Barnett v. Weinberger, No. 81-2122

CourtU.S. Court of Appeals — District of Columbia Circuit
Writing for the CourtBefore ROBINSON, Circuit Judge, and McGOWAN and MacKINNON; SPOTTSWOOD W. ROBINSON, III
Citation818 F.2d 953
PartiesEric J. BARNETT, individually and as parent and next friend of Rachael Lynn Barnett, a minor, Appellant, v. Caspar WEINBERGER, Secretary of Defense of the United States of America.
Docket NumberNo. 81-2122
Decision Date15 May 1987

Page 953

818 F.2d 953
260 U.S.App.D.C. 304
Eric J. BARNETT, individually and as parent and next friend
of Rachael Lynn Barnett, a minor, Appellant,
v.
Caspar WEINBERGER, Secretary of Defense of the United States
of America.
No. 81-2122.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 27, 1982.
Decided May 15, 1987.
As Amended May 15, 1987.

Page 954

Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-01211).

Michael F. X. Dolan, Bethesda, Md., for appellant.

Michael J. Ryan, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty. at the time the brief was filed, Royce C. Lamberth, R. Craig Lawrence, Asst. U.S. Attys., Cheryl M. Long, Asst. U.S. Atty. at the time the brief was filed, and Paul S. Koffsky, Atty., Dept. of Defense, were on the brief, for appellee. Kenneth M. Raisler, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, also entered an appearance for appellee.

Before ROBINSON, Circuit Judge, and McGOWAN and MacKINNON, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBINSON.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal stems from a judgment of the District Court dismissing appellant's action for an injunction permanently barring the Department of Defense from terminating medical benefits for his daughter. We find that the decision to discontinue these benefits rests wholly upon departmental regulations which as interpreted are fatally at odds with the statutory directive they purport to implement. Accordingly, we reverse the judgment and instruct the District Court to issue the injunction sought.

I. BACKGROUND

Rachael Lynn Barnett, appellant's thirteen-year-old daughter, is the victim of a disabling and incurable neurological condition, apparently the result of fevers occurring shortly after her birth. 1 Rachael apparently has no sight, speech, hearing, or voluntary motor function whatsoever. 2 She is generally comatose, 3 severely retarded, incontinent, and unable to dispose of bodily secretions that may collect in her

Page 955

throat. 4 Her functional age is under one month. 5 She suffers recurrent seizures 6 and movements of her eyes and extremities are spastic. 7 As a result, Rachael must be fed, dressed, exercised, and cleansed by an attendant. She also requires constant monitoring to ensure that accumulated secretions do not block her air passages. 8

Unable to provide this level of care themselves, 9 Rachael's parents in 1978 put her in a hospital, and she has remained hospitalized since. 10 With the consent of the parents, Rachael has been placed on "no-code" status, meaning that "extraordinary" measures will not be instituted to combat conditions that may imminently threaten her life. 11 Instead, Rachael has been furnished hospitalization with "supportive care," consisting of satisfaction of her basic personal needs, monthly medical examinations, and the continuous supervision and attention essential to maintain breathing. 12 Because Rachael's disorder is incurable, no rehabilitative or other treatment to improve her condition has been prescribed. 13

From the start, the expense of Rachael's hospitalization has been absorbed as a basic benefit under the Civilian Health and Medical Program for the Uniformed Services (CHAMPUS), a system of federally-subsidized health care available to dependents of active-duty military personnel and others. 14 Rachael qualifies as an eligible dependent because her father is a commissioned officer in the United States Navy and a participant in the program. 15

In May, 1979, the Office of CHAMPUS notified appellant that, in its opinion, Rachael's hospitalization supplied only "custodial care," 16 attention of a kind statutorily excluded from the program. 17 Appellant was informed that consequently CHAMPUS basic benefits would cease, but that Rachael might qualify for assistance available to significantly handicapped dependents of active-duty military personnel. 18 Any aid Rachael might receive as a handicapped child, however, was and is limited to $12,000 per year, 19 a sum plainly inadequate to meet Rachael's annual hospital

Page 956

bills, then approximately $53,000. 20 Cessation of Rachael's CHAMPUS benefits thus would compel her release from hospitalization into some other institutional setting or perhaps even parental care.

