Guttman Buschner LLP

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False Claims Act: Offense and Defense

Description: Each year private citizen suits under the False Claims Act have returned billions of dollars to Federal and State treasuries. These suits leverage the government’s compliance enforcement resources and provide bounties to those individuals or entities – known as relators – who initiate them.

Who has standing to bring these suits? How are they investigated and put together? What are the pleading requirements and what role does the government play in overseeing this litigation. These issues along with relevant ethical concerns will be discussed from both the Relator and the Defendant perspective.

It is a program of particular interest to plaintiff counsel’s seeking to explore new litigation opportunities,  and defense counsel,  in-house and insurance counsel who work with clients who do direct or indirect business with the government and are subject to liability under the False Claims Act.  It is a program of particular interest to those in the healthcare, education, and defense arenas or for those involved with any client operating in whole or in part with government monies.

The False Claims Act, involving cases filed under seal on behalf of the government, presents unique challenges under the ethical rules. The program will explore these challenges with an eye toward the applicable ethical rules and considerations.

Reuben Guttman is a founding member of Guttman, Buschner & Brooks PLLC (GBB). His practice involves complex litigation and class actions. He has tried and/or litigated claims involving fraud, breach of fiduciary duty, environmental derelictions, antitrust, business interference and other common law torts or statutory violations.

The International Business Times called Mr. Guttman “one of the world’s most prominent whistleblower attorneys,” and he has been recognized as a Washingtonian Top Lawyer by Washingtonian Magazine. A February 19, 2015 profile of Mr Guttman by the Boston Globe’s STAT NEWS referred to him as the “Lawyer Pharma Loves to Hate.” Citing a $98 million recovery from Community Health Systems, Inc., Law 360 named Mr. Guttman a “Health Care MVP” and profiled him in a December 1, 2014 article. Author David Dayen, writing in his Book, Chain of Title (The New Press, 2016) cited Mr. Guttman’s work on behalf of robo-signing whistleblower, Lynn Szymoniak, noting “he had won some of the largest awards in the history of the False Claims Act; there was really nobody better for the case.” Writing in their book, The Corporate Whistleblower’s Survival Guide, (Berrett-Koehler Publishers, Inc., 2011), authors Tom Devine and Tarek F. Massarani wrote that “in settling qui tam litigation, [Mr. Guttman] has aggressively and successfully negotiated for corrective action against public health and safety consequences from prescription drug fraud.” In the book, When Good Companies Go Bad, (ABC CLIO, 2014), authors Donald Beachler and Thomas Shevory profiled Mr. Guttman’s off label marketing case against Abbott labs, involving the drug Depakote, which resulted in a $1.6 billion recovery in 2012 for state and federal governments. The Spring, 2013 Cover Story for the Emory Lawyer, profiled Mr. Guttman as one of Emory Law School’s leading players in the area of complex litigation noting that “even before filing a case, Guttman’s team engages in intensive investigation, retains experts and prepares as if a trial is imminent.”

Adam S. Hoffinger is co-chair of the firm’s White Collar Defense & Government Investigations Group. Adam focuses his practice on complex civil and white collar criminal matters, including securities, health care, False Claims Act (“qui tam”), the Foreign Corrupt Practices Act (FCPA), export sanctions, criminal tax, money laundering, antitrust and bankruptcy. He conducts internal investigations on behalf of corporate boards of directors, bankruptcy trustees and public authorities. He counsels corporations and individuals in compliance matters, government investigations, and Congressional and regulatory matters. He also represents corporations and individuals in high-stakes civil litigation. Adam has defended numerous high-ranking executives and general counsel from some of the world’s largest companies, as well as high-profile staff and members of the Senate, Congress, White House and various government agencies, faced with federal and state criminal investigations and indictments. Adam is a fellow of the American College of Trial Lawyers and has successfully tried cases throughout the country.

Adam has been recognized in Chambers USA as “an absolutely fearless criminal defense lawyer” as well as for his “immense talent as a trial lawyer” and “strong advocacy skills,” in The Legal 500 US as “an aggressive trial advocate,” and in Benchmark Litigation: The Definitive Guide to America’s Leading Litigation Firms and Attorneys as a “celebrated government investigations practitioner.” He has also been recognized in The Best Lawyers in America, Expert Guide to the World’s Leading White Collar Crime Lawyers, Who’s Who Legal: Business Crime Defence, Global Investigations Review, Washingtonian Magazine and Washington DC Super Lawyers. Adam was named “Government Investigations Attorney of the Year” for 2015 and “Life Sciences Star” from 2013 to 2019 in LMG Life Sciences. In addition, he was recognized in the National Law Journal’s “Hot Defense List” for his jury trial victory on behalf of a former pharmaceutical executive in a criminal case charging conspiracy and violations of the federal Anti-Kickback statute. From 1985 to 1990, Adam served as an Assistant U.S. Attorney for the Southern District of New York. He received the Director’s Award for Superior Performance from the U.S. Department of Justice (DOJ) in 1990. He is an adjunct professor at The George Washington University Law School and has been an instructor at Georgetown University Law Center’s National Institute of Trial Advocacy (NITA) since 1992. He also serves on the alumni board of the Fordham University School of Law.

Source: https://westlegaledcenter.com/program_guide/course_detail.jsf?courseId=100277513&sc_cid=CELESQ_ws

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Sweeping Stimulus Law Is Golden Opportunity for Scam Artists

The sweeping $2 trillion economic stimulus package signed into law by President Donald Trump on March 27 will undoubtedly help millions of people in need, but it is also expected to attract its share of shady operators looking to make a fast buck.

. . .

The stimulus provides for oversight, but “there is no way that the inspector general or a board governing oversight of $500 billion will be able to monitor and detect every fraudulent representation made in furtherance of government payment,” said Reuben A. Guttman of Guttman, Buschner & Brooks PLLC, a firm that represents whistleblowers.

Democrats pushed for and secured independent oversight of $500 billion for distressed businesses, Bloomberg News reported.

False Claims Act whistleblowers will be needed to help the inspector general do the job, Guttman said.

“The government’s first instinct in an emergency is to put money out without putting guidelines into place to make sure it will be well spent,” he said. “Products like ventilators and masks will have integrity problems because of this rush.”

. . .

Source: https://news.bloomberglaw.com/federal-contracting/sweeping-stimulus-law-golden-opportunity-for-scam-artists

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Back to the future: Can Chinese doubling down and American muddling through fulfill 21st century needs for environmental governance?

