determining the reasons for surrenders.” [ECF 

No. 86-1 at 2 (SEALED)]; see also id. (“[i]f, for instance, an investigation exonerates a 

practitioner from any wrongdoing, a querier may determine that this provides further evidence 

that a practitioner’s resignation was not motivated by a desire to escape punishment.”). The 

plaintiffs describe this conclusion a “classic bootstrap argument” that is “devoid of logic” 

because it assumes that a practitioner will know the results of a hospital’s investigation before it 

is concluded. Pls.’ Opp’n & Cross Mot. Summ. J. at 12 [ECF No. 103]. They also contend that 

the Secretary concluded that Dr. Brook resigned to escape punishment, even though Dr. Brook 

1 The Secretary makes broader arguments about the Act’s scope in its briefs than it did in its decision on 

remand. Compare Defs.’ Mot. at 9 (arguing that the Statement falls under 42 U.S.C. § 11133(a)(3)(B)-(C) 

with [ECF No. 86-1 at 2 (SEALED)] (finding the Statement reportable because the Statute requires that 

entities report the reasons for the surrender, if known, and “the results of an investigation could be useful 

information for future queries in determining” those reasons, and because the results of the investigation 

are “closely related to the reportable event.”). Because the Act clearly allows the Hospital to report the 

results of the investigation, the Court does not defer to the Secretary’s interpretation of the Act, and does 

not need to address this delta between the decision on remand and the briefs. 
11 

claims that he resigned before the Hospital completed its investigation to complete an additional 

year of surgery training in Tennessee. Id. at 12-13. 

Contrary to the plaintiffs’ assertions, the Secretary’s decision on remand did not conclude 

that Dr. Brook left the Hospital in order to escape punishment. It did not even address Dr. 

Brook’s reasons for resigning.2 The Secretary’s example does imply that a physician will know 

whether he departed from the standard of care in a given procedure, which could prompt him to 

resign before an investigation is complete. That is not an irrational notion, although a physician 

won’t necessarily know what a hospital will conclude in this regard. Regardless, as the 

defendants note, HHS did not find that the results of an investigation are a clear indication of the 

reasons for a surrender, or that Dr. Brook resigned because he knew the Hospital would find that 

he departed from the standard of care. The Secretary simply concluded that the results “may 

provide further relevant information about the surrender.” Defs.’ Opp’n and Reply at 6 [ECF No. 

105]. That conclusion does not render the Secretary’s opinion arbitrary and capricious. 

iii. The Court Rejected the Plaintiffs’ Arguments About the Hospital’s 

Procedures and Findings in Doe. 

 

The plaintiffs spend much of their briefing challenging the Hospital’s investigation and 

findings that he departed from the standard of care. See, e.g., Pls.’ Cross Mot. & Opp’n at 4-5, 7-

9, 11 [ECF No. 103]. Their discontent with the Hospital’s procedures and dispute with its 

conclusions is not grounds for finding that the Secretary’s decision was arbitrary and capricious. 

2 The plaintiffs also allege that the Secretary accepted the Hospital’s conclusion that Dr. Brook departed 

from the standard of care. The Secretary’s decision on remand did not address that issue. In its previous 

decision, which is not currently before the Court, the Secretary explicitly stated that he made “no finding” 

concerning “whether [Dr. Brook] met the standard of care.” AR 0257 [ECF No. 19-6 (SEALED)]. The 

Secretary did find that “it is clear from the record that PBMC determined that [Dr. Brook] departed from 

the standard of care,” and concluded that it was “poorly positioned to question a health care entities’ 

conclusion” in this regard. Id. 
12 

As the Court discussed in Doe, “the Secretary’s review of information in the Data Bank is 

limited in scope.” Doe, 139 F. Supp. 3d at 149 (quoting Leal v. Sec’y, HHS, 620 F.3d 1280, 1284 

(11th Cir. 2010)). “[T]he statute limits the Secretary’s regulatory authority to providing 

procedures to dispute the accuracy of the reported information but nowhere does the statute 

authorize, or even contemplate, that the Secretary will actually adjudicate the underlying merits 

of the events, professional review actions, activities, findings, or determinations.” Doe, 139 F. 

Supp. 3d at 148; see also Leal, 620 F.3d at 1284 (“[t]he Secretary does not act as a factfinder 

deciding whether incidents listed in the report actually occurred or as an appellate body deciding 

whether there was sufficient evidence for the reporting hospital to conclude that those actions did 

occur.”). 