Hoping to save those benefits, appellant filed suit in the United States District Court for the District of Maryland to enjoin the scheduled termination. 21 In exchange for appellant's voluntary dismissal of that action, it was agreed that the decision to discontinue benefits would be administratively reconsidered. 22 The Office of CHAMPUS staff then reexamined Rachael's case, but again concluded that Rachael did not qualify for basic coverage because her hospitalization provided no more than "custodial care." 23 This determination was upheld in turn by a hearing officer, 24 on review by the Director of the Office of CHAMPUS, 25 and finally by the Principal Deputy Assistant Secretary of Defense for Health Affairs. 26 Central to the decision at each level were departmental regulations undertaking definition of the statutory exclusion of "custodial care," and the decision-maker's understanding of the effect of the regulations in Rachael's situation. 27

Having exhausted his administrative options, appellant instituted the present suit to enjoin any stoppage of CHAMPUS benefits as arbitrary. 28 The District Court found the projected discontinuation of such benefits supported by substantial evidence, and denied an injunction and dismissed the action. 29 Thereupon, appellant turned to this court. 30

II. MEDICAL CARE FOR MILITARY DEPENDENTS

Traditionally, dependents of members of the Armed Forces have been provided health care in military facilities whenever the space and staff essential thereto could be utilized without jeopardizing medical service to personnel on active duty. 31 The dependent-care practices long pursued in military circles, however, left much to be desired. Positive statutory authority to accommodate dependent medical service was fragmentary; 32 this bred disparities in the types of care afforded and the categories of dependents able to seek them. 33 Moreover, an estimated 40 percent of dependents could not obtain medical care in military facilities, 34 primarily because of overcrowding, physician shortages, or residence outside the areas served by those facilities. 35

Page 957

5] Inadequacies of these sorts in the dependent medical care system in vogue generated what ultimately came to be recognized as "one of the most serious morale problems facing our Armed Forces." 36

A. The Statutory Scheme

In 1956, Congress passed the Dependents' Medical Care Act 37 as the means of rectifying these shortcomings. The broad purpose of the Act was "to create and maintain high morale throughout the uniformed services by providing an improved and uniform program of medical care for members of the uniformed services and their dependents." 38 Uniformity was attained by explication of the types of medical care that can and cannot be provided 39 and precise definition of the categories of dependents eligible for them. 40 The principal improvement was authority to contract for provision of medical care by civilian hospitals and physicians to dependents of active-duty military personnel, thus increasing the availability of medical services beyond the capacity of military hospitals and staffs. 41 Ten years later, by the Military Medical Benefits Amendments of 1966, 42 medical care available to dependents of active-duty personnel was expanded even further, 43 and still other changes have been wrought by subsequent legislation. 44

The truly outstanding feature of the Dependents' Medical Care Act, however, is that it converted the provision of military-dependent medical care from a mere act of grace to a full-fledged matter of right. The Act specifies, in the respects pertinent to this case, that "[a] dependent of a member of a uniformed service who is on active duty for a period of more than 30 days ... is entitled, upon request, to the medical and dental care prescribed by [the Act] in facilities of the uniformed services, subject to the availability of space and facilities and the capabilities of the medical and dental staff." 45 And, "[t]o assure that medical care is available for spouses and children of members of the uniformed services who are on active duty for a period of more than 30 days," the Act commands the Secretary of Defense, "after consulting with the other administering Secretaries, 46 [to]

Page 958

contract ... for medical care for those persons under such insurance, medical service, or health plans as he considers appropriate." 47 With but a single exception, an eligible dependent may elect to receive authorized medical care either in a military facility or a facility provided under a plan contracted for. 48 As the House Report declared, "for the first time in the history of the uniformed services, dependents will be provided with a statutory entitlement to medical care on a uniform basis throughout all the uniformed services." 49

Hospitalization is a form of care that the Act permits, 50 and an unmarried legitimate child under age 21 is an eligible dependent. 51 Appellant, Rachael's father, has elected civilian hospitals and physicians over military facilities and personnel, and has accepted a civilian hospital in the area to which he is now assigned. 52 It follows that but for the regulations the Department of Defense invoked and the interpretation the Department gave them, the injunction appellant sought should have been granted.