Xiaofan Zhao(1) | Oran R. Young(2) | YeQi(1,5) | Dan Guttman(3,4)

Abstract
At the close of the last millennium, prominent thinkers projected that the political systems of leading economies would converge during the coming years. Yet, research has shown that China and the United States have developed distinctive institutionalized governance processes (IGPs) to address environmental issues. Can these distinctive processes persist in turbulent times? In reality, the two countries seem to be decoupling in their economic ties and diverging in political pursuit. Under the current circumstances, what can we say about the ability of the two systems to meet emerging environmental challenges of the 21st century? We argue that neither system is likely to experience fundamental change during the foreseeable future. Current developments are highlighting differences between goal-based governance strategies prominent in China and the rule-based strategies of the United States. As the urgency of solving transcendent problems like climate change rises and political tensions grow, it is essential to work with divergent systems to address common problems.

Outline
1 | INSTITUTIONALIZED GOVERNANCE PROCESSES IN CHINA AND THE UNITED STATES
2 | THE POWER OF INSTITUTIONALIZED GOVERNANCE PROCESSES
2.1 | China: The Xi administration doubles down on dominant environmental governance processes, while there is a parallel movement toward “socialist rule of law with Chinese characteristics”
2.2 | United States: Executive authority is not a substitute for law-centered practices; an emerging response features court action to reinterpret existing laws and citizen action to promote a “Green New Deal”
3 | GOAL-BASED AND RULE-BASED GOVERNANCE STRATEGIES IN CHINA AND THE UNITED STATES
3.1 | China: Hitting the targets
3.2 | United States: Making and implementing the rules
4 | STRENGTHS AND WEAKNESSES OF IGPS IN CHINA AND THE UNITED STATES
5 | CONCLUSIONS

__________________
Heading Footnotes:
1. School of Public Policy and Management, Tsinghua University, Beijing, China
2. Bren School of Environmental Science and Management, University of California (Santa Barbara), Santa Barbara, California, USA 3School of Law, Tianjin University, Tianjin, China
4. Institute of Global Public Policy, Fudan University, Shanghai, China
5. Division of Public Policy and Institute for Public Policy, Hong Kong University of Science and Technology, Kowloon, Hong Kong

The entire article may be found here and may be subject to a subscription or fee-based download.

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GEISSLER v. STIRLING

Case No. 4:17-cv-01746-MBS.

RUSSELL GEISSLER, BERNARD BAGLEY, AND WILLIE JAMES JACKSON, individually and on behalf of others similarly situated, Plaintiffs, v. BRYAN P. STIRLING, Director of the South Carolina Department of Corrections (SCDC), in his official capacity; and JOHN B. McREE, M.D., Division Director of Health and Professional Services for SCDC, in his individual capacity, Defendants.

United States District Court, D. South Carolina, Florence Division.

August 5, 2019.

Editors Note
Applicable Law: 42 U.S.C. § 1983
Cause: 42 U.S.C. § 1983 Prisoner Civil Rights, State Filers
Nature of Suit: 555 Prison:Prison Condition
Source: PACER

Attorney(s) appearing for the Case

Russell Geissler, individually and on behalf of others similarly situated, Plaintiff, represented by Christopher James Bryant , Yarborough Applegate, David B. Yarborough, Jr. , Yarborough Applegate, Elizabeth H. Shofner , Guttman Buschner, PLLC, pro hac vice, aul John Zwier , Guttman Buschner, PLLC, pro hac vice & Reuben A. Guttman , Guttman Buschner, PLLC, pro hac vice.

Bernard Bagley, individually and on behalf of others similarly situated & Willie James Jackson, individually and on behalf of others similarly situated, Plaintiffs, represented by Christopher James Bryant , Yarborough Applegate, David B. Yarborough, Jr. , Yarborough Applegate & Paul John Zwier , Guttman Buschner, PLLC, pro hac vice.

Bryan P. Stirling, Director of the South Carolina Department of Corrections (SCDC), in his official capacity & John B. McRee, MD, Division Director of Health and Professional Services for SCDC, in his individual capacity, Defendants, represented by James Rufus Bratton, III , Aiken Bridges Nunn Elliott and Tyler & Samuel F. Arthur, III , Aiken Bridges Nunn Elliott and Tyler.

OPINION AND ORDER

MARGARET B. SEYMOUR, Senior District Judge.

Plaintiffs Russell Geissler, Bernard Bagley, and Willie James Jackson individually and as class representatives for all those similarly situated bring this action pursuant to Fed. R. Civ. P. 23 against Defendants Bryan P. Stirling and John B. McRee, M.D., alleging that the South Carolina Department of Corrections (“SCDC”) has failed to screen and adequately treat inmates for chronic Hepatitis C (“HCV”).1 Plaintiffs, who are in SCDC custody, assert violations of the Eighth Amendment pursuant to 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act, as amended, 42 U.S.C. §§ 12131 et seq., and the Rehabilitation Act, as amended, 29 U.S.C. §§ 791 et seq., Plaintiffs seek injunctive and declaratory relief, and Plaintiff Geissler seeks compensatory and punitive damages. ECF No. 108 at 3. The court exercises federal subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

BACKGROUND

The claims Plaintiffs assert and the relief they seek concern SCDC’s alleged failure to (1) properly test prisoners in its custody for HCV and (2) properly treat prisoners in its custody who are afflicted with HCV. This Order resolves the claims pertaining to SCDC’s alleged failure to properly test prisoners for HCV (“Testing Claims”), and has no bearing on the claims related to SCDC’s policies and practices for treating inmates for HCV, or on Plaintiff Geissler’s individual claims.

Plaintiffs assert that the Centers for Disease Control (“CDC”) recommend that HCV testing be administered in a two-step process. ECF No. 108 at ¶ 42; ECF No. 149 at 2. The first step determines whether the HCV antibody is present. If the HCV antibody is present, the second step facilitates nucleic acid testing to determine if the HCV infection is current. Id. The Parties engaged in extensive written discovery and some oral discovery and, as a result of those efforts, SCDC acknowledged that it had not administered the recommended two-step process for all inmates whom SCDC had tested for HCV antibodies. ECF No. 149 at 3.

