Lugo v. Simon

• Decision Date: 20 July 1976
• Docket Number: Civ. No. C74-345.
• Citation: 426 F. Supp. 28
• Parties: Refugio LUGO et al., Plaintiffs, v. William E. SIMON, Sec'y., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

426 F. Supp. 28

Refugio LUGO et al., Plaintiffs, v. William E. SIMON, Sec'y., et al., Defendants.

Civ. No. C74-345.

United States District Court, N. D. Ohio, W. D.

July 20, 1976.

COPYRIGHT MATERIAL OMITTED

John P. Worcester, Toledo, Ohio, Marvin H. Feingold, Ohio Migrant Legal Action Program, Bowling Green, Ohio, for plaintiffs; Marilyn G. Rose, Center for Law and Social Policy, Washington, D. C., of counsel.

John F. Hayward, John Czarnecki, Hayward, Cooper, Straub, Walinski, & Cramer, Toledo, Ohio, for Defendants, Medical College of Ohio, Hospital and Whitney Spaulding.

Leo W. Kenny, Fremont, Ohio, for Memorial Hospital of Sandusky County and John Gettman.

Richard B. McQuade, Sr., Swanton, Ohio, for Fulton County Health Center and Victor Serino.

John H. Hanna, James Funkhouser, Hoeffel, Funkhouser & Short, Napoleon, Ohio, for Heller Memorial Hospital, Inc., and Carey Plummer.

John G. Mattimoe, Marshall, Melhorn, Bloch & Belt, Toledo, Ohio, for Toledo Hospital, Bryan Rogers, Memorial Hospital of Sandusky County, John Gettman, Wood County Hospital, and William Culbertson.

Harry G. Roebke, Middleton & Roebke, Bowling Green, Ohio, for Wood County Hospital, and William Culbertson.

James W. Stuehringer, Donald P. Muenz, Asst. Attys. Gen., Columbus, Ohio, for William W. Cashman, M.D., and William Shirkey.

Patrick J. Foley, Asst. U. S. Atty., Toledo, Ohio, for Federal defendants.

John J. McCarthy, Chief, General Litigation Sec., Tax Div., U. S. Dept. of Justice, Washington, D. C., John M. Cunningham, Donald J. Gavin, Trial Attys., Tax Div., U. S. Dept. of Justice, Washington, D. C., for William E. Simon, and Donald C. Alexander.

Sidney Edelman, Asst. Gen. Counsel for Public Health, Dept. of H.E.W., Rockville, Md., Shirley L. Moscow, H.E.W., Chicago, Ill., for Caspar W. Weinberger.

MEMORANDUM AND ORDER

DON J. YOUNG, District Judge.

This cause came to be heard upon the motion of the defendant Secretary of Health, Education and Welfare to dismiss the complaint for want of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Rules 12(b)(1) & 12(b)(6), Fed.R.Civ.P. In the alternative, the defendant moves for summary judgment, Rule 56, Fed.R.Civ.P. The plaintiffs have opposed the motions and have filed a cross motion for partial summary judgment.

This case arises under Title VI of the Public Health Services Act, 42 U.S.C. § 291, et seq., commonly known as the Hill-Burton Act, and the regulations promulgated thereunder, 42 C.F.R. Part 53. The plaintiffs are seeking to enforce the provisions of the title which require that the states participating in the Hill-Burton program provide adequate hospitals to furnish needed services for persons unable to pay therefor. Plaintiffs, furthermore, are seeking to enforce contractual commitments of defendant hospitals to the Ohio Department of Health and to the United States to provide a reasonable volume of services for people who are unable to pay for them.

The defendant secretary, in his motion, argues that he has fulfilled his responsibility to ensure that state plans which have been submitted to him for approval fully comply with the statutory and regulatory scheme of the Hill-Burton Act and that he has thus fulfilled his enforcement obligations under the Act, 42 U.S.C. §§ 291c, 291e, 291g. The defendant further alleges that the primary responsibility for the administration and enforcement of the Act lies with the state Hill-Burton agency. He, therefore, contends that the case should be dismissed as to him because he has fulfilled his obligations and because the state agency has primary jurisdiction of this matter. The plaintiffs contend that the doctrine of primary jurisdiction does not apply to this case and that the defendant Secretary has not carried out his obligations under the Act. They conclude, therefore, that the Court should not dismiss the Secretary and should continue jurisdiction over the subject matter of this action. In their summary judgment motion, the plaintiffs challenge 42 C.F.R. §§ 53.111(a), 53.111(d) and 53.113(a) as being inconsistent with the Hill-Burton Act.

