Filler v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AARON G. FILLER, MD, PHD, FRCS, AN
INDIVIDUAL,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5117
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00464-EDK, Judge Elaine Kaplan.
______________________
Decided: March 10, 2015
______________________
AARON G. FILLER, Santa Monica, CA, pro se.
JAMES R. SWEET, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., FRANKLIN
E. WHITE, JR.
______________________
Before LOURIE, REYNA, and CHEN, Circuit Judges.
2 FILLER v. US
PER CURIAM.
Dr. Aaron G. Filler (“Dr. Filler”) appeals from the
decision of the United States Court of Federal Claims
(“the Claims Court”) dismissing his Fifth Amendment
takings claim for failure to state a claim upon which relief
can be granted. Filler v. United States, 116 Fed. Cl. 123
(2014). Because the Claims Court correctly dismissed Dr.
Filler’s complaint, we affirm.
BACKGROUND
Dr. Filler is a neurosurgeon in Santa Monica, Califor-
nia. In 2010, Susan Walker (“Walker”), a marine biologist
employed by the National Marine Fisheries Service of the
National Oceanic and Atmospheric Administration of the
Department of Commerce (“NMFS”), traveled to Santa
Monica to receive treatment from Dr. Filler for a work-
related injury. Dr. Filler performed several procedures on
Walker, including multiple injections of medication.
On January 31, 2011, Walker, under the username
“sueinjuneau,” commented on a website called Running-
Forums.com in response to questions about Dr. Filler’s
offered medical treatments. Appellee’s App. (“App.”) 27
¶ 39. One such comment read:
Dr. Filler uses Wydase, which is a brand name of
the enzyme hyaluronidase, in his piriformis injec-
tions to, in theory, break down scar tissue.
Wydase is a medical preparation of highly purified
bovine testicular enzyme, made previously by Wy-
eth Pharmaceuticals in England. Production
ceased due to the possible transmission of bovine
spongiform encephalitis [(“BSE”)], or mad cow
disease, though there is no documentation of
transmission through this route.
Interestingly, Wydase is no longer manufactured
and has not been manufactured in at least seven
FILLER v. US 3
years, so I’m not sure why [Dr.] Filler refers to the
use of Wydase, and given the remote risk of [BSE]
transmission that it poses, injecting it directly ad-
jacent to a nerve does not seem advised.
Id. at 29–30 ¶ 49. Walker’s comments provided the bases
for Dr. Filler’s actions for defamation and interference
with prospective economic advantage filed in California
state court, as well as his administrative claim under the
Federal Tort Claims Act filed at the Department of Com-
merce. Filler, 116 Fed. Cl. at 126.
Dr. Filler also sued the United States (“the govern-
ment’) in the Claims Court, alleging that Walker’s com-
ments effected a Fifth Amendment taking of his medical
license without just compensation. App. 16–17 ¶¶ 4–5.
Specifically, Dr. Filler alleged that Walker, by posting her
comments on RunningForums.com during working hours
from a government computer and by relying on her NMFS
training, acted as an agent of the government providing a
“public warning about danger to the health and safety of
the United States populace.” Id. at 29 ¶ 48; see also id. at
22 ¶ 24; id. at 26 ¶¶ 36–37. Dr. Filler further alleged that
Walker’s comments “diminished the value of his medical
license so completely that [they] constituted an inverse
condemnation.” Filler, 116 Fed. Cl. at 126–27; App. 54–55
¶¶ 129–131. The government moved to dismiss the
complaint for lack of subject matter jurisdiction or for
failure to state a claim under Rules 12(b)(1) and 12(b)(6)
of the Rules of the Court of Federal Claims (“RCFC”).
The Claims Court held that it had subject matter ju-
risdiction under the Tucker Act because Dr. Filler assert-
ed a nonfrivolous takings claim that was not so “devoid of
merit” or “insubstantial” as to undermine its jurisdiction.
Filler, 116 Fed. Cl. at 127. Nonetheless, the court dis-
missed Dr. Filler’s complaint for failure to state a claim
under RCFC 12(b)(6). Id. at 128. The court reasoned that
the facts alleged did not support the conclusory assertion
4 FILLER v. US
that Walker acted on behalf of the government and,
alternatively, that Dr. Filler’s medical license did not, as a
matter of law, constitute a compensable property interest
for purposes of the Takings Clause. Id.
Filler timely appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo the Claims Court’s dismissal for
failure to state a claim under RCFC 12(b)(6). Kam-Almaz
v. United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012).
Even though we hold a pro se complaint to “less stringent
standards than formal pleadings drafted by lawyers,”
Haines v. Kerner, 404 U.S. 519, 520 (1972), that complaint
must still “allege facts ‘plausibly suggesting (not merely
consistent with)’ a showing of entitlement to relief” to
avoid dismissal for failure to state a claim, Acceptance
Ins. Cos. v. United States, 583 F.3d 849, 853 (Fed. Cir.
2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544
557 (2007)). The facts as alleged “must be enough to raise
a right to relief above the speculative level, on the as-
sumption that all the allegations in the complaint are
true (even if doubtful in fact).” Twombly, 550 U.S. at 555
(citations omitted). We are “not bound to accept as true a
legal conclusion couched as a factual allegation.” Id.
