Duncan v. West ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    BARBARA DUNCAN, personally and on
    behalf of her deceased child, BABY
    BOY SCOTT,
    Plaintiff-Appellant,
    No. 97-1876
    v.
    TOGO D. WEST, JR., Secretary of the
    Army,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    T.S. Ellis, III, District Judge.
    (CA-96-1648-A)
    Submitted: June 2, 1998
    Decided: June 24, 1998
    Before WILKINSON, Chief Judge, and ERVIN and
    WILLIAMS, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Mickale C. Carter, Alexandria, Virginia, for Appellant. Helen F.
    Fahey, United States Attorney, Thomas M. Ray, Special Assistant
    United States Attorney, Alexandria, Virginia; Lieutenant Colonel
    Richard O. Hatch, Arlington, Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Barbara Duncan appeals the district court's order dismissing her
    claim for a lack of subject matter jurisdiction. Finding no error, we
    affirm.
    Duncan commenced an action on behalf of herself and her
    deceased child, seeking review of the Secretary of the Army's disal-
    lowance of her administrative claim for medical malpractice under the
    Military Claims Act ("MCA"), 
    10 U.S.C.A. § 2733
     (West 1983 &
    Supp. 1998). In September 1991, Duncan, the wife of an active duty
    soldier residing in Germany, sought health care at an Army medical
    facility in Darmstadt, Germany. Duncan, who was four months preg-
    nant, complained of nausea, vomiting, diarrhea, a decreased appetite,
    and a burning sensation while urinating. A military doctor diagnosed
    gastroenteritis and advised her to increase her liquid intake and main-
    tain a bland diet. She returned to the medical facility the next day and
    was seen by a civilian doctor participating in the Civilian Health and
    Medical Program of Uniformed Services ("CHAMPUS") partnership
    program. Duncan was diagnosed with cystitis.
    The next day, Duncan was seen by her gynecologist, a German
    doctor, and was hospitalized for the next ten days in a German hospi-
    tal for bladder and kidney infections. Approximately three weeks after
    her release from the hospital, a German surgeon diagnosed appendici-
    tis. Duncan's appendix had ruptured and she developed peritonitis. At
    the advice of a physician, she terminated her pregnancy resulting in
    the loss of Baby Boy Scott who was about 5 months' gestation.
    Duncan filed an administrative claim against the United States
    Army alleging that both the military doctor and the civilian CHAM-
    PUS doctor negligently failed to diagnose appendicitis resulting in a
    ruptured appendix, peritonitis, and premature termination of her preg-
    2
    nancy. The Army denied the claim, finding that the military doctor
    was not negligent under the circumstances and the CHAMPUS doctor
    was not a civilian officer or employee of the Army. Duncan appealed
    the decision to the Secretary of the Army. The appeal was denied and
    the claim disapproved. The notice denying the appeal stated that
    under 
    10 U.S.C. § 2735
     (1994), the decision was "final and conclu-
    sive." Shortly thereafter, Duncan commenced the instant action in the
    district court.
    Duncan made the following assertions below: (1) the Secretary's
    decision was not supported by the record; (2) the Secretary acted arbi-
    trarily and capriciously in denying her claim; (3) the Secretary
    improperly applied the MCA to her claim instead of the Foreign
    Claims Act ("FCA"), 
    10 U.S.C.A. § 2734
     (West 1983 & Supp. 1998);
    (4) a finding of negligence was not required; (5) the Secretary did not
    refer to the general principles of tort law common to the majority of
    states as required by regulations; (6) the Secretary erred in finding
    that the Army was not liable for the conduct of CHAMPUS doctors;
    (7) the Secretary erroneously applied certain provisions of the Federal
    Tort Claims Act, 
    28 U.S.C. §§ 2671
     - 2680 (1994); (8) the Secretary
    denied Duncan procedural due process by refusing to disclose certain
    information concerning the denial of the claim; and (9) the disparate
    treatment between military dependents injured in military facilities in
    foreign countries and military dependents injured in military facilities
    in the United States does not have a rational basis and violates princi-
    ples of equal protection.
