Petition for Writ of Certiorari — Schneider v. United States
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7 Supreme Gourt, U.S.
FILE D
94 552 SEP 22 1994
No:
OFFICE OF THE CLER&
‘
IN THE
UNITED STATES SUPREME COURT
October Term 1994
Michael Schneider and Roisin
Schneider, individually and as
guardians of Slaine Schneider,
Petitioner,
-VS-
United States of America,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
AND APPENDIX
LYONS SAWICKI NEESE & PHELPS P.A.
THOMAS J. LYONS
Counsel of Record
MARTHA L. NEESE
Two Appletree Square, Suite 330
Bloomington, MN 55425
Telephone: (612) 770-5155
B.
QUESTIONS PRESENTED
WHETHER THE MILITARY CLAIMS ACT,
lO U.S.C. §§ 2731 ET SEQ., ALLOWS
JUDICIAL REVIEW OF ADMINISTRATIVE
DECISIONS OR, IN THE ALTERNATIVE,
ONLY ALLOWS JUDICIAL REVIEW OF
ADMINISTRATIVE DECISIONS WHEN
CONSTITUTIONALLY PROTECTED
RIGHTS HAVE BEEN VIOLATED?
WHETHER THE UNITED STATES AIR
FORCE ADMINISTRATIVE REVIEW OF
SLAINE SCHNEIDER’S CLAIMS UNDER
THE MILITARY CLAIMS ACT. 10 U.S.C.
$$ 2731 ET SEQ., VIOLATED SLAINE
SCHNEIDER’S CONSTITUTIONAL RIGHT
TO DUE PROCESS?
TABLE OF CONTENTS
QUESTIONS PRESENIED ....3.......06...
TABLE OF AUTHORITIES
OPEN MRAEO ... 6 ss ee eee
SURE EON 6 4 6k oe eee ee
CONSTITUTIONAL, STATUTORY
AND OTHER PROVISIONS INVOLVED .......
STATEMENT OF THE CASE ..............
REASONS FOR GRANTING THE WRIT
\ WHETHER THE MILITARY CLAIMS ACT,
10 US.C. §§ 2731 ET SEQ.. ALLOWS
JUDICIAL REVIEW OF ADMINISTRATIVE
DECISIONS OR, IN THE ALTERNATIVE,
ONLY ALLOWS JUDICIAL REVIEW OF
ADMINISTRATIVE DECISIONS WHEN
CONSTITUTIONALLY PROTECTED RIGHTS
HAVE BEEN VIOLATED? ........
B WHETHER THE UNITED STATES AIR
FORCE ADMINISTRATIVE REVIEW OF
SLAINE SCHNEIDERS’ CLAIMS UNDER
THE MILITARY CLAIMS ACT SEC. 10
U.S.C. §§ 2731 ET SEQ., VIOLATED SLAINE
SCHNEIDER'S CONSTITUTIONAL RIGHT
TO DUE PROCESS? .........
CONCLUGRAY .. 4 4634555
(yd
i)
|
hs ee ee hee eng soe das
OPINION OF THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT .........
MEMORANDUM OPINION AND ORDER FROM
THE UNITED STATES DISTRICT COURT,
DISTRICT OF MINNESOTA, FOURTH DIVISION
MARCH 17, 1993 DENIAL OF ADMINISTRATIVE
eC Oe TS 6 ses ae 4 oe ee eee 8
MEDICAL OPINION OF GEORGE SISSON
FINDING MEDICAL NEGLIGENCE ..........
DENIAL OF ADMINISTRATIVE APPEAL ...... .
111
l 6A
TABLE OF AUTHORITIES
CASES
Abbott Laboratories v. Gardner, 387 U.S.
IS oe tn ee a gee 11, 14
Barlow v. Collins, 397 U.S. 159, 166-167 (1970) ... 15
Block v. Community Nutrition Inst., 467 U.S.
EN ee reel eat Ce neN gl Sas pig 1]
Board of Governors v. Agnew, 329 U.S. 441,
67 S. Ct. 411, 91 L.Ed. 408 (1947) ....... 14
Boston & P.R. Corp., 428 F.2d 159 (C.A.
CE I he cre a ee en ee
Bowen v. Michigan Academy of Family Physicians,
476 U.S. 667, 670, 106 S. Ct. 2133, 2135,
De bee ee Uk ee i Ba eb a 16
Broadnax v. United States Army, 710 F.2d 865,
mr 0a ee ee a es ee 10, 17
Brownell v. We Shung, 352 U.S. 180, 77 S.
& i eR | le > > 14, |
Nn
Califano v. Boles, 443 U.S. 282 (1979) ......... 18
Federal Communications Comm'n v. Pottsville
Broadcasting Co., 309 U.S. 134 (1940) .....
to
U2
_ 2 a eereemmnrenscummnicmnins
Flemming v. Nestor, 363 U.S. 603 tere 18
Goldberg v. Kelly, 397 U.S. 254 ............. 23
Harmon v. Brucker, 355 U.S. 579. 78 S.
Ct. 433, 2 L.Ed.2d 503 (1987) .......... 14
Heikkila v. Barber, 345 U.S. 229, 73 S. Ct. 603.
D+ 0G. Bee Ce wn ee eee 14, 15
LaBash v. United States Navy, 668 F.2d 1153
(Few CM. eee se ee eee 17
Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180.
SLO. 2S 2.8 LO ee 14
Lindahl v. Office of Personnel Management.
S70 U.S. 768 GR) |. oe ce es ek ti, 36, 17
Logan v. Zimmerman Brush Co.. 455 U.S.
Sid. Gee GPO). ok a whe eee SS
McHenry v. Bond, 668 F.2d 1185 (11th Cir. 1982) .. 23
McNary v. Haitian Refuge Center, 498
Ache We COMED 3s ws oe ey ee ee 17
Montessori Children’s House & School. Inc. v.
Secretary of Labor, 443 F. Supp. 599
(%.. SOR. OP ee oe ae eee 23
Mullane v. Central Hanover Bank and Trust Co..
379 UB. Fe TA ok oe nw 20, 21
Panama Canal Co. v. Grace Line. 356
U.S. 309 (1958) 17
Rodrigue v. United States, 760 F.Supp. 223
(D. Mass. 1991), rev'd 968 F.2d 1430,
ang Ci Ua. eee a ee ee eee 1O, 12
Rusk v. Cort, 369 U.S. ts SE ane ope ae 14
Shaughnessy v. Pedreiro, 349 U.S. 48, 75S.
Ce, ees Se I gh ie eae ee 15, 16
Trustees of Dartmouth © — ege V.
Woodward, 17 U.S. 518 Ra BO I Oot . 18
ates v. Interstate Commerce Commission,
t
337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451
(EDGS) 6 sas ecw pee ee he ; 15
United S
Welch v. Unitec States, 446 F. Supp. 75
i. Com 0. eee 12-14
Willner v. Committee on Character and Fitness
SUD Ud. OO 0 0b bs SER ee 23
STATUTES
Administrative Procedure Act, 5 U.S.C. § 7l(a) .... 15
Administrative Procedure Act, 5 U.S.C. § 702 .... 15
Administrative Procedure Act, 5 U.S.C. § 704 ..... 15
Vi
Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq... 18
Immigration and Naturalization Act,
Be cee og fer re 16
Military Claims Act, 10 U.S.C.
§§ 2731 et seq. ... 1, 3. 4, 7, 9-14, 17-20, 22, 24
RULES
Se Re eee 9
he rs, et re eo eee 9
REGULATIONS
1964 U.S. Code Cong. & Admin.News 3407
8 8 A ra ee re ae .. 3
S.Rep. No. 1056, 92d Cong.. 2nd Sess..,
reprinted in 1972 U.S. Code Cong. &
Admin.News. 3106, 3109-10 ............. 13
MISCELLANEOUS
WN
_ 6
Stedman's Pocket Medical Dictionary (1987)
IN THE
UNITED STATES SUPREME COURT
October Term 1994
Michael Schneider and Roisin
Schneider, individually and as
guardians of Slaine Schneider,
Petitioner,
-VS-
United States of America.
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
AND APPENDIX
The Petitioners respectfully ask that a writ of
certiorari issue to review the decision of the United States
Court of Appeals for the Eight Circuit entered in the above-
entitled proceeding.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Eighth Circuit (Hanson, J.) is reported at 27 F.2d 1327
(8th Cir. 1994) and is reprinted hereto at App. 1A. The
opinion of the United States District Court for the District of
Minnesota (Murphy, J.) is not officially reported. This
decision was filed as Civil File Number 4-92-823 and is
reprinted hereto at App. 16A. The administrative decisions
of the United States Air Force are reprinted hereto at App.
26A and App. 28A.
JURISDICTION
The opinion and judgment of the United States Court
of Appeals for the Eighth Circuit was entered on June 24,
1994, and is reprinted in the appendix at App. 1A.
Jurisdiction to review by writ of certiorari is conferred upon
this Court by 28 U.S.C. § 1254.
tv
CONSTITUTIONAL, STATUTORY
AND OTHER PROVISIONS INVOLVED
The Secretary of the Air Force is authorized to pay
claims brought by dependents who suffer a personal injury
overseas under 10 U.S.C. § 2733(a)(3). This. statute
provides:
Under such regulations as the Secretary concerned
may prescribe, he, 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 an amount not more than $100,000, a claim
against the United States for --
(3) personal injury or death.
10 U.S.C. § 2733(a)(3).
Pursuant to 32 C.F.R. § 842.49(a)(b), the Military
Claims Act allows for settlement of two types of personal
injury claims:
(a) claims arising from negligent or wrongful acts
Or omissions committed by United States
military or civilian personnel while acting
within the scope of their employment.
(b) claims arising from noncombat activities of the
United States, whether or not such injuries or
damages arose out of the negligent or
ws)
wrongful acts or omissions by United States
military or civilian employees .. .
32 C.F.R. § 842.49(a)(b).
Whether decisions made by the Secretary of the Air
Force are reviewable is subject to the language provided in
10 U.S.C. § 2735. This statute provides in relevant part,
"Notwithstanding any other provision of law, the settlement
of a claim. . . is final and conclusive." 10 U.S.C. § 2735.
STATEMENT OF THE CASE
Slaine Schneider was born on April 23. 1987. Her
father, Michael Schneider was stationed in the United
Kingdom serving in the United States Air Force. In 1988,
Slaine Schneider began to treat with the United States Air
Force Hospital in Upper Heyford, England for right ear
drainage and associated problems.