As the defendants contend, in Doe, the Court considered the plaintiffs’ arguments 

regarding the nature of the Hospital’s investigation into the surgical incident. The Court 

concluded that the Hospital embarked on a “systematic examination of Dr. Doe’s conduct 

relating to the surgical incident by gathering the necessary documentation, conferring with the 

relevant Hospital executives, meeting with the physicians who were involved, reporting the 

incident to the state health department, and organizing a team to conduct a Root Cause 

Analysis.” Doe, 139 F. Supp. 3d at 138. The Court also found that the plaintiffs’ allegations that 

there was “no documentation of an October meeting of the Root Cause Analysis Committee” and 

that “individuals identified as being in attendance at the Root Cause Analysis Committee 

meeting were not there” were “not well founded or supported.” Id. at 139; see also id. at 142-

143. The Court’s rulings are the law of the case; the Court will not revisit them. See United 

States v. Kpodi, 888 F.3d 486, 491 (D.C. Cir. 2018) (the law-of-the-case doctrine “prevents 

courts from reconsidering issues that have already been decided in the same case” and “is 
13 

predicated on the premise that it would be impossible for an appellate court to perform its duties 

satisfactorily and efficiently and expeditiously if a question, once considered and decided by it, 

were to be litigated anew in the same case upon any and every subsequent appeal.”) (internal 

quotation marks omitted and edits accepted). 

III. The § 552a(g)(1)(A) Privacy Act Claim 

The plaintiffs allege that the defendants have violated § 552a(g)(1)(A) of the Privacy Act

by failing to amend the Adverse Action Report. They argue that the Adverse Action Report 

contains “errors of fact, not judgment” that should be corrected pursuant to the Privacy Act, 

including whether the Hospital lied about meetings and committed fraud by tricking Dr. Brook 

into resigning. Pls.’ Cross Mot. & Opp’n at 47. The plaintiffs allege that the following facts

support their claims: 1) the Hospital submitted a redacted and incomplete document as proof of 

an October 2009 meeting of the Hospital’s Medical Staff Performance Improvement Committee, 

Am. Compl. ¶ 63; 2) the Hospital misdated a memorandum documenting a review meeting on 

Monday, October 6, 2009, Id.; 3) neither the Attending Gynecology Oncology Surgeon nor the 

Attending General/Thoracic Surgeon attended an October 14, 2009 meeting of a Root Cause 

Analysis Committee, Id. ¶ 65; and 4) three surgeons who were not involve with the Hospital’s 

review concluded that Dr. Brook did not depart from the standard of care, id. ¶ 80. According to 

the plaintiffs, this evidence demonstrates that the Hospital fabricated documents in support of a 

quality assurance review of the plaintiffs’ surgical conduct that did not actually occur. Id. ¶ 58. 

The defendants have again moved to dismiss this claim pursuant to Federal Rule of Civil 

Procedure 12(b)(6). They assert that the Statement was an opinion, not a fact, and that § 

552a(g)(1)(A) of the Privacy Act does not provide for the amendment of opinions or judgments. 

According to the defendants, there “can be no plausible dispute that [the Hospital] concluded that 
14 

he deviated from the standard of care, and that fact is all the [Adverse Action Report] relates.” 

Defs.’ Opp’n and Reply at 11. They also contend that the Court has already determined that the 

record does not support the plaintiffs’ allegations that the Hospital fabricated documents or that 

its administrators committed fraud. Id. at 10. 

a. Legal Standard 

i. Motion to Dismiss

A complaint “must contain . . . a short and plain statement of the claim showing that the 

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Rule 12(b)(6) of the Federal Rules of 

Civil Procedure, a party may move to dismiss a complaint for “failure to state a claim upon 

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss based on 

Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to state a 

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal 

quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. 

When ruling on a motion to dismiss, the Court must “accept all the well-pleaded factual 

allegations of the complaint as true and draw all reasonable inferences from those allegations in 

the plaintiff’s favor.” Banneker Ventures v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015). The 

Court may consider facts alleged in the complaint, as well as “any documents either attached to 

or incorporated in the complaint and matters of which the court may take judicial notice.” Hurd 

v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (internal quotation marks omitted 

and edits accepted). 
15 

ii. § 552a(g)(1)(A) of the Privacy Act

Under the Privacy Act, an “agency that maintains a system of records” shall permit 

individuals “to request amendment of a record pertaining” to him or her. 5 U.S.C. § 552a(d)(2). 

