Tarpeh-Doe v. US
Decision Date | 11 May 1989 |
Docket Number | Civ. A. No. 88-0270-LFO. |
Citation | 712 F. Supp. 1 |
Parties | Linda Wheeler TARPEH-DOE, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants. |
Court | U.S. District Court — District of Columbia |
John Jude O'Donnell and Randell Hunt Norton, Thompson, Larson, McGrail, O'Donnell & Harding, Washington, D.C., for plaintiffs.
Wilma A. Lewis, Asst. U.S. Atty., Washington, D.C., for defendants.
This case involves the claim of Linda Wheeler Tarpeh-Doe, employed by the Agency for International Development ("AID"), and her infant daughter. The mother was assigned in 1981 to the U.S. Embassy in Monrovia, Liberia, married Nyenpan Tarpeh-Doe, and on May 18, 1982, gave birth in a clinic in Monrovia to Nyenpan Tarpeh-Doe II, the minor plaintiff in this action. On the morning of June 5, 1982, the baby "became rigid," Second Amended Complaint at ¶ 5, and his mother brought him immediately to embassy physicians. Following examination, an embassy physician informed plaintiff that the baby would be medically evacuated to the United States that night. Later in the morning, however, an American missionary physician conducted a further examination, ordered the baby transferred to a Liberian hospital, over the objection of plaintiff, and withdrew the approval to evacuate the baby. Plaintiff continued to demand evacuation, as originally recommended. The baby's condition remained unimproved, and on June 17, 1982, evacuation was finally effected.
In a United States hospital, the baby's illness was correctly diagnosed, and treatment undertaken. The child is presently institutionalized in Denver, Colorado; he is blind, and may suffer permanent brain damage. Plaintiff claims that she was never informed of the practice for State Department and AID employees to be permitted to deliver their babies in the United States, an option which she would have chosen had she known of its existence.
On January 31, 1984, plaintiffs filed an administrative claim with the Department of State for damages and injury. Upon its denial, they filed an action here against the United States and the Secretary of State for negligence and for denial of due process. Now before the court is plaintiffs' claim that the procedure followed by defendant in reviewing plaintiffs' out-of-country claims violates even minimal due process requirements.
Memoranda filed October 25 and December 22, 1988, concluded that the defendant's administrative decision that plaintiff was not entitled to relief was an adjudication that implicated the Due Process Clause of the Fifth Amendment. The December 22 Memorandum observed that "in an adjudication the parties are entitled to know and have an opportunity to address the evidence to be used by the adjudicator in making his decision." Memorandum of December 22, 1988 at 2. The Memorandum invited the plaintiff to file a motion for partial summary judgment "with a view to a direction to defendants to proceed to reconsider plaintiffs' foreign claim after disclosing the evidence to be relied on in that adjudication and affording them an adequate opportunity to comment on and counter that evidence." Id. Plaintiffs have filed such a motion, defendant has opposed it, and plaintiffs have replied.
Plaintiffs' motion supports the observation of the December 22 Memorandum with tangential, but persuasive, authority. In Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), the Supreme Court invalidated a Defense Department order debarring an employee from access to classified information without a hearing at which he would be afforded an opportunity to confront and cross-examine witnesses. The Court ruled that neither Congress nor the President had delegated to the Defense Department the authority to deny petitioner "these traditional and well recognized rights." The Court described these rights with emphasis:
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue....
Greene, 360 U.S. at 496, 79 S.Ct. at 1413. The Court there stated:
Before we are asked to judge whether, in the context of security clearance cases, a person may be deprived of the right to follow his chosen profession without full hearings where accusers may be confronted, it must be made clear that the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use.
Id. at 507, 79 S.Ct. at 1419. The Court continued:
Id. (citations omitted).
The administrative procedure challenged by plaintiffs here raises questions addressed by the Supreme Court in Greene. Here, Congress has authorized federal agencies "in accordance with regulations prescribed by the Attorney General, to consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for ... personal injury ... caused by the negligent or wrongful act or omission of any employee of the agency ..." 28 U.S.C. § 2672. Congress has further provided authority for the Secretary of State to "pay tort claims in the manner authorized in ... section 2672, as amended, of Title 28, when such claims arise in foreign countries in connection with Department of State operations abroad." 22 U.S.C. § 2669(f). Congress has thus specifically authorized the Secretary of State to settle administratively claims of foreign origination.
22 CFR 31.10. Under these regulations, U.S. citizens with claims arising in the United States have the option of filing an action in court within 6 months of the administrative decision, i.e. a plenary bench trial de novo. U.S. citizens with claims arising in foreign countries, however, may receive only a notice of final denial, with no statement of reasons, no indication of the evidence relied on, and no list of witnesses interviewed. No statute specifically authorizes any de novo trial or judicial review of the denial of a tort claim arising in a foreign country. However, conspicuously absent from 28 U.S.C. § 2672 or 22 U.S.C. § 2669(f), governing administrative action on...
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Wheeler Tarpeh-Doe v. US, Civ. A. No. 88-0270-LFO.
...denied, No. 89-5210 (August 13, 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 955, 112 L.Ed.2d 1043 (1991), reversing Tarpeh-Doe v. United States, 712 F.Supp. 1 (D.D.C.1989). The remaining claims allege negligence occurring in the United 2 A relevant excerpt of these regulations, submitted a......
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Tarpeh-Doe v. U.S., TARPEH-DOE
...and the district court granted partial summary judgment for the plaintiff in a Memorandum and Order dated May 10, 1989 ("May 10 Order"). 712 F.Supp. 1. In reaching its decision, the district court recognized that by the terms of the governing regulations, the State Department was not oblige......