Levy v. Urbach

• Citation: 651 F.2d 1278
• Decision Date: 02 February 1981
• Docket Number: No. 78-2227,78-2227
• Parties: Dr. Louis LEVY, Plaintiff-Appellant, v. Dr. Karl F. URBACH, Defendant-Appellee. Steven DAVIS, Plaintiff-Appellant, v. John C. DROKE, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1278

651 F.2d 1278

Dr. Louis LEVY, Plaintiff-Appellant, v. Dr. Karl F. URBACH, Defendant-Appellee.

Steven DAVIS, Plaintiff-Appellant, v. John C. DROKE, Defendant-Appellee.

No. 78-2227.

United States Court of Appeals Ninth Circuit.

Argued July 8, 1980.

Submitted July 23, 1980.

Decided Feb. 2, 1981.

Mark I. Schickman, San Francisco, Cal., for plaintiff-appellant.

Al J. Daniel, Jr., Alice Daniel, Dept. of Justice, Washington, D. C., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before ANDERSON and TANG, Circuit Judges, and CRAIG, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

The plaintiffs in these consolidated actions appeal the granting of summary judgment to the defendants in the Davis action, and the dismissal with prejudice of the complaint in the Levy action. Because we find that the defendants were not entitled to judgment as a matter of law, we affirm in part and reverse in part and remand for further proceedings.

I. BACKGROUND

All of the plaintiffs claim entitlement to incentive pay for their work with victims of Hansen's Disease, more commonly known as "leprosy," while employed at the United States Public Health Service ("the Service") hospital located in San Francisco, California. Dr. Louis Levy, the named plaintiff in the Levy action, is a physician commissioned in the Service, assigned to and the Director of the Leprosy Clinic at the San Francisco hospital. Under 42 U.S.C. § 255, the Service must receive into any hospital suitable for accommodation of leprosy victims any person afflicted with the disease. Dr. Levy's complaint alleged that since at least January 1960, the San Francisco facility had been receiving and treating patients afflicted with leprosy. Filing both individually and on behalf of an alleged class consisting of all persons who have been employed at the San Francisco facility and have been exposed to intimate contact with leprosy patients during the course of their duties, Dr. Levy claimed that he and the class members were entitled to $110.00 per month beyond their normal compensation as hazardous duty pay under the Career Compensation Act, 37 U.S.C. § 301, et seq., which provides inter alia for such payment to members of the uniformed services engaged in duty "involving intimate contact with persons afflicted with leprosy." 37 U.S.C. § 301(a)(7).

Dr. Levy later filed an amended complaint on behalf of noncommissioned officers at the San Francisco facility as a class claiming entitlement for them under a portion of the Public Health Service Act of 1944, 47 U.S.C. § 210(e), which provides for payment of additional compensation to noncommissioned officers of the Service for duty requiring intimate contact with leprosy patients. The amended complaint also added two more named plaintiffs, Dr. Michael Blumlein and Dr. Philip J. O'Keefe, both members of the Service assigned to the San Francisco facility. The Levy plaintiffs sought both a money judgment and a writ of mandamus directing payment of the judgment.

The plaintiffs in the Davis action, a group of commissioned officers in the Service serving at the San Francisco facility, also seek relief under 37 U.S.C. § 301. Jurisdiction in both the Levy and Davis actions was based upon 28 U.S.C. § 1346 because no individual claim was in excess of $10,000.00, and each was founded upon an act of Congress. ¹

The parties in Davis filed cross-motions for summary judgment, and the Levy plaintiffs filed a motion for class certification. Following a consolidated evidentiary hearing, the district court granted the defendants' motion for summary judgment in Davis, denied the class certification motion in Levy, ² and dismissed the Levy complaint sua sponte. The district court's opinion appears at 447 F.Supp. 712.

