Murphy ex rel. Estate of Payne v. U.S.

• Decision Date: 24 September 2004
• Docket Number: No. 3:03CV500 (MRK).,3:03CV500 (MRK).
• Citation: 340 F.Supp.2d 160
• Court: U.S. District Court — District of Connecticut
• Parties: Kevin MURPHY, Administrator of the ESTATE OF Lawrence Martin PAYNE, Barbara Goren and Michael Payne, Darrell W. Darling and Karen A. Darling, Individually and as Co-Personal Representatives of the Estate of Adam Noel Darling, deceased, Kevin Murphy, Administrator of the Estate of Gail E. Dobert, Plaintiffs, v. UNITED STATES of America, Department of the Air Force and Colonel Charles H. Wilcox II, Defendants.

340 F.Supp.2d 160

Kevin MURPHY, Administrator of the ESTATE OF Lawrence Martin PAYNE, Barbara Goren and Michael Payne, Darrell W. Darling and Karen A. Darling, Individually and as Co-Personal Representatives of the Estate of Adam Noel Darling, deceased, Kevin Murphy, Administrator of the Estate of Gail E. Dobert, Plaintiffs, v. UNITED STATES of America, Department of the Air Force and Colonel Charles H. Wilcox II, Defendants.

No. 3:03CV500 (MRK).

United States District Court, D. Connecticut.

September 24, 2004.

Joel Thomas Faxon, Koskoff, Koskoff & Bieder, P.C., Bridgeport, CT, for Plaintiffs.

Lauren M. Nash, U.S. Attorney's Office, New Haven, CT, for Defendants.

MEMORANDUM OF DECISION

KRAVITZ, District Judge.

Plaintiffs, representatives of the estates of Commerce Department employees killed in a 1996 crash of a U.S. Air Force plane in Croatia, have brought this lawsuit seeking to compel the Department of the Air Force ("Air Force") to consider their damage claims under the Military Claims Act, 10 U.S.C. § 2733. Defendants have moved to dismiss this action, claiming that this Court lacks subject matter jurisdiction over Plaintiffs' claims.

This Court is deeply sympathetic to the plight of the families of these Commerce Department employees. Due to the negligence of their Government, they lost family members who were serving their country and the international community. That terrible tragedy has now been compounded by the Government's decision effectively to deny any compensation for those deaths, even though it has provided substantial compensation to other victims of the same accident. Regrettably, however, this Court lacks the power to assist these families. If they are to achieve the result they desire, they must take their case to Congress or back to the Air Force. Accordingly, the Court GRANTS Defendants' Motion to Dismiss [doc. # 10].

I.

There is no dispute about the underlying facts of this case. On April 3, 1996, a U.S. Air Force CT-43A, carrying a delegation from the U.S. Department of Commerce, including Secretary of Commerce Ron Brown, on a good will mission to Bosnia, crashed into the side of a mountain and exploded. Compl. [doc. # 1], ¶¶ 9, 10. Commerce Department employees Lawrence Martin Payne, Adam Noel Darling, and Gail Dobert were part of the delegation, and they, along with everyone else on board, were killed in the crash. Id. ¶ 9. An Air Force investigation determined that the proximate cause of the crash was "a failure of command" within the Air Force, "aircrew error," and the pilots' use of "an improperly designed instrument approach procedure." Id. ¶ 11.

Plaintiffs are representatives of the estates of Mr. Payne, Mr. Darling, and Ms. Dobert. Id. ¶¶ 2-7. Following the crash, each of the Plaintiffs filed claims against the Air Force for recovery of death damages and loss of consortium pursuant to the Military Claims Act ("MCA"), 10 U.S.C. § 2733,¹ and its enabling regulations, 32 C.F.R. § 842.49(b). Id. ¶ 12. The Air Force considered Plaintiffs' claims under both the MCA and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(k). Def's Mem. in Supp. of Mot. to Dismiss [doc. # 11], at 3.

The Air Force concluded that none of Plaintiffs could be paid under the FTCA because that statute specifically prohibits payment of claims arising in a foreign country. Id. Plaintiffs do not contest that ruling. The Air Force also denied Plaintiffs' MCA claims. The Air Force did so on the basis of an Air Force regulation, 32 C.F.R. § 842.50(r),² and Air Force Instruction 51-501,³ which provide that the exclusive remedy for Plaintiffs is the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8116(c).⁴ Compl. [doc. # 1], ¶¶ 15, 16. Under FECA, Plaintiffs will be paid an average of $1,000 each for the deaths. Pl's Mem. in Opp'n to Mot. to Dismiss [doc. # 16], at 8. By contrast to the decisions regarding the Plaintiffs, the Air Force chose to allow claims under the MCA for other victims of the crash who were ineligible for FECA benefits, and, without disclosing the actual amounts awarded, this Court notes that the Air Force agreed to make sizeable payments under the MCA to the estates of the other victims.