Slaine Schneider had continuous consultations with
health care providers affiliated with the United States Air
Force Hospital for right ear infections and right ear drainage
for a two and half year period. On June 26, 1989, an Air
Force physician, Dr. David R. Range performed a
myringotomy with a tube placement in Slaine Schneider's
right ear.
Following surgery. Slaine Schneider continued to treat
with Dr. Range at the Air Force Hospital without relief of
her ear symptoms. On October 24. 1989. Dr. Range
performed removal of a polyp or growth from the right ear
The surgical report notes that there was a perforation in the
tympanic membrane. On November 16, 1989, Dr. Range
periormed a modified radical mastoidectomy-
Postoperatively a diagnosis of cholesteatoma’ was made with
a note that the cholesteatoma had eroded through the bone.
' “Myringotomy” is a surgical procedure in which a tube
is inserted to accomplish a paracentesis of the tympanic
membrane. Stedman's Pocket Medical Dictionary 489
(1987).
> "Mastoidectomy” is a procedure in which the mastoid
is surgically excised or a portion thereof through curetting or
gouging. Stednian’s Pocket Medical Dictionary 436 (1987).
*“Cholesteatoma" is a tumor-like mass of keratinizing
Squamous epithelium and cholesterol in the middle ear.
usually resulting from chronic otitis media, with squamous
metaplasia or extension of squamous epithelium inward to
line an expanding cystic cavity that may involve the mastoid
and erode surrounding bone. Stedman's Pocket Medical
Dictionary 138 (1987).
On December 15, 1990, a civilian doctor performed
a fourth surgery for recurrent cholesteatoma and the operative
report indicates that much of the ear drum was gone. Slaine
Schneider today suffers from right ear deafness.
Slaine Schneider's claims of medical negligence are
based upon the two and a half year delay in the diagnosis of
the cholesteatoma and a failure to provide treatment for the
right ear drainage as articulated in the expert physician's
report. The Schneiders contend that there was diagnostic
testing available to facilitate the diagnosis and that if proper
treatment would have been properly provided to Slaine
Schneider, she would not be deaf.
Significant to Slaine Schneider's claim is the fact that
the Air Force physician, Dr. Range, advised the parents prior
to the November 1989 surgery that he had never seen the
procedure performed for cholesteatoma, nor had he ever
performed one himself. It is the Schneiders’ contention that
Dr. Range advised them that he was to have a more
experienced surgeon available at the time of surgery but that
the physician failed to appear.
Slaine Schneider's parents brought administrative
claims under the Military Claims Act. 10 U.S.C. §2731 et
seq. The following is a summary of the procedural history
of the Air Force Review of Slaine Schneider's claim under
the Military Claims Act:
1. July 2, 1991 Schneiders present claim
pursuant to the Military
Claims Act.
November 13, 1991 U.S. Air Force Through
Capt. Tamara Riley
requested a _ current |
audiological |
examination of Slaine
Schneider.
ho
- November 26, 1991 Slaine Schneider,
through counsel advised
the Air Force that a
current audiological test
had been requested from
the clients.
4. January 13, 1992 Letter from the Air
Force by Capt. Tamara
Riley advising that the
file had been sent to
AFLSA-JACC Medical
Law Building, 5683
Bolling Air Force Base,
Washington D.C. for
final disposition. A
second request for
audiologica!
examination was made.
5. March 16, 1992
6. March 17, 1992
‘3 May 5, 1992
8. May 14, 1992
8
Letter of Schneiders’
through counsel to the
Judge Advocate’s office
advising that no contact
had been made by the
Bolling Air Force Base,
asking for the identity
of a contact person and
enclosing a current
audiologicalexamination
that had been received
from client.
Air Force denial of
Slaine Schneider’s claim
based upon "No breach
in the standard of care"
and lack of "evidence of
negligence."
Appeal of denial sent
with expert physician
letter supporting the
allegations of
negligence.
Colonel Philip Meek
issued final denial
Staying no _ further
administrative action
can be taken. "without a
showing of negligence |
can simply not approve
the claim for payment."
The Schneiders then commenced an action in Federal
District Court on September 2, 1992, seeking a review of the
United States’ improper administrative review in violation of
Slaine Schneider's due process rights and a declaration that
the United States has erroneously denied payment. The
United States Government moved for a dismissal based upon
lack of subject matter jurisdiction under Rules 12(b)1 and
12(b)6 of the Federal Rules of Civil Procedure. The United
States District Court for the District of Minnesota, with the
Honorable Diana Murphy presiding, dismissed the Complaint
on February 1, 1993.
The Schneiders appealed the decision of the United
States District Court to the United States Court of Appeals
for the Eighth Circuit. The court of appeals held that agency
decisions made pursuant to the Military Claims Act are not
subject to judicial review; that the lack of judicial review
does not violate Slaine Schneider’s equal protection rights;
and that Slaine Schneider's due process rights were not
violated by the decision-making process of the Department of
the Air Force.
REASONS FOR GRANTING THE WRIT
The issue of whether the Military Claims Act, 10
U.S.C. §§ 2731 et seq., allows for judicial review of agency
decisions is one of first impression for this Court. This issue
nan ee
is One of importance to the administration of justice in that
without judicial review of these decisions, the claims of
injured dependents may be summarily dismissed. In addition,
whether judicial review of these decisions is allowed under
the ambiguous language of the Act is a question of
importance.
Furthermore, review of this case is necessary to
affirmatively determine whether, at the very least, judicial
review of an MCA claim is available when a failure of due
process is implicated. It has been suggested by a few courts
that this type of limited review may be available. See
Broadnax v. United States Army, 710 F.2d 865, 867 (D.C.
Cir. 1983), (quoting Scroggins v. United States, 397 F.2d
295, 297, cert. denied, 393 U.S. 952 (1968)); Hata v. United
States, No. 92-56142, 1994 WL 145108 (9th Cir. Apr. 26,
1994); Rodrigue v. United States, 968 F.2d 1430, 1432 (1st
Cir. 1992). Petitioners, for the reasons set forth below,
respectfully ask that this Court grant certiorari to reverse.
A. WHETHER THE MILITARY CLAIMS ACT, 10
U.S.C. §§ 2731 ET SEQ., ALLOWS JUDICIAL
REVIEW OF ADMINISTRATIVE DECISIONS OR,
IN THE ALTERNATIVE, ONLY ALLOWS
JUDICIAL REVIEW OF ADMINISTRATIVE
DECISIONS WHEN CONSTITUTIONALLY
PROTECTED RIGHTS HAVE BEEN VIOLATED?
10
The federal court determined that the relevant
subsection of the Military Claims Act, 10 U.S.C. § 2735
provides, “Notwithstanding any other provision of law, the
settlement of a claim... 1s final and conclusive." precludes
judicial review. This language. however. does not
conclusively deny judicial review of administrative decisions
made under its provisions. Rather. there must be clear and
conclusive proof that judicial review was not intended. See
Lindahl v. Office of Personnel Management, 470 U.S. 768
(1985): Rusk v. Cort, 369 U.S. 367, 379-80 (1962); Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967). The
presumption of judicial reviewability is only overcome "by
specific language or specific legislative history that is a
reliable indicator of congressional intent.” Block _v.
Community Nutrition Inst., 467 U.S. 340 (1984).
The legislative history of the Military Claims Act does
not provide clear and convincing evidence that Congress
intended to foreclose all judicial review. To the extent that
history is instructive, it supports the view that the finality
language is aimed at future administrative review, not at
preclusion of judicial relief. Welch v. United States, 446 F.
Supp. 75 (D. Conn. 1978).
The First Circuit. in Rodrigue v. United States. 968
F.2d 1430 (1st Cir. 1992), dismissed a claim brought under
1]
the Military Claims Act but left open the door that judicial
review may be warranted when a violation of constitutionally-
protected due process rights has occurred. The lower federal
district court accepted subject matter jurisdiction initially in
the Rodrigue case and stated. "most of the courts that have
held that § 2735 precludes judicial review have failed to
analyze the statute's legislative history." Rodrigue v. United
States, 760 F. Supp. 223 (D. Mass. 1991), rev'd 968 F.2d
1430 (1st Cir. 1992).
According to the federal court in the Rodrigue case:
The legislative history of the Military Claims
Act contains two references to the meaning of
"final and conclusive" in 10 U.S.C. Section
2735. The section of the Senate Report
entitled "Purpose of the Legislation" states:
"The proposed legislation would be consistent
with the cited general policy of preventing
other agencies of the Government from
reviewing and reversing actions on claim
settlements of agencies specifically authorized
to settle and pay certain claims." S.Rep. No.
1056, 92d Cong., 2nd Sess., reprinted in 1972
U.S. Code Cong. & Admin.News. 3106,
3109-10 (emphasis added). The second
reference appears in an earlier letter from the
Assistant Secretary of the Interior to Senator
James Eastland, Chairman of the Senate
Judiciary Committee. The letter states: “No
provision is made for appeal to the courts. On
the contrary, the bill provides that the
administrative setthkement of a claim 1s final
and conclusive.” 1964 U.S. Code Cong. &
Admin. News 3407 at 3414-15.
After examining the statutory language and the
legislative history of Section 2735, I conclude
that there is no "clear and convincing"
evidence that Congress intended to preclude all
judicial review of administrative settlement of
claims. I agree with the reasoning of Judge
Claire of the District of Connecticut that in
enacting Section 2735, Congress intended to
make setthements of MCA claims final with
respect to administrative review only, not with
respect to judicial review of the construction
and application of law. Welch v. United
States, 446 F. Supp. 75, 78 (D. Conn. 1978).
In attempting to discern Congress’ intent, |
attach greater weight to the 1972 Senate
Report than to the 1964 letter. First the
Statement in the Senate Report was made later,
in 1972, five years after the Supreme Court’s
holding in Abbott Laboratories _v. Gardner,
supra, that judicial review should be precluded
only upon a showing of clear and convincing
evidence of legislative intent to do so.
Second, the official Senate Report is entitled to
more weight than a letter to a committee
Chairman. Finally, "the language of the
Senate Report more directly addresses the
issue of the ‘purpose’ of the legislation than
does the passing remark in the above-
mentioned letter." Welch, 446 F. Supp. at 78
n.5.
Id. at 226-27. Thus, neither the language nor the legislative
history of the MCA preclude judicial review.
Further, this Court repeatedly held that there is a
presumption that administrative decisions are subject to
judicial review. In Abbott Laboratories v. Gardner, 387 U.S.
