Opinion
No. 98 C 614
December 13, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff, Oak Lawn Pavilion, Inc. ("Plaintiff" or "Oak Lawn"), filed this suit to challenge the decision of the Secretary of Health and Human Services to terminate Plaintiff's participation in the Medicare Program as a provider of skilled nursing care. Named Defendants include the United States Department of Health and Human Services ("HHS"), Donna E. Shalala ("the Secretary"), the Health Care Financing Administration ("HCFA"), and Nancy-Ann Min DePearle, Administrator of HCFA. Though it has since been readmitted to the Medicare Program, Plaintiff contends that its reputation was harmed by the allegedly wrongful termination and that the court is capable of remedying the harm. Specifically, Plaintiff urges the court to reverse the Secretary's decision, expunge all termination records and order public notice of the reversal. Defendants now move for summary judgment on the grounds that Plaintiff has not established standing to pursue this action. For the reasons set forth below, Defendants' motion is granted.
Defendants argue that only the Secretary is properly named as a Defendant in this case, but given the court's resolution of this motion for summary judgment, the court need not address the issue.
FACTUAL BACKGROUND
The facts leading up to this dispute are set out in detail in this court's decision denying Defendants' motion to dismiss, see Oak Lawn Pavilion v. U.S. Department of Health and Human Services, No. 98 C 614, 1999 WL 1023920, at *1-*2 (N.D.Ill. Nov. 9, 1999), and will be reviewed only briefly here.
Plaintiff operates a nursing facility in Oak Lawn, Illinois which cares for individuals in need of long term nursing and personal care. (Defendants' Local Rule 56.1(a)(3) Statement of Uncontested Facts (hereinafter "Defendants' Statement") ¶ 1.) Plaintiff was a certified provider in both the Medicare and Medicaid programs until May 3, 1995. ( Id. ¶ 10.) At that time, HCFA, the agency directly responsible for surveying long-term care facilities and implementing the Medicare Act, terminated Plaintiff from the program for failing an annual "certification survey" performed on February 10, 1995 and a "revisit survey" performed on April 3, 1995. ( Id. ¶¶ 10, 14, 15.) Both surveys were conducted by the Illinois Department of Public Health, acting pursuant to an agreement with the Secretary of the U.S. Department of Health and Human Services. ( Id. ¶¶ 10, 14.)
Plaintiff appealed its termination through the Civil Remedies Division of the HHS Departmental Appeals Board. ( Id. ¶ 16.) The matter was assigned to Administrative Law Judge Mimi Hwang Leahy of the Departmental Appeals Board of HHS. (Plaintiff's Response to Defendants' Local Rule 56.1(a)(3) Statement of Uncontested Facts (hereinafter "Pl.'s Response") ¶ 1.) On May 21, 1997, ALJ Leahy affirmed the Secretary's termination of Plaintiff from the Medicare program. ( Id. ¶ 10.) On December 4, 1997, that decision was affirmed by the Departmental Appeals Board. (Defendants' Statement ¶ 18.)
At the same time that it was appealing the Secretary's decision, Plaintiff submitted an application to HCFA on March 24, 1997, seeking recertification as a Medicare skilled nursing facility. ( Id. ¶ 19.) Under the regulations governing Medicare, a provider may be readmitted if it can show: "(a) [t]hat the reason for termination . . . has been removed and there is reasonable assurance that it will not recur; and (b) [t]hat the provider has fulfilled, or has made satisfactory arrangements to fulfill, all of the statutory and regulatory responsibilities of its previous agreement." 42 C.F.R. § 489.57 (1994). On August 18, 1997, HCFA notified Oak Lawn that it would be re-admitted to the Medicare program, with the re-admission effective retroactively to July 16, 1997. (Defendants' Statement ¶ 22.) Plaintiff was readmitted to the Medicare program even before the Departmental Appeals Board affirmed the decision of the ALJ and before this suit was initiated. ( Id.; See also Exhibit D, Def.'s Statement, Letter from Department of Health Human Services, Aug. 18, 1997.)