While access to statutorily-authorized military-dependent medical care is a legal entitlement, Congress has imposed limitations on the types of care that CHAMPUS can supply, 53 among which is a ban on "[d]omiciliary or custodial care." 54 The...

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  • Reich v. Gateway Press, Inc., No. 92-3746
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 6, 1994
    ...to the enactment of the statute, and stale (the most recent one in this case being twenty-four years old). See Barnett v. Weinberger, 818 F.2d 953, 961-62, nn. 73 and 74 (D.C.Cir.1987) (marshalling the case law discussing the proposition that "the prestige of a statutory construction by an ......
  • Sai Kwan Wong v. Doar, Docket No. 08-4992-cv.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 22, 2009
    ...interpretation, particularly when it is longstanding, of the agency charged with the statute's administration."); Barnett v. Weinberger, 818 F.2d 953, 960-61 (D.C.Cir. 1987) ("It is well established that the prestige of a statutory construction by an agency depends crucially upon whether it......
  • Reich v. Gateway Press, Inc., Nos. 92–3746
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 6, 1994
    ...to the enactment of the statute, and stale (the most recent one in this case being twenty-four years old). See Barnett v. Weinberger, 818 F.2d 953, 961–62, nn. 73 and 74 (D.C.Cir.1987) (marshalling the case law discussing the proposition that “the prestige of a statutory construction by an ......
  • Cohen v. Commissioner of Div. of Medical Assistance
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 2, 1996
    ...not the changed interpretation of a statute that earns the kind of deference the Commonwealth would need here. See Barnett v. Weinberger, 818 F.2d 953, 960-961 n. 74 (D.C.Cir.1987), and cases cited (deference depends on consistency of interpretation). Third, the Commonwealth's interpretatio......
  • Request a trial to view additional results
19 cases
  • Reich v. Gateway Press, Inc., No. 92-3746
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 6, 1994
    ...to the enactment of the statute, and stale (the most recent one in this case being twenty-four years old). See Barnett v. Weinberger, 818 F.2d 953, 961-62, nn. 73 and 74 (D.C.Cir.1987) (marshalling the case law discussing the proposition that "the prestige of a statutory construction by an ......
  • Sai Kwan Wong v. Doar, Docket No. 08-4992-cv.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 22, 2009
    ...interpretation, particularly when it is longstanding, of the agency charged with the statute's administration."); Barnett v. Weinberger, 818 F.2d 953, 960-61 (D.C.Cir. 1987) ("It is well established that the prestige of a statutory construction by an agency depends crucially upon whether it......
  • Reich v. Gateway Press, Inc., Nos. 92–3746
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 6, 1994
    ...to the enactment of the statute, and stale (the most recent one in this case being twenty-four years old). See Barnett v. Weinberger, 818 F.2d 953, 961–62, nn. 73 and 74 (D.C.Cir.1987) (marshalling the case law discussing the proposition that “the prestige of a statutory construction by an ......
  • Cohen v. Commissioner of Div. of Medical Assistance
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 2, 1996
    ...not the changed interpretation of a statute that earns the kind of deference the Commonwealth would need here. See Barnett v. Weinberger, 818 F.2d 953, 960-961 n. 74 (D.C.Cir.1987), and cases cited (deference depends on consistency of interpretation). Third, the Commonwealth's interpretatio......
  • Request a trial to view additional results

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