136 (1967), the Court stated:
Judicial review of a final agency action by an
aggrieved person will not be cut off unless
there is persuasive reason to believe that such
was the purpose of Congress. Board of
Governors v. Agnew, 329 U.S. 441, 67S.
Ct. 411, 91 L.Ed. 408 (1947): Heikkila vy.
Barber, 345 U.S. 229, 73 S. Ct. 603,
97 L.Ed. 972 (1953); Brownell v. We Shung,
352 U.S. 180, 77 S. Ct. 252, 1 L.Ed.2d 225:
Harmon _v. Brucker, 355 U.S. 579, 78 S.
Ct. 433, 2 L.Ed.2d 503 (1957); Leedom v.
Kyne, 358U.S. 184, 79S. Ct. 180,
3 L.Ed.2d 210 (1958); Rusk vv. Cort.
36 U.S. 367, 82 S. Ct. 787, 7 L.Ed.2d 809.
Early cases in which this type of judicial
review was entertained, [citations omitted],
have been reinforced by the enactment of the
Administrative Procedure Act, which embodies
the basic presumption of judicial review to one
‘suffering legal wrong because of agency
action, or adversely affected or aggrieved by
agency action within the meaning of a relevant
statute.’ 5 U.S.C. § 702, so long as no statute
precludes such relief or the action is not one
committed by law to agency discretion.
5 U.S.C. § 7Ol1(a). The Administrative
14
Procedure Act provides specifically not only
for review of ‘[a]gency action made
reviewable by statute’ but also for review of
‘final agency aciion for which there is no other
adequate remedy in court.’ 5 U.S.C. § 704.
The legislative material elucidating _ that
seminal Act manifests a congressional
intention that it cover a broad spectrum of
administrative actions, and this Court has
echoed that theme by noting that the
Administrative Procedures Act’s ‘generous
review provisions’ must be given a
‘hospitable’ interpretation. Shaughnessy _v.
Pedreiro, 349U.S. 48, 75S. Ct. 591,
99 L.Ed. 868. See United States v. Interstate
Commerce Commission, 337 U.S. 426, 69
S.Ct. 1410, 93 L.Ed. 1451 (1949); Brownell
v. We Shung, supra; MHeikkila_ v. Barber,
supra. Barlow v. Collins, 397 U.S. 159, 166-
167 (1970).
In Shaughnessy v. Pedreiro, 349 U.S. 49 (1955), the
Court considered whether the word "final" in the 1952
Immigration and Naturalization Act, 8 U.S.C. § 1101 etseq.,
precluded judicial review of administrative decisions. The
court reasoned that it was more in harmony with the generous
review provisions of the Administrative Procedure Act to
construe the ambiguous word "final" in the 1952 Immigration
Act as referring to finality in administrative procedure, rather
than as cutting off the right of judicial review in whole or in
part. Id. at 51. This Court held that a presumption of
Nn
judicial reviewability can be overcome only by "clear and
convincing evidence, precluding judicial review." Lindahl v.
Office of Personnel Management, 470 U.S. 768 (1985).
This Court, in a case involving 8 U.S.C. § 1160(e),
has explained the presumption of judicial review of
administrative decisions:
It is presumable that Congress legislates with
knowledge of our basic rules of statutory
construction, and given our well-settled
presumption favoring interpretations of statutes
that allow judicial review of administrative
actions, see Bowen v. Michigan Academy of
Family Physicians, 476 U.S. 667, 670, 106 S.
Ct. 2133, 2135, 90 L.Ed.2d 623 (1986),
coupled with the limited review provisions of
Section 210(e), it is most unlikely that
Congress intended to foreclose all forms of
meaningful judicial review.
McNary v. Haitian Refuge Center, 498 U.S. 499 (1991).
The Military Claims Act does not contain the kind of
ambiguous language required by the Supreme Court to
preclude judicial review. Furthermore, the Military Claims
Act does not even contain language as clear as that analyzed
in the Lindahl decision, which was held inadequate (emphasis
added) to preclude judicial review. The Military Claims Act
Only states that decisions made thereunder are "final and
conclusive,” not that they are "not subject to review." See
16
also Panama Canal Co. v. Grace Line. 356 U.S. 309 (1958)
(when the action or inaction [of the agency] turns on a
mistake of law. then judicial relief is often available);
Broadnax v. United States Army. 710 F.2d 865, 867 (D.C.
Cir. 1985) (legal errors are judicially reviewable); LaBash v.
United States Navy, 668 F.2d 1153 (10th Cir. 1982)
(constitutional violation is subject to judicial review).
Furthermore, judicial review of the Air Force’s
administrative decision-making is required under the Fifth
Amendment's mandate that United States citizens be given
equal treatment under the laws. Interpreting the Military
Claims Act to preclude judicial review is a violation of this
constitutionally protected right when analyzed with the
Federal Tort Claims Act (FTCA). See 28 US.C. §§ 2671
The equal protection doctrine requires that similarly
situated citizens be treated similarly by the laws of the United
States in Trustees of Dartmouth College v. Woodward, 17
U.S. 518, the Court held that a law which treats similarly
situated persons differently based upon an arbitrary and
Capricious classification is unconstitutional. See Califano v.
Boles, 443 U.S. 282 (1979); Flemming v. Nestor, 363 U.S.
603 (1960).
17
” i
The MCA, in light of the FTCA, should be
interpreted to provide judicial review of claims made under
its provisions. The FTCA allows dependents, like Slaine
Schneider, who have been injured by military personnel on
military bases within the geographical boundaries of the
United States, a determination of the merits of their claim in
the federal courts. The FTCA does not, however, allow
dependents injured on a United States military base outside
the geographical boundaries of the United States to bring a
claim under its provisions. For these dependents, the MCA.
enacted prior to the FTCA, is the available remedial statute
for which there is no rational reason to deny a judicial review
of the merits of their claims.
Slaine Schneider, a girl who has been permanently
injured at the age of 5 years, has not been provided with a
neutral and independent review of her claims against the Air
Force. Instead, she has been subject to the biased and
inherently unfair system of the Air Force. This inherent
unfairness results from the Air Force being the negligent and
liable party as well as the adjudicating body who determines
whether one of their own is responsible for the injury of
another. This type of decision-making, made solely within
the confines of the executive branch, precludes fair and just
18
rulings because there is no threat of review by the judicial
branch of the government.
This Court, in the interest of justice and fairness,
should grant Petitioner's writ of certiorari to determine
whether judicial review is available under the Military Claims
Act. |
B. WHETHER THE UNITED STATES AIR FORCE
ADMINISTRATIVE REVIEW OF SLAINE
SCHNEIDERS’* CLAIMS UNDER THE MILITARY
CLAIMS ACT SEC. 10 U.S.C. §§ 2731 ET SEQ..
VIOLATED SLAINE SCHNEIDER’S
CONSTITUTIONAL RIGHT TO DUE PROCESS?
The appellate court acknowledged that judicial review
of an MCA decision is required when a constitutional right
has been violated. See App. 1A - 13A. The court, however,
improperly determined that Slaine Schneider’s constitutional
rights had been violated thereby allowing judicial review of
her claim. In Senior Circuit Judge Heaney’s dissent, he
States,
The majority states that MCA provides an opportunity
to file a complaint but that payment of a settlement is
a discretionary even if negligence is shown. Its
analysis precludes any due process challenge no
matter how arbitrarily or improperly the complaint has
been handled or disposed of. I do not believe that
this is the “opportunity” envisioned by Congress when
it established the complaint procedure under the
MCA, particularly given the fact that the MCA is the
19
aera eel
exclusive remedy for claimants. The MCA provides
compensation to persons injured in the course of
medical treatment if they can show that their injuries
resulted from negligence by the physicians involved.
Due process requires that claimants be afforded fair
procedures for presenting their claims of negligence.
App. 13A - 14A. It is the failure of the system to adequately
provide a fair forum that requires a judicial review of its
procedures.
A cause of action is a "species of property" protected
by the due process clause. See Logan v. Zimmerman Brush
Co., 455 U.S. 422, 428 (1981) (citing Mullane v. Central
Hanover Bank and Trust Co., 339 U.S. 306 (1950)).
According to Justice Jackson writing for the Court in
Mullane, "many controversies have been raised about the
cryptic and abstract words of the Due Process Clause, but
there can be no doubt that at a minimum they require that
deprivation of life, the liberty or property by adjudication be
proceeded by notice and opportunity for hearing appropriate
to the nature of the case." Id. at 313.4 In Logan, the
* One of the most famous and perhaps the most quoted
definition of due process of law is that of Daniel Webster in
his argument in the Dartmouth College case, in which he
declared that by due process of law is meant "a law which
hears before it condemns; which proceeds upon inquiry, and
20
Supreme Court recognized that Mullane affirmatively settled
that a cause of action 1s a species of property protected by the
Due Process Clause. Id. at 428°, see also Jiron v. Mahlab,
renders judgment only after trial." Trustees of Dartmouth
College v. Woodward, 17 U.S. 518.
> The Eleventh Circuit in Newman v. Soballe, 871 F.2d
969 (11th Cir. 1989), stated:
[B]ecause the Military Claims Act does not
confer any cause of action to non-military
claimants as a substitute for a judicial remedy,
we believe that the dissident’s resolution of the
case has constitutional implications. In Logan
v. Zimmerman Brush Co., 455 U.S. 422, 428,
102 S.Ct. 1148, 1154, 71 L.Ed 2d 265 (1982),
the Supreme Court held that "a cause of action
is a species of property protected by the ...
Due Process Clause." Thus having made
access to the courts for judicial action such as
tort or discrimination entitlement or necessity,
that a government "may not deprive someone
of that access unless the balance of
[governmental] and private interest favor the
governmental scheme." 455 U.S. at 430 n. 4,
102 S.Ct. at 1154-55. Because we find that
the Gonzales Act does not deprive Ms.
Newman of the right to sue in the United
States Court, we need not undertake this
constitutional inquiry. We note, however, that
were we to adopt the dissident’s position that
21
—
659 P.2d 311 (N.M. 1983) (holding statute unconstitutional
where it denied claimants their Due Process court access).
Likewise, the Military Claims Act creates a cause of action
and allows claimants to pursue a claim against the United
States Government for non-combative injuries suffered at the
hands of United States personnel stationed overseas. See 10
U.S.C. §§ 2731 et seq.