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986))
(internal quotation marks omitted).
The Fifth Amendment provides that private property
shall not be taken for public use without just compensa-
tion. U.S. Const. amend. V, cl. 4. A compensable taking
under the Fifth Amendment, however, requires author-
ized government action. Del-Rio Drilling Programs Inc. v.
United States, 146 F.3d 1358, 1362 (Fed. Cir. 1998). If the
government action is unauthorized, “the acts of defend-
ant’s officers may be enjoinable, but they do not constitute
a taking effective to vest some kind of title in the govern-
ment and entitlement to just compensation in the owner
FILLER v. US 5
or former owner.” Id. (citations omitted); see also Florida
Rock Indus., Inc. v. United States, 791 F.2d 893, 898 (Fed.
Cir. 1998) (“The Tucker Act suit in the Claims Court is
not, however, available to recover damages for unauthor-
ized acts of government officials.” (citations omitted)).
“Government agents have the requisite authorization if
they act within the general scope of their duties, i.e., if
their actions are a ‘natural consequence of Congressional-
ly approved measures,’ or are pursuant to the ‘good faith
implementation of a Congressional Act.’” Del-Rio, 146
F.3d at 1362 (citations omitted).
Dr. Filler argues that his complaint plausibly estab-
lishes a duty on the part of the Department of Commerce
and NMFS to protect human health and safety. Dr. Filler
specifically alleges that Walker’s NMFS office regularly
prepares reports on BSE contamination, and thus Walker
has the authority to issue a public warning, such as her
RunningForums.com comment, about potential BSE
spread. Moreover, Dr. Filler contends that Walker did not
have an independent purpose in issuing those comments.
The government responds that the complaint does not
plausibly show that Walker acted on behalf of the gov-
ernment. The government first argues that NMFS lacks
the authority to regulate medical practices or drug safety.
The government next contends that NMFS’s authority,
and thus Walker’s authority, to the extent it includes
discussing disease pathogenesis, is limited to assessing
routes of passage from humans into marine animals. The
government notes that to the extent NMFS does comment
about BSE spread, it does so in official reports or on
official websites with authors identifying themselves as
speaking on behalf of NMFS. Thus, the government
continues, Walker only encountered Wydase as a patient,
and thus her comments were merely “in her individual
capacity as a former patient who was concerned about a
product.” Appellee’s Br. 8.
6 FILLER v. US
We agree with the government and the Claims Court
that the facts alleged in Dr. Filler’s complaint fail to
support the conclusory assertion that Walker acted on
behalf of the government when she posted her comments
on RunningForums.com. NMFS does not have the statu-
tory authority to regulate medical practices or drug
safety. Instead, NMFS’s authority derives from the
Magnuson-Stevens Fishery Conservation and Manage-
ment Act (16 U.S.C. Ch. 38), the Marine Mammal Protec-
tion Act (16 U.S.C. Ch. 31), and the Endangered Species
Act (16 U.S.C. Ch. 35). App. 26 ¶ 37; see Filler, 116 Fed.
Cl. at 128–29. NMFS’s authority is therefore limited to
managing, conserving, and protecting living marine water
resources in United States waters. The complaint recites
various other statutes and constitutional provisions as
granting NMFS the authority to issue public warnings
and protect human health and safety. As the Claims
Court recognized, however, those provisions expressly
relate to the “enforcement purview of either the Depart-
ment of Agriculture or the Food and Drug Administra-
tion,” Filler, 116 Fed. Cl. at 129; none authorize NMFS
action in a similar fashion.
To the extent NMFS does report on BSE spread, as
Dr. Filler alleges, see App. 44–45 ¶ 96–98, that reporting
narrowly discusses concerns with transmitting BSE to
marine life, via fish feed for example, as provided for in
the agency’s governing statutes. Moreover, as a marine
biologist employed by the NMFS, Walker’s reports focus
primarily on the “non-fishing impact” on various fish
habitats: “this involve[s] an analysis of routes of passage
of infectious agents from humans into marine mammals
and into food supplies.” Id. at 46 ¶ 101. Such a reporting
infrastructure does not support Dr. Filler’s broad conten-
tion that NMFS and Walker have the authority to dissem-
inate public health warnings, and comment generally, on
the safety of any medical practice. Dr. Filler’s allegation
that reporting the possible risks of BSE spread through
FILLER v. US 7
Wydase injections is a necessary extension of authorized
duties is therefore unpersuasive. See id. at 48 ¶ 105. As
the Claims Court stated, “the facts show that Ms. Walker
acted in her individual capacity as a former patient of Dr.
Filler for her independent purpose of conveying her
personal views on the efficacy and advisability of the
treatment that she believed Dr. Filler had used on her
and other patients.” Filler, 116 Fed. Cl. at 129.
Because no authorized government action was impli-
cated, the Claims Court correctly dismissed Dr. Filler’s
takings claim for failure to state a claim under RCFC
12(b)(6). Accordingly, we need not address the Claims
Court’s alternative basis for dismissing the complaint.
CONCLUSION
We have considered Dr. Filler’s remaining arguments,
but find them unpersuasive. The Claims Court’s dismis-
sal of Dr. Filler’s takings claim is therefore affirmed.
AFFIRMED