On December 4, 2018, the Parties filed a joint motion for preliminary approval of a partial consent decree to resolve the Testing Claims; the Parties subsequently filed a Revised Partial Consent Decree. On December 5, 2018, the court held a status conference on the joint motion, ECF No. 138; and, on December 6, 2018, the court granted preliminary certification to a class consisting of the following persons: “All current and future inmates in SCDC custody, with the exception of inmates who have already been diagnosed with chronic HCV,” (“Testing Class”).2 ECF No. 140. The court also preliminarily certified Plaintiffs Geissler and Bagley as Class Representatives, and preliminarily approved the Revised Partial Consent Decree as well as the notice and procedure for distributing the notice to class members. ECF No. 142. The court set a fairness hearing for February 12, 2019. ECF No. 143.

Prior to the fairness hearing, the Parties filed a Joint Motion for Final Approval of the Revised Partial Consent Decree (“Joint Motion for Approval”). ECF No. 149. Counsel represented in the Joint Motion for Approval that pursuant to the court’s order of preliminary approval, counsel posted the Revised Partial Consent Decree on www.SCHepC.com on December 19, 2018, and provided all Circuit Public Defenders with notice of the Revised Partial Consent Decree on January 11, 2019. ECF No. 149-2. SCDC posted notice of the Revised Partial Consent Decree in every housing unit of every SCDC institution and in SCDC’s intake facilities, and additionally made information regarding the Revised Partial Consent Decree available on the SCDC website and in the prison libraries. ECF No. 149-3. Counsel informed the court that as of February 5, 2018, they had received more than thirty responses to the notices. Counsel represented that “most of the[] responses have sought additional information or raised concerns regarding treatment,” and “[i]nasmuch as the Revised Partial Consent Decree addresses only the Testing Claims, these responses are not being interpreted by counsel for either side as objections to the proposed settlement of the Testing Claims.” ECF No. 149 at 6. Counsel stated they nonetheless “noted the concerns stated in the numerous letters submitted and are responding to all correspondence in an effort to further inform the concerned individuals that settlement discussions regarding the Treatment Issue have commenced and are ongoing.” Id.

The Joint Motion for Approval states that SCDC agrees to provide Class Members with testing for chronic HCV in accordance with CDC guidelines within eighteen months of the court’s approval. ECF No. 149 at 1-2. The Joint Motion for Approval represents that the Parties “have fully exhausted discovery on the Testing Claims,” id. at 7; and states that as of February 5, 2019, SCDC had taken the following actions relevant to the Testing Class: (1) provided notice of the terms of the Revised Partial Consent Decree to current SCDC inmates by posting the courtapproved notice in each prison; (2) implemented the CDC’s recommended two-step process for diagnosing chronic HCV; (3) tested Plaintiffs Geissler and Bagley for chronic HCV according to the CDC guidelines; (4) offered opt-out testing to 533 inmates and tested 442 inmates, 52 of whom (11.7 percent) tested positive for chronic HCV; (5) provided Plaintiffs’ counsel with information about the opt-out process as well as the test results and opt-out forms; and (6) provided Governor McMaster and the state legislature with accurate estimates regarding the scope of chronic HCV in South Carolina’s prison system, id. at 4 (citing Jan. 24, 2019 Letters from Defendant Stirling to the Honorable Harvey S. Peeler, Jr., President of the South Carolina Senate and the Honorable James H. Lucas, Speaker of the South Carolina House of Representatives, ECF No. 149-1). The Joint Motion for Approval further states that “[b]ased on the sample of 442 inmates that have already been tested, SCDC estimates that approximately 2,182 inmates are likely to have HCV.” Id. at 10. Counsel assert that “[t]he Revised Partial Consent Decree will allow SCDC to ascertain the precise number of inmates with chronic HCV and hopefully help prevent the spread of the disease in the prison population and the general public.” Id. Also prior to the fairness hearing, Plaintiffs filed an unopposed motion to appoint class counsel, ECF No. 152, and filed a supplemental memorandum to the Joint Motion for Approval to address the requirements of 18 U.S.C. § 3626. ECF No. 153.

On February 12, 2019, the court held a fairness hearing pursuant to Rule 23(e)(2) to determine whether the within action satisfies the applicable prerequisites for class action treatment and whether the proposed Revised Partial Consent Decree is fundamentally fair, reasonable, and adequate, and should be approved by the court. The court certified Plaintiffs’ counsel as Class Counsel and heard argument from the Parties. Mr. Bagley, a Class Representative, appeared via videoconference and informed the court that he understood the terms of the settlement and had no objection. Mr. Bagley voiced concern, however, regarding the timeline that would govern SCDC’s testing of inmates for HCV; specifically, he highlighted the likelihood that SCDC would release class members from its custody before it could test those members for HCV.3 The court expressed a similar concern, and queried counsel as to whether the Parties should redefine the Testing Class. The court also inquired as to whether any other class members were in attendance who wished to object to or be excluded from the settlement; no other class members were present or otherwise represented.

On July 22, 2019, the Parties filed a Joint Motion to Substitute Filing, asking to substitute a Partial Settlement Agreement in place of the proposed Revised Partial Consent Decree. ECF No. 166. The Parties represent that the Partial Settlement Agreement and proposed Revised Partial Consent Decree are “substantively identical” and that “no class member will be prejudiced by this substitution of documents,” and assert that “because there is no substantive change between the two documents . . . there is no need to repeat the notice period.” Id. at 2.4 The court agrees. Accordingly, the court will grant the Joint Motion to Substitute Filing and apply the Rule 23(e) fairness analysis to the Partial Settlement Agreement.

DISCUSSION

Rule 23(b)(2) provides that a class action may be maintained if Rule 23(a) is satisfied and if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Rule 23(a) states that one or more members of a class may sue as representative parties on behalf of all members only if the following criteria are satisfied: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).

With respect to the type of class certification Plaintiffs seek, Rule 23(b)(2) certification is reserved for cases where broad, class-wide injunctive or declaratory relief is necessary to redress a group-wide injury. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2557 (2011) (“Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class”); Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 329-30 (4th Cir. 2006). A class action is properly certified under Rule 23(b)(2) where the claims seek to define the relationship between the defendant and a group uniformly situated in relation to the defendant, such as where litigants seek institutional reform in the form of injunctive relief. See Dukes, 131 S. Ct. at 2557; Thorn, 445 F.3d at 329-30.

