Lewis v. Rumsfeld

Decision Date15 August 2001
Docket NumberNo. CIV. A. 00-2292(RMU).,CIV. A. 00-2292(RMU).
PartiesEvelyn L. LEWIS, Plaintiff, v. Donald RUMSFELD, Secretary, U.S. Department of Defense, et al., Defendants.
CourtU.S. District Court — District of Columbia

Eugene R. Fidell, Feldesman, Tucker, Leifer, Fidell & Bank LLP, Washington, D.C., Counsel for Plaintiff Lewis.

AUSA Claire Whitaker, Washington, D.C., Counsel for Defendants Rumsfeld, et al.

MEMORANDUM OPINION

URBINA, District Judge.

GRANTING THE DEFENDANTS' MOTION TO DISMISS
I. INTRODUCTION

This matter comes before the court on the defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). The defendants alternatively move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Evelyn L. Lewis ("the plaintiff" or "Commander Lewis"), brings this suit for damages under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. The plaintiff claims that her employer, the U.S. Department of Defense ("DOD"), acted arbitrarily and capriciously by issuing a regulation that bars her promotion to Commander status. Specifically, the plaintiff alleges that the Assistant Secretary of Defense's interpretation of Title 10 U.S.C. § 1094 is flawed because it requires all physicians to hold an unrestricted license, regardless of whether they provide direct patient care. See Compl. at 7-8. The defendants are Secretary of Defense Donald Rumsfeld, Acting Assistant Secretary of Defense J. Jarrett Clinton, and Secretary of the Navy Gordon R. England ("the defendants"), all named in their official capacities.

The defendants move to dismiss this action under Rule 12(b)(1) on the grounds that the court lacks subject-matter jurisdiction because the issue is not ripe and that the plaintiff failed to exhaust her administrative remedies. See Mot. to Dis. at 8-15. The plaintiff counters that the delay of her promotion is ripe because agency delay can be actionable. See Pl.'s Opp'n to Mot. to Dis. ("Pl.'s Opp'n") at 2. She argues that no further administrative action is necessary before the issue can be subject to judicial review. The defendants also move to dismiss under Rule 12(b)(6) on the ground that the DOD acted within its authoritative capacity when it issued its directive. See Mot. to Dis. at 17-20. Responding to this argument, the plaintiff contends that the DOD issued its directive without proper authority and therefore is not entitled to judicial deference. See Pl.'s Opp'n at 7-9.

For the reasons that follow, the court holds that because the statute that authorizes the Secretary of the Navy's delay of the plaintiff's promotion does not provide any standard for the Secretary's discretion, the decision is non-reviewable under the APA. The court also rules that the plaintiff has failed to exhaust her administrative remedies. Accordingly, the court will grant the defendants' motion to dismiss.

II. BACKGROUND

Evelyn Lewis, M.D., a physician since 1983, is an active-duty Commander in the Navy Medical Corps. See Compl. at 5. She currently holds the position of Vice Chair in the Department of Family Medicine, and her responsibilities include administration, instruction and research. See id. at 6. She does not provide direct patient care. See id. President Clinton nominated Commander Lewis for promotion to Captain status on April 21, 1999, and the Senate confirmed her the same year. See id. at 5. Commander Lewis holds a restricted medical license from the State of Oklahoma. See Mot. to Dis. at ¶ 2-4. The restricted license allows her to practice medicine only in federal facilities. See id.

Although she was to be promoted on August 1, 2000, Navy personnel delayed Commander Lewis's promotion on June 27, 2000. See Compl. at 7; Mot. to Dis. ¶ 13. On or about September 7, 2000, the Navy informed her that because she failed to meet the unrestricted license requirements of 10 U.S.C. § 1094, her promotion would be delayed for 18 months. See Compl. at 9; Mot. to Dis. ¶ 15. The Navy also informed her that if she does not obtain an unrestricted license by the end of this period, the Chief of Naval Personnel will recommend that her name be removed from the promotion list. See Compl. at 9-10. If she obtains her license, however, her promotion will take effect. See Defs.' Reply to Pl.'s Opp'n ("Reply") at 2.

On July 20, 1995, the Deputy Secretary of Defense issued DOD Directive 6025.13, which interpreted the language of 10 U.S.C. § 1094 to mean that health-care practitioners must possess and maintain unrestricted licenses before practicing. Practitioners who do not possess a license can practice under a written plan of supervision with a licensed person of the same discipline. See DOD Directive 6025.13 ¶ 4.1.4.1.

As amended effective October 1, 1999, section 1094(a)(1) provides:

A person under the jurisdiction of the Secretary of a military department may not provide health care independently as a health-care professional under this chapter unless the person has a current license to provide such care. In the case of a physician, the physician may not provide health care as a physician under this chapter unless the current license is an unrestricted license that is not subject to limitation on the scope of practice ordinarily granted to other physicians for a similar specialty by a jurisdiction that granted the license.

10 U.S.C. § 1094(a)(1). On January 29, 1999, Dr. Sue Bailey, then the Assistant Secretary of Defense, issued a memorandum interpreting the language of the newly amended 10 U.S.C. § 1094. Dr. Bailey's memorandum and subsequent supplements to that memorandum stated that all DOD physicians are subject to the unrestricted licensure requirement, regardless of whether they provide direct patient care or hold purely administrative positions. See Compl. at 3-4; Mot. to Dis. ¶¶ 8-9.

After she learned that the Navy had delayed her promotion, Commander Lewis responded by arguing that the memorandum both misinterprets 10 U.S.C. § 1094 and does not apply to her situation because she does not provide direct patient care. See Compl. at 7-9. She received no response. See id. at 10. Although Commander Lewis is currently taking steps to secure an unrestricted license, she brings this case before the court, seeking an examination of the DOD's interpretation of 10 U.S.C. § 1094. See id. at 10-11.

The defendants now move to dismiss. For the reasons that follow, the court will grant the defendants' motion.

III. ANALYSIS
A. Legal Standard

In reviewing a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the court must accept all the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See, e.g., Pitney Bowes v. United States Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C.1998) (Urbina, J.). On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. See District of Columbia Retirement Bd. v. United States, 657 F.Supp. 428, 431 (D.D.C.1987). In evaluating whether subject-matter jurisdiction exists, the court must accept all uncontroverted, well-pleaded facts as true and attribute all reasonable inferences to the plaintiffs. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court is not required, however, to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations. See, e.g., Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).

Moreover, the court need not limit itself to the allegations of the complaint. See Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, "[t]he court may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction in the case." Scolaro v. D.C. Bd. of Elections and Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000) (citing Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992)).

For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need only provide a short and plain statement of the claim and the grounds on which it rests. See FED. R. CIV. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss under Rule 12(b)(6) tests not whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim. See FED. R. CIV. P. 12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, the court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C.Cir.1996). Moreover, the court should draw all reasonable inferences in the nonmovant's favor. See Judicial Watch, Inc. v. Clinton, 880 F.Supp. 1, 7 (D.D.C.1995).

B. Ripeness

The APA governs judicial review of agency action. See 5 U.S.C. § 706(2); Public Citizen v. Heckler, 653 F.Supp. 1229, 1236 (D.D.C.1986). The APA authorizes a reviewing court to "compel agency action withheld or unreasonably delayed" and to "hold unlawful and set aside agency action, findings and conclusions of law" that are, among other things, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 5 U.S.C. § 706. A court has subject-matter jurisdiction to review agency action under the APA if the agency action is final. See 5 U.S.C. § 704 ("final agency action for which there is no other adequate remedy in a court [is] subject to judicial review").

In this case, the defendants argue that because the Navy has only...

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