On February 4, 1998, Plaintiff filed this action seeking review of the Secretary's decision to terminate Oak Lawn from the Medicare program. (Defendants' Statement ¶ 23.) Defendants moved to dismiss Plaintiff's complaint, arguing that: (1) Plaintiff's re-admission to the Medicare Program rendered its claims moot; and (2) Plaintiff lacked standing because it had not alleged an injury in fact that was traceable to the Secretary's decision and that could be redressed by the court. ( See Oak Lawn Pavilion v. U.S. Department of Health and Human Services, No. 98 C 614, 1999 WL 1023920 (hereinafter " Oak Lawn Pavilion I"), at *2 (N.D.Ill. Nov. 9, 1999).) Plaintiff then moved to amend its complaint to address these concerns. ( Id.) In its amended complaint, Plaintiff added the following allegations: (1) that it lost "income in excess of $50,000, resulting from lost Medicare admissions from June 30, 1995 through July 16, 1997;" and (2) that it "suffered damages to its reputation and good will when the Government published notice of the Medicare termination to hospitals and referral institutions." (Amended Complaint ¶¶ 33, 34.)
On November 8, 1999, this court denied in part and granted in part Defendant's motion to dismiss, concluding that Plaintiff did not have standing to seek recovery of lost revenue, but that Plaintiff's allegation that it suffered damages to its reputation and good will could give rise to a claim for injunctive relief. ( Oak Lawn Pavilion I, at *6-*7.) Though the court simultaneously granted Plaintiff leave to amend its complaint to add the allegations of reputational harm, the court added the following cautionary note about the merits of the complaint:
Alleging harm to its reputation, Oak Lawn has asked for an order expunging adverse administrative findings. Although Oak Lawn alleges that such an order will redress the harm it has suffered, the court is uncertain whether or how any such allegation can be proved. Are there ongoing effects to Oak Lawn's reputation that flow from the 1995-97 suspension from participation in Medicare? If so, how will an order expunging that suspension restore Oak Lawn's losses? Because Oak Lawn will bear the burden of showing that the relief it requests will actually benefit it, its amended complaint may remain vulnerable to a dispositive motion.
( Id. at *9)
On September 1, 2000, Defendants brought this motion for summary judgment on the grounds that Plaintiff could not meet its burden of establishing standing. In an effort to show ongoing effects to its reputation capable of being remedied by this lawsuit, Plaintiff identified eight individuals that it claimed were aware "that Oak Lawn was terminated from Medicare, and that the reputation and good will of Oak Lawn were damaged." (Exhibit 5, Defendants' Statement, Response of Plaintiff Oak Lawn Pavilion, Inc. to Defendant Secretary's First Set of Interrogatories and Request to Produce (hereinafter "Discovery Response"), at 4.) Four of the named individuals, Joanne Shere of Little Company of Mary Hospital, Jane Stolowich of Oak Forest Hospital, Tom Tynan of Evanston Hospital, and Sheryl Walton of Christ Hospital, are social workers from various hospitals in Illinois. ( Id.) The other four, Michael Lerner, Mary Lou Chisolm, Lester Okun and Marilyn Scavo, are Plaintiff's own employees. ( Id.)
The four social workers identified by Plaintiff — Shere, Stolowich, Tynan and Walton — are each involved in discharge planning. (Shere Aff. ¶ 2; Stolowich Aff. ¶ 3; Tynan Aff. ¶ 4; Walton Aff. ¶ 3.) In affidavits submitted by Defendants, Shere and Tynan explained that discharge planning involves working with a patient, her family, and medical providers to determine the patient's ongoing needs after she is discharged from the hospital and helping to determine how those needs will be satisfied. (Shere Aff. ¶ 4; Tynan Aff. ¶ 5.) According to Shere and Tynan, it is not typical for a discharge planner to recommend a nursing home based on the quality of the home. (Shere Aff. ¶ 5; Tynan Aff. ¶ 5.) Instead, the discharge planner will simply provide the patient and his family with the names of a few homes that will meet the needs of the patient and will then recommend that they investigate the homes and select one that is appropriate. ( Id.)
Although Plaintiff identified these four as people "aware that . . . the reputation and good will of Oak Lawn were damaged," Exhibit 5, Def.'s Statement, at 4, Plaintiff itself did not submit affidavits from any of these individuals.