The Parties seek approval of the Partial Settlement Agreement as settlement of the Testing Claims. The claims asserted by a certified class may be settled only with the court’s approval. Fed. R. Civ. P. 23(e). Where the proposal would bind class members, the court may approve it only after a hearing and only on finding that the proposed settlement is fair, reasonable, and adequate. Fed. R. Civ. P. 23(e)(2). To determine whether the proposal is fair, the court must consider (i) the posture of the case at the time of settlement, (ii) the extent of discovery that has been conducted, (iii) the circumstances surrounding the negotiations, and (iv) the experience of counsel. See In re Jiffy Lube Securities Litig., 927 F.2d 155, 158-59 (4th Cir. 1991). “A proposed class action settlement is considered presumptively fair where there is no evidence of collusion and the parties, through capable counsel, have engaged in arm’s length negotiations.” Harris v. McCrackin, No. 2:03-3845-23, 2006 WL 1897038, at *5 (D.S.C. July 10, 2006) (citing South Carolina Nat’l Bank v. Stone, 139 F.R.D. 335, 339 (D.S.C. 1991)). In evaluating the adequacy of a class settlement, the court should consider the following: (i) the relative strength of the plaintiffs’ case on the merits; (ii) the existence of any difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goes to trial; (iii) the anticipated duration and expense of additional litigation; (iv) the solvency of the defendants and the likelihood of recovery of a litigated judgment; and (v) the degree of opposition to the settlement. In re Jiffy Lube Securities Litig., 927 F.2d at 159. The court must also inquire into whether the parties have entered into an agreement made in connection with the proposal. Fed. R. Civ. P. 23(e)(3).

The court has considered the comments offered by counsel during the fairness hearing, and has read and considered the Partial Settlement Agreement and the record as a whole and finds and orders as follows:

1. CLASS CERTIFICATION — As discussed during the fairness hearing and demonstrated in the Parties’ motions and supplemental filings, the Rule 23(a) criteria are met here. Pursuant to Rule 23(b)(2), final certification is appropriate because the relief Plaintiffs seek is an injunction regarding SCDC’s policies and practices with respect to how SCDC tests the inmates in its custody for HCV. In certifying a class under Rule 23(b)(2), the court must be satisfied as to its ability to prescribe a uniform standard of conduct for the defendant that can be applied across the class; less important is whether the court can provide redress for injuries sustained by individual class members. Here, no class member has asked to opt-out of the Testing Class, and the Parties have not sought to include the opt-out right in the conditions of the Class. In addition, the Testing Claims seek only declaratory and injunctive relief; settlement of those claims does not prevent a class member from pursuing monetary damages. Class members who are released from SCDC custody before they can undergo testing for HCV will not receive the benefit of their class membership, but class membership does not require members to forgo any right associated with the Testing Claims.5 The court is satisfied that the Testing Claims seek relief for conduct that can be enjoined or declared unlawful as to all members of the Testing Class, Dukes, 131 S. Ct. at 2558, and that membership in the Testing Class will not pose due process concerns even for those members who may not receive the benefit of the settlement. See Rice v. City of Philadelphia, 66 F.R.D. 17, 19 (E.D. Pa. 1974) (“[T]he precise definition of the [(b)(2)] class is relatively unimportant. If relief is granted to the plaintiff class, the defendants are legally obligated to comply, and it is usually unnecessary to define with precision the persons entitled to enforce compliance . . .”). Pursuant to Federal Rule of Civil Procedure 23(b)(2), the court grants final certification of the within action as a class action for purposes of settlement of the Testing Claims only and defines the “Testing Class” as:All current and future inmates in SCDC custody, with the exception of inmates who have already been diagnosed with chronic HCV.

2. CLASS REPRESENTATIVE AND CLASS COUNSEL APPOINTMENT — Pursuant to Rule 23(g), the court grants final certification of Plaintiffs Russell Geissler and Bernard Bagley as the Class Representatives and further certifies Yarborough Applegate LLC and Guttman, Buschner, PLLC as Class Counsel.

3. NOTICES — Proper notice is “an elementary and fundamental requirement of due process.” Snider Int’l Corp. v. Town of Forest Heights, 739 F.3d. 140, 146 (4th Cir. 2014) (citation omitted). Notice satisfies due process where it either (1) “is in itself reasonably certain to inform those affected,” or (2) “where conditions do not reasonably permit such notice, . . . the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.” Id. (citation omitted). The form and method for notifying class members of the Revised Partial Consent Decree and its terms and conditions was in conformity with this court’s order of preliminary approval. The court is satisfied that the form and method for notifying class members of the Revised Partial Consent Decree meets the requirements of due process and constitutes the best notice practicable under the circumstances. The court agrees that the Partial Settlement Agreement is substantively identical to the Revised Partial Consent Decree and therefore no further notice period is necessary.

4. CONSENT DECREES RELATING TO PRISON CONDITIONS — Pursuant to 18 U.S.C. § 3626(a), the court finds that the Partial Settlement Agreement is narrowly drawn, extends no further than is necessary to correct the alleged constitutional violations, and is the least intrusive means necessary to correct the alleged constitutional violations.

5. FAIRNESS AND ADEQUACY — The court finds that settlement of the Testing Claims, on the terms and conditions set forth in the Partial Settlement Agreement, is in all respects fundamentally fair, reasonable, adequate, and in the best interest of the class members. In so finding, the court has considered the specific public interest at stake and the strength of Plaintiffs’ case, along with the posture of the litigation, the complexity, expense, and probable duration of further litigation, the circumstances surrounding the Parties’ negotiations, the experience of counsel, and SCDC’s solvency.6 See In re Jiffy Lube Securities Litig., 927 F.2d at 158-59. Specifically, the Parties have exhausted discovery on the Testing Claims and are well-apprised of the merits of the case. Further litigation would be expensive and time consuming and would not likely yield a result more favorable than the Partial Settlement Agreement. As the Parties state in their Joint Motion for Approval, “[t]he purpose of the proposed settlement is to provide Plaintiffs with the injunctive relief they requested: providing SCDC inmates with testing for chronic HCV that meets the medical standard of care asserted by Plaintiffs.”7 ECF No. 149 at 7. Additionally, there is no evidence or suggestion of bad faith or collusion, and counsel represented during the fairness hearing that the Partial Settlement Agreement is the result of settlement negotiations conducted at arm’s length and in good faith. See Kirven v. Central States Health & Life Co. of Omaha, C/A No. 3:11-2149-MBS, 2015 WL 1314086, at *5 (D.S.C. Mar. 23, 2015) (noting “[a]bsent evidence to the contrary, the court may presume that settlement negotiations were conducted in good faith and that the resulting agreement was reached without collusion”) (citing Muhammad v. Nat’l City Mortg., Inc., C/A No. 2:070428, 2008 WL 5377783, at *4 (S.D.W. Va. Dec. 19, 2008) (further citation omitted)). With respect to Class Counsel, the inquiry into the adequacy of legal counsel focuses on whether counsel is competent, dedicated, qualified, and experienced enough to conduct the litigation and whether there is an assurance of vigorous prosecution. In re Serzone Prod. Liab. Litig., 231 F.R.D. 221, 239 (S.D.W. Va. 2005) (citation omitted). As discussed at the fairness hearing, the court finds that Class Counsel meet these criteria. Furthermore, Mr. Bagley informed the court at the fairness hearing that he was satisfied with the representation provided by Class Counsel, and no class member has contested the appointment of Class Counsel.