An agency violates a claimant’s constituionally
protected due process and equal protection rights when they
act arbitrarily or capriciously. For example, arbitrary action
occurs when claimants are denied the right to cross-examine
witnesses. See Willner v. Committee on Character and
Fitness, 373 U.S. 96. Or when they are denied access to the
identity of witnesses and evidence that will be used against
them. Goldberg v. Kelly, 397 U.S. 254. Or when they are
denied the right to be personally be heard, not only through
writing or others. Id.
Furthermore, a decision of an agency must meet the
due process requirement that an agency’s decision must
the Gonzales Act deprives Ms. Newman of any
meaningful remedy, we would be forced to address
the constitutionality of such a scheme.
Id. at n. 10.
express a reasoned conclusion. See Federal Communications
Comm'n v. Pottsville Broadcasting Co., 309 U.S. 134
(1940). The findings must supply information and guidance
to the parties involved and prevent arbitrary decisions. See
In re Boston & P.R. Corp.. 428 F.2d 159 (C.A. Mass.
1970). Courts have inherent authority to review and set aside
administrative actions which are arbitrary or capricious. See
McHenry _v. Bond, 668 F.2d 1185 (11th Cir. 1982);
Montessori Children’s House & School. Inc. v. Secretary of
Labor, 443 F. Supp. 599 (D.C. Tex. 1977). Under the
Administrative Procedure Act, courts shall hold unlawful and
set aside agency action, findings and conclusions found to be
arbitrary and capricious, contrary to constitutional rights,
unsupported by substantial evidence in any case reviewed on
the record or unwarranted by the facts. See 5 U.S.C. §§
654, 656, 659. The purpose of these provisions is to impose
greater responsibility on the courts for the reasonableness and
fairness of the decision of the administrative agency.
Slaine Schneider was not afforded due process
protection in the manner in which the United States Air Force
reviewed her claim brought under the Military Claims Act.
The investigation which was conducted was completely
inadequate in that the parents were never consulted for an
interview regarding their version of the facts. Any physician
23
expert witness who reviewed Slaine Schneider’s claim could
not have legitimately concluded that there was no claim
without taking into consideration the family’s version of what
occurred at the time of Slaine Schneider’s medical treatment.
Slaine Schneider was also denied due process in the
matter in that ex parte conversations were conducted with her
subsequent treating physician. Slaine Schneider’s counsel
was not allowed to be privy to these conversations, nor was
counsel provided any opportunity to respond to the claims.
It is unknown whether Slaine Schneider’ s treating physician
has any referral relationship with physicians affiliated with
the United States Air Force in England, nor whether any
other type of bias could have been shown through cross-
examination or even rigorous interviewing techniques if
Slaine Schneider would have been able to be represented by
counsel. It is further a breach of the patient-physician
privilege to have conducted an ex parte conversation with one
of Slaine’s treating physicians without her consent or
knowledge.
Slaine Schneider’s counsel was also denied the right
tO cross-examine or respond to the Air Force’s expert
witness. This witness’s opinions were not even disclosed
until the written decision denying Slaine Schneider’s
administrative appeal was issued. This decision did not
24
contain the basis of this expert witnesses’ opinion in that
there were no medical treatises cited, no references to the
prevailing standard of medical care and no reference to the
particular facts of Slaine Schneider’s medical treatment.
Furthermore, there was no manner in which Slaine Schneider
could respond to these allegations as her administrative appeal
had already been denied.
Clear evidence of the manner in which the Air Force
violated Slaine Schneider's due process rights is seen in the
manner in which they conducted the appeal. A mere nine
days after the Schneider's appeal was initiated, the Air Force
denied the claim and took final action. The Air Force never
contacted Slaine Schneider through her counsel for additional
information or informed them of the timing of the decision.
Further, the Air Force could not have had the matter
reviewed by a physician in nine days to determine the merits
of the claims of negligence articulated in the expert
physician's letter which was submitted at the time of the
appeal. Because Slaine Schneider's access to federal district
court was limited, the Air Force seized upon the opportunity
to summarily dismiss the claim without adequate
constitutional safeguards. Such actions warrant a further
review by the federal judiciary and a finding of a violation of
due process protection.
The arbitrary and capricious standard used by the
United States Air Force is further evidenced in the its letter
dated May 14, 1992. According to this letter, "At times,
significant communication with Claimant’s attorney is
required. Other times, when the facts and expert medical
reviews are unequivocal, protracted contact is not
necessary....". This statement well illustrates the failure of
the Air Force review process to afford constitutional
safeguards to claimants such as Slaine Schneider.
CONCLUSION
For the reasons set forth above, Petitioners request
that this petition for certiorari be granted.
Respectfully submitted,
LYONS SAWICKI NEESE & PHELPS, P.A.
THOMAS J. LYONS
Counsel of Record
MARTHA L. NEESE
Two Appletree Square, Suite 330
Bloomington, MN 55425
Telephone: (612) 770-5155
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 93-1702
Michael Schneider; Roisin .
Schneider, individually and
as guardians of Slaine
Schneider,
Plainufts - Appellants, Appeal from the United States
. District Court for the
V District of Minnesota
United States of America,
Defendant - Appellee.
Submitted: December 16, 1993
Filed: June 24, 1994
Before LOKEN, Circuit Judge, HEANEY, Senior Circuit
Judge, and HANSEN, Circuit Judge.
HANSEN, Circuit Judge.
Michael and Roisin Schneider brought an action on
behalf of their 5 1/2 year old daughter, Slaine Schneider, in
the district court seeking review of a decision by the Untied
States Air Force denying their claim for payment under the
LA
Military Claims Act (the Act). See 10 U.S.C. § 2731-2737.
The district court' dismissed the Schneiders’ cause of action
for lack of subject matter jurisdiction, finding that the
language of the Act precludes judicial review. The
Schneiders appeal, asking this court to determine that the
Military Claims Act does not preclude judicial review of the
denial of their claim and separately asserting that the
procedure used by the United States Air Force in reviewing
their claim violated their constitutionally protected rights to
equal protection and due process. We affirm.
I. BACKGROUND
Slaine Schneider was born on April 23. 1987. In late
1988, while living in England with her parents where her
father, Michael Schneider, was stationed with the United
States Air Force (USAF), Slaine started to experience right
ear drainage. Her parents took her to a hospital in England
for treatment. In 1989, a USAF physician, Dr. David
Range, performed three surgical procedures on Slaine’s ear:
(1) a myringotomy, which involved placing a tube in Slaine’s
right ear to facilitate drainage; (2) removal of a polyp from
the right ear; and (3) a modified radical mastoidectomy,
diagnosed postoperatively as cholesteatoma. The Schneiders
contend that before Dr. Range performed the third surgery,
he advised the Schneiders that he had never seen or
performed the procedure but assured them that he would have
available a more experienced physician at the time of
surgery. The Schneiders assert that to the contrary, a more
experienced physician was not present at the time of surgery.
In 1990, Dr. William S. Lund, a civilian doctor in England,
performed a fourth surgery for recurrent cholesteatoma, and
‘The Honorable Diana E. Murphy, Chief Judge, United
States District Court for the District of Minnesota.
2A
his Operative report indicated that much of the ear drum was
eroded. Today, Slaine suffers deafness in her right ear,
which her parents claim results from the negligence of the
USAF physician’s failure to diagnose the cholesteatoma
sooner and failure to properly treat the ear drainage.
On Slaine’s behalf, in July of 1991, her parents filed
a claim with the USAF pursuant to the Military Claims Act,
alleging personal injury to Slaine as a result of the negligence
of the USAF physician. ON November 13, 1991, Captain
Tamara Riley, a USAF Judge Advocate Officer stationed in
Europe and assigned to do a "medicolegal review" of the
claim, notified the Schneiders of how the claim process could
be expected to proceed. In the letter, Captain Riley said that
she would review the case within 45 days, consult with
medical experts, and then forward the file to the Air Force’s
legal services agency at Bolling Air Force Base in
Washington, D.C., for final disposition, and notify the
Schneiders when the transfer occurred. Captain Riley also
informed the Schneiders that they bore the burden of proof
and requested that the Schneiders obtain a current audiology
examination of Slain in order to substantiate their claim for
total and permanent loss of hearing.. (Jt. App. at 24.) On
January 13, 1992, Captain Riley notified the Schneiders that
she had completed her “medicolegal review’ and was
forwarding the file to Washington D.C.., for final disposition.
She again suggested that the Schneiders forward the
audiology report as soon as possible to the reviewing officer
in Washington. (Id. at 26.) By letter dated March 16, 1992,
the Schneiders’ attorney submitted the audiology report to the
reviewing authority in Washington and asked what
information was needed to complete the investigation. (Id. at
27.) By letter dated the next day, the USAF notified the
Schneiders of the final disposition of their claim. (Id. at 28-
3A
29.) The USAF denied the claim, finding no negligence in
the care Slaine received from Dr. Range. (Id.)
The Schneiders filed an administrative appeal pursuant
to the regulations, requesting that the USAF reconsider their
claim. On appeal, the Schneiders, for the first time,
submitted the written opinion of their expert, Dr. George
Sisson, Sr., who concluded that Slaine had received negligent
care from the USAF physician. (Id. at 30-44.) Dr. Sisson’s
opinion referred to Dr. William S. Lund, the physician who
had subsequently treated Slaine, as a well-known British
neurotologist and cited Dr. Lund’s findings as a basis for Dr.
Sisson’s opinion. (Id. at 42-43.) Colonel Philip A. Meek,
Chief of the Air Force’s Claims Division, considered the
Schneiders’ appeal and Dr. Sisson’s expert report. Noting
that the Schneiders’ expert quoted Dr. Lund, Colonel Meek,
in his letter of denial, stated that the Air Force had
extensively interviewed Dr. Lund in the course of
investigating the claim. Captain Riley had previously
informed the Schneiders that as a part of her investigation of
the claim she would consult with experts. In the USAF
interview, Dr. Lund concluded that Dr. Range’s treatment
was not negligent and that Slaine’s present condition was a
result of the disease process, not medical negligence. (Id. at
45.) The medical facts of the case were also reviewed by a
USAF medical expert who concluded that the diagnosis was
timely and the surgery was appropriate. (Id. at 46.) Colonel
Meek concluded that he was unable to approve the claim for
payment because there was no showing of negligent
treatment. (Id.)
