Conte v. Department of Navy

• Decision Date: 13 February 1991
• Docket Number: Civ. A. No. 91-194.
• Citation: 756 F. Supp. 201
• Parties: Stephen CONTE, Plaintiff, v. DEPARTMENT OF the NAVY, Defendant.
• Court: U.S. District Court — District of New Jersey

756 F. Supp. 201

Stephen CONTE, Plaintiff, v. DEPARTMENT OF the NAVY, Defendant.

Civ. A. No. 91-194.

United States District Court, D. New Jersey.

January 25, 1991.

As Amended February 13, 1991.

Raymond A. Brown, Alan Bowman, Brown, Brown & Kologi, Newark, N.J., for plaintiff.

Michael Chertoff, U.S. Atty. by Jerome L. Merin, Asst. U.S. Atty., Newark, N.J., and Lieutenant Commander Richard T. Evans, JAGC, U.S. Navy, Judge Advocate General's Corp., U.S. Navy, for defendant.

OPINION

WOLIN, District Judge.

Plaintiff Stephen J. Conte, a radiologist and a Captain in the Medical Corps of the United States Naval Reserve, requests that this Court preliminarily enjoin the United States Navy from assigning him to serve as a radiologist in the Persian Gulf. Plaintiff's motion will be denied.

I. BACKGROUND

On August 22, 1990, President Bush authorized the Secretary of Defense "to order to active duty units and individual members not assigned to units, of the Selected Reserve." Executive Order 12727 of August 22, 1990, "Ordering the Selected Reserve of the Armed Forces to Active Duty." The President authorized this call-up based on his determination that it was "necessary to augment the active armed forces of the United States for the effective conduct of operational missions in and around the Arabian peninsula." Id.

Plaintiff is a member of the Selected Reserve and is based at the Naval Reserve Readiness Center, Kearny, New Jersey. Plaintiff's Navy medical records for 1988 and 1989 do not indicate any eye trouble or treatment. On August 24, 1990, Michael Harris, M.D., a retinologist, examined plaintiff. Administrative Record 41. Dr. Harris advised plaintiff, due to "his family history of macular disease, ... to avoid direct sun exposure." Id. On December 4, Hadley Phillips, D.O., an ophthalmologist, examined plaintiff. Id. 22.¹ Dr. Phillips stated that since plaintiff's initial visit to him in June of 1988, he "has complained of continual photophobia causing ocular pain, especially in instances where he interprets x-rays on the view box." Id. Dr. Phillips stated that since 1988 he had advised plaintiff to wear tinted glasses and avoid exposure to bright lights and sunshine. Id. Phillips recommended that plaintiff be "further examined by a Retinal Specialist." Id.

On December 8, 1990, plaintiff went to Commander Thomas Materna, Medical Corps, United States Naval Reserve, for a medical examination at the Naval Reserve Readiness Center, Kearny, New Jersey. Dr. Materna is an ophthalmologist. During that evaluation plaintiff told Commander Materna that he had a strong family history of macular degeneration. Plaintiff described various symptoms, including some blurring and distortion of his vision, which were consistent with degeneration of the macula. Plaintiff also presented letters from private ophthalmologists concerning his condition. Administrative Record 6-7.

Utilizing an ophthalmoscope, Dr. Materna examined plaintiff's eyes and noted some fine macular changes and a lesion in his left eye. He concluded that plaintiff had good vision but had a macular lesion; complained of increasing visual difficulty; described the symptomology of progressive macular degeneration; and indicated that there was a strong family history of degeneration. Id. Because this was a borderline case, an ophthalmological consult was prepared for a second opinion concerning plaintiff's physical qualifications. Id. Commander Materna made a provisional recommendation that plaintiff was not physically qualified to be retained in the Naval Reserve. Id.

The Commanding Officer, Naval Reserve Readiness Center, Kearny submitted plaintiff's case for review of "Fitness for Retention in the United States Naval Reserve" to Commander, Naval Military Personnel Command via Commander, Naval Reserve Readiness Command Region FOUR and Chief, Bureau of Medicine an Surgery on December 11, 1990. The Commanding Officer included both the medical examination form completed by Dr. Materna and the letters from Dr. Harris and from Dr. Phillips concerning plaintiff's medical condition. Administrative Record 34-42.

On December 20, before a second opinion was issued from a Navy doctor, plaintiff underwent examination by two private physicians. Mark Goldfarb, M.D., an ophthamologist, after considering plaintiff's complaints of blurred vision and family history of macular degeneration, diagnosed "Solar Retinopathy left eye greater then sic right" and "Macular drusen right eye." Administrative Record 23. Dr. Goldfarb advised plaintiff to stay out of the sun and avoid direct sun exposure, and to wear ultraviolet glasses "full time while outdoors." Id. Bradford Liva, M.D., a retinologist, discussed his similar, though more detailed, diagnosis with plaintiff and "strongly advised that Dr. Conte avoid exposure to direct sunlight, wear ultraviolet protective eyewear at all times, take Zinc, Vitamin E, Selenium and Vitamin C supplements daily and to monitor his central vision with an Amster grid daily to monitor for any progression of the disease, especially in the right eye."² Administrative Record 20.