The court has also considered the concerns voiced by Mr. Bagley and two other class members regarding the likelihood that certain class members will be released from custody before SCDC can test them for HCV. The Parties assert in the Joint Motion for Approval, and represented during the fairness hearing, that pursuant to the Partial Settlement Agreement over 18,000 inmates will be tested for HCV. The Parties further represent that due to the logistical difficulties involved in administering the test in a correctional setting, SCDC will test inmates according to facility rather than according to individual release dates. The Parties further represent that SCDC has nonetheless “set an aggressive testing schedule and is hopeful that it will be able to complete the testing for all currently incarcerated inmates by September 2019.” ECF No. 149 at 9. The court understands and is sympathetic to the concern that as SCDC works to administer the test facility-by-facility, some class members will be released from custody before SCDC can test them for HCV. However, to the extent that concern constitutes opposition to the settlement, such opposition is outweighed by the benefit the Testing Class and the public will derive from the Partial Settlement Agreement.8 In addition, to the extent that concern could be interpreted as an objection to the Partial Settlement Agreement, the court overrules the objection.

Finally, counsel represented during the fairness hearing that the Parties have entered into no other agreement with respect to the Partial Settlement Agreement. Accordingly, for these reasons, the court finds the Partial Settlement Agreement to be fair, adequate, and reasonable.

6. SETTLEMENT TERMS — The Partial Settlement Agreement is granted final approval and shall be consummated in accordance with the terms and provisions thereof, except as may be amended by any order issued by this court. The Parties are hereby directed to perform the terms of the Partial Settlement Agreement. All class members who were provided notice of the Partial Settlement Agreement are bound by the terms of it.

7. ATTORNEY FEES — Plaintiffs’ attorneys have not sought fees at this time.

8. FUTURE ACTIONS PROHIBITED — The court hereby permanently enjoins and restrains all class members from commencing or prosecuting any action, suit, claim, or demand against Defendants for declaratory or injunctive relief based on the Testing Claims.

9. NO ADMISSION OF LIABILITY — This order is not, and will not, be construed as an admission by Defendants of any liability or wrongdoing in this or in any other proceeding.

10. CONTINUING JURISDICTION OVER SETTLEMENT — The court hereby retains continuing and exclusive jurisdiction over the Parties and all matters relating to the within action and Partial Settlement Agreement, including the administration, interpretation, construction, effectuation, enforcement, and consummation of the settlement and this order, and attorneys’ fees.

CONCLUSION

The Joint Motion to Substitute Filing, ECF No. 166, is GRANTED and the Partial Settlement Agreement, ECF No. 166-1, is substituted for the Revised Partial Consent Decree. The Joint Motion for Final Approval, ECF No. 149, is GRANTED and the Partial Settlement Agreement, ECF No. 166-1, is APPROVED.

IT IS SO ORDERED.

FootNotes

1. Plaintiff Russell Geissler initiated this action on June 30, 2017 with the pro se filing of a prisoner complaint. ECF No. 1. The court granted Plaintiff Geissler leave to proceed in forma pauperis, ECF No. 9, and ultimately granted his motion for appointment of counsel, ECF No. 72. Counsel for Plaintiff Geissler entered his appearance on January 10, 2018. ECF No. 75. On August 21, 2018, Plaintiffs sought and received leave to file a third amended complaint (“Complaint”), which remains the operative pleading. ECF No. 108.2. Hereafter, any reference to “class” is a reference to the Testing Class only.3. Indeed, during the notice period counsel received letters from two prisoners who expected to soon be released from SCDC custody.4. The Parties attached the Partial Settlement Agreement and a redlined version of the Revised Partial Consent Decree to the Joint Motion to Substitute Filing. ECF Nos. 166-1, 166-2.5. Pursuant to the Partial Settlement Agreement, class members release claims against Defendants for injunctive relief to receive HCV testing. The only class members who would not receive testing for HCV, and therefore might wish to bring such claims, are those individuals whom SCDC releases from custody before it can administer the tests. Any such claim for injunctive relief by an individual who is no longer in SCDC custody would likely be moot. See, e.g., Rendelman v. Rouse,569 F.3d 182, 186 (4th Cir. 2009) (“[A]s a general rule, a prisoner’s transfer or release from a particular prison moots his claims for injunctive and declaratory relief with respect to his incarceration there.”).6. The Parties state in the Joint Motion for Approval that SCDC’s solvency and the likelihood of recovery of a litigated judgment are not at issue because Plaintiffs seek only injunctive relief. ECF No. 149 at 9. However, the HCV testing that Defendants agree to undertake necessarily requires an expenditure of funds. Indeed, the Parties include in the Partial Settlement Agreement the provision that, for the purpose of seeking remedial action against Defendants, “an individual shall not be deemed to have acted in bad faith if budgetary constraints are the reason for his or her failure to satisfy the terms of the Testing Agreement, so long as he or she has made good faith efforts to obtain the necessary funding from all potential sources.” ECF No. 166-1 at 7. The expense of testing for HCV notwithstanding, the Parties have not indicated in their papers and did not suggest during the fairness hearing that SCDC does not have or would not be able to procure the necessary funding to carry out the agreed upon testing.7. The Parties represent in the Joint Motion for Approval that Plaintiffs are “foregoing any declarative relief related to the Testing Claims.” ECF No. 149 at 7.8. The Joint Motion for Approval posits that an estimated one percent “of the noninmate [sic] population has chronic HCV,” and that the number rises to an estimated 17 percent “for the inmate population.” ECF No. 149 at 10 (citing ECF No. 136-2, Teianhua He, M.D. et al., Prevention of Hepatitis C by Screening and Treatment in U.S. Prisons, Annals of Internal Medicine (Nov. 24, 2015) (SCDC Documents for Informal Discovery Response 000001)). The Parties explain that “[a]s individuals move in and out of the prison system and are unaware of their HCV status, they can transmit the disease to others,” and that “[s]tudies have suggested that providing opt-out testing to inmates can help reduce the transmission of the disease—and deaths related to the disease—outside of the prison.” Id.