Each of the four social workers agreed that they had not recommended many patients to Oak Lawn, but their reasons for failing to recommend patients varied. Shere explained that she had discharged a few patients to Oak Lawn when the physician caring for the patient recommended it, but that she mostly discharges patients to larger nursing home facilities with whom the hospital she works for has developed a working relationship. (Shere Aff. ¶ 6.) Jane Stolowich testified that her own hospital, Oak Forest, has its own long-term care facility, so she rarely refers patients to a third party provider. (Stolowich Aff. ¶ 5.) Tynan explained that while he was working at Christ Hospital, before January 1994, he would not have referred a patient to Oak Lawn if the patient needed comprehensive rehabilitation services because Oak Lawn was not considered capable of handling patients with needs for services beyond long-term basic nursing care. (Tynan Aff. ¶ 7.) Since leaving Christ Hospital, Tynan has not referred anyone to Oak Lawn because he has not worked at a hospital near it. (Tynan Aff. ¶ 8.) Walton testified that she does not refer many patients to Oak Lawn because she works mostly with patients in their mid-30's who require sub-acute rehabilitation services that are not provided at a nursing home such as Oak Lawn. (Walton Aff. ¶ 5.)
Additionally, three of the four social workers, Shere, Stolowich, and Tynan, explained that they were not familiar with Oak Lawn's reputation in 1995 nor are they familiar with it now. (Shere Aff. ¶ 7; Stolowich Aff. ¶ 8; Tynan Aff. ¶ 8.) The only one of the four who was familiar with Oak Lawn's reputation in 1995 and today, Sheryl Walton, expressed her opinion that "Oak Lawn Pavilion had and continues to have a relatively poor reputation for providing quality long-term care." (Walton Aff. ¶ 6.) According to Walton, this opinion was based on her "past experience dealing with Oak Lawn" and a recent visit she made to the facilities. ( Id.) Tynan also explained that, before 1994 when he worked for Christ Hospital, he was familiar with Oak Lawn's reputation "as a facility that accepted many public aid patients and provided adequate long term care for patients with chronic, rather than acute, problems," but that, "Oak Lawn was not considered one of the top nursing homes in the area, and was not considered capable of handling patients with need for services beyond long-term basic nursing care." (Tynan Aff. ¶ 7.)
Significantly, none of the four social workers had been aware that Oak Lawn was terminated from the Medicare program until each was contacted in April or May of 2000 by Plaintiff's or Defendants' counsel. (Shere Aff. ¶ 7; Stolowich Aff. ¶ 9; Tynan Aff. ¶ 9; Walton Aff. ¶ 9.) None of the four recalled either hearing about the termination or reading a report concerning the termination. ( Id.; Walton Aff. ¶ 8.)
In addition to the social workers, Plaintiff identified four of its own employees who allegedly are aware that Plaintiff suffered reputational harm. of the four, Plaintiff submitted an affidavit only from Michael Lerner, the President of Oak Lawn. (Exhibit A, Plaintiff's Memorandum in Response to Summary Judgment (hereinafter "Pl.'s Memo"), at 1.) In his affidavit, Lerner testified to the various ways that the termination was communicated to the public including: (1) copies of the letter terminating Oak Lawn from the Medicare program were sent to the Health Care Services Corporation, the Illinois Department of Public Aid, the Illinois Department of Public Health, and the State Nursing Home Ombudsman; (2) the Daily Southtown published notice of the termination; and (3) the Illinois Department of Public Health published a quarterly list which notified numerous potential referral sources of Oak Lawn's termination. (Lerner Aff. ¶¶ 4-6.) Lerner added that "[t]he residents of Oak Lawn were also aware of the termination" and that residents are the "best referral source." ( Id. ¶ 7.) According to Lerner, "[a]s a consequence of the publication and dissemination of the fact of Oak Lawn's wrongful termination, Oak Lawn suffered damage to its reputation" and Oak Lawn continues to have a poor reputation "due in part to the wrongful termination from Medicare." ( Id. ¶¶ 8, 9.)
Copies were also furnished to both Illinois Senators at that time, Carol Moseley-Braun and Paul Simon, and to Plaintiff's Congressman, Bobby Rush. Marilyn Samuels Dep., at 9.
In addition to the eight individuals, Plaintiff also submitted the census data for Oak Lawn showing a drop following the termination from Medicare. (Exhibit 5, Def.'s Statement, Discovery Response, attached Exhibit A.) Plaintiff did not provide census figures before May 1995 or after February 1996. ( Id.)
Exhibit A, titled "Oak Lawn Pavilion Decertification Census 5/09/95 — 2/12/96," is a chart with the following dates and numbers: 5/95 — 134; 6/95 — 132; 8/95 — 129; 9/95 — 130; 10/95 — 130; 11/95 — 129; 12/95 — 120; 1/96 — 125; and 2/96 — 122. Though Plaintiff has provided no labels on this chart, the court assumes that the numbers represent the average number of beds filled in that month and that the information comes from the United States Census.