    The district court found that the Secretary properly construed Dun-
    can's claim as one under the MCA instead of the FCA. The court then
    found that 
    10 U.S.C. § 2735
     (1994) barred judicial review of the Sec-
    retary's denial of Duncan's claim. The court also concluded that Dun-
    can's complaint did not present a substantial violation of a
    constitutional protection, which may have been an exception to the
    bar against judicial review. See Duncan v. West , 
    965 F. Supp. 796
    (E.D. Va. 1997). The instant appealed followed.
    A dismissal for lack of subject matter jurisdiction is reviewed de
    novo. See Republic of Paraguay v. Allen, 
    134 F.3d 622
    , 626 (4th
    Cir.), cert. denied, ___ U.S. #6D6D 6D#, 
    66 U.S.L.W. 3684
     (U.S. Apr. 14,
    1998) (Nos. 97-8214 (A-732), 97-1390 (A-738), 97-8660 (A-767)).
    3
    Under 
    10 U.S.C. § 2735
    , "[n]otwithstanding any other provision of
    law, the settlement of a claim under section 2733, 2734, 2734a,
    2734b, or 2737 of this title is final and conclusive." Settlement means
    to "consider, ascertain, adjust, determine, and dispose of a claim,
    whether by full or partial allowance or by disallowance." 
    10 U.S.C. § 2731
     (1994) (emphasis added). Although this Court has not had
    occasion to address the issue, seven of our sister circuit courts that
    have considered it concluded that judicial review of a denial of a
    claim under the MCA is barred. See Collins v. United States, 
    67 F.3d 284
    , 288 (Fed. Cir. 1995); Schneider v. United States, 
    27 F.3d 1327
    ,
    1332 (8th Cir. 1994); Hata v. United States, 
    23 F.3d 230
    , 233 (9th
    Cir. 1994); Rodrigue v. United States, 
    968 F.2d 1430
    , 1434 (1st Cir.
    1992); Poindexter v. United States, 
    777 F.2d 231
    , 233 (5th Cir. 1985);
    Broadnax v. United States Army, 
    710 F.2d 865
    , 867 (D.C. Cir. 1983);
    LaBash v. United States Dep't of the Army, 
    668 F.2d 1153
    , 1156
    (10th Cir. 1982).
    We find this weight of authority persuasive. It is well settled that
    the United States cannot be sued without its consent. See Hercules
    Inc. v. United States, 
    516 U.S. 417
    , 422 (1996). While there is a
    strong presumption that Congress intends judicial review of adminis-
    trative action, the presumption can be defeated by"``specific language
    or specific legislative history that is a reliable indicator of congressio-
    nal intent,' or a specific congressional intent to preclude judicial
    review that is ``fairly discernible' in the detail of the legislative
    scheme." Bowen v. Michigan Academy of Family Physicians, 
    476 U.S. 667
    , 670-73 (1986) (quoting Block v. Community Nutrition Inst.,
    
    467 U.S. 340
    , 349 (1984)). Section 2735 contains specific language
    indicating a congressional intent to bar judicial review. Because the
    Secretary's decision is final and conclusive, "notwithstanding any
    other provision of law," 
    5 U.S.C. § 702
     (1994) of the Administrative
    Procedure Act cannot be a source for the court's authority to review
    the Secretary's decision.1 See Schneider, 
    27 F.3d at 1330
    . Thus, judi-
    cial review of the Secretary's action is barred unless Duncan's allega-
    tions fall into one of two narrow exceptions.
    _________________________________________________________________
    1 Section 702 provides for a general cause of action for persons
    adversely aggrieved by a final agency decision.
    4
    Even though statutory language may bar judicial review, we recog-
    nize that review may nonetheless occur if the allegation concerns the
    agency exceeding the scope of its authority or violating a clear statu-
    tory mandate. See Hanauer v. Reich, 
    82 F.3d 1304
    , 1307 (4th Cir.