Available online at leagle.com.

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Shadowboxer: Dan Guttman, a lifetime investigating the government’s “shadow workforce” of contractors

Federal procurement is not a subject that makes for compelling television, but procurement scandals can be good drama, which is why on Nov. 30, 1980, the CBS newsmagazine 60 Minutes aired a story that suggested private contractors were running the Energy Department. Outside consultants, intoned correspondent Morley Safer, seemed to do everything for Energy. They assembled the department budget. They wrote congressional testimony for Energy officials. They were the “bureaucrats’ bureaucrats,” Safer said.

On the 1980 videotape, you see a parade of lawmakers press the case against Energy, including Sen. David Pryor, D-Ark. Then you meet Dan Guttman, a fast-talking investigator who works for Pryor. Guttman says Energy’s use of consultants portends a great shift in how government works. “The public is not aware who is making decisions in this country,” he tells Safer. “We find agencies delegating large chunks of [themselves] to one or more firms over a number of years and, in effect, saying, ‘Run this portion of the agency.’ “

The camera clearly likes Guttman. He tells jokes, he gestures wildly with his arms, he gets more airtime than his boss. At one point, Safer even turns the microphone over to Guttman and lets him interrogate John Hewitt, Energy’s chief financial officer. Guttman also gets the last word: “You name what government does and we have found contractors doing it,” he says. “You get up close, it looks like a conspiracy, but really it’s chaos.”

Guttman has spent his career in the middle of this chaos. In the early 1970s, fresh out of law school, he co-wrote The Shadow Government (Random House, 1976), an exposé of the federal consulting industry. Since 1980, he has been part of nearly every congressional effort to scrutinize the government’s use of contractors. Along the way, he became convinced that the government’s increasing reliance on private companies raises basic, even constitutional, questions of accountability. He believes that most agencies can no longer effectively oversee their contractors and that existing oversight tools-such as setting performance standards in contracts-often don’t work.

“There are two sets of tools that we have for [contractor] accountability,” Guttman says. “One is legal-the presumption that only governmental officials can do certain work. That tool isn’t working. And then we have management tools, such as performance contracting. My observation is that those tools aren’t working either. Neither one of them is working in prime time.”

Needless to say, not everyone agrees. “Look, this is not some kind of Wild West show where everyone is just running amok,” says Stan Soloway, president of the Professional Services Council, an Arlington, Va.-based association that represents contractors. “I don’t believe there are very many examples of government procurement that raise the issues Guttman worries about,” says Steven Kelman, a professor at Harvard University’s Kennedy School of Government and former federal procurement administrator.

Although Guttman is not opposed to contracting in principle, he is associated with efforts to curb the use of contractors. Pryor cut agency budgets for consultants and waged an unsuccessful campaign to make federal contractors register all of their clients with Congress, just as lobbyists must do. Rick Goodman, a former Pryor staffer who worked with Guttman, remembers their icy relations with industry during a 1989 investigation. “The consulting industry thought we were a bunch of bomb throwers,” he says.

Professionally, Guttman defies easy description. A practicing attorney, he still represents whistleblowers and teaches graduate level courses in government at Johns Hopkins University. He is part lawyer, part historian, part gumshoe investigator. “We don’t have a discipline in law that [covers] what Dan does,” says Sallyanne Payton, a professor at the University of Michigan Law School, who met Guttman through the National Academy of Public Administration. “I think he’s more of an activist,” offers Jody Freeman, a professor at the UCLA Law School. In an e-mail, Guttman notes that many of his friends have started think tanks, and playfully wonders whether his interests could fit that mold: “How does the ‘Center for the Study of Public Functions by Nongovernmental Entities’ grab you?”

Guttman the person leaves a clear impression. With his unkempt hair and dark, darting eyes, he radiates intellectual intensity. When he wears his raincoat, he resembles television’s rumpled detective, Columbo. He is an incessant talker, the master of the marathon conversation. Spend some time with him and you realize he treats life as if it were a never-ending college seminar; every topic holds interest, every issue, no matter how obscure, must be wrestled to the ground. “Obscure and arcane is where Dan lives,” says Nancy Bekavec, a law school friend who is now president of Scripps College in Claremont, Calif. “If you gave him the choice of going to see a Mongolian rap artist, or Britney Spears, he would assume all the cool people were going to see the Mongolian rap artist.”

Guttman devours information. As staff director for the Presidential Commission on Human Radiation Experiments in the mid-1990s, he would literally wade into archival agency documents. “Every day we got a shipment of documents, and Dan would not wait for them to be processed. He would go in and start opening the cases and rifling through them,” remembers Gregg Herken, a Cold War historian who served on the commission.

Guttman’s investigations have made him a walking encyclopedia of government arcana, which he generously shares. “He helped me realize that the Library of Congress was basically run by contractors,” says 60 Minutes correspondent Andy Rooney. “It was a shocking revelation to me.” Rooney hired Guttman to do research for Mr. Rooney Goes to Washington, an award-winning CBS program broadcast in 1975.

Guttman seems genuinely indifferent to material things. In 1997, he left a job as a commissioner of the Occupational Safety and Health Review Commission partly because he felt guilty making a six-figure salary for a job that required little work. “It was an easy job, a good solid salary, and Dan was miserable,” says a friend.

Guttman has never held a management position in an agency, nor had any official authority over procurement rules. Yet he has found a way to influence contracting policy-or at least to be a thorn in the side of those making it-through his investigations and lawsuits. His work has helped set the parameters of the current debate over outsourcing federal operations. For example, the idea that certain jobs are “inherently governmental,” and must be performed by civil servants, dates to 1960s-era policies. But it only got legs-and a place in the 1998 Federal Activities Inventory Reform (FAIR) Act-after a 1989 investigation of federal contracting in which Pryor and Guttman pressed the General Accounting Office to define the limits of inherently governmental work: Should contractors be allowed to write official testimony? Or interpret regulations?

