Duncan v. West, Civil Action No. 96-1648-A.
| Decision Date | 04 June 1997 |
| Docket Number | Civil Action No. 96-1648-A. |
| Parties | Barbara DUNCAN, Plaintiff, v. Togo WEST, Jr., Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Mickale C. Carter, Law Office of Mickale C. Carter, Alexandria, VA, for Plaintiff.
Helen F. Fahey, U.S. Attorney, James E. Macklin, Assistant U.S. Attorney, Alexandria, VA (Lieutenant Colonel Richard O. Hatch, U.S. Army Litigation Division, Arlington, VA, of counsel), for Defendant.
This case presents the question, not yet resolved in this circuit, whether the U.S. Army's disallowance of an administrative claim for medical malpractice under the Military Claims Act ("MCA"), 10 U.S.C. § 2733, is subject to judicial review.
While stationed with her service member husband in Europe, plaintiff, Barbara Duncan ("Duncan"), received health care at the U.S. Army Health Clinic (4th General Dispensary), in Darmstadt, Federal Republic of Germany. On September 3, 1991, Duncan, who was four months pregnant, sought treatment at the U.S. Army Health Clinic for nausea, vomiting, and diarrhea associated with a decreased appetite. Captain Michael Pylman, a military physician, conducted a pelvic ultrasound examination, an abdominal examination, and urinalysis, concluding ultimately that Duncan suffered from gastroenteritis. Accordingly, Dr. Pylman advised Duncan to increase her intake of clear liquids, to maintain a bland diet, and to return to the military clinic if her symptoms persisted. Two days later, Duncan returned to the clinic complaining of continuing lower abdominal pain. Dr. Pylman referred her to Dr. Edwin Asemota, a civilian physician at the clinic.2 Like Dr. Pylman, Dr. Asemota detected nothing beyond gastroenteritis.
On September 6, 1991, Duncan was hospitalized by a German physician, Dr. Wolfgang Cikrit, for a severe streptococcal infection and preterm labor and treated for ten days with intravenous antibiotics. Then, on October 4, 1991, Duncan was readmitted to the hospital by another German physician, Dr. H.H. Strack, for an exploratory laparotomy. The surgical procedure revealed generalized peritonitis with multiple abscesses owing to a ruptured appendix. Because of a related loss of amniotic fluid, Duncan's German physicians advised her to terminate her pregnancy. She accepted this medical advice and an abortion was performed on October 26, 1991.
On August 31, 1993, Duncan filed an administrative claim against the United States in the amount of $2,000,000. Specifically, Duncan's claim alleged that Dr. Pylman's and Dr. Asemotas negligent failures to diagnosis and treat her appendicitis in a timely manner proximately resulted in a ruptured appendix, peritonitis, and premature termination of pregnancy. On December 21, 1994, the Army denied Duncan's claim.3 In doing so, the Army determined that Duncan had presented none of the classic symptoms of acute appendicitis (with the possible exception of a low-grade fever) on her initial visit to the clinic on September 3. Therefore, the Army concluded that Dr. Pylman's evaluation and assessment were appropriate in the circumstances. Further, the Army ruled that Dr. Asemota, who evaluated Duncan on September 5, did not qualify as a "civilian officer or employee" of the Army, and, as a consequence, the United States was not liable for Dr. Asemota's purportedly negligent acts or omissions.
After receiving an extension of time, Duncan filed an administrative appeal on May 1, 1995. The appeal contained over seventy pages of argument, an expert opinion, and other materials. Additionally, Duncan's counsel submitted supplemental material and argument which, although untimely, was accepted and considered by the appellate review board. On October 22, 1996, the Secretary of the Army, by and through his delegate, rejected Duncan's appeal and denied her medical malpractice claim.
On November 14, 1996, Duncan filed the instant action for judicial review of the Army's denial of her administrative claim. Then, on April 21, 1997, after the long-delayed service of the complaint,4 defendant, Secretary of the Army Togo West, Jr., filed the instant motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed.R.Civ.P. The Court heard oral argument and granted the motion to dismiss. Duncan v. West, C.A. No. 96-1648-A (Order, May 9, 1997). This Memorandum Opinion elaborates on the Court's ruling from the bench.
The government contends that the Court lacks subject matter jurisdiction over Duncan's action because: (1) the MCA expressly precludes judicial review of the military's disposition of administrative claims; and (2) even assuming, arguendo, the existence of a "constitutional exception" to this general preclusion rule, Duncan fails to allege a cognizable constitutional claim. Duncan disagrees, arguing instead: (1) that the Army's decision to deny her administrative claim raises a federal question under the MCA and is subject to judicial review as final agency action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702; and (2) that defendant denied her due process and equal protection pursuant to the Fifth Amendment.