Finally, Plaintiff included a letter from Tom Tynan, one of the four social workers previously identified. That letter detailed the negative consequences that stem from termination from Medicare. According to Tynan:
The primary negative consequence is that most patients would be eligible for at least a short Medicare covered stay post discharge from the hospital. It would therefore be a disincentive for patient's [sic] to agree to placement at a facility that could not receive Medicare reimbursement . . . [because] patients will generally remain at the nursing home or the extended care facility where they are initially placed until they can safely return home even after they are no longer meeting Medicare criteria.
(Letter from Tom Tynan to Michael Lerner, April 23, 2000.)
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. Civ. P. 56(c); see also Flores v. Preferred Tech. Group, 182 F.3d 512, 514 (7th Cir. 1999). It is the movant's burden to establish the lack of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In determining whether any genuine issues of material facts exists, the court must examine the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See Flores, 182 F.3d at 514. An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." See Carter v. American Oil Co., 139 F.3d 1158, 1161 (7th Cir. 1998). If the nonmoving party bears the burden of proof on an issue, she must offer sufficient evidence to show the existence of each element of her case and cannot rest on the pleadings alone to defeat a motion for summary judgment. See Filipovic v. K R Express Sys., Inc., 176 F.3d 390, 395 (7th Cir. 1999).
On August 3, 2000, this court limited the motions for summary judgment to the issue of standing and damages. See Doc. No. 42. Though Plaintiff contends that the "heart of [the] claim in this case" is that "Oak Lawn was denied due process" by the administrative law judge, both parties agree, as they must, that Defendant is entitled to summary judgment in this matter if Plaintiff cannot establish that it has standing to sue. Pl.'s Memo at 2; Brief in Support of Defendants' Motion for Summary Judgment (hereinafter "Defendants' Brief") at 2, 8. This opinion will therefore be limited to the narrow issue of standing and will not address the merits of Plaintiff's claim that it was wrongfully terminated from the Medicare program.
B. Standing
Under Article III of the Constitution, a plaintiff may not seek redress in court unless she has standing to sue. See U.S. CONST. art. III; See also Heartwood, Inc. v. U.S. Forest Service, 230 F.3d 947, 951 (7th Cir. 2000). In order to establish the "irreducible constitutional minimum of standing," a plaintiff must allege and ultimately prove: (1) an injury-in-fact suffered by the plaintiff that is "concrete" and "actual or imminent"; (2) a fairly traceable connection between the plaintiff's injury and the allegedly wrongful conduct of the defendant; and (3) a likelihood that the requested relief will redress the alleged injury in fact. See Steel Co. v. Citizens for A Better Environment, 523 U.S. 83, 102-03 (1998) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)); See also Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 120 S.Ct. 1858, 1861 (2000). As the party invoking jurisdiction, Plaintiff bears the burden of establishing that standing exists. Steel Co., 523 U.S. at 104 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)).
To establish that its reputation was harmed by Defendants' actions, Plaintiff identified four social workers who allegedly knew that Plaintiff's reputation was harmed by the termination. It also identified four individuals who are employees of Oak Lawn who allegedly had the same knowledge. One of the four employees, Michael Lerner, the president of Oak Lawn, submitted an affidavit attesting that Plaintiff's reputation continues to suffer from Defendants' conduct. In addition, Plaintiff submitted census figures and a letter from Tom Tynan to support the fact that its numbers dropped while it was terminated from the Medicare Program. Finally, it discussed generally the ways in which the termination was published to numerous individuals. After considering all of this evidence, the court finds that Plaintiff has not met its burden of establishing standing.
To begin, Plaintiff cannot show that it has suffered an injury in fact caused by Defendant's actions. Three out of the four social workers identified by Plaintiff as individuals aware "that Oak Lawn was terminated from Medicare, and that the reputation and good will of Oak Lawn were damaged" have, instead, testified that they were not familiar with Oak Lawn's reputation in 1995 nor are they familiar with it now. See, Shere Aff. ¶ 7; Stolowich Aff. ¶ 8; Tynan Aff. ¶ 8. Further, all four social workers attested that they were not even aware that Plaintiff had been terminated from Medicare until they were contacted by Plaintiff's or Defendants' counsel in April or May of 2000. See, Shere Aff. ¶ 7; Stolowich Aff. ¶ 9; Tynan Aff. ¶ 9; Walton Aff. ¶ 9.