Now, in a new era, with no big lawsuits or congressional investigations on the horizon, Guttman is trying to focus attention on the government’s haphazard approach to outsourcing, which in his view raises constitutional questions. The framers sought to protect citizens from an overzealous government by enacting a Bill of Rights; the same concern led later generations to enact laws such as the 1887 Hatch Act and the 1974 Freedom of Information Act, which seek to control the behavior of federal officials. “The Constitution and all these statutes are directed at protecting us against the abuse of power by government actors,” Guttman says. “Well, what happens when private contractors, who aren’t covered by these laws, do much of the government’s work?”

Guttman’s arguments confound some procurement experts. Larry Wright, a senior vice president at consulting firm Booz Allen Hamilton, doesn’t see the constitutional link. “I’ve never heard these oversight issues characterized as constitutional issues before,” he says. “It’s the legal view,” says Chip Mather, a senior vice president with Acquisition Solutions Inc., a procurement firm based in Chantilly, Va.

Guttman carries a staggering amount of information in his head, and it can be overwhelming when unleashed on the uninitiated. His most recent congressional testimony included 49 endnotes in 15 pages. “Part of the challenge for Dan is for the world to know what he knows,” says Charles Lewis, director of the Center for Public Integrity, a Washington-based network of investigative journalists.

Guttman approaches contracting from the fields of history and law; his arguments hinge on a certain understanding of how contracting changed with the Cold War. They also grow out of his experience doing something very few other people have ever done-studying actual contracts.

CRACKING THE CODE

In the summer of 1971, Guttman walked into a contracts office at the old Health, Education and Welfare Department. He was searching for a report. “Help yourself,” said the man at the desk, and, over the next few weeks, he did. Poring over contract files, he discovered that most HEW contracts went to a few well-connected firms, often without competition. He read scathing letters from Lois Ellin Datta, head of evaluation for the Head Start program, to her contractor, the Stanford Research Institute. In its final report, Stanford had plagiarized papers she had published. “Can’t your staff think for itself?” she demanded. He found few contracts with performance standards. For example, a contract with RAND, a research organization, for an analysis of the distribution of doctors in rural areas simply declared, “As to the essential features of the performance, the best that can be bargained for is the contractor’s best effort.”

At the time, Guttman was one of “Nader’s Raiders,” the young progressives who churned out exposés of government and corporate America for consumer advocate Ralph Nader. This didn’t stop him from making friends with HEW staff. He joined them for coffee breaks. He answered the phone when they went to lunch. By the time someone questioned his presence in the office, he had already read through all the files. Guttman would have better moments as an investigator, but none that so vividly showed how contracting worked behind the scenes.

“It was like cracking the code,” he remembers. “When you get to the inside documents, you find too many cases where the light is on but nobody is home.”

Guttman was fascinated by the role of think tanks in setting public policy, not an unusual concern in the circles he traveled in. He grew up in White Plains, N.Y., the eldest of three brothers. A mediocre student in high school, he went to the University of Rochester, where he was a big fish in a small pond. Guttman was student body president, editor of the student newspaper, and an intramural wrestling champion. In 1968, his senior year, he helped lead student protests against Dow Chemical, the manufacturer of napalm, when the company came to recruit on campus.

In 1969, Guttman enrolled at Yale Law School-where it seemed that almost everyone was studying something besides law. Guttman’s friend Robert Peck studied architectural history; one student spent most of his time writing poetry. Guttman was no exception, quickly immersing himself in research on federal consultants.

Guttman loved to tell stories about the scandals he found. Peck remembers Guttman stopping him in the hall of their dorm. “‘Listen to this, isn’t it outrageous?'” he would say. But Peck and others wondered what the stories really proved. “I said, ‘Dan, it’s a lot of anecdotes, but what does it add up to?’ ” says Peck, a former commissioner of the General Services Administration’s Public Buildings Service, who is now president of the Greater Washington Board of Trade.

While still in law school, Guttman and Barry Willner, a fellow Nader researcher, decided to write a book about the consulting industry that had grown up around agencies, and to discuss the policy issues it raised. The result was The Shadow Government. “Barry and I could have easily shown that procurement rules weren’t followed,” says Guttman. “But we wanted to know how well the system was performing-whether it was providing successful results.”

They showed how the spread of management fads, such as the Defense Department’s Planning-Programming- Budgeting System, gave contractors entry into agencies. They also showed the role contractors played in bureaucratic turf wars. The book highlights the experience of Donald Rumsfeld, the young director of the Office of Economic Opportunity, who used contractors to gain leverage over a defiant career workforce. “Don found himself with a bureaucracy that hated him,” said Dick Cheney, then Rumsfeld’s assistant, now vice president, in an interview with Willner. In 1969, shortly after being appointed by President Nixon, Rumsfeld tapped Booz Allen Hamilton and Arthur Andersen to reorganize the agency. The new organization chart had no positions for 108 civil servants, who were left to wander the halls.

The book takes a stab at explaining the influx of contractors into government, a theme Guttman expanded on in later writings. He attributes the rise of the federal consulting industry-or the “contract bureaucracy,” as he calls it-to a group of mid-century reformers who believed government had to tap business and academia in order to carry out new missions given Americans’ aversion to big government. A pivotal text for him is The Scientific Estate (Harvard University Press, 1965) by Don Price, the first dean of Harvard’s Kennedy School of Government. Price argued that the then-emerging network of think tanks, universities and government created a “diffusion of sovereignty.” Guttman also points to Business in the Humane Society (McGraw-Hill, 1971), by John Corson, an influential McKinsey & Company executive, which heralds contracting out as a “new form of federalism” that enables the government to accomplish new tasks with help from industry.

The new approach came to life in organizations such as RAND, Aerospace Corp., and Mitre, nonprofits created during the Cold War to run Air Force weapons programs. It also took root in NASA and Energy, two agencies designed to be heavily dependent on contractors. Guttman believes government has not yet come to terms with the implications of these reforms.

THE WORK OF GOVERNMENT

Guttman doesn’t lose much sleep over the procurement of goods-the purchase of “ketchup and paper plates,” as he puts it. His interest lies in the government’s use of contractors to provide policy advice and management services, which he calls “the work of government.” The Shadow Government purports to reveal “the government’s multibillion-dollar giveaway of its decision-making powers to private management consultants, ‘experts,’ and think tanks.” Today, Guttman is less inclined to see wholesale contracting out as a scandal, but he is more critical of a federal culture that presumes agencies have the capacity to oversee contractors, despite evidence to the contrary.

