Schism v. U.S.

• Decision Date: 10 June 1997
• Docket Number: No. 3:96cv349/RV.,3:96cv349/RV.
• Citation: 972 F.Supp. 1398
• Parties: William O. SCHISM and Robert Reinlie, Plaintiffs, v. UNITED STATES of America and William Cohen as Secretary of Defense, Defendants.
• Court: U.S. District Court — Northern District of Florida

Page 1398

972 F.Supp. 1398

William O. SCHISM and Robert Reinlie, Plaintiffs, v. UNITED STATES of America and William Cohen as Secretary of Defense, Defendants.

No. 3:96cv349/RV.

United States District Court, N.D. Florida, Pensacola Division.

June 10, 1997.

COPYRIGHT MATERIAL OMITTED

J.D. Roy Atchison, Northern Dist. of Florida, Pensacola, FL, Shirley Wang, U.S. Dept. of Justice, Washington, DC, for Defendant.

George Everette Day, Day and Meade, P.A., Fort Walton Beach, FL, for Plaintiffs.

ORDER

VINSON, Chief Judge.

Pending is the motion to dismiss of the defendants. (doc. 11) A hearing on the motion was held on March 26, 1997.

I. BACKGROUND

Plaintiffs William O. Schism and Robert L. Reinlie¹ are retired veterans over 65 years of age, each of whom has served his country for over twenty years in the armed forces. They retired in 1979 and 1968, respectively. Plaintiffs bring this suit alleging breach of contract, age discrimination, and violation of their Fifth Amendment right to due process. They also seek mandamus.

According to the plaintiffs, they joined and remained in the United States armed forces on the basis of promises by the armed forces that they would receive free lifetime medical care for themselves and their dependents. Plaintiffs allege that the medical treatment as promised was not subject to the restrictions of Medicare and Social Security. Plaintiffs conceded at oral argument that no statutes or regulations provide that they are entitled to these benefits indefinitely, but contend that such promises were part of recruiting manuals and other authoritative written representations. The plaintiffs have submitted general written materials provided by the military service branches which specify that military retirees are entitled to medical treatment and hospitalization as a part of their retirement benefits. Plaintiffs did not offer, or attempt to offer, any evidence or argument regarding representations or promises made specifically to them.

Plaintiffs contend that the United States has breached its contract to provide them with free medical care as part of their retirement compensation.² Plaintiffs allege that while the United States fulfilled its obligations under the "contract" for many years by providing free health care, access to health care has recently been revoked or limited, and the plaintiffs have been forced to rely on Medicare, requiring payments by them and resulting in unanticipated out-of-pocket expenses. Plaintiffs also assert in their complaint that they have suffered damages because civilian health care is inferior to that provided by the military.

The plaintiffs further contend that the actions of the United States constitute age discrimination because the current military health care plan is age based, making it arbitrary and unreasonably discriminatory against aged veterans. Plaintiffs complain that the government's deduction of money from their social security payments to pay for the Medicare benefits constitutes a seizure of their property which violates their due process rights under the Fifth Amendment. They seek an order requiring the United States to cease deducting payments from their retired pay and to provide plaintiffs and their dependents the unlimited free medical care for which they allegedly contracted.

Defendants have moved to dismiss the plaintiffs' claims pursuant to Rules 12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure, on the basis that this court does not have subject matter jurisdiction and that the allegations set forth by plaintiffs fail to state a claim.

II. ANALYSIS

A. Motion to Dismiss

When subject matter jurisdiction is attacked under Rule 12(b)(1), the plaintiff bears the initial burden of showing that jurisdiction is proper. In ruling on a Rule 12(b)(1) motion, the court may look to materials outside the pleadings. Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). Indeed, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id.

A Rule 12(b)(6) motion to dismiss for failure to state a claim cannot be granted unless the complaint alleges no set of facts which, if proved, would entitle the plaintiff to relief. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96 (1974); Blackston v. State of Alabama, 30 F.3d 117, 120 (11th Cir.1994). On a motion to dismiss, the court must accept all the alleged facts as true and find all inferences from those facts in the light most favorable to the plaintiff. See, e.g., Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir.1994). However, regardless of the alleged facts, Rule 12(b)(6) does authorize a court to dismiss a complaint on a dispositive issue of law. Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993).