Despite these statements, Plaintiff contends that two of these four persons "directly or implicitly demonstrates an awareness of a negative reputation associated with Oak Lawn." Pl.'s Memo at 5. In support of this argument, Plaintiff points to Tynan's testimony that Oak Lawn "was not considered one of the top nursing homes in the area" and to Walton's testimony that Oak Lawn "had and continues to have a poor reputation for providing quality long term care." Pl.'s Memo, at 5 (citing Tynan Aff. ¶ 7; Walton Aff. ¶ 6). Neither statement, however, supports the contention that Plaintiff's negative reputation is related to Defendant's termination of it from the Medicare program and, as such, neither statement supports Plaintiff's standing to bring this lawsuit.
Notably, Tynan stated that Oak Lawn was not considered a top nursing home in the area "during the time I worked at Christ Hospital." Tynan Aff. ¶ 7. Tynan has not worked at Christ Hospital since January 1994, a year and a half before Plaintiff's termination from the Medicare program. Id. at ¶ 3. In addition, Tynan stated that "[s]ince leaving Christ Hospital in 1994, I have not remained informed of Oak Lawn Pavilion's reputation or its status as a service provider." Id. ¶ 8. Thus, Tynan's affidavit actually shows that Plaintiff may have had a negative reputation for reasons entirely unrelated to the temporary loss of Medicare certification.
Similarly, Walton's testimony that Oak Lawn "had and continues to have a poor reputation for providing quality long-term care" does not support Plaintiff's argument that the negative reputation came from its alleged wrongful termination: Walton explains that her opinion is based on her experience and a recent visit she made to Oak Lawn. Walton Aff. ¶¶ 6, 7. Walton also attested that she did not know Plaintiff was terminated from the Medicare program when she made these assessments. Id. ¶ 8. Though Plaintiff points out that Walton's opinion also comes from hearing about it through "other Medical Social Workers at Christ Hospital," because Walton did not know about the termination and because Plaintiff has not pointed to a single person besides its own employees who was aware of the termination, there is simply no support in the record for the position that Walton's negative opinion of Oak Lawn was caused by Defendants' actions.
Beyond these four social workers, Plaintiff points to a decline in its census figures after the termination to show that it suffered an injury to its reputation. Specifically, it submits an exhibit which purports to show a decline in the number of occupied beds from 134 in May of 1995 to 122 the following February. Because this decline occurred during months that Plaintiff was terminated from the Medicare program, however, they do not prove reputational harm and may instead merely reflect the effect of the termination. One would expect the number of people Plaintiff served to drop during the time that it could not accept Medicare patients. Because Plaintiff does not argue that it has standing to pursue monetary damages for income lost due to the termination, these figures are irrelevant to the inquiry at hand. Further, Plaintiff's failure to furnish the current census figures renders the court unable to determine whether Plaintiff continues to suffer harm from the termination even after its 1997 reinstatement to the Medicare program.
Nor has Plaintiff established injury to its reputation merely by listing the ways in which the termination was made public. Though it is no doubt true that the termination was published to a number of different sources, this fact alone does not suffice to meet Plaintiff's burden of showing that the publication resulted in some harm to its reputation. Despite the number of people who should have been aware of Plaintiff's termination, Plaintiff has not offered a single deposition or affidavit from any individual explaining that this information did harm or continues to harm its reputation.
The only other evidence that Plaintiff presents to establish that its reputation was harmed is its own president's assertion that "as a consequence of the publication and dissemination of the fact of Oak Lawn's wrongful termination, Oak Lawn suffered damage to its reputation." Lerner Aff. ¶¶ 8. This self-serving conclusion, unsupported by facts, is simply not enough for Plaintiff to meet its burden of establishing standing. See Shank v. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999) ("self-serving affidavits without factual support in the record will not defeat a motion for summary judgment"). The fact that Plaintiff has been unable to present the affidavit of even one member of the community other than its own president to establish that Plaintiff's termination from the Medicare program harmed its reputation and continues to harm it today suggests that there was, in fact, no effect on Plaintiff's reputation. The lack of such evidence warrants summary judgment for Defendants. Shank, 192 F.3d at 683 (party opposing a motion for summary judgment must take "reasonable steps" to provide the court "sufficient evidence to create a genuine issue of material fact to defeat the motion.")