Upon receiving such a request, an agency may either correct any portion of that record, or inform 

the individual of its refusal to do so, and provide, inter alia, the reason for the refusal. Id. § 

552a(d)(2)(B). The Privacy Act requires that an agency “permit” an individual “who disagrees 

with the refusal of the agency to amend his record” to request a review of that decision. Id. at § 

552a(d)(3). Section 552a(g)(1)(A) of the Privacy Act—the subsection at issue here—then

provides that “[w]henever an agency . . . makes a determination under subsection (d)(3) of this 

section not to amend an individual’s record in accordance with his request, or fails to make such 

review in conformity with that subsection,” the individual may “bring a civil action against the 

agency . . .” 5 U.S.C. § 552a(g)(1)(A). 

b. The Plaintiffs have Failed to State a Claim under 5 U.S.C. § 552a(g)(1)(A). 

Accepting the plaintiffs’ aforementioned factual allegations as true, their Privacy Act 

claim does not survive a motion to dismiss because the Statement is the Hospital’s judgment 

about Dr. Brook’s conduct during the surgery.3 “It is well-established that, ‘generally speaking, 

3

 The defendants correctly note that the Court considered the plaintiffs’ allegations in the context of their

APA claims and found them unavailing. See Doe, 139 F. Supp. 3d at 139-140 (finding that there was “no 

other evidence in the administrative record to buttress the plaintiffs’ allegations that the defendants’ 

typographical errors should be attributed to document fabrication,” that the Court was “not troubled by 

the fact the minutes of the Medical Staff Performance Improvement Committee meeting were redacted” 

because “[a]s far as the Court can tell, the only thing of any consequence that was redacted in the 

document was the identity of Hospital employees”); id. at 143 (concluding that the “fact that [Dr. Ortiz] 

might not have attended the Root Cause Analysis Committee meeting, alone, is an insufficient basis for 

the Secretary to conclude that the meeting was ‘non-existent’ so the Adverse Action Report must be 

stricken”). However, when considering the defendants’ motion to dismiss the remaining Privacy Act 

claim, the Court must “accept all the well-pleaded factual allegations of the complaint as true and draw all 

reasonable inferences from those allegations in the plaintiff’s favor.” Banneker Ventures, 798 F.3d at 

1129. 
16 

the Privacy Act allows for correction of facts but not correction of opinions or judgments.’” 

Mueller v. Winter, 485 F.3d 1191, 1197 (2007) (quoting McCready v. Nicholson ̧465 F.3d 1, 19 

(D.C. Cir. 2006)). It is true that “[i]f a subjective judgment is ‘based on a demonstrably false’ 

factual premise . . . the Privacy Act compels the agency to correct or remove the judgment from 

the complaining individual’s record.” Mueller, 485 F.3d at 1197 (quoting White v. Office of Pers. 

Mgmt., 787 F.2d 660, 662 (D.C. Cir. 1986)). But the plaintiffs do not point to a demonstratively 

false factual premise that would compel the Agency to correct or remove the Statement.

Accepting the plaintiffs’ factual allegations as true and granting reasonable inferences in their 

favor, the plaintiffs’ allegations call into question the rigor of the Hospital’s review of Dr. 

Brook’s work, and its documentation of that review.4 However, it would be unreasonable for the 

Court to infer from the plaintiffs’ allegations that a review of his conduct did not occur, or that 

the Hospital did not conclude that he departed from the standard of care. Dr. Brook conducted an 

appendectomy. First Am. Compl. ¶ 49. During the course of that appendectomy, he removed an 

inflamed band that was identified by a subsequent pathology report as part of the patient’s right 

Fallopian tube. Id. ¶ 51. The Hospital conducted a review of the procedure and reported to the 

Agency that it concluded that Dr. Brook’s conduct departed from the standard of care. Id. ¶¶ 57; 

61-65. That statement is a “classic statement of an author’s subjective judgment about an 

individual’s performance.” Mueller, 485 F.3d at 1197. For that reason, the defendants’ motion to 

dismiss the remaining Privacy Act claim will be granted. 