    1996). In such circumstances, the court should conduct a cursory
    review of the merits of the allegation. Review is limited and available
    only in extraordinary circumstances. See Boire v. Greyhound Corp.,
    
    376 U.S. 473
    , 481 (1964). In addition, constitutional claims regarding
    the denial of relief under § 2733 may, in some instances, be reviewed.
    See Schneider, 
    27 F.3d at 1332
    ; Hata, 
    23 F.3d at 233-34
    .
    Even if review were possible under either exception, however, we
    nonetheless find the district court properly declined to exercise juris-
    diction. Duncan alleges a number of errors which could be construed
    as asserting that the Secretary exceeded the scope of his authority or
    violated a statutory mandate. However, we find these claims are with-
    out merit. The Secretary did not violate a statutory mandate by decid-
    ing the claim under the MCA rather than the FCA. The MCA is
    clearly applicable to Duncan's claim.2
    Relief under the FCA is available only to foreign countries, politi-
    cal subdivisions of foreign countries, or "inhabitants" of foreign coun-
    tries. See 
    10 U.S.C.A. § 2734
    . An"inhabitant" is "[o]ne who resides
    actually and permanently in a given place, and has his domicile
    there." Black's Law Dictionary 782 (6th ed. 1990). Thus, we con-
    clude the Secretary has not clearly violated a statutory mandate by
    determining that Duncan was not an inhabitant for purposes of
    § 2734.
    Nor is it a violation or in excess of the scope of authority to limit
    relief to those claims which show that military personnel were negli-
    gent in causing the injury. See 32 C.F.R.§ 536.23(a)(1) (1997). Dun-
    can's contention that the Secretary violated 
    32 C.F.R. § 536.6
     (1997)
    _________________________________________________________________
    2 Under 
    10 U.S.C.A. § 2733
    (a)(3), "[the Secretary] . . . or, subject to
    appeal to him, the Judge Advocate General of an armed force under his
    jurisdiction, or the Chief Counsel of the Coast Guard, as appropriate, if
    designated by him, may settle, and pay in the amount not more than
    $100,000, a claim against the United States for-- . . . personal injury or
    death."
    5
    by not applying the prevailing common law standard for general tort
    principles is merely an attempt to have the court review the merits of
    her personal injury claim. Furthermore, the Secretary did not act
    improperly by declining to award relief for any injury caused by the
    negligence of the CHAMPUS doctor. Under the MCA, in order for
    the Secretary to award relief, the injury must be"caused by a civilian
    officer or employee of" the Army. See 
    10 U.S.C.A. § 2733
    . It is
    within the Secretary's authority, conferred by § 2733, to exclude inde-
    pendent contractors from the definition of civilian officers or employ-
    ees. See 
    32 C.F.R. § 536.3
    . Duncan's claim that the Secretary's
    reliance upon the FTCA in creating its regulations is improper is
    without merit and has no bearing on the merits of Duncan's personal
    injury claim.
    We agree with the district court that Duncan's constitutional claims
    are insufficient to permit an exception to the bar against judicial
    review. Even if the Secretary violated the regulations by not disclos-
    ing certain information or by not informing Duncan of the basis for
    the denial of the claim, there was no due process violation. Duncan
    received notice of the reasons for the denial. She then made use of the
    opportunity for review by the Secretary by submitting extensive argu-
    ment, expert opinion and other materials. She received all the process
    she was due.
    Equal protection claims like Duncan's have been considered and
    rejected by other circuit courts. See Schneider , 
    27 F.3d at 1332
    ; see
    also Heller v. United States, 
    776 F.2d 92
    , 98 (3d Cir. 1985) (FTCA's
    provision denying relief to claims arising in foreign countries does not
    violate equal protection). We find a rational basis exists for granting
    judicial review under the FTCA while not providing the same oppor-
    tunity to claimants proceeding under the MCA.
    For the foregoing reasons, the district court's order is affirmed.
    Having previously granted Appellee's motion to submit this appeal on
    the briefs, we dispense with oral argument since the factual and legal
    contentions are adequately presented in the materials before the court
    and argument would not aid the decisional process.
    AFFIRMED
    6