The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WEST VIRGINIA BOARD OF
RISK AND INSURANCE MANAGEMENT,
Petitioner,
v. Civil Action No. 2:18-cv-368
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending is the petition for a writ of mandamus, filed
on February 28, 2018 by the West Virginia Board of Risk and
Insurance Management (the “Board”).
I. Background
The Board administers the West Virginia Patient Injury
Compensation Fund (the “Fund”), which was enacted to provide
“fair and reasonable compensation to claimants in medical
malpractice actions for any portion of economic damages awarded
that is uncollectible as a result of limitations on economic
damage awards for trauma care [such as the $500,000 cap
established in West Virginia Code § 55-7B-9c(a)], or as a result
of the operation of the joint and several liability principles
and standards.” W. Va. Code § 29-12D-1(a). One of the ways in
which the Fund receives money is by being granted “an assessment
of one percent of the gross amount of any settlement or judgment
in” claims filed under the Medical Professional Liability Act
from July 1, 2016 through December 31, 2021. Id. § 29-12D-
1a(c).1
On December 16, 2014, Sara M. Lambert Smith and Scott
Smith filed a medical malpractice claim against the United
States in the United States District Court for the Southern
District of West Virginia, Smith v. United States, No. 5:14-cv-
30075, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§
1346(b), 2671-80. Compl., ECF No. 1-1, at ¶¶ 1-3. The
plaintiffs alleged that malpractice occurred at Raleigh General
Hospital and that the United States was liable for the
negligence of its public health service employees. Id. ¶¶ 8,
14. On November 15, 2016, the court ordered that “judgment be
entered in favor of the Plaintiffs in the amount of $672,681.67
1 While the United States asserts that it “understands the one
percent levy is in addition to the judgment or settlement amount
it owes any of the claimants in the underlying tort actions,”
ECF No. 8 n.4, it seems clear enough from the entirety of the
statute that the one percent is not exacted in addition to the
judgment or settlement but is paid out of the recovery. See,
e.g., W. Va. Code § 29-12D-1a(c)(3) (“If a qualifying claim is
settled prior to the filing of an action, the claimant, or his
or her counsel, shall remit the payment to the Board of Risk and
Insurance Management within 60 days of the date of the
settlement agreement to be paid into the fund,” in which case
the claimant would effectively be making the payment out of the
recovery.)
. . . .” Judgment Order, ECF No. 1-2. The United States says
that it has paid the entire amount of the judgment to the
underlying plaintiffs without withholding any of it. ECF No. 8,
at 8 n.4
The Board avers that the United States owes a one-
percent assessment of that judgment pursuant to West Virginia
Code § 29-12D-1a(c) and “seeks to compel the United States of
America to remit a one-percent assessment of the final judgment
entered . . . in Smith.”2 ECF No. 1, at 1. Because the United
States has refused to remit the one-percent assessment on the
judgment, the Board petitioned the court for a writ of mandamus.
It appears, and the United States does not contest, that the
type of medical malpractice claim made in the underlying case is
a qualifying claim under § 29-12D-1a(c).
The United States has responded in opposition to the
Board’s petition, contending that there is no basis for the
court’s jurisdiction over them in this matter. In the
alternative, the United States argues that even if the court has
jurisdiction, the Board’s demand for contribution by the United
States to the Fund puts an unauthorized tax or penalty on the
2 The Board adds that the United States owes a like assessment in
several other cases. See ECF No. 2, at 3, 3 n.7
United States. The petitioner has filed a reply to the United
States’ response.
II. Standard of Review
“The Supreme Court and all courts established by Act
of Congress may issue all writs necessary or appropriate in aid
of their respective jurisdictions and agreeable to the usages
and principles of law.” 28 U.S.C. § 1651(a). “The district
courts shall have original jurisdiction of any action in the
nature of mandamus to compel an officer or employee of the
United States or any agency thereof to perform a duty owed to
the plaintiff.” 28 U.S.C. § 1361.
The Court of Appeals for the Fourth Circuit has
stated:
The propriety of entertaining a petition for writ of
mandamus in the federal system is, of course, well
defined. It may be invoked only where three elements
co-exist: (1) the petitioner has shown a clear right
to the relief sought; (2) the respondent has a clear
duty to do the particular act requested by the
petitioner; and (3) no other adequate remedy is
available.
In re First Fed. Sav. & Loan Ass'n of Durham, 860 F.2d 135, 138
(4th Cir. 1988) (citations omitted). “Mandamus against a public
official will not lie unless the alleged duty to act involves a
mandatory or ministerial obligation which is so plainly
prescribed as to be free of doubt.” Id. (citations omitted).
III. Jurisdiction
“[A]ny waiver of the National Government’s sovereign
immunity must be unequivocal,” U.S. Dep’t of Energy v. Ohio, 503
U.S. 607, 615 (1992), and “must be strictly construed in favor
of the United States, and not enlarged beyond what the language
of the statute requires,” United States v. Idaho ex rel. Dir.,
Idaho Dep't of Water Res., 508 U.S. 1, 7 (1993) (internal
quotations and citations omitted).