As a threshold matter, Duncan contends that the Army erred when it applied the MCA, instead of the Foreign Claims Act ("FCA"), 10 U.S.C. § 2734, to her medical malpractice claim.5 Duncan's contention is unfounded. The FCA, by its express terms applies only to a claimant who is an "inhabitant of a foreign country." 10 U.S.C. § 2734.6 While Duncan contends that a military dependent is an "inhabitant of a foreign country" by virtue of his or her mere presence there, that contention contradicts the well-settled and consistent administrative interpretation of the FCA. In the regulations implementing the FCA, the Army expressly defines the phrase "inhabitant of a foreign country" to exclude dependents of military personnel who reside temporarily in a foreign country.7 And this regulatory definition finds firm support in the plain and ordinary meaning of the statutory term "inhabitant." An "inhabitant" is "[o]ne who resides actually and permanently in a given place, and has his domicile there." Black's Law Dictionary (6th ed.1990). Military dependents do not fall within this category. In short, the FCA does not apply to dependents of U.S. military personnel who temporarily reside outside the United States pursuant to military orders. Here, at the time of the events in question, Duncan was a permanent resident of this country; her transient presence in Germany was due only to her husband's military assignment. Accordingly, the Army properly construed her administrative claim as one asserted under the MCA, not the FCA.
The government argues that the Army's denial of Duncan's administrative claim deprives the Court of subject matter jurisdiction because the MCA explicitly precludes judicial review of "final and conclusive" decisions. Duncan contends that the MCA's "final and conclusive" language does not thwart judicial review, but merely prevents other federal agencies from reviewing and possibly rejecting the Army's proposed settlements of MCA claims. Thus, the dispositive issue here is whether the MCA prohibits claimants from seeking judicial review of the Army's determination.
In considering whether a federal statute permits judicial review of a final administrative decision, it is important to recognize the existence of a strong presumption in favor of such review. Abbott Labs. v. Gardner, 387 U.S. 136, 140-41, 87 S.Ct. 1507, 1510-12, 18 L.Ed.2d 681 (1967); Block v. Community Nutrition Inst., 467 U.S. 340, 349, 104 S.Ct. 2450, 2455-56, 81 L.Ed.2d 270 (1984). Even so, subject to certain constitutional constraints, this general anti-preclusion presumption is overcome where the statute in issue is "specific in withholding such review [or] upon its face give[s] clear and convincing evidence of an intent to withhold it." Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 671, 106 S.Ct. 2133, 2136, 90 L.Ed.2d 623 (1986); see also Lindahl v. Office of Personnel Mgmt., 470 U.S. 768, 778-79, 105 S.Ct. 1620, 1626-27, 84 L.Ed.2d 674 (1985).
Given this standard, analysis properly begins with the MCA's language, which authorizes the Secretary of the Army to promulgate regulations under which he or the Judge Advocate General "may settle, and pay in the amount not more than $100,000, a claim against the United States for ... personal injury or death ... caused by a civilian officer or employee ... or a member of the Army ... acting within the scope of his employment...." 10 U.S.C. § 2733(a). Section 2731 of the Act broadly defines the term "settle" to include the "disallowance" of a claim. 10 U.S.C. § 2731.8 Further, § 2735 of the Act provides that "[n]otwithstanding any other provision of law, the settlement of a claim under section 2733 ... of this title is final and conclusive." 10 U.S.C. § 2735.
The MCA could scarcely be clearer on its face. While Duncan argues that § 2735 does not overcome the presumption in favor of judicial review, the provision's plain and unambiguous language makes unmistakably clear that the Army's determination is final in all circumstances. Significantly, section 2735 does not merely state that an agency decision is "final"9 or "final and conclusive;"10 instead, it says that the Army's decision is "final and conclusive" "notwithstanding any other provision of law." The phrase "notwithstanding any other provision of law" obviously precludes an action under the APA, which provides a general cause of action for persons adversely affected by an agency's decision. 5 U.S.C. § 702. To interpret § 2735 as allowing judicial review of the Army's decision, as Duncan argues, would render that phrase meaningless.
The question of whether the MCA precludes judicial review is unresolved in this circuit, but not elsewhere. The overwhelming weight of judicial authority, indeed seven...
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...Rodrigue v. United States, 968 F.2d 1430 (1st Cir.1992); Broadnax v. United States Army, 710 F.2d 865 (D.C.Cir.1983); Duncan v. West, 965 F.Supp. 796 (E.D.Va.1997); Minns v. United States, 974 F.Supp. 500 (D.Md.1997).6 As one judge has noted, "the overwhelming weight of judicial authority, ......