Guttman says he’d prefer it if Office of Management and Budget Circular A-76, which governs federal outsourcing efforts, simply said, “If you want to contract out everything in the Defense Department, be our guest, but that may mean there’s no one left inside government who can monitor the contractors. Before you outsource, you should have to attest that there is adequate oversight capacity in place, or explain why it isn’t needed.”

That oversight, Guttman says, involves more than simply auditing to control cost overruns. His chief worry is that outsourcing will make government less accountable to the public. Contract employees are not listed in agency employee directories, and some contractors do not publicize their federal clients, making it hard to gauge their influence. Openness laws such as the Freedom of Information Act apply to civil servants, but not to for-profit contractors. Federal employees and contractors are both prohibited from acting in areas in which they would have conflicts of interest, but the rules for civil servants are much stricter and include criminal penalties.

Guttman believes these differences are anything but academic. He loves to cite a 1998 dispute in which the electric power industry came face to face with the rules governing the contractor workforce. Concerned about new clean air rules proposed by the Environmental Protection Agency, power companies tried to obtain the data underlying the rules. The EPA refused, noting the data was maintained by Harvard University, which had developed it under an EPA grant. So the companies took their concerns to Congress, which, over howls from nonprofit organizations and universities, amended FOIA to allow public access to their federally sponsored research. “Regulated industries urged openness in government, while nonprofits complained that the application of FOIA to them would be chilling to their activities,” says Guttman.

Because contractors and civil servants are governed by different rules, efforts to blur the boundaries between the two workforces are extremely troubling to Guttman. The notion that civil servants and contractors are interchangeable, except where “inherently governmental” work is involved, is a central premise of President Bush’s competitive sourcing initiative. It animated the Clinton administration’s “reinventing government” campaign as well. To Guttman, this argument ignores the essential differences between the public and private sectors. “Both the Clinton/Gore reinventing government [initiative] and the Bush management agenda aim to render civil servants more ‘contractor-like,’ but do so with little or no reflection on the fact that our long-standing laws do not now provide for the blurring of the boundaries between official and contractor status,” he says.

Critics reply that laws such as the Freedom of Information Act and the Hatch Act have little bearing on the kinds of jobs at stake in the push to subject federal work to competition in both the Bush and Clinton administrations. “By no stretch of the imagination does the question of contracting for laundry services at Veterans Health Administration hospitals raise any of the issues that [Guttman] most strongly worries about,” says Kelman. In theory, jobs that do raise these issues are protected from outsourcing by the principle of “inherently governmental” work.

But in practice, Guttman notes personnel ceilings often force agencies to hire contractors to perform new work, whether it is inherently governmental or not. And the principle says little about whether outsourcing will help an agency’s mission. The Defense Department now uses the concept of “core” and “noncore” jobs to guide its outsourcing decisions.

“People in Defense know ‘inherently governmental’ is not an adequate concept,” says Guttman. He notes that the principle has not stopped agencies from contracting out procurement oversight or military logistics work in Iraq-both tasks Guttman considers to be “the work of government.”

Guttman’s legal cases have left him deeply skeptical of government’s oversight ability. In 1993, Energy proudly unveiled a new strategy for the cleanup of nuclear weapons plants: The contractors running the plants would subcontract the cleanup to other private firms, bringing new expertise to the cleanup effort. Subcontracting allowed the firms to replace the longtime federal workforce at the plants, which was represented by the Oil, Chemical & Atomic Workers Union and its attorney, Guttman. When a subcontractor took control of the cleanup at Fernald, Ohio, the union filed suit in U.S. District Court to prevent layoffs.

During the discovery process, Guttman obtained contract documents suggesting Energy had little idea what its new subcontractors were up to. In its health and safety plan, the Fernald subcontractor instructed workers not to tell Energy inspectors about possible problems at the plant. These revelations grabbed Congress’ attention, and the subcontractor quickly settled the case with the union, retaining its workforce.

But some of Guttman’s adversaries say the world of federal procurement is different now than when he did the bulk of his research. Agencies today prefer to do business with a single integrator that oversees many firms, each of which has a specific role, making conflicts of interest easier to prevent, they argue. “It’s absolutely true that in the last 20 years, government has tightened up on a lot of things,” says Booz Allen Hamilton’s Wright.

When Peck went to the Public Buildings Service in 1995, he had few plans to hire outside contractors. But then he realized that his leasing staff lacked in-depth knowledge of the real estate market. And Congress was pressuring the agency to outsource. So Peck hired real estate firms to provide leasing advice to PBS offices in each region of the country. “That’s a pretty good way to use contractors,” he says. “If Dan had the chance to run a big agency, I think it would be really interesting to see where he would draw the line on contractors.”

GETTING AT THE TRUTH

It’s not easy to picture Guttman as an agency head. He is too iconoclastic to follow party orthodoxy, and seems physically unable to speak in sound bites. “You could never quite be sure what he might say or do,” says Bekavec. “Dan fiercely wants to get to the truth and he’s going to get there no matter what.”

When asked what he would do if he had a top management position-Kelman’s federal procurement administrator job, for instance-Guttman hesitates. “I wouldn’t know where to start,” he says. He imagines many of his ideas would face resistance from contractors, an assessment shared by his friends. “If my job is to contract out, do I really want to do less of it or do it more carefully?” asks a colleague.

Guttman believes he can have more of an effect on the outsourcing debate from his perch in academia. When he left government in 1997, he hoped to draw attention to the basic questions of accountability posed by outsourcing. He and an eclectic group of friends in academia and at nonprofit groups are studying how contractor accountability affects everything from warfare to Medicare.

He explores the same issues in the classroom. On Wednesday evenings, Guttman teaches a seminar at Johns Hopkins’ center in Washington. Its purpose is to explore the American tradition of harnessing private interests to serve the public interest, a theme that hopscotches from The Federalist Papers to present-day outsourcing arrangements. In the seminar’s second meeting this fall, Guttman paced across the front of the room, discussing Alexander Hamilton’s proposal for a national bank. The bank was designed to give the federal government a role in the nation’s economic development, while also helping the merchant class. “Today, we would call it a public-private partnership!” he exclaimed.

Guttman believes the time is right for another top-to-bottom look at the government’s use of contractors. “It’s a good time for someone to say, here are the bigger questions that aren’t getting attention,” he says. “And then you’ll see some congressmen asking questions. And once they do, they’ll see that federal officials are not completely in control of contractors.”

This is a remarkably timeless article from 2003 by JASON PECKENPAUGH, for Govexec.com, about Dan Guttman, of counsel, Guttman, Buschner & Brooks, PLLC.