It is the Air Force's denial of Plaintiffs' MCA claims that is the basis of this lawsuit. The August 18, 1998 letter from Col. Charles H. Wilcox, II, Director of Civil Law and Litigation for the Air Force, denying Plaintiffs' appeal within the Department of the Air Force thoroughly explains the Air Force's reasoning. The letter is worth quoting at length:

As finally enacted, and as pertinent to the instant case, the plain-language of FECA's exclusive liability provision provides that where FECA will cover the injury at issue, no other recovery may be had by a Government employee, his representative or his next of kin, by way of an administrative proceeding under a Federal tort liability statute. By virtue of this language, a claimant under the MCA who seeks redress from an injury already covered by FECA, will be limited to FECA as the only means of recovery from the Government. This is because claims settlement under the MCA is an administrative proceeding, and the MCA itself is a Federal tort liability statute. As a tort liability statute, the MCA allocates losses arising out of human activities. It is considered "socially unreasonable" to require individuals to bear the burden of injury arising out of the noncombat activities of the armed forces. See Prosser and Keeton on the Law of Torts 6, (5th ed.1984). In the instant case, the burden of injury is covered by FECA, and FECA's exclusivity provision mandates non-payment of claims under the MCA where such claims are otherwise covered by FECA.

Almost since the inception of the Air Force fifty years ago, the Air Force has consistently utilized the MCA as a payment authority of last resort, to cover those situations where no other provision of law provides for payment by the Government. Such utilization has been incident to the MCA's status as an "authorization" statute, authorizing the payment of certain claims but not requiring payment of any claim. See Schneider v. United States, 27 F.3d 1327, 1333 (8th Cir.1994), cert denied, 513 U.S. 1077, 115 S.Ct. 723, 130 L.Ed.2d 628 (1995); Newman v. Soballe, 871 F.2d 969, 973 (11th Cir.1989); Collins v. United States, 67 F.3d 284, 286 (Fed.Cir.1995); Niedbala v. United States, 37 Fed.Cl. 43, 46 (Fed.Cl.1996). The non-usage of the MCA for claims covered by FECA has helped ensure a uniformity of benefits among all Government civilian employees. No matter the circumstances under which they may be injured or killed, all civil service employees receive the same benefits for their injury or death: FECA. To allow payment under the MCA in the instant case would not only violate FECA's exclusivity provision, but also permit a double recovery from the Government not otherwise generally provided to other civil service employees and their families facing similar losses.

Wilcox Letter, at 2-3 (emphasis added).

Plaintiffs exhausted administrative remedies by filing an unsuccessful appeal with the administrative appellate authority pursuant to Air Force Instruction 51-501 and 32 C.F.R. § 842.52(a). Compl. [doc. # 1], ¶ 13. The appellate authority upheld the original decision denying Plaintiffs' claims on the basis of 32 C.F.R. § 842.50(r) and Air Force Instruction 51-501, ¶ 3.7.9. Def's Mem. in Supp. of Mot. to Dismiss [doc. # 11], at 4.

Plaintiffs filed suit on March 20, 2003, arguing that Defendants' actions were arbitrary and capricious and otherwise contrary to law. At base, Plaintiffs assert that Air Force Regulation § 842.50(r) and Air Force Instruction 51-501, ¶ 3.7.9 — which provide that the Air Force will not pay a claim under the MCA claim if the claimant is eligible for benefits under FECA — rest on a misinterpretation of the FECA exclusivity provision, 5 U.S.C. § 8116(c). Pls' Supp. Mem. in Opp'n to Defs' Mot. to Dismiss [doc. # 34], at 2. Plaintiffs seek a declaratory judgment invalidating 32 C.F.R. § 842.50 and Air Force Instruction 51-501 and a writ of mandamus compelling Defendants to consider Plaintiffs' MCA claim without regard to that regulation and instruction. Compl. [doc. # 1], at 6. Defendants' Motion to Dismiss [doc. # 10] asserts that the Court lacks subject matter jurisdiction over the complaint under 10 U.S.C. § 2735, which provides that "[n]otwithstanding any other provision of law, the settlement of a claim under [the MCA] is final and conclusive."

II.

"When considering a motion to dismiss for lack of subject matter jurisdiction or for failure to state a cause of action, a court must accept as true all material factual allegations in the complaint." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998). However, the Second Circuit has emphasized that "[a] plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). Thus, "the district court must look at the substance of the allegations to determine jurisdiction." Cargill Int'l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1019 (2d Cir.1993).

III.

The first question this Court must resolve is whether it has subject matter jurisdiction over Plaintiffs' claims. Mem. in Supp. of Mot. to Dismiss [doc. # 11], at 1. Under 28 U.S.C. § 1331, district courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." However, this general grant of federal question jurisdiction is subject to any statutes Congress may enact that preclude judicial review. Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) ("The obvious effect of [the 1976 modification to § 1331], subject only to preclusion-of-review statutes created or retained by Congress, is to confer jurisdiction on federal courts to review agency action,...