The district court found that plaintiffs' claims under the Career Compensation Act were barred by Executive Order 11157, which implements the Act, and which defines the term "duty involving intimate contact with persons afflicted with leprosy" to mean duty performed by a member of the Service assigned to a "leprosarium" for a period of 30 days or more. The district court found that E.O. 11157 was not so palpably inconsistent with the Act as to nullify the Order. 447 F.Supp. at 716-717. The court further found, after hearing evidence on the issue, that the San Francisco facility was not a "leprosarium" within the meaning of the Order. With regard to the claim under 42 U.S.C. § 210(e), the court noted that the plaintiffs did not challenge the validity of its implementing regulation, 42 C.F.R. § 22.1, which conditions payment of additional compensation for work with leprosy patients for noncommissioned officers upon assignment to full-time duty for a period of 30 days or more to a station of the Service "devoted" to the care of leprosy patients. 447 F.Supp. at 719. The district court deferred to the Service's interpretation of the regulation, citing Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1964), for the proposition that an agency's interpretation of its own regulation is entitled to great deference unless plainly erroneous or inconsistent with the regulation. The court also noted that, in view of its holding that commissioned officers were not entitled to incentive pay for work with leprosy patients under E.O. 11157, it would be anomalous to hold that noncommissioned Service officers and civil employees were entitled to such pay. 447 F.Supp. at 722. Only the issue of entitlement under the Career Compensation Act and E.O. 11157 is before us on this appeal. ³

II. DISCUSSION

It is important at the outset to lay out the precise language of the Career Compensation Act, and of the Executive Order implementing it. The plaintiffs' claim rests on the wording of 37 U.S.C. § 301(a)(7), which provides that:

"Subject to regulations prescribed by the President, a member of a uniformed service who is entitled to basic pay is also entitled to incentive pay, in the amount set forth in subsection (b) or (c) of this section, for the performance of hazardous duty required by orders. For the purposes of this subsection, 'hazardous duty' means duty-

"(7) involving intimate contact with persons afflicted with leprosy...."

The district court's denial of plaintiffs' claim rested upon § 109(a) of E.O. 11157, which provides that:

"The term 'duty involving intimate contact with persons afflicted with leprosy' shall be construed to mean duty performed by any member who is assigned by competent orders to a leprosarium for the performance of duty for a period of 30 days or more or for a period of instruction, whether or not such leprosarium is under the jurisdiction of one of the uniformed services."

On appeal, plaintiffs argue that E.O. 11157 is inconsistent with the Career Compensation Act to the extent that it predicates eligibility for leprosy incentive pay upon the place of duty, rather than the nature of the duty. Plaintiffs argue in the alternative that even if E.O. 11157 is a valid interpretation of the statute, the San Francisco facility qualifies as a "leprosarium." They also argue that the district court erroneously admitted certain evidence at the hearing which it had earlier ruled irrelevant. Because we agree with the plaintiffs' first contention, we do not reach their last two arguments.

The parties stipulated below to a lengthy statement of undisputed facts regarding the care of leprosy patients at the San Francisco facility. They agreed that a number of duties can constitute "intimate contact" with persons afflicted with leprosy, including, inter alia, physical contact, taking of nasal washings, taking of skin biopsies, and direct contact with a bodily specimen of a leprosy patient. The parties did not reach agreement on the issue of how contagious leprosy might be. While it is clear that at least some of the physicians and staff members assigned to the San Francisco facility perform the types of duties which have been stipulated to involve "intimate contact," it is also clear that the facility offers a wide spectrum of comprehensive medical care to patients afflicted with a wide variety of diseases, and the percentage of the average daily in-patient/out-patient population consisting of leprosy patients is very small. Nevertheless, the San Francisco hospital provides comprehensive leprosy care and treats approximately one-fifth of all leprosy patients in the United States.

In rejecting the plaintiff's contention that E.O. 11157 was an inappropriate implementation of the leprosy incentive pay provisions of the Career Compensation Act, the district court relied upon our decision in Ramirez v. I. N. S., 550 F.2d 560 (9th Cir. 1977). In Ramirez, we quoted the standard for measuring the validity of a regulation against the language of the statute which it purports to implement announced in Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846 (1900). 550 F.2d at 564. According to Boske:

"A regulation ... should not be disregarded or annulled unless, in the judgment of the court, it is plainly and palpably inconsistent with law. Those who insist that such a regulation is invalid must make its invalidity so manifest that the court has no choice except to hold that the Secretary has exceeded his authority and employed means that are not at all appropriate to the end specified in the act of Congress."

177 U.S. at 470, 20 S.Ct. at 706. The district court found that the plaintiffs had failed to meet the high burden of proof imposed by Boske and Ramirez.

Here we deal not with a regulation promulgated by an agency, but with an Executive Order directly implementing a grant of authority under a statute. We must pause to inquire as a preliminary question whether a different standard is applicable. We conclude that for the purposes of this case, the "plainly and palpably inconsistent" standard of Boske is appropriate. We have located three cases...