Plaintiff has not, therefore, met its burden of establishing the essential requirements of injury in fact caused by Defendant's conduct. Even assuming that Plaintiff could establish these first two requirements of standing, Plaintiff has utterly failed to show that such harm could be remedied by this action. For example, the social workers identified by Plaintiff explained that a particular caregiver's reputation was not a factor in their discharge planning determination. See Shere Aff. ¶¶ 4, 5; Tynan Aff. ¶ 5. Instead, they allow the patient, his or her family and the patient's physician to make this determination. Id. Thus, even if the four had been aware of Plaintiff's termination and subsequent alleged negative reputation, it is not clear how a reversal of the termination and expungement would help Plaintiff attract more patients from discharge planners.
Nor has Plaintiff shown how reversal of the termination would help it attract more patients generally. Though Plaintiff provides evidence to show that it lost patients while it was terminated, its subsequent reinstatement allows it to accept Medicare patients once again. Plaintiff has not presented any evidence to show that patients have continued to shun Oak Lawn due to the termination.
Plaintiff relies on Perry v. Delaney, 74 F. Supp.2d 824 (C.D.Ill. 1999) and Doe v. U.S. Air Force, 812 F.2d 738 (D.C. Cir. 1987), for the proposition that it has standing to sue when it is seeking only injunctive relief for harm to its reputation. These cases are easily distinguished from this one, however. In Perry, two court security officers ("CSO") who worked for General Security Services Corporation ("GSSC"), a private contractor that had contracted with the United States Marshals Service ("USMS"), were terminated by GSSC at the request of the USMS. Perry, 74 F. Supp. 2d at 827. Though GSSC no longer held the contract with the USMS at the time of the action, plaintiffs brought suit seeking reinstatement to their position and a retraction of the memo sent by USMS to GSSC requesting that plaintiffs be removed from their position. Id. at 832-33. Neither party disputed that plaintiffs' reputation had been injured. Id. Instead, defendants argued that this suit could not remedy any harm done to plaintiffs because the GSSC no longer held the contract with the USMS. Id. at 833. The court disagreed, explaining, "[s]ince Plaintiffs allege an injury to their reputations resulting from the terminations, the requested retraction could at least partially redress their injuries." Id.
In Doe v. U.S. Air Force, plaintiff sought an injunction directing the return of information being kept in closed files by the U.S. Air Force. 821 F.2d at 739. Plaintiff claimed that the information was obtained from certain documents taken from his office desk and barracks in violation of the Fourth Amendment. Id. The government argued that the case was moot because many of the items were already returned to the plaintiff and because the plaintiff was no longer in the Air Force and, therefore, the files could not be used against him. Id. at 73940. The court disagreed, finding that "a declaratory judgment that the materials and information were obtained by violating the Constitution would constitute relief" to the plaintiff. Id. at 740.
Unlike Perry and Doe, where the issue of whether plaintiffs had suffered an injury in fact was not disputed, Plaintiff has not been able to show that its reputation was harmed by Defendants' decision to terminate it from the Medicare program. Also, unlike the Plaintiffs in Perry who were terminated from their job and had not been reinstated at the time of their suit, Plaintiffs have already been reinstated to the Medicare program. Therefore, where it was clear in Perry that a retraction might aid Plaintiff's reputation, it is not equally clear that an expungement of the termination that occurred in 1995 would help Plaintiff today, three years after its readmission to the Medicare program. An expungement of the Perry plaintiff's records might help to show that they were once again qualified to work as CSO's or in other security positions. Here, the Secretary has already found that Plaintiff is now qualified to be part of the Medicare program. Now that Plaintiff has been reinstated to the Medicare program, this court cannot see and has not been shown how an expungement today would remedy any damage caused between 1995 and 1997.
In addition, Doe is not on point here, where the issue was one of mootness, not standing, and the ultimate injury-in-fact was that plaintiff's Fourth Amendment rights were violated, not just that his reputation was harmed by the Air Force's retention of the closed files. Id.
Nor does the fact that Plaintiff is also requesting attorney's fees create grounds for standing. See, e.g. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107 (1998) ("litigation must give the plaintiff some other benefit besides reimbursement of costs that are a byproduct of the litigation itself").