Some preliminary matters must first be discussed. There is apparently some confusion as to the status of the plaintiffs' second amended complaint. On February 24, 1975, the Court granted leave to file said amended complaint and it was filed the same day. Also, the defendant has filed a motion to strike portions of the plaintiffs' responsive pleading and part of their motion for partial summary judgment. The motion is not well taken. To the extent the material objected to is redundant or immaterial, the Court, of course, will ignore it. The Court, however, does not find the material to be prejudicial to the defendant and, therefore, will not order it stricken from the record.

As one argument in support of its motion to dismiss, the defendant contends that this Court should not entertain this case because of the presence of other cases, some decided, some pending, which present the identical issues being litigated here. The plaintiffs challenge the assumption that the issues presented here are identical. Both sides agree, however, that any such dismissal is solely within the sound exercise of the Court's discretion. The Court is not willing to exercise that discretion but rather will decide the case itself. It is clear that none of the other cases cited by the defendant are binding upon this court. In such a situation, the Court is unwilling to deprive these plaintiffs of their day in court.

A much more serious problem, however, is the question of primary jurisdiction. The doctrine of primary jurisdiction is not one which allocates power between a court and an administrative agency. Rather, it is simply the question of who shall make the initial determination. United States v. Philadelphia National Bank, 374 U.S. 321, 353, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963).

"The holding that the board had primary jurisdiction, in short, was a device to prepare the way, if the litigation should take its ultimate course, for a more informed and precise determination by the Court of the scope and meaning of the statute as applied to those particular circumstances."¹

The criteria used to decide whether resort to the agency should be had before a judicial determination is made are the "character of the controverted question and the nature of the inquiry necessary for its solution." Great Northern Railway Co. v. Merchants Elevator Co., 259 U.S. 285, 42 S.Ct. 477, 479, 66 L.Ed. 943 (1922). If the inquiry is essentially one of fact and of discretion in technical matters, the agency should make the initial determination. Only in this way can some degree of uniformity with respect to agency policy and interpretation be maintained. Id. at 291, 42 S.Ct. 477. Often such cases involve voluminous and conflicting evidence of a technical nature and it is not only helpful but necessary for the Court initially to defer to that body which has the expertise to deal with such facts. Id. If, however, the question presented is one of law, a judicial question is presented and the Court should make the determination in the first instance. The doctrine of primary jurisdiction, then, is ultimately a decision by the court as to whether the "institution of administrative proceedings is `likely to make a meaningful contribution to the resolution of this law-suit.'" Ricci v. Chicago Merchantile Exchange, 409 U.S. 289, 306, 93 S.Ct. 573, 583, 34 L.Ed.2d 525 (1973). If the answer is yes, the trial court should stay its hand; if no, it should make the initial determination.

With respect to the issue of the validity of the particular regulations being challenged by the plaintiff, both sides seem to agree that this Court has primary jurisdiction. The more difficult issue is whether the court should make the first determination as to defendants' compliance with the statute and its regulations. If this were a case in which the only issue was the defendant hospitals' compliance with the statute or whether they were living up to assurances given to the state agency, clearly the Court would not have primary jurisdiction. However, this Court does not see how the Ohio Department of Health can determine its own compliance, or the compliance of the Secretary, with the Hill-Burton Act and the regulations promulgated thereunder. The compliance of the Secretary is a question of law which the judiciary must, in the first instance, resolve. And, while there will certainly be disputes of fact in this regard, the evidence required will not be of the type which requires the discretion or technical expertise of an administrative body. Such a decision by the Court will not disrupt the uniformity required in agency determinations since the defendant hospitals must certainly expect that the Secretary and the State Hill-Burton Agency will act in accordance with the Act and its regulations. The Court, therefore, will not stay its hand while administrative proceedings commence but rather will continue to exercise jurisdiction over the subject matter of this case.

The above ruling, in effect, also disposes of the defendant Secretary's motion to dismiss for failure to state a claim or, in the alternative for summary judgment. In a motion to dismiss under Rule 12(b)(6), only the sufficiency of the complaint is being tested. In making such an evaluation, courts apply a liberal standard and accept the allegations of the complaint as true. L'Orange v. Medical Protective Company, 394 F.2d 57 (6th Cir. 1968). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff could prove no set facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Clearly the complaint in this case meets the standard and states a claim for relief against the defendant Secretary. With respect to summary judgment...