IV. The Court will Not Consider the Plaintiffs’ Additional Claims. 

In their motion, the plaintiffs raise a slew of other issues that the Court has either already 

adjudicated, or that are not properly before the Court given the discrete issue on remand. The 

4 Although the Court accepts the plaintiffs’ well-plead factual allegations as true, the Court does not 

accept as true the plaintiff’s allegations of fraud, which are legal conclusions. Iqbal, 556 U.S. at 678. 
17 

plaintiffs raise a series of constitutional claims. See, e.g., Pls.’ Cross Mot. & Opp’n at 15-28 

(raising constitutional violations under the APA and the Fifth Amendment, including alleging 

that Dr. Brook has been “deprived of [his] fundamental right to practice [his] chosen 

profession.”). The Court already adjudicated the plaintiffs’ constitutional claims and will not 

revisit those rulings. See Doe, 139 F. Supp. 3d at 153-167 (considering plaintiff’ Due Process 

claims); 168-69 (Bill of Attainer claims); 169-171 (Eight Amendment claims); Kpodi, 888 F.3d 

486, 491 (D.C. Cir. 2018) (the law-of-the-case doctrine “prevents courts from reconsidering 

issues that have already been decided in the same case.”) (internal quotation marks omitted).

The plaintiffs also cite three additional Privacy Act sections that are not properly before 

the Court and that the plaintiffs did not raise in their Amended Complaint. Pls.’ Cross Mot. & 

Opp’n at 35-45 (citing 5 U.S.C. §§ 552a(e)(2), (e)(5) and (e)(6)). Although a court errs when it 

“fail[s] to consider a pro se litigant’s complaint in light of all filings,” the plaintiffs were 

represented by counsel when they filed their Amended Complaint and during the first round of 

briefing. Brown v. Whole Foods Mkt. Grp., 789 F.3d 146, 152 (D.C. Cir. 2015) (internal 

quotation marks omitted). Accordingly, the Court will not consider the plaintiffs’ new Privacy 

Act arguments. 

The plaintiffs also argue that the Court must accept the plaintiffs’ factual allegations as

true regarding all their claims and allow them to proceed to discovery. Pls.’ Reply at 4-8 [ECF 

No. 108]. Not only do the plaintiffs seek to relitigate the standard that the Court has already 

applied to its APA claims in Doe, this argument also misstates the standard of review for APA 

claims, which the Court has previously discussed. See supra § II(b). 
18 

V. The Plaintiffs’ Requests to Add Extra-Record Evidence

The plaintiffs have filed two motions to supplement the record, along with a motion for 

reargument based on new evidence. 

a. Legal Standard 

 “When reviewing agency action under to the APA,” courts “review ‘the whole record or 

those parts of it cited by a party.’” Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 

2008) (quoting 5 U.S.C. § 706). “The record consists of the order involved, any findings or 

reports on which that order is based, and the pleadings, evidence, and other parts of the 

proceedings before the agency.” Id. (internal quotation marks omitted). It is “black-letter 

administrative law that in an Administrative Procedure Act case, a reviewing court ‘should have 

before it neither more nor less information than did the agency when it made its decision.’” CTS 

Corp. v. EPA., 759 F.3d 52, 64 (D.C. Cir. 2014) (quoting Hill Dermaceuticals, Inc. v. FDA, 709 

F.3d 44, 47 (D.C. Cir. 2013) (internal edits accepted). An agency is “entitled to a strong 

presumption of regularity that it properly designated the administrative record.” Oceana v. 

Pritzker, 217 F. Supp. 3d 310, 316 (D.D.C. 2016) (internal quotation marks omitted). For that 

reason, “[s]upplementation of the administrative record is the exception, not the rule.” Pac.

Shores Subdivision v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006). 

There are two ways a plaintiff may seek to augment the body of materials reviewed by 

the district court in an APA case, both of which are often, and confusingly, referred to as

“supplementing” the administrative record. Am. Petroleum Tankers Parent v. United States, 952 

F. Supp. 2d 252, 261 (D.D.C. 2013). First, a party may seek to “add[] to the volume of the 

administrative record with documents the agency considered.” Earthworks v. United States 

Dep.’t of the Interior, 279 F.R.D. 180, 185 (D.D.C. 2012); see also Am. Petroleum Tankers
19 

Parent, 952 F. Supp. 2d at 261 (describing this supplementation as seeking to “include evidence

that should have been properly a part of the administrative record but was excluded by the 

agency.”) (internal quotation marks omitted). Second, a party may seek to add extra-record

evidence that was “not initially before the agency but that the plaintiff believes should 

nonetheless be included in the administrative record.” Am. Petroleum Tankers Parent, 952 F. 