The Schneiders then filed an action in district court
seeking review of the USAF’s decision. They alleged
jurisdiction as a federal question under 28 U.S.C. § 1331 and
the Military Claims Act, 10 U.S.C. § 2731-2737; as a tort
4A
reenact tater eae
claim under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 2671-2680; as a controversy under the Declaratory
Judgment Act, 28 U.S.C. § 2201; and as a constitutional
claim of due process and equal protection under the Fifth
Amendment. The district court found that there was no
jurisdiction under the FTCA because the United States has
not waived its sovereign immunity for claims arising in a
foreign country. See 28 U.S.C. §2680(k). The district court
determined that there was no_ jurisdiction under the
Declaratory Judgment Act because it only creates a remedy
and cannot serve as an independent basis for subject matter
jurisdiction. See 28 U.S.C. § 2201. The district court also
determined that there was no federal question under 28
U.S.C. § 1331 because the denial of a settlement is
unreviewable by the terms of the Military Claims Act, see 10
U.S.C. § 2735, and the Schneiders had not raised any valid
constitutional claim. Accordingly, the district court dismissed
the action for lack of jurisdiction and failure to state a claim
upon which relief may be granted. The Schneiders appeal.
II. DISCUSSION
In general, the Military Claims Act allows for
settlement of two types of personal injury claims:
(a) claims arising from negligent or wrongful
acts Or Omissions committed by United States military
Or civilian personnel while acting within the scope of
their employment.
(b) claims arising from noncombat activities of
the United States, whether or not such injuries or
damages arose out of the negligent or wrongful acts or
omissions by United States military or civilian
employees .
nine
32 C.F.R. § 842.49(a), (b) (1990): see also 10 U.S.C. §
2733(a). For claims arising from noncombat activities, it is
not necessary to establish negligence. See 32 C.F.R. §
842.49(b). "“Noncombat activity" is a specially defined term
in the department's regulations; it is an "[a]ctivity, other than
combat, war or armed conflict, that is particularly military in
character and has little parallel in the civilian community."
32 C.F.R. § 842.49(a). When the Secretary is satisfied that
a Claim of negligence has been substantiated, the Secretary
"may settle" the claim by paying an amount not to exceed
$100,000, and for a larger claim deemed meritorious by the
Secretary, the Secretary may report the excess amount to the
Comptroller General for payment. See 10 U.S.C. § 2733.
The Schneiders’ claim arose from the acts of a USAF
employee (Dr. Range) acting within the scope of his
employment. The USAF denied the claim, finding no
negligence, and the district court dismissed their complaint
for lack of jurisdiction and failure to state a claim. On
appeal, the Schneiders offer tow arguments to support their
contention that the district court has jurisdiction to consider
their complaint. First, the Schneiders contend that the
Military Claims Act does not preclude judicial review of the
USAF’s denial of their claim. Second, they contend that the
USAF violated their rights to equal protection and: due
process. We consider each argument in turn.
A. Military Claims Act
The Schneiders argue that the district court erred in
determining that it lacked jurisdiction because the USAF’s
decision to deny their claim is a federal question under the
Military Claims Act and is subject to judicial review as final
agency action. This court reviews de novo a district court’s
determination that it lacks subject matter jurisdiction. See
6A
General Elec. Capital Corp., 991 F.2d 1376, 1380 (8th Cir.
1993): Keene Corp. v. Cass, 908 F.2d 293, 296 (8th Cir.
1990).
The settlement of a claim under the Military Claims
Act. which includes the Military’s disposing of a claim by
disallowance, see 10 U.S.C. § 2731, is final agency action.
Ordinarily, the Administrative Procedure Act (APA) provides
a general cause of action for persons adversely aggrieved by
final agency action, see 5 U.S.C. § 702. but there is no cause
of action to the extent that a relevant statute precludes judicial
review, see 5 U.S.C. § 701(a)(1). See Block v. Community
Nutrition Inst., 467 U.S. 340, 345 (1984) To determine
whether the relevant statute precludes judicial review:
We begin with the strong presumption that
Congress intends judicial review of administrative
action... .
Subject to constitutional constraints, Congress
can, of course, make exceptions to the historic
practice whereby courts review agency action. The
presumption of judicial review is, after all, a
presumption, and "like all presumptions used in
interpreting statutes, may be overcome by,” inter alia,
"specific language or specific legislative history that
is a reliable indicator of congressional 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, 467 U.S. at 349, 351).
TA
——————
To preclude judicial review, a statute must be "“specific in
withholding such review [or] must upon its face give clear
and convincing evidence of an intent to withhold it.°"
Bowen, 476 U.S. at 671 (quoting H.R. Rep. No. 1980, 79th
Cong.. 2d Sess. 41 (1946)): see also Abbott Labs. v.
Gardner, 387 U.S. 136, 141 (1967).
The relevant section of the Military Claims Act
provides: “Notwithstanding any other provision of law, the
settlement of a claim under section 2733 . . . of this title is
final and conciusive." 10 U.S.C. § 2735. The Schneiders
argue that this statutory language does not clearly preclude
the presumption in favor of judicial review but merely
provides that no further agency action or review is available.
To the contrary, section 2735 is clear on its face. The Statute
does not merely say that the agency decision is "final," see
Shaughnessy v. Pedreiro, 349 U.S. 48, 51-52 (1955) ("final"
only prevents further administrative review). or "final and
conclusive," see Lindahl v. Office of Personnel] Megmt., 470
U.S. 768 (1985) ("final and conclusive" precludes judicial
review only of agency fact-finding). Rather, the statute states
that the Secretary’s decision is "final and conclusive"
“notwithstanding any other provision of law." 10 U.S.C. §
2735. To interpret the section as precluding only further
administrative review would be to render meaningless the
phrase "notwithstanding any other provision of law."
Additionally, section 2735 originally stated that the military’s
settlement of a claim is "final and conclusive for all
purposes," but the words "for all purposes" were
subsequently “omitted as surplusage." Rodrigue v. United
States, 968 F.2d 1430, 1433 (1st Cir. 1992) (quoting 10
U.S.C.A. § 2735 (Explanatory Notes)). We conclude that
the language of section 2735 clearly expresses Congress’s
intent to preclude judicial review and presents no ambiguity
8A
that would give rise to a presumption in favor of judicial
review. ;
Among other circuits, "[i]t is well-recognized that the
administrative claims procedure is an appropriate balance
between individual rights and Congress’ desire to avoid the
disruptive effect that judicial review may have on ‘the prompt
and authoritative administrative settlement of claims’ against
the military." Heller v. United States, 776 F.2d 92, 98 (3d
Cir. 1985) (quoting Towry v. United States, 459 F. Supp.
101, 108 (E.D. La. 1978), aff'd, 620 F.2d 568 (Sth Cir.
1980), cert. denied, 449 U.S. 1078 (1981)), cert. denied, 476
U.S. 1105 (1986). Every circuit that has addressed the
language of section 2735 has concluded that it precludes
judicial review of the military’s disallowance of a claim under
the Act, absent a constitutional claim. See Hata v. United
States, No. 92-56142, 1994 WL 145108, at *1 (9th Cir. Apr.
26, 1994); Rodrigue, 968 F.2d at 1432-34; Poindexter _v.
United States, 777 F.2d 231, 233-37 (Sth Cir. 1985);
Broadnax v. United States Army, 710 F.2d 865, 867 (D.C.
Cir. 1983); LaBash v. United States Dept. of the Army, 668
F.2d 1153, 1155-56 (10th Cir.), cert. denied, 456 U.S. 1008
(1982). But see Welch v. United States, 446 F. Supp. 75,
77-78 (D. Conn. 1978) (suggesting broad judicial review).
We now join our sister circuits in holding that section 2735
is unambiguous and that absent a constitutional claim the
disallowance of a claim under the Military Claims Act is not
subject to judicial review.
B. Constitutional Claims
Our next task is to determine whether the Schneiders’
allegations of equal protection and due process violations state
any valid constitutional claim that would justify judicial
review of this case. The Schneiders first contend that the
9A
Military Claims Act deprives them of their right to equal
protection under the Fifth Amendment because it precludes
judicial review while similarly situated litigants under the
FTCA are entitled to bring suit. The Schneiders have no
cause of action under the FTCA because it excludes from its
remedial scheme a cause of action for a governmental tort
committed in a foreign country. See 28 U.S.C. § 2680(k).
Because the government has not waived its sovereign
immunity when a tort is committed in a foreign country, the
Schneiders’ only remedy lies within the scheme of the
Military Claims Act, which precludes judicial review of the
settlement or disallowance of a claim. Thus, the Schneiders
contend, the Military Claims Act deprives them of equal
protection. We disagree.
First, Congress’s power to maintain or to waive
sovereign immunity for suits against the government is
absolute and is inherent in the government’s status as a
sovereign. Lynch v. United States, 292 U.S. 571. 574
(1934); Heller, 776 F.2d at 98. Second, the Schneiders have
not alleged that they are members of a protected class. and in
our view, the distinction between victims within the United
States and victims in a foreign country 1s a_ rational
distinction. See Heller, 776 F.2d at 98 ("government's desire
to avoid application to it of the vagaries of foreign law is an
important and rational consideration"). We conclude that,
because Slaine’s injury occurred in a foreign country, the
Schneiders are not similarly situation to persons injured by
governmental torts within the United States and that this
distinction is rational. Therefore, the Schneiders’ equal
protection challenge fails.
The Schneiders also contend that the USAF violated
their right to due process because the USAF conducted ex
parte communications with experts without giving the
LOA
Schneiders an opportunity for cross-examination, failed to
timely inform the Schneiders of the substance of those expert
opinions, and failed to contact the Schneiders for additional
information or to inform them of the timing of the decision.
It is a well-settled principle, however, that the requirements
of procedural due process apply only when there has been a
deprivation of life, liberty, or property within the meaning of
the Fifth or Fourteenth Amendment. See Mathews v.
Eldridge, 424 U.S. 319, 332 (1976); Board of Regents v.
Roth, 408 U.S. 564, 569-72 (1972); Williams v. Nix, 1 F.3d
712, 717 (8th Cir. 1993). Not every "grievous loss visited
upon a person by the [government] is sufficient to invoke the
procedural protections of the Due Process Clause."
Meachum v. Fano, 427 U.S. 215, 224 (1976). The relevant
consideration for our analysis is a two-part inquiry. We must
determine (1) whether the Schneiders were deprived of a
protected interest, and if so, (2) what process was due. See
Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982):
Post v. Harper, 980 F.2d 491, 493 (8th Cir. 1992).