Another private retinologist, Donald Green, M.D., Ph.D., examined plaintiff on January 9, 1991, before any Navy doctor rendered a second opinion. Dr. Green's diagnosis of macular degeneration was typical, although he did offer a prognosis that "any progression of the condition could produce significant and irreversible loss of central vision, especially in the left eye. Exposure to bright sunlight is one possible cause for progression of the macular degeneration. ..." Administrative Record 18.

Lieutenant Commander M. Fitzmaurice, Medical Corps, USN, examined plaintiff on January 11, 1991. Administrative Record 33. Dr. Fitzmaurice, an ophthalmologist, concluded that there were macular changes in both eyes from a possible scar from an insult, i.e., solar burns, but that plaintiff's visual function was good. Id. He discussed plaintiff's case with Captain John Sutphin, Medical Corps, USN, the advisor to the Surgeon General for Ophthalmology. They both concluded that plaintiff was fit for duty and deployment. Id.

Based upon Fitzmaurice's examination and conclusions, Commander, Naval Reserved Readiness Command Region FOUR, on January 16, 1990, forwarded a recommendation to retain plaintiff in the Naval Reserve. The Commander enclosed the results of the ophthalmological consultation in his endorsement. On January 17, 1991, the Bureau of Medicine and Surgery reviewed all the material submitted in plaintiff's case and concluded that he was physically qualified for all duties consistent with grade and designator.³ Administrative Record 31-32.

On January 16, plaintiff was called up for active duty and told to report on January 19. On January 17, Commander, Naval Military Personnel Command assigned plaintiff Physical Risk Classification "A" based on the information contained in the letter from Chief, Bureau of Medicine and Surgery. Physical Classification "A" means that he is physically qualified for assignment to or retention in the Naval Reserve and all duties consistent with his grade and designator. Administrative Record 29-30.

On January 18, 1991, plaintiff filed this action and requested an order to show cause for a preliminary injunction. At that time, the parties entered into a consent order requiring plaintiff to report for processing as directed by the Navy. The Navy was to "provide an examination of plaintiff by a specialist in ophthalmology." That same day, Dr. Liva wrote the Navy to state that his evaluation and the evaluations of Drs. Harris, Green and Shakin "concur in that Dr. Conte's retinal damage would be worsened by unnecessary exposure to sunlight and ultraviolet radiation." Administrative Record 16. Dr. Liva also stated that he felt that plaintiff's proposed assignment to the Persian Gulf "would expose him to undue and excessive amounts of ultraviolet light and would greatly accelerate his Macular Degeneration. This would undoubtedly cause progressive and permanent deterioration in his vision." Id.

On January 20, plaintiff was examined by Commander George Miller, Medical Corps, United States Naval Reserve, who is an ophthalmologist. Dr. Miller did not mention macular degeneration in his examination report. He did find retinal pigment epithelial defects, which "may be solar induced." Administrative Record 5. He recommended that plaintiff "may wear UV filtering sunglasses." Id. On January 22, Donald Hauler, Medical Corps, USN, Bureau of Medicine and Surgery, reviewed and considered the record discussed supra, including the letters from private physicians, and declared plaintiff qualified for all duties consistent with rank and designator. Dr. Hauler noted the consistency of the findings and recommendations of Drs. Fitzmaurice and Miller, but did not mention the findings or recommendations of Dr. Materna or any of the private physicians. He expressly considered the difference in qualifications between an ophthalmologist and a retinologist.

II. DISCUSSION

The Court has jurisdiction over this case under one or more of the following grants of jurisdiction: the Administrative Procedure Act, 5 U.S.C. § 701; mandamus, 28 U.S.C. § 1361; and habeas corpus, 28 U.S.C. § 2241. The Court will not deny plaintiff's motion for a preliminary injunction for failure to state one or more of these basis of jurisdiction as required by Federal Rule of Civil Procedure 8(a)(1). Plaintiff has already moved to amend his complaint to allege APA and mandamus jurisdiction. While that motion is not now before the Court, 28 U.S.C. § 1653 permits the amendment of defective allegations of jurisdiction at any time. Despite claiming that the Navy has violated his substantive due process right to personal security and safety, plaintiff has not alleged federal question jurisdiction under 28 U.S.C. § 1331. However, the Court will not insist on technical compliance with Rule 8(a)(1) where the...