Supp. 2d at 261 (internal quotation marks omitted). 

Under the first justification for supplementing the record, more accurately described as

completion of the administrative record, “the moving party must rebut the presumption of 

administrative regularity and show that the documents to be included were before the agency 

decisionmaker.” Pac. Shores Subdivision, 448 F. Supp. 2d at 6; see also Oceana, 217 F. Supp. 3d 

at 316 (“the party seeking completion must present non-speculative, concrete evidence to support 

their belief that the specific documents allegedly missing from the administrative record were 

directly or indirectly considered by the actual decision makers involved in the challenged agency 

action.”) (internal quotation marks omitted). 

Under the second justification, courts generally do not allow parties to add extra-record

evidence “unless they can demonstrate unusual circumstances justifying a departure from this

general rule.” Am. Wildlands, 530 F.3d at 1002 (internal quotation marks omitted). The record

“can be supplemented in three instances: (1) if the agency ‘deliberately or negligently excluded

documents that may have been adverse to its decision,’ (2) if background information was

needed ‘to determine whether the agency considered all the relevant factors,’ or (3) if the 

‘agency failed to explain administrative action so as to frustrate judicial review.’” City of Dania 

Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010) (quoting Am. Wildlands, 530 F.3d at 1002);

see also Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010) 
20 

(“The APA limits judicial review to the administrative record except when there has been a 

strong showing of bad faith or improper behavior or when the record is so bare that it prevents 

effective judicial review.”) (internal quotation marks omitted). These “narrow” exceptions may

“at most . . . be invoked to challenge gross procedural deficiencies.” Hill Dermaceuticals, 709 

F.3d at 47. Because the plaintiffs seek to supplement the administrative record with documents 

that were not before the Agency, the Court will analyze the plaintiffs’ requests as requests to add

extra-record evidence. 

b. The Plaintiffs’ Second Motion to Supplement the Record

In the plaintiffs’ Second Motion to Supplement the Record, they seek to add a June 2011 

letter sent by plaintiffs’ then-counsel to the Data Bank attaching a complaint the plaintiffs had 

filed in the Eastern District of New York in 2010. Pls.’ Second Mot. to Suppl. R., Ex. 1 [ECF 

No. 118-1]. Portions of that complaint are already in the record, AR at 140-45 [ECF No. 19-3 

(SEALED)], but the plaintiffs seek to add the entire complaint to the record to demonstrate that 

they alleged to the Agency that the Hospital committed fraud. Pls.’ Second Mot. to Suppl. R. at 

5-6. In doing so, the plaintiffs seek to dispute this Court’s conclusion in Doe that Dr. Brook 

“never alleged during the Secretarial review process that his resignation was not ‘voluntary’ 

because it was procured by fraud, and, moreover, the Administrative Record is devoid of 

evidence sufficient to establish the elements of such a claim.” Doe, 139 F. Supp. 3d at 149. 

Attempting to relitigate issues that the Court has already resolved does not fall under the unusual 

circumstances required to add extra-record evidence. The Court will deny this motion. 

c. The Plaintiffs’ Third Motion to Supplement the Record

The plaintiffs also seek to supplement the administrative record with documents related 

to what they allege was the Hospital’s improper access to the plaintiff’s Data Bank file in 2010. 
21

Pls.’ Third Mot. to Suppl. R. at 1 [ECF No. 120]. The first document contains email 

correspondence between individuals at the NPDB in 2012. Id. at 21-23 (Ex. 1). The 

correspondence indicates that when querying Dr. Brook’s file in June of 2010, the Hospital 

selected “Privileging or Employment” as the reason for the inquiry. Id. at 23. The second 

document is a letter dated October 12, 2012 from a staff member at the NPDB to the Vice 

President of Medical Affairs at the Hospital concluding that the Hospital’s explanation for 

querying Dr. Brook’s file was “supported by the record and [was] consistent with the

confidentiality restrictions.” Id. at 25 (Ex. 2). The final document contains June 2012 email 

correspondence between HHS employees speaking disparagingly about Dr. Brook. Id. at 26-27 

(Ex. 3). 