B. Jurisdiction

(1) Sovereign Immunity. The United States is a sovereign and is immune from suit unless it has expressly waived such immunity and consented to be sued. United States v. Nordic Village, Inc., 503 U.S. 30, 32, 112 S.Ct. 1011, 1014, 117 L.Ed.2d 181 (1992); United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940). Waiver of sovereign immunity is a prerequisite to subject matter jurisdiction in this court. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941).

In this case, plaintiffs assert claims under the Little Tucker Act [28 U.S.C. §§ 1346(a)(2), 1349, 1491],³ the Federal Tort Claims Act [28 U.S.C. § 1346(b)], the Fifth Amendment to the United States Constitution, and the Mandamus Act [28 U.S.C. § 1361]. The defendants contend that the plaintiffs have not shown a waiver of sovereign immunity except under the Little Tucker Act.⁴

It is obvious that the plaintiffs have not alleged any facts which support a claim under the Federal Tort Claims Act. Likewise, the United States has not waived its sovereign immunity from suit for money damages arising from constitutional violations, such as alleged violations of the Fifth Amendment. Cato v. United States, 70 F.3d 1103 (9th Cir.1995); Kurinsky v. United States, 33 F.3d 594, 600 (6th Cir.1994), cert. denied, 514 U.S. 1082, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995); United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir.1982).⁵ Nor is this alleged to be a Bivens action in any way. Finally, the present action does not meet the criteria for waiver of sovereign immunity under the Mandamus Act. See Coggeshall Development Corp. v. Diamond, 884 F.2d 1, 3-4 (1st Cir.1989); McClain v. Panama Canal Comm'n, 834 F.2d 452, 454 (5th Cir.1987); Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir.1980).⁶ Thus, for jurisdictional purposes, the only possible grounds for plaintiffs' claims are under the Little Tucker Act, the Fifth Amendment (for non-monetary relief), and the Age Discrimination Act. These are each discussed below.

(2) Reviewability of Internal Military Decisions. The defendants initially contend that it is generally improper for courts to review internal military decisions, such as the allocation of medical benefits. According to the defendants, the plaintiffs' Fifth Amendment claim is subject to the balancing test established by the former Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971).

The beginning point of this analysis is Chappell v. Wallace, 462 U.S. 296, 304, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983), where the Supreme Court of the United States held that enlisted military personnel are precluded from maintaining suits against superior officers to recover damages for injuries resulting from violations of constitutional rights in the course of military service. The former Fifth Circuit, in Mindes v. Seaman, employed a multi-factor test to determine whether a particular constitutional claim asserted by members of the armed forces against their superiors is barred from suit. The Eleventh Circuit has subsequently held that district courts are required to employ the Mindes test before considering the merits of constitutional challenges to military decisions. Stinson v. Hornsby, 821 F.2d 1537 (11th Cir.1987).

To obtain review of an internal military decision, a plaintiff must allege that the military has violated a statutory, regulatory, or constitutional provision, and must then demonstrate that he has exhausted his available intra-service remedies. Stinson, 821 F.2d at 1540. After a plaintiff meets this threshold, the district court must balance the affected interests to determine the propriety of review of the military's decision. The factors to be examined are:

(1) The nature and strength of the plaintiff's challenge to the military determination ... (2) The potential injury to the plaintiff if review is refused. (3) The type and degree of anticipated interference with the military function ... [and] (4) The extent to which exercise of military expertise or discretion is involved.

Stinson, 821 F.2d at 1540 (citation omitted).

The plaintiffs allege that the defendants violated their Fifth Amendment rights by depriving them of their property rights in free post-retirement medical care. I will assume for purposes of this motion that the plaintiffs have exhausted any available intra-service remedies.

The defendants contend that if the plaintiffs have met the threshold showings, application of the four factors of the Mindes test shows that the decisions of the military regarding provision of health care to retirees is not reviewable. The threshold question is whether the medical care decision is a "military decision" at all, and it arguably is not. Nevertheless, for purposes of this pending motion only, I will review the Mindes factors as they may be applicable.

The prudential considerations set forth in the factors of the Mindes test sufficiently favor the plaintiffs to allow an examination of their claim on the merits. First, the plaintiffs have a strong...