The Schneiders argue that they were deprived of a
cause of action by the Military Claims Act’s preclusion of
judicial review. We recognize that a cause of action is a
property interest protected by the Due Process Clause. See
Logan, 455 U.S. at 428. However, the Military Claims Act
does not grant claimants a cause of action against the
government. See Towry, 459 F. Supp. at 105 (Military
Claims Act confers no right of action to pursue judicial
remedy) (opinion adopted by Fifth Circuit on appeal).
Further, as already noted, the government has not waived
sovereign immunity for tort claims against the government
that arise in a foreign country. See 28 U.S.C. § 2680(k).
Thus, the Schneiders have no cause of action against the
government, and as a result, preclusion of judicial review by
the Military Claims Act does not deprive them of a cause of
L1A
action. See Heller, 776 F.2d at 98 (exclusivity of a remedy
under the Military Claims Act is not itself a denial of due
process). See also Hata. 1994 WL 145108. at *2
("preclusion of judicial review under the [Military Claims
Act] does not violate due process").
The Schneiders cannot claim that they were deprived
of a property interest on the ground that they were entitled to
a settlement under the Military Claims Act. In Roth, the
Supreme Court discussed what constitutes a property interest:
To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire
for it. He must have more than a_ unilateral
expectation of it... .
Property interests, of course, are not created
by the Constitution. Rather, they are created and
their dimensions are defined by existing rules or
understandings that stem from an independent source
such as state law -- rules or understandings that secure
certain benefits and that support claims of entitlement
to those benefits.
408 U.S. at 577. The scope of the Schneiders’ interest in a
settlement is a defined by the Military Claims Act and the
applicable regulations that define a person’s eligibility for
settlement. The Act and its regulations create an Opportunity
to file a claim for settlement, not an entitlement to payment
of a benefits. A settlement under the Act is not in the nature
of an entitlement but is conditioned upon both the claimant’s
ability to substantiate a negligence claim and the USAF’s
discretion in determining whether to pay a settlement. We
conclude that, because the Schneiders have not demonstrated
that the USAF deprived them of a liberty or property interest
12A
by denying settlement of their claim, the Due Process Clause
does not apply. Therefore. we do not reach the question of
what process was due.
Hi. CONCLUSION
We conclude that the Military Claims Act is not
subject to judicial review absent a constitutional claim and
that the Schneiders have failed to demonstrate a_ valid
constitutional claim in this case. Accordingly, we affirm the
judgment of the district court dismissing the case for lack of
jurisdiction and for failure to state a claim upon which relief
may be granted.
HEANEY, Senior Circuit Judge, dissenting.
I agree with the majority that no equal protection
violation occurred and that there 1s no judicial review of
Military Claims Act (MCA) determinations absent a
constitutional claim. I conclude, however, that the MCA
does confer an entitlement to a settlement upon a showing of
negligence and therefore due process requires fair procedures
to determine negligence. Absent such procedures, the
promise of benefits to those who are injured by the
negligence of the military is a sham.
The majority states that MCA provides an opportunity
to file a complaint but that payment of a settlement is a
discretionary even if negligence is shown. Its analysis
precludes any due process challenge no matter how arbitrarily
or improperly the complaint has been handled or disposed of.
I do not believe that this is the "opportunity" envisioned by
Congress when it established the complaint procedure under
the MCA, particularly given the fact that the MCA is the
exclusive remedy for claimants. The MCA provides
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compensation to persons injured in the course of medical
treatment if they can show that their injuries resulted from
negligence by the physicians involved. Due process requires
that claimants be afforded fair procedures for presenting their
claims of negligence.
Cases from other circuits have acknowledged the
possibility that review of an MCA claim is available when a
failure of due process is implicated. The MCA "may well
permit some limited review, for example where there has
been a substantial departure from important procedural rights,
a misconstruction of the governing legislation, or some like
error going to the heart of the administrative determination. "
Broadnax vy. United States Army, 710 F.2d 865, 867 (D.C.
Cir. 1983) (quoting Scroggins v. United States,, 397 F.2d
195, 197 (Ct.Cl), cert. denied, 393 U.S. 952 (1968))
(internal quotations omitted); See also Hata v.
United States, No. 92-56142, 1994 WL 145108. at *2 (9th
1992) (same); LaBash v. United States Dept. of the Army,
668 F.2d 1153, 1156 (10th Cir.) (suggesting failure to
comply with statutory process would constitute due process
violation), cert. denied, 456 U.S. 1008 (1982).
I believe that a substantial departure from important
procedural rights has occurred in this case. i would agree
that the Air Force may use a process that consists entirely of
written submissions by the parties. If, however, the Air
Force departs from the written process and interviews one of
the actors, fairness requires that the claimant also be given an
Opportunity to question that person. According to the final
letter denying the Schneiders’ appeal, the Air Force
“extensively interviewed" Dr. Lund about the medical
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treatment received by Slaine Schneider and about the opinion
of the Schneiders’ medical expert, Dr. Sisson, that such
treatment was negligent. The Schneiders should have been
provided an equal opportunity to question Dr. Lund to
explore the basis of his opinion. This is particularly
important given the fact that the Air Force is not a neutral or
independent adjudicator but rather is investigating one of its
own physicians. The Air Force deprived the Schneiders of
dupe process when it failed to afford them that opportunity.
A true copy.
Attest:
CLERK, U. §. COURT OF APPEALS
EIGHTH CIRCUIT.
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
FOURTH DIVISION
Michael Schneider and Roisin
Schneider, individually and as
guardians of Slaine Schneider,
Plaintiffs. Civ. No. 4-92-823
United States of America MEMORANDUM OPINION
AND ORDER
Defendant.
Martha L. Neese, Esq., Lyons Sawicki Neese P.A.. 1560
Beam Avenue, Suite A, St. Paul, Minnesota 55109. appeared
for the Plaintiffs.
Jeffrey L. Karlin, Esq., United States Department of Justice,
Civil Division Torts Branch, Benjamin Franklin Station,
Washington, D.C. 20044, and Robert Small. Esq., Assistant
United States Attorney, Minneapolis, Minnesota. appeared for
the United States of America.
Michael Schneider and Roisin Schneider. both
individually and as guardians of. their daughter, Slaine
Schneider, brought this action against the United States of
America. The complaint alleges jurisdiction under the
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Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 and
2671 et seq., the Declaratory Judgment Act, 28 U.S.C. §
2201, and under the Military Claims Act, 10 U.S.C. §§ 2731
et seq. and 28 U.S.C. § 1331. Plaintiffs claim that Slaine
Schneider suffered permanent hearing loss as a result of
negligent health care provided to her at the United States Air
Force Hospital located in Great Britain. The government
now moves to dismiss for lack of subject matter jurisdiction
and for failure to state a claim upon which relief can be
granted under rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure.
I.
,
Slaine Schneider was born on April 23, 1987. In
1988, she lived in England with her parents. Michael
Schneider was stationed there with the United States Air
Force (USAF).
In late 1988, Slaine Schneider started to experience
right ear drainage. On December 28, 1988, she was brought
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to the USAF hospital in Upper Heyford. England for
treatment. She continued to receive treatment at this hospital
for her ear problem.
Dr. David Range, a doctor at the USAF hospital,
performed surgery on Slaine Schneider's ear on three separate
occasions. On June 26, 1989, he performed a myringotomy,
Which involved placing a tube in the tympanic membrane to
facilitate drainage. On october 24, 1989, he removed a polyp
Or growth in her right ear. During this surgery, he
perforated the tympanic membrane. Finally, on
November 16, 1989, Dr. Range performed a modified radical
mastoidectomy. Range had told the parents that he had never
performed this surgery before, nor seen it performed. He
assured them that he would be assisted by a surgeon more
experienced in this procedure, but no more experienced
surgeon did assist him.
Following the third operation, Slaine Schneider was
diagnosed with a cholesteatoma, which had eroded through
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bone and her posterior canal. On December 15, 1990, Slaine
Schneider had a fourth surgery at a civilian hospital for a
recurrent cholesteatoma. At this surgery, it was observed
that she had lost much of her right eardrum.
On July 2, 1991, Michael Schneider brought a claim
under the Military Claims Act. 10 U.S.C. § 2733. As part
of its investigation of this claim, the government requested an
audiology examination of Slaine Schneider on November 13,
1991. By letter dated November 26, 1991, Schneider
informed the government that he had requested an
audiological examination, but that it was difficult to obtain
one because the family had been restationed in Italy. the
government again requested the audiology examination in
January 1992.
Schneider forwarded the results of an audiological
examination on March 16, 1992. The government denied the
claim on March 17, 1992. On May 5, 1992, Schneider
appealed. and filed an expert opinion letter prepared by Dr.
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George Sisson with the appeal. On May 14, 1992, the appeal
was finally denied in a letter indicating that no further
administrative action could be taken.
Michael and Roisin Schneider brought this action on
September 2, 1992. They seek a declaration that the
defendant improperly conducted its administrative review. and
erroneously denied payment, in violation of their right to due
process under the Fifth Amendment. They also pray for the
court to remand to the Air Force for further administrative
action, and to be allowed to go forward to liquidate damages.
The government now moves to dismiss for lack of subject
matter jurisdiction and for failure to state a claim upon which
relief can be granted under Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure.
IT.
The complaint alleges jurisdiction under 28 U.S.C. §
1346(b). The FTCA does not waive sovereign immunity for
claims arising in a foreign country. 28 U.S.C. § 2680(k).
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The Schneiders’ claims arose in Great Britain, and plaintiffs
do not argue that the foreign country exception to the FTCA
does not apply. The FTCA does not provide a basis for
subject matter jurisdiction in this action.
The complaint also alleges jurisdiction under the
declaratory judgment act. 28 U.S.C. § 2201. The act creates
a remedy "[{iJn a case of actual controversy within its
jurisdiction..." It does not, however, provide a separate basis
for subject matter jurisdiction.
Finally, the complaint alleges federal question
jurisdiction under 28 U.S.C. § 1331 to review the denial of
the Schneider’s claims under the Military Claims Act. The
government argues that the denial of claims under the
Military Claims Act are generally unreviewable. The act
expressly provides that "[n]otwithstanding any other provision
of law, the settlement of a claim under section 2733 . . . or
this title is final and conclusive." 10 U.S.C. § 2735. The
act further defines a settlement to include the disallowance of
21A
—————
a claim. 10 U.S.C. § 2731. Plaintiffs respond that final
agency actions are presumptively reviewable unless it is clear
that Congress intended otherwise. Abbott Laboratories v.
