Schneider v. U.S.

• Decision Date: 24 June 1994
• Docket Number: No. 93-1702,93-1702
• Citation: 27 F.3d 1327
• Parties: Michael SCHNEIDER; Roisin Schneider, individually and as guardians of Slaine Schneider, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1327

27 F.3d 1327

Michael SCHNEIDER; Roisin Schneider, individually and as guardians of Slaine Schneider, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 93-1702.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 16, 1993.

Decided June 24, 1994.

Martha L. Neese, St. Paul, MN, argued, for appellant.

Patricia A. Millett of the Dept. of Justice, Washington, DC, argued, for appellee.

Before LOKEN, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Michael and Roisin Schneider brought an action on behalf of their 5 1/2 year old daughter, Slaine Schneider, in the district court seeking review of a decision by the United States Air Force denying their claim for payment under the Military Claims Act (the Act). See 10 U.S.C. Sec. 2731-2737. The district court ¹ dismissed the Schneiders' cause of action for lack of subject matter jurisdiction, finding that the language of the Act precludes judicial review. The Schneiders appeal, asking this court to determine that the Military Claims Act does not preclude judicial review of the denial of their claim and separately asserting that the procedure used by the United States Air Force in reviewing their claim violated their constitutionally protected rights to equal protection and due process. We affirm.

I. BACKGROUND

Slaine Schneider was born on April 23, 1987. In late 1988, while living in England with her parents where her father, Michael Schneider, was stationed with the United States Air Force (USAF), Slaine started to experience right ear drainage. Her parents took her to a hospital in England for treatment. In 1989, a USAF physician, Dr. David Range, performed three surgical procedures on Slaine's ear: (1) a myringotomy, which involved placing a tube in Slaine's right ear to facilitate drainage; (2) removal of a polyp from the right ear; and (3) a modified radical mastoidectomy, diagnosed postoperatively as cholesteatoma. The Schneiders contend that before Dr. Range performed the third surgery, he advised the Schneiders that he had never seen or performed the procedure but assured them that he would have available a more experienced physician at the time of surgery. The Schneiders assert that to the contrary, a more experienced physician was not present at the time of surgery. In 1990, Dr. William S. Lund, a civilian doctor in England, performed a fourth surgery for recurrent cholesteatoma, and his operative report indicated that much of the ear drum was eroded. Today, Slaine suffers deafness in her right ear, which her parents claim results from the negligence of the USAF physician's failure to diagnose the cholesteatoma sooner and failure to properly treat the ear drainage.

On Slaine's behalf, in July of 1991, her parents filed a claim with the USAF pursuant to the Military Claims Act, alleging personal injury to Slaine as a result of the negligence of the USAF physician. On November 13, 1991, Captain Tamara Riley, a USAF Judge Advocate officer stationed in Europe and assigned to do a "medicolegal review" of the claim, notified the Schneiders of how the claim process could be expected to proceed. In the letter, Captain Riley said that she would review the case within 45 days, consult with medical experts, and then forward the file to the Air Force's legal services agency at Bolling Air Force Base in Washington, D.C., for final disposition, and notify the Schneiders when the transfer occurred. Captain Riley also informed the Schneiders that they bore the burden of proof and requested that the Schneiders obtain a current audiology examination of Slaine in order to substantiate their claim for total and permanent loss of hearing. (Jt.App. at 24.) On January 13, 1992, Captain Riley notified the Schneiders that she had completed her "medicolegal review" and was forwarding the file to Washington, D.C., for final disposition. She again suggested that the Schneiders forward the audiology report as soon as possible to the reviewing officer in Washington. (Id. at 26.) By letter dated March 16, 1992, the Schneiders' attorney submitted the audiology report to the reviewing authority in Washington and asked what information was needed to complete the investigation. (Id. at 27.) By letter dated the next day, the USAF notified the Schneiders of the final disposition of their claim. (Id. at 28-29.) The USAF denied the claim, finding no negligence in the care Slaine received from Dr. Range. (Id.)

