Petitfere v. Austin

• Court: District Court, District of Columbia
• Decided: August 21, 2023
• Docket: Civil Action No. 2022-1819
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MERCEDES PETITFRERE,

Plaintiff,

v. Case No. 1:22-cv-1819-RCL

LLOYD J. AUSTIN III,

Defendant.

MEMORANDUM OPINION

Plaintiff Mercedes Petitfrere, a Lieutenant in the U.S. Navy, brings this action against

defendant Lloyd J. Austin III, the Secretary of Defense ("the Secretary"), who oversees the

Defense Health Agency ("DHA"), for failing to provide an adequate explanation for DHA' s denial

of her medical malpractice claim, which she alleges violated the Administrative Procedure Act

("the APA"). Compl., ECF No. 1. Lt. Petitfrere asks this Court to vacate DHA's initial denial of

her claim and remand for a new determination. Id. at 12. The Secretary moves to dismiss for both

lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted,

arguing that DHA's decision is judicially unreviewable based upon a "finality" provision within

the Military Claims Act ("the MCA"). See generally Mot. to Dismiss, ECF No. 4.

Upon consideration of the parties' filings, the applicable law, and the record, the Court

with GRANT the Secretary's motion and dismiss Lt. Petitfrere's complaint.

I. BACKGROUND

Lt. Petitfrere, a member of the United States Navy Chaplain Corps., became pregnant in

August 2018 while stationed at Camp Lejeune in North Carolina. Compl. ,r,r 4, 6, 7. Until

December 2018, Lt. Petitfrere's pregnancy progressed normally. Id. ,r 8. On December 17, 2018,

Lt. Petitfrere began experiencing severe abdominal pain, cramping, and painful urination, and went

1 to the Naval Medical Center Camp Lejeune ("NMCCL"). Id. ,r 9. There, Lt. Petitfrere disclosed

that she was previously diagnosed with fibroids, to which NMCCL personnel immediately

attributed her pain without further consideration of her symptoms. Id. ,r 10. She was ultimately

treated with Tylenol and was discharged from NM CCL care. Id. ,r,r 12-14. Over the next few days,

Lt. Petitfrere's pain worsened; on December 19, 2018, her pain become unbearable, causing her

to seek NMCCL's care once again. Id. ,r,r 16-17. The onsite OB/GYN examined Lt. Petitfrere once

more, advising her that her pain was not uncommon for a pregnant woman with fibroids and that

her baby was okay. Id. ,r,r 19-20. Despite her continuous complaints of pain, the NMCCL staff

discharged her later that day on December 19, 2018. Id. ,r 26-30.

On the morning of December 20, 2018, Lt. Petitfrere' s pain became so unbearable that it

precluded her from walking or standing up straight. Id. ,r 32. Lt. Petit:frere's husband then took her

to the civilian Onslow Memorial Hospital, where an ultrasound was performed. Id. ,r,r 34-35. The

ultrasound revealed that Lt. Petitfrere was fully dilated, prompting the medical staff on-site to

prepare her for labor. Id. ,r,r 35-37. Lt. Petitfrere's child was tragically stillborn on the morning of

December 20, 2018, less than 14 hours after discharge from NMCCL care. Id. ,r 38.

In December 2020, Lt. Petitfrere filed an administrative claim against the Department of

Defense ("DoD'') for medical malpractice based on the stillbirth of her son. Id. ,r 59. On January

24, 2022, DoD denied her claim, reasoning that its investigation "determined that the applicable

standard of care was met" in her case. Id. ,r 64. Lt. Petitfrere subsequently appealed this decision

to DHA's appeals board on February 17, 2022, additionally submitting the expert opinion of Dr.

James Wheeler in support for her appeal. Id. ,r 65. The DHA appeals board then adopted DoD's

Initial Determination on April 1, 2022. Id.

2 In June 2022, Lt. Petitfrere brought this suit against the Secretary, alleging that DoD's

denial of her claim violated the AP A because DoD did not provide a "brief explanation" for its

decision that was supported by expert opinion and sufficient to allow Lt. Petitfrere to meaningfully

respond on appeal. Id. ,r,r 68-96. Ultimately, Lt. Petitfrere requests that this Court vacate DoD's

decision and remand the matter for a new decision. Id. at 12.

The Secretary now moves to dismiss Lt. Petitfrere's complaint, pursuant to Federal Rules

of Civil Procedure 12(b)( 1) and l 2(b)(6), claiming that DoD' s decision is judicially unreviewable

based upon a "finality" provision within the MCA, 10 U.S.C. § 2735. See generally Mot. to

Dismiss, ECF No. 4. Lt. Petitfrere timely filed an opposition to the Secretary's motion to dismiss,

arguing that her case falls within an exception to the MCA' s finality provision. See generally Pl.' s

Opp'n, ECF No. 8. The Secretary subsequently filed a reply to Lt. Petitfrere's opposition. See

generally Def.' s Reply, ECF No. 10.

11.LEGALSTANDARD

A defendant in a civil action may move to dismiss a complaint for "lack of subject-matter

jurisdiction." Fed. R. Civ. P. 12(b)(l). A court considering such a motion must take all the well-

pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiffs

favor. Doe v. Wash. Metro. Area Transit Auth., 453 F. Supp. 3d 354, 361 (D.D.C. 2020).