Gardner, 387 U.S. 136, 140 (1967).
The Military Claims Act generally disallows Judicial
review of the denial of a claim. See Rodrigue v. United
States, 968 F.2d 1430 (1st Cir. 1992); Poindexter v. United
States, 777 F.2d 231 (Sth Cir. 1985); Broadnax v. United
States Army, 710 F.2d 865 (D.C. Cir. 1983): LaBash v.
United States Dept of the Army, 668 F.2d 1153 (10th Cir.
1982) cert. denied, 456 U.S. 1008 (1982).' Review may be
available under the act, however, if there is a "a sufficiently
pleaded allegation that a cognizable constitutional right has
been violated." LaBash, 668 F.2d at 1155. See also
Broadnax 710 F.2d at 867 (review available when there is
“substantial departure from important procedural rights"):
‘One district court has held to the contrary. See Welch
v. United States, 446 F. Supp. 75 (D. Conn. 1978).
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Rodrigue, 968 F.2d at 1434 (same). There is subject matter
jurisdiction, then, only if plaintiffs have pleaded a cognizable
constitutional claim.
III.
In their brief, but not in their complaint, plaintiffs
claim that the administrative process denied them due process
in violation of the fifth amendment in four ways. The
government did not interview the plaintiffs or their daughter
in its investigation of the claim. The government did not
give plaintiffs sufficient time to have the audiological
examination done. The government did not seek re-review
on the basis of the appeal. The government interviewed
Slaine’s civilian physician without allowing plaintiffs to
participate in the interview or cross-examine the doctor.
The plaintiffs have not identified either a protected
property or liberty interest deprived without due process. See
Wolf v. McDonnell, 418 U.S. 539, 556-57 (1974); Vitek v.
Jones, 445 U.S. 480, 489-90 (1980). The government has
23A
|
not waived it sovereign immunity with regard to plaintiffs’
claim. Moreover, the complaint does not allege that either
the Military Claims Act or the regulations promulgated
thereunder create a protected property or liberty interest.
Even if there were a sufficiently alleged protected
property or liberty interest, plaintiffs have not alleged facts
which show they were afforded insufficient process. Even
viewing the facts in the light most favorable tot he plaintiffs,
as the court should at this stage, the government reviewed
and investigated their claims and their appeal. It afforded
plaintiffs the opportunity to submit any information relevant
to the claim, and twice specifically requested the results of an
audiological examination. Plaintiffs have not alleged facts
sufficient to show that the claim was given insufficient
process.
Plaintiffs also allege that the FTCA deprives them of
equal protection because it distinguishes between claims
arising in the United States and those arising overseas. The
24A
bennett aia
distinction between these class is rational, and the statute does
not effect any suspect class. Zobel v. Williams, 457 U.S. 55
(1982). The complaint fails to state a cognizable equal
protection claim.
The complaint does not allege any cognizable
constitutional claim. The government’s motion to dismiss
should therefore be granted.
ORDER
Accordingly, based upon the above, and all the files,
records, and proceedings herein, IT IS HEREBY ORDERED
that the motion to dismiss of the United States of America is
granted and the complaint is dismissed.
Date:
Diana E. Murphy
United States District Judge
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS UNITED STATES AIR FORCE
WASHINGTON, D.C. 20332-6128
Martha L. Neese, Esquire
Lyons, Sawicki & Neese
1560 Beam Ave., Suite A
St. Paul, Minnesota 55109
Re: Medical Malpractice Claim of Slaine and
Michael J. Schneider -
OD/C/XQDT/91/00527/NOM
Dear Ms. Neese
I have considered your clients’ claim under the
provisions of the Military Claims Act, 10 U.S.C. § 2733,
alleging negligence by Air Force medical personnel at RAF
Upper Heyford Hospital, during the performance of a
modified mastoidectomy to remove cholesteatoma in Slaine’s
right ear. Following a thorough review of the facts and the
law, I must deny their claim.
The reason for this decision is that there was no
breach in the standard of care in the treatment Slaine received
at our facility. This case was extensively reviewed by an
ENT expert, and in his opinion the surgery was appropriately
performed. Recurrent cholesteatoma with multiple surgeries
for its eradication are not uncommon, due to the
aggressiveness of the disease, especially in children. Thus,
contrary to your clients’ allegations, the fact that the
cholesteatoma recurred was not due to medical malpractice.
26A
Your clients’ also alleged that Dr. Range had never
performed or seen the surgery to remove a cholesteatoma.
Please be advised that Dr. Range is board certified in
Otolaryngology and Head and Neck Surgery. He has
performed this surgery on many occasions and is well-
qualified to do so.
The Air Force regrets any hearing loss Slaine may
have suffered as a result of her disease, however, without
evidence of negligence the claim cannot be paid.
If your clients are dissatisfied by this decision, they
may file an administrative appeal. No special form is
required, but the appeal should be in writing and received
within sixty days of the mailing of this letter. The appeal
should include any additional information which will
substantiate the claim and should be sent to:
AFLSA/JACC
Building 5683
Bolling AFB, DC 20332-6128
Sincerely
SHERRI W. JOHNSON, Lt Colonel, USAF
Chief, Tort Branch
Claims & Tort Litigation Division
Air Force Legal Services Agency
May 5, 1992
Lyons Sawicki & Neese
1560 Beam Ave., Suite A
St. Paul, MN 55109
Attn: Ms. Martha Neese
RE: Slaine Schneider
File No. 3218
I have reviewed the records your office sent me which
originally were provided to you by the U.S.A. hospital, RAF
Upper Heyford, England; also the chronological summary
provided beginning with the first mention of a right otorrhea
on December 28, 1988. This was described for by Dr. Diane
Jordan-Wagner as an infant with greenish-brown pus draining
from the right ear. The drum membrane was described as
thick and red and the patient was placed on antibiotic otic
eardrops and analgesics for pain. The patient was then seen
five more times in the Pediatric? outpatient department and
antibiotics were rotated and there was a report of one culture.
A note states that it was sensitive only to tetracycline and
because of the concern of stain to the teeth, Dr. Jordan-
Wagoner elected not to give tetracycline. The ear continued
to drain a foul-smelling, green pus for four more months.
Patient was referred to Dr. David Range, the chief of the
Otolaryngology clinic. After this consultation, tetracycline
was ordered. Notes reveal there was some diminution of the
discharge, but clinical notes of 4/21/89 state that discharge
turned to polypoid granulation and medications were
continued.
On 5/9/89 all medicines were discontinued the clinical note
state that there was lessening of the granulation in the right
ear. Within a month, on 6/5/89 there was again reported
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drainage in the right ear and the chart states that there was
probable perforation. Patient considered for surgery and plan
was to place a polyethylene tube in the middle ear. Dr.
David Range took charge of the case and his operative record
of 27, June, 1989 states "right chronic otitis media in ear,
this was chronic serous otitis." Hospital chart stated that the
patient was two-year old, white female with chronic otitis
media on the right side (ongoing infection) and right-sided
external otitis with granulation tissue in the external canal.
It stated the proposed surgery was placement of a
tympanostomy tube, removal of the granulation tissue in the
external canal and a procedure on her hand involving removal
of warts.
Description of the operation states a Donaldson-type
tympanostomy plastic tube was placed into position without
difficulty and after that, cup forceps was used to remove the
granulation tissue from the external canal. Patient tolerated
the procedure well, and while the recovery room notes are
not clear (excessive xeroxing) it would appear that the patient
returned to her room in good condition. Patient was seen
about two weeks post-operatively in the outpatient clinic on
7/6/89 by Dr. David Range and notation was: no problems
or drainage. Examination note states: moist and TM -
tymp?=ic membrane, was opaque, no evidence of granulation.
At ths time, or shortly thereafter parents did rase a question
as to what was the laboratory analysis of the granulated
tissue. They could find no evidence that the pathological
examination was carried out at this time.
Dr. Range saw the patient on 7/21 and noted "there was a
good PE tube, the warts were gone." However, five days
later, a Dr. W. Preston Woodall saw the patient as an
emergency at which time she was complaining of drainage
from the right ear. The PE tube was in place with purulent
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Pa
drainage and diagnosis of otitis media was made and the
patient was treated with Bactrim. Patient was then not seen
again until 8/29, a month later, when Dr. David Range made
a notation that the patient had a right otitis externa, plus
serous Otitis media and a question of otitis media. Started the
patient on Cortisporin and continued the Ceclor. Patient was
again seen by Dr. Range on 9/7/89 at which time he noted
the PE tube had been rejected after approximately two
months. His notation states that there was no discharge and
his diagnosis at that time was right otitis media. On 10/6/89,
a month later, Dr. Range examined the patient and made a
notation that patient had a resolving serous otitis media and
discontinued all medication. Patient again seen on 10/17/89
because of recurrent drainage and the notation said it is
probably a polyp. Diagnosis at that time was right otitis
media and/or otitis externa. The possibility of surgery was
most likely discussed and then because the patient reported to
the hospital on 10/24/89 for an examination under anaesthesia
which was performed the next day by Dr. Range. The intent
was to remove a polyp which was not seen, according to the
physical examination, which states “no visible perforation or
polyps seen." At that time they thought the tympanic
membrane was in normal position and without perforation.
The operative report however, states that they did remove a
polyp and placed an oto-wick into the canal and the op report
further states that "there was a perforation of the posterior
aspect with large amount of edema and thickening of the
posterior tympanic membrane with cellular debris and polyp
formation (possible cholesteatoma)." This is the first note
with the possibility of a cholesteatoma. (The reviewer
G.A.S. - believes this was the point in time there was
confusion among the A. Force attendings as to what should
be done next.)
30A
Next note: 10/27/89 - by Dr. Range noted that "there was
edema in the canal, a tympanic membrane perforation
posteriorly with drainage, plus a polyp, plus debris (possible
cholesteatoma)." At that time the culture was pending.
Diagnosis was "tympanic pus with drainage long-term
questioning cholesteatoma. Continue meds??"
The next day on 10/28/89 Dr. Steven Walker raised the
question in regard to surgery, with Dr. Range. He was
evidently asked to call the patient and explain to them the ear
surgery?? Notes are not clear whether Dr. Steven Walker
was an M.D. since later they talk about Sgt. Walker
explaining to the patient.
On 10/30/89 - by Dr. Range states "resolving otitis externa
and otitis media but that patient may still need a mastoid
operation. "It concludes by saying continue meds, follow-up
in four days.