The petitioner asserts in its reply that this court
“has jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §
1346(b), and under ancillary jurisdiction principles.”3 ECF No.
10, at 1.
The Federal Tort Claims Act (“FTCA”) states in
relevant part:
(b)(1) . . . the district courts . . . shall have
exclusive jurisdiction of civil actions on claims
against the United States, for money damages, accruing
3 “It is well settled that . . . [28 U.S.C. § 1361] does not by
itself waive sovereign immunity.” Washington Legal Found. v.
U.S. Sentencing Comm'n, 89 F.3d 897, 901 (D.C. Cir. 1996).
“[T]he All Writs Act [(28 U.S.C. § 1651)] does not confer
jurisdiction on the federal courts.” Syngenta Crop Prot., Inc.
v. Henson, 537 U.S. 28, 29 (2002).
on and after January 1, 1945, for injury or loss of
property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment, under circumstances where the
United States, if a private person, would be liable to
the claimant in accordance with the law of the place
where the act or omission occurred.
28 U.S.C. § 1346(b)(1). The United States Code also provides:
The United States shall be liable, respecting the
provisions of this title relating to tort claims, in
the same manner and to the same extent as a private
individual under like circumstances, but shall not be
liable for interest prior to judgment or for punitive
damages.
28 U.S.C. § 2674.
“A plaintiff has an FTCA cause of action against the
government only if she would also have a cause of action under
state law against a private person in like circumstances. State
law determines whether there is an underlying cause of
action[.]” Miller v. United States, 932 F.2d 301, 303 (4th Cir.
1991) (internal citations omitted).
The petitioner contends that inasmuch as the FTCA
“puts the United States on the same legal footing as a private
individual,” and “the law of the place where the act or omission
occurred governs actions brought under the [FTCA],” the United
States was obligated to contribute to the Fund when judgment was
rendered against it in the underlying medical malpractice case.
ECF No. 2, at 6-7.
Petitioner is correct that the FTCA “permits the
United States to be held liable in tort in the same respect as a
private person would be liable under the law of the place where
the act occurred.” Medina v. United States, 259 F.3d 220, 223
(4th Cir. 2001). However, while judgment against a private
individual in a medical malpractice case would require a
contribution to the Fund pursuant to West Virginia Code § 29-
12D-1a(c), the FTCA does not prescribe that the United States is
obligated to make the same contribution.
The FTCA expressly states that the United States may
be sued as if it were a private individual “for money damages
. . . for injury or loss of property, or personal injury or
death caused by the negligent or wrongful act or omission of any
employee of the Government.” Here, petitioner does not seek
damages from the United States arising from such harm done to
its property or person. Rather, the Board seeks to exact a one
percent assessment through or from the United States to
compensate unknown others who have no claim against the United
States. Inasmuch as petitioner is unable to bring itself within
the FTCA, the court is without jurisdiction to issue the writ.
The petitioner’s assertion that the court has
ancillary jurisdiction over this matter inasmuch as the court
had subject matter jurisdiction under the FTCA in the underlying
malpractice case is equally unavailing. See ECF No. 10, at 3-4.
The Supreme Court has asserted ancillary jurisdiction
“for two separate, though sometimes related, purposes: (1) to
permit disposition by a single court of claims that are, in
varying respects and degrees, factually interdependent, and (2)
to enable a court to function successfully, that is, to manage
its proceedings, vindicate its authority, and effectuate its
decrees . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 379-80 (1994) (internal citations omitted).
The Board notes that the Supreme Court has approved
“the exercise of ancillary jurisdiction over a broad range of
supplementary proceedings involving third parties to assist in
the protection and enforcement of federal judgments – including
attachment, mandamus, garnishment, and the prejudgment avoidance
of fraudulent conveyances.” ECF No. 10, at 4 (quoting Peacock
v. Thomas, 516 U.S. 349, 356 (1996)). The Board adds that the
relief it seeks is factually interdependent with the judgment
entered in the underlying matter and that “to properly
effectuate its judgment, this Court can exercise its ancillary
enforcement jurisdiction and require the United States to pay
the assessment.” Id. at 5.
The relief sought here has nothing to do with the
protection and enforcement or the effectuation of the federal
judgment of $672,681.67. The principles of ancillary
jurisdiction are of no aid to the petitioner. Simply stated,
there is no basis for the court’s jurisdiction over the United
States in this matter.
Iv. Conclusion
Accordingly, it is ORDERED that the Board’s petition
for a writ of mandamus be, and hereby is, denied.
The Clerk is directed to transmit this memorandum
opinion and order to all counsel of record.
ENTER: August 23, 2019
- Bb,
Jo . Copenhaver, Jr.
Senior United States District Judge