The Secretary’s adjudication of the plaintiffs’ allegations is not before the Court in this 

litigation. However, by seeking to supplement the record with the first two documents, the 

plaintiffs attempt to connect the Hospital’s query of Dr. Brook’s Data Bank file to the Agency’s 

alleged bias against Dr. Brook in this litigation. Pls.’ Third Mot. to Suppl. R. at 9. The plaintiffs 

allege that 1) the Hospital’s query of Dr. Brook’s Adverse Action Report was unauthorized; 2) 

the Hospital lied to the Data Bank when selecting its reasons for the inquiry and later asserting 

that it queried the file because it did not save a copy of the Adverse Action Report it submitted to 

the Hospital; and 3) the Data Bank’s acceptance of that lie demonstrates its bias against Dr. 

Brook in “every single decision the [A]gency makes” despite evidence to the contrary. Pls.’ 

Reply in Supp. of Third Mot. to Suppl. R. at 13-15 [ECF No. 123].

The plaintiffs do not demonstrate how their request falls into any of the three narrow 

exceptions to the presumption that the Agency has properly designated the administrative record.

They do not argue that the Agency excluded documents adverse to its decision; indeed, these 
22 

documents do not address the decision at issue in this case. They do not argue that these emails 

provide background information to allow the Court to determine if the Agency considered 

relevant factors. They also do not contend that supplementing the record with these documents is

appropriate because judicial review of the agency’s action has been frustrated by the Agency’s 

failure to explain its actions. City of Dania Beach, 628 F.3d at 590. These allegations are

unsubstantiated and only tenuously relate to the issues before the Court. They do not demonstrate 

that the Agency is biased, and fall far short of the strong showing of bad faith necessary to 

support supplementation of the record with extra-record evidence. Theodore Roosevelt

Conservation P’ship, 616 F.3d at 514. 

The plaintiffs also argue that the Agency’s decisions demonstrate a “practice and pattern” 

of bias against them. Pls.’ Reply in Supp. of Third Mot. to Suppl. R. at 5. In doing so, they 

largely re-argue claims that this Court already considered in Doe, such as whether the Vice 

President of Medical Affairs tricked Dr. Brook into thinking he was not under investigation, and 

whether the Hospital fabricated the documents it submitted to the Agency. See, e.g., id. at 22; 

Doe, 139 F. Supp. 3d at 145 (addressing the plaintiffs’ “new theory” that Dr. Brook’s resignation 

was not voluntary because it was induced by fraud); id. at 139-140 (finding that the Secretary 

reasonably relied on documents the plaintiffs alleged were “forged or not bona fide”). The 

plaintiffs disagree with the Agency’s decisions. But “[d]isagreement with an agency’s analysis is 

not enough to warrant the consideration of extra-record evidence.” Standing Rock Sioux Tribe v. 

U.S. Army Corp of Engineers, 255 F. Supp. 3d 101, 125 (D.D.C. 2017). 

Finally, the Court considered and denied the plaintiffs’ request to supplement the 

administrative record with Exhibit 3 when it denied a previous motion to supplement the record 

during a telephone hearing. Minute Entry, May 16, 2016. At that time, the Court expressed 
23 

dismay at the unprofessional nature of the emails, but found that they did not warrant 

supplementing the administrated record. That ruling is the law of the case, and the Court shall 

not disturb it. See LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (“the law-of-thecase doctrine[ ] [provides that] the same issue presented a second time in the same case in the 

same court should lead to the same result.”).

d. The Plaintiffs’ Motion for Reargument Based on New Evidence

The plaintiffs have moved for reargument based on what they assert is new evidence

obtained in 2016 from the plaintiffs’ separate litigation against the Hospital in New York state

court. Pls.’ Mot. for Rearg. [ECF No. 127]. They seek to add to the record the following 

documents: the second two pages of the “Quality Management Case Report” submitted to the 

Agency by the Hospital, id. Ex. 2 [ECF No. 127-3], the 2009 Summary Report for Sentinal

Event, id. Ex. 3 [ECF No. 127-4], and deposition testimony from the Hospital’s then-Vice

President for Quality Management, id. Ex. 4 [ECF No. 127-5]. The plaintiffs rely on these

documents to support their assertions that Hospital employees lied on documentation the 

Hospital submitted to the Agency, and that the Agency consequently relied on incomplete

documents. See, e.g., id. at 2-12 

These documents were not available to the Agency when it issued its two decisions—the 

plaintiffs obtained the documents in December 2016, over a year after the Agency issued its most 

recent decision in this case. Defs.’ Opp’n to Mot. for Rearg. at 4 [ECF No. 128]. Although 

Agency counsel told the plaintiffs the Agency would consider the documents, the plaintiffs

declined to submit them to the Agency before filing them before the Court. Id. at 5. The plaintiffs

contend that forcing them to present the documents to the Agency first will cause further,
24 

unnecessary delays. They also argue that the Agency will rule against them “because of its bias.” 