On 11/3/89 the note says that "questioning the possibility of
cholesteatoma see (sic) Dr. Sokol for evaluation of
mastoidectomy.."
On 11/7/89 evidently Dr. Donald Sokol, an otologist? did see
the patient and made a notation that posterior half of the right
tympanic membrane was absent and that there was probably
in this perforated area a cholesteatoma. Further states
mastoiditis, rule out cholesteatoma, congenital. Needs
exploratory right ear in mastoid and mastoidectomy.
Ten days later (11/17/89) the patient was admitted for chronic
serous otitis media with a suspected right cholesteatoma. A
right modified, radical mastoidectomy was performed by Dr.
David Range. It was "a type III tympanoplasty (perforation
remains and long process of the stapes remains). Massive
31A
cholesteatoma found eroded through the posterior canal wall."
Patient was instructed to keep ear dry.
The pathology report of the specimen at that time which was
called a polyp was reported 1. Polyp specimen from right
ear: fragment of fibrous tissue with severe, chronic
inflammation and detached keratinous, squamous consistent
with part of the cholesteatoma. 2. Cholesteatoma., right ear,
largely keratinous, horny cells consistent with part of a
cholesteatoma.
There is a follow-up that the patient on 11/22/89 had an
episode of vomiting, plus yellowish drainage from the right
ear. The records provided were very difficult to read.
On 11/30/89 Dr. David Range noted "Right tympanomastoid
done two weeks ago. Modified radical mastoidectomy, long
process, plus stapes intact. No drainage, no pain.
On 12/15/89 Dr. David Range "Follow-up of right
tympanomastoid, no drainage, packing nearly done. TM
discharge was perforated T.M." (This is inconsistent because
on the same day he says there is no discharge and then he
States that there is a tympanic membrane discharge with
perforated T.M.)
On 1/5/90, clean mastoid bowl, healing well, 20%
perforation of the tympanic membrane. There is a note the
tympanomastoid not reconstructed) (stapes/molen (sic)
stapes/malleus long process intact, discontinue meds in two
months).
Patient seen again on 3/15/90. Note says good post-operative
course follow-up in two months.
32A
Next notation - 5/22/90 - Dr. David Range note states:
external otitis media, bowl infection secondary to wax.
Cortisporin given. Return in 10 days if drainage recurs,
otherwise three months if okay.
Note on 7/12/90 with Dr. Suzanne (sic). "Parents note
drainage from ear, have been putting in drops; right ear canal
has white drainage.
On 8/31/90 Dr. James Demetroulakos: "Has foul-smelling
drainage, has been cleaned every two months."
Seen again in September 1990. Exact date is not recorded on
my sheet. "Improvement in drainage. Decreased otorrhea."
On 10/4/90 - by Dr. Sokol - "Has infection and squamous
debris in the right ear. Mastoiditis with cholesteatomatous
debris." ON the same date Dr. Demetroulakos has a notation
"Have explained our roles in regard VII damage and hearing.
Have reviewed CT scans. Will schedule surgery
November 7, 1990."
Next notation - can’t tell what it was, but its date is
unknown; a Dr. Carol Lyons states some vomiting, yellow-
green nasal discharge. States will have secondary
mastoidectomy on 11/7/90. Ear is full of dull bullous debris,
diagnosis is right cholesteatoma.
On 10/9/90 - by Dr. Carol Lyons "Follow-up for
cholesteatoma which has already had two surgeries and one
exam under anesthesia nad is due to have another real soon."
At this point the Army records stop and evidently the patient
went to an outside consultant, Mr. W. S. Lund, a well-known
33A
British neurotologist who took over the management of the
case and operated on December 15, 1990. Stated in a letter
to Dr. Demetroulakos, dated December 20th that he explored
the ear in the Acland Hospital, Oxford, via a post-auricular
incision. He further states "there was an extensive recurrence
of the cholesteatoma which involved the entire original
surgical mastoid cavity which had been operated on one year
ago. The disease occupied the entire upper half of the middle
ear. There was a very large epitympanic cell which was
filled with matrix and debris and the lesion extended anterior
and inferior into the pro-tympanum and beginning to go into
the eustachian tube. Virtually the whole of the ear drum had
gone except for a very narrow rim. The posterior crua of the
stapes was absent with the remainder of the stapes
superstructure not attached to the footplate, but the latter was
present in the oval window niche. Neither the tegmen nor
the horizonal portion of the facial nerve were eroded."
The incus and the head of the malleus had been excised at the
original operation and only a thin stump of the malleus was
present. The tensor tympani was also exposed by the
cholesteatoma matrix. A large nerve was seen passing across
the promontory which looked at first like the tympanic nerve,
but was probably the chorda tympani, which had been
pressed against the interior wall of the middle ear by the huge
cholesteatoma.
In view of the extensive destruction of the middle ear
structure, there was no hope of doing any reconstructive
procedure to help Slaine’s hearing and had to contend myself
by doing a radical mastoidectomy. He further stated that he
believed he had removed all of the disease and following this
4 1/2 hour operation, the cavity looked "nice and clean." He
did remove the remains of the malleus and the stapes and he
cleaned out the eustachian tube as far as he could possibly do
34A
by burring the region, and he deliberately obliterated it by
burring the region and filling it with bone chips and surgicel.
The cavity was grafted and then a generous meatoplasty
performed with the cavity being filled with many rayon
Strips, cotton wool balls and so forth. Post-operative course
was uneventful and she was up and about in her room the
following morning. She went home on 12/17/90. The
parents state that following this they tried to return to the
military facility for follow-up and were told that "the base
hospital doctors had changed their mins and gave them an
unavailability statement." This was because they felt that
"professional capability was not available at that facility."
SUMMARY AND OPINION
This long 2 1/2 year history of a draining right ear in their
infant daughter resulted in complete loss of hearing in that
ear. The parents are distraught and disappointed in the
medical treatment afforded their child. They have reason to
believe had they not sought private outside medical care, at
their own expense, the cholesteatoma would have continued
to increase in size and dangerous intracranial complications
(1.e.: meningitis and/or brain abscesses) might well have been
the final result. Instead, Slaine Schneider now has a safe
right ear, but with complete loss of hearing after a 3 year
medical saga.
It is my opinion that the medical records obtained from the
USA hospital, RAF, Upper Heyford, England blatantly point
to negligence, in Slaine’s care during the time the USAF was
medically responsible; for the following reasons:
Bi It was six months before an attempt to render
definitive therapy. (12/28/88) to (6/27/89). Modern
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diagnostic medical technology not utilized, 1.e.: MRI
and/or CAT scans, repeat cultures of ear discharge.
2 There was an inordinate delay in diagnosis - almost
one year (12/28/88) to (11/18/89).
2. Further. after the diagnosis was confirmed, the child
had another year of delay before the proper surgical
procedure was performed. (12/15/90). This was
performed by M. W.S. Lund, a British surgeon.
4. The lack of a consultant in the operating room when
surgery was performed. Parents allege they were told
Mr. Sokol would be present.
5. The child has sustained irreparable, permanent
damage. and the projected costs to properly
rehabilitate this disabled child will be enormous
(modestly $2 million).
George A. Sisson, Sr., M.D.
36A
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS UNITED STATES AIR FORCE
WASHINGTON, D.C. 20332-6128
Martha L. Neese, Esquire
Lyons, Sawicki & Neese
1560 Beam Ave., Suite A
St. Paul, Minnesota 55109
Re: Medical Malpractice Claim of Slaine and
Michael J. Schneider,
OD/C/XQDT/91/00527/NOM
Dear Ms. Neese
I have considered your appeal of the denial of the
above referenced claim under the provisions of the Military
Claims Act, 10 U.S.C. 2733. After examination of the
materials which you sent, with special emphasis on the report
of Dr. Sisson, I must uphold the original decision and deny
the claim.
First, please be assured that the Air Force understands
that claimants do not have a judicial remedy under the
Military Claims Act and therefore we make every effort,
where possible, to resolve issues in their favor. At times,
significant communication with claimant’s attorney is
required. Other times, where the facts and expert medical
reviews are unequivocal, protracted contact is not necessary.
In this review, Dr. Sisson cites to Dr. Lund liberally
and refers to him as a well-known British neurotologist.
During the course of investigating this claim, Dr. Lund was
37A
extensively interviewed. Dr. Lund is a_- general
otolaryngology surgeon with over 30 years experience in
otolaryngology. His particular interest is otology surgery.
Dr. Lund began by pointing out that cholesteatoma is an
extremely difficult disease to treat in children and even more
difficult to remove. While the disease is rare in children,
when it does occur, it is very aggressive. He states that not
even the most experienced otologist could ever be completely
confident that he could surgically remove every cholesteatoma
cell in a patient. A surgeon would be even less certain after
a cholesteatoma operation on a child. Dr. Lund said that all
ear surgeons will have repeat cholesteatoma surgeries. As an
aside, he confided that he had just seen a patient that required
four such surgeries.
Dr. Lund stated in no uncertain terms that Dr.
Range’s treatment of Slaine Schneider was not even close to
medical malpractice. Dr. Range followed proper procedures
in doing the surgery and scheduled appropriate follow up
appointments. Dr. Lund was unable to say whether the
Schneiders’ failure to come back for a follow up after their
May 1990 appointment with Dr. Range effected Slaine’s
condition but in any case, this failure did not alter the overall
picture that Dr. Range treated Slaine appropriately.
In addition to the comments of Dr. Lund, the medical
facts in this case were reviewed by board certified experts in
Otolaryngology including a surgeon who trained under Dr.
Richard Bellucci, a world-renowned otologist. After a
complete review of the case, our expert concluded that the
diagnosis of cholesteatoma was timely and the surgical
removal was appropriate. In all probability, Slaine suffered
from a rare congenital cholesteatoma. Whether congenital or
acquired, the treatment was timely and appropriate. Our
expert states that he would have handled the patient exactly
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the same as would the other physicians who rendered an
opinion.
I greatly regret that the Schneiders are dissatisfied
with the Air Force care which Slaine received. The simple
fact is that Slaine’s course of treatment and present condition
are the result of the disease process and not medical
negligence. Without a showing of negligence, I simply
cannot approve the claim for payment.
This is the final administrative action that can be taken
on this claim.
Sincerely
PHILIP A. MEEK, Colonel, USAF
Chief, Ciaims and Tort Litigation Division
Air Force Legal Services Agency
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.