The Schneiders filed an administrative appeal pursuant to the regulations, requesting that the USAF reconsider their claim. On appeal, the Schneiders, for the first time, submitted the written opinion of their expert, Dr. George Sisson, Sr., who concluded that Slaine had received negligent care from the USAF physician. (Id. at 30-44.) Dr. Sisson's opinion referred to Dr. William S. Lund, the physician who had subsequently treated Slaine, as a well-known British neurotologist and cited Dr. Lund's findings as a basis for Dr. Sisson's opinion. (Id. at 42-43.) Colonel Philip A. Meek, Chief of the Air Force's Claims Division, considered the Schneiders' appeal and Dr. Sisson's expert report. Noting that the Schneiders' expert quoted Dr. Lund, Colonel Meek, in his letter of denial, stated that the Air Force had extensively interviewed Dr. Lund in the course of investigating the claim. Captain Riley had previously informed the Schneiders that as a part of her investigation of the claim she would consult with experts. In the USAF interview, Dr. Lund concluded that Dr. Range's treatment was not negligent and that Slaine's present condition was a result of the disease process, not medical negligence. (Id. at 45.) The medical facts of the case were also reviewed by a USAF medical expert who concluded that the diagnosis was timely and the surgery was appropriate. (Id. at 46.) Colonel Meek concluded that he was unable to approve the claim for payment because there was no showing of negligent treatment. (Id.)

The Schneiders then filed an action in district court seeking review of the USAF's decision. They alleged jurisdiction as a federal question under 28 U.S.C. Sec. 1331 and the Military Claims Act, 10 U.S.C. Sec. 2731-2737; as a tort claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 2671-2680; as a controversy under the Declaratory Judgment Act, 28 U.S.C. Sec. 2201; and as a constitutional claim of due process and equal protection under the Fifth Amendment. The district court found that there was no jurisdiction under the FTCA because the United States has not waived its sovereign immunity for claims arising in a foreign country. See 28 U.S.C. Sec. 2680(k). The district court determined that there was no jurisdiction under the Declaratory Judgment Act because it only creates a remedy and cannot serve as an independent basis for subject matter jurisdiction. See 28 U.S.C. Sec. 2201. The district court also determined that there was no federal question under 28 U.S.C. Sec. 1331 because the denial of a settlement is unreviewable by the terms of the Military Claims Act, see 10 U.S.C. Sec. 2735, and the Schneiders had not raised any valid constitutional claim. Accordingly, the district court dismissed the action for lack of jurisdiction and failure to state a claim upon which relief may be granted. The Schneiders appeal.

II. DISCUSSION

In general, the Military Claims Act allows for settlement of two types of personal injury claims:

(a) claims arising from negligent or wrongful acts or omissions committed by United States military or civilian personnel while acting within the scope of their employment.

(b) claims arising from noncombat activities of the United States, whether or not such injuries or damages arose out of the negligent or wrongful acts or omissions by United States military or civilian employees ...

32 C.F.R. Sec. 842.49(a), (b) (1990); see also 10 U.S.C. Sec. 2733(a). For claims arising from noncombat activities, it is not necessary to establish negligence. See 32 C.F.R. Sec. 842.49(b). "Noncombat activity" is a specially defined term in the department's regulations; it is an "[a]ctivity, other than combat, war or armed conflict, that is particularly military in character and has little parallel in the civilian community." 32 C.F.R. Sec. 842.41(c) (1990). For claims arising from an act of an employee acting within the scope of his employment, however, the claimant must show negligence or a wrongful act. See 32 C.F.R. Sec. 842.49(a). When the Secretary is satisfied that a claim of negligence has been substantiated, the Secretary "may settle" the claim by paying an amount not to exceed $100,000, and for a larger claim deemed meritorious by the Secretary, the Secretary may report the excess amount to the Comptroller General for payment. See 10 U.S.C. Sec. 2733.

The Schneiders' claim arose from the acts of a USAF employee (Dr. Range) acting within the scope of his employment. The USAF denied the claim, finding no negligence, and the district court dismissed their complaint for lack of jurisdiction and failure to state a claim. On appeal, the Schneiders offer two arguments to support their contention that the district court has jurisdiction to consider their complaint. First, the Schneiders contend that the Military Claims Act does not preclude judicial review of the USAF's denial of their claim. Second, they contend that the USAF violated their rights to equal protection and due process. We consider each argument in turn.

A. Military Claims Act

The Schneiders argue that the district court erred in determining that it lacked jurisdiction because the USAF's decision to deny their claim is a federal question under the Military Claims Act and is subject to judicial review as final agency action. This court reviews de novo a district court's determination that it lacks subject matter jurisdiction. See General Elec. Capital Corp., 991 F.2d 1376, 1380 (8th Cir.1993); Keene...