Pls.’ Reply in Supp. of Mot. for Rearg. at 3 [ECF No. 129]. 

By attempting to submit new evidence directly to the Court, the plaintiffs request that the 

Court bypass the Agency, review the documents they’ve submitted, and find that the Adverse 

Action Report should be struck from the Data Bank. But courts allow litigants to submit extrarecord evidence in APA cases to more effectively review agency action, not to allow litigants to

bypass agency review. See Marcum v. Salazar, 751 F. Supp. 2d 74, 79 (D.D.C. 2010) (noting 

that “‘particularly in the procedural context, it may sometimes be appropriate to resort to extrarecord information to enable judicial review to become effective.’”) (quoting Esch v. Yeutter, 876 

F.2d 976, 991 (D.C. Cir. 1989) (edits accepted). The Agency did not have the documents that the 

plaintiffs seek to add to the record when it made its decisions, and, as the Court has already

emphasized, it should “have before it neither more nor less information than did the agency when 

it made its decision.” CTS Corp., 759 F.3d at 64 (quoting Hill Dermaceuticals, 709 F.3d at 47). 

The Court will not consider these documents before the Agency has reviewed them. See Butte

Cty., California v. Chaudhuri, 197 F. Supp. 3d 82, 91 (D.D.C. 2016), aff’d, 887 F.3d 501 (D.C. 

Cir. 2018) (denying a motion to add extra-record evidence and noting that “the purpose of 

limiting review to the record actually before the agency is to guard against courts 

using new evidence to convert the arbitrary and capricious standard into effectively de novo 

review.”) (internal quotation marks omitted and edits accepted). For those reasons, the plaintiffs 

request for reargument will be denied. 

VI. The Plaintiffs’ Request for the Court’s Recusal 

Finally, the plaintiffs request that the Court recuse itself from this case. They argue that 

the Court has shown bias against them by making incorrect legal rulings, and because of the 
25 

“unusually long time to issue decisions in this case.” Pls.’ Mot. for Rearg. at 31-33. The 

defendants oppose the request. Defs.’ Opp’n to Mot. for Rearg. at 13-15. 

a. Legal Standard 

A judge “shall disqualify himself [or herself] in any proceeding in which his impartiality 

might be reasonably questioned.” 28 U.S.C. § 455(a)5. He shall also disqualify himself “where 

he has personal bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1). “The standard for 

disqualification under § 455(a) is an objective one. The question is whether a reasonable and 

informed observer would question the judge’s impartiality.” In re Brooks, 383 F.3d 1036, 1043 

(D.C. Cir. 2004) (quoting United States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001)). 

Recusal is limited to “truly extraordinary cases” where “the judge’s views have become 

‘so extreme as to display clear inability to render fair judgment.’” Cobell v. Kempthorne, 455 

F.3d 317, 332 (D.C. Cir. 2006) (quoting Liteky v. United States, 510 U.S. 540, 551 (1994)). 

“There is a presumption against disqualification and the moving party must demonstrate by clear 

and convincing evidence that disqualification is required by Section 455(a).” Walsh v. FBI, 952 

F. Supp. 2d 71, 75 (D.D.C. 2013) (citation omitted). “While judicial rulings can be evidence of 

prejudice in certain instances . . . unfavorable judicial rulings alone almost never constitute a 

valid basis for reassignment.” United States v. Hite, 769 F.3d 1154, 1172 (D.C. Cir. 2014). 

b. Recusal is Not Warranted. 

The plaintiffs assert that the Court made two errors in its previous rulings that 

demonstrate bias. First, they argue that the Court has shown bias by “holding” that “the right to 

practice a lawful profession has never been recognized in federal jurisprudence.” Pls.’ Mot. for 

Rearg. at 33. Second, they allege that the Court “erred in its belief” that the Hospital’s Vice 

5 Although they do not specifically cite this statute, the Court will evaluate the plaintiffs’ request under 28 

U.S.C § 455, which governs the recusal of federal judges. 
26 

President of Medical Affairs mistakenly told Dr. Brook that the Hospital commenced an 

investigation only to comply with the Hospital’s reporting duty to state regulators. Id. at 32. 

Not only are the plaintiffs’ characterizations of the Court’s findings incorrect, they do not 

provide any evidence to support their assertion that these supposed errors demonstrate bias.6

Error alone “is by itself hardly a basis for imputing bias or even the appearance of partiality.” 

Hite, 769 F.3d at 1172 (citation omitted). The plaintiffs also allege, without support, that the 

Court has inserted its personal views in its decisions. Pls.’ Reply in Supp. of Mot. for Rearg. at 2 

[ECF No. 129] (asserting that the litigation’s outcome “is only possible because of this Court’s 

seeking to impose its personal view that it is better to sacrifice a few physicians who were denied 

due process and were victims of sham peer review than to risk subjecting the NPDB system to 

challenge.”).

7

 However, the “opinions formed by the judge on the basis of facts introduced or 

events occurring in the course of . . . proceedings . . . do not constitute a basis for a bias or 

partiality motion unless they display a deep-seated favoritism or antagonism that would make

fair judgment impossible.” Liteky, 510 U.S. at 555. Rather than demonstrating that the Court is 

biased against the plaintiffs, it appears instead that they are dissatisfied with the Court’s rulings 

in this case, and conclude, without support, that the rulings stem from bias. Their dissatisfaction 

is “proper grounds for appeal, not recusal.” In re Kellogg Brown & Root, Inc., 796 F.3d 137, 151 

(D.C. Cir. 2015) (quoting Cobell, 455 F.3d at 331). 

6

 For example, the Court found that the right to practice a chosen profession was not a fundamental right 

that triggered the heightened review of strict scrutiny and instead applied “rational basis review” to 

analyze the plaintiffs’ Due Process claims. Doe, 139 F. Supp. 3d at 157. 

7 In other filings to the Court, the plaintiffs assert, again without support, that “it seems to me the Court 

used contorted reasoning to rule against me,” and “the sooner this case gets before justices without 

indulgence towards the Government and its bureaucracy, the sooner justice will be had.” Pls.’ Reply in 

Supp. of Cross Mot. & Opp. at 10, 14. 
27 

The plaintiffs also seek the Court’s recusal due to what they assert is the “unusually long 

time to issue decisions in this case.” Pls.’ Mot. for Rearg. at 33. The plaintiffs do not cite any 

authority supporting their request, and they do not argue that the Court is treating it differently 

than other litigants in the way it rules on the motions. The Court has inherent authority to 

manage dockets, and to balance its civil and criminal caseload. It has exercised that authority 

adjudicating the plaintiffs’ voluminous filings, the breadth of which have far exceeded the 

narrow issues pending before the Court. The Court will deny the plaintiffs’ request for recusal. 

CONCLUSION

For the foregoing reasons, the Court will grant the defendants’ motion to dismiss or, in 

the alternative, motion for summary judgment [ECF No. 100], and deny the plaintiffs’ cross 

motion for summary judgment, [ECF No. 103].8

 The Court will also deny the plaintiffs’ second 

and third motions to supplement the record, and their motion for reargument based on new 

evidence and for the Court’s recusal. [ECF Nos. 118, 120 & 127]. The Court has considered the 

other arguments raised by the plaintiffs and found them unavailing. An appropriate order 

accompanies this opinion. 

September 10, 2020 ________________________________ 

 Thomas F. Hogan 

SENIOR UNITED STATES DISTRICT JUDGE

8 As the defendants argue, because John Doe PLLC is a corporate entity, it cannot properly appear before 

the Court unless it is represented by counsel. LCvR 83.2; see Greater Se. Cmty. Hosp. Found., Inc. v. 

Potter, 586 F.3d 1, 4 (D.C. Cir. 2009) (quoting Rowland v. Cal. Men’s Colony, 506 U.S. 194, 201-02 

(1993)) (“‘It has been the law for the better part of two centuries . . . that a corporation may appear in the 

federal courts only through licensed counsel.’”); Lennon v. McClory, 3 F. Supp. 2d 1461, 1462 n.1 

(D.D.C. 1998) (“A corporation cannot represent itself and cannot appear pro se.”). Because there are no 

remaining claims in this case, the Court takes no action in this regard.