"However, those factual allegations receive closer scrutiny than they do in the Rule 12(b)(6)

context," and the court "may look to documents outside of the complaint in order to evaluate

whether or not it has jurisdiction to entertain a claim." Id. (internal quotation marks and citations

omitted). It is the "[p ]laintiff [who] bears the burden of proving subject matter jurisdiction by a

preponderance of the evidence." Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 90 (D.D.C. 2000).

3 III. DISCUSSION

Although the Secretary brings his motion to dismiss pursuant to both Federal Rules of Civil

Procedure 12(b)(1) and 12(b)( 6), the Court concludes that it must dismiss this suit because it lacks

subject matter jurisdiction to review DHA's denial of Lt. Petitfrere's medical malpractice claim

based upon the finality provision of the MCA. Because the Court will dismiss the complaint based

on Rule 12(b)(l) alone, it need not address the aspect of the motion invoking Rule 12(b)(6).

The MCA allows the Secretary of Defense to "settle" any claims against the United States

for, among other things, "personal injury or death ... caused by a civilian officer or employee of'

DoD "acting within the scope of his employment." 10 U.S.C. § 2733(a)(3). The MCA defines

"settle" to mean "consider, ascertain, adjust, determine, and dispose of a claim, whether by full or

partial allowance or by disallowance." Id. § 2731. Moreover, the "settlement" of a claim within

the MCA is deemed "final and conclusive," "[n]otwithstanding any other provision of law." Id.

§ 2735. The Secretary has delegated his authority to make initial determinations to the relevant

components of DoD, see 32 C.F.R. § 45.12, and his authority to hear appeals of those

determinations to an appeals board within DHA, see id. § 45.13(b). Thus, a decision of DHA's

appeals board is not only final and conclusive as to the merits of the underlying claim, but also to

any collateral attack on the administrative decision through other laws such as the AP A. Here, both

parties agree that the denial of a claim such as Lt. Petitfrere's is ordinarily subject to the finality

provision within the MCA. Mot. to Dismiss at 2-3; Pl.'s Opp'n at 8.

Where the parties disagree, however, is whether Lt. Petitfrere's case falls within an

exception to the MCA's finality provision. Lt. Petitfrere invokes an exception that she argues is

grounded in the D.C. Circuit's decision in Broadnax v. US. Army, 710 F.2d 865 (D.C. Cir. 1983)

(per curiam), as well as several out-of-circuit cases. See Pl.'s Opp'n at 8-9. The Secretary does

4 not dispute the existence of such an exception, but he argues that it does not apply to Lt. Petitfrere' s

case. Mot. to Dismiss at 4-5. The Court agrees with the Secretary.

The putative exception to the MCA's finality provision is not expressly laid out in the text

of the statute, nor is it well-defined. In fact, it is unclear whether it even exists. The D.C. Circuit

has addressed it only briefly and in dictum, stating in Broadnax that "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," limited

review of a settlement "may well" be permissible. 710 F.2d at 867 (emphasis added) (internal

quotation marks and citation omitted). Notably, the D.C. Circuit did not conclude that such an

exception applied in Broadnax, and in a subsequent unpublished decision, it made clear that it did

not see the Broadnax dictum as binding authority creating an exception. See Davidson v. Dept. of

Air Force, No. 97-1325, 1997 WL 573482, at *1 (D.C. Cir. Aug. 26, 1997) (per curiam) (citing

Broadnax, 710 F.2d at 865) {"The court does not decide whether there is an exception from the

enforcement of Section 2735's finality provision because even if there were an exception,

appellant has failed to demonstrate that it would apply here.").

The D.C. Circuit has never subsequently clarified the scope of the supposed Broadnax

exception, and the only courts in this District to have considered whether it might apply have

concluded that it did not-including in a case similar to this one, in which the plaintiffs alleged

that the Navy failed to comply with its own regulations and violated their constitutional due

process rights. See MacCaskill v. United States, 834 F. Supp. 14, 17-18 (D.D.C. 1993); see also

De Jackson v. Marsh, No. 84-cv-2242, 1987 WL 16544, at *1-2 (D.D.C. Aug. 26, 1987)

(recognizing Broadnax exception but concluding that "[t]here has been no departure from

5 procedural rights" where DoD component reviewing plaintiffs claim "misplac[ed] the pertinent

records").

Without affirmative in-circuit support, Lt. Petitfrere asks the Court to look elsewhere to

define the exception's scope. Several other circuits have recognized a limited exception to the

MCA's finality provision where there is a clear constitutional violation. See Collins v. United

States, 67 F.3d 284, 287-88 (Fed. Cir. 1995); Rodrigue v. United States, 968 F.2d 1430, 1432-34

(1st Cir. 1992); Minns v. United States, 155 F.3d 445, 453 (4th Cir. 1998); Poindexter v. United

States, 777 F.2d 231, 233-37 (5th Cir. 1985); Schneider v. United States, 27 F.3d 1327, 1332 (8th

Cir. 1994); Hata v. United States, 23 F.3d 230,233 (9th Cir. 1994); Labash v. US. Dep't ofArmy,

668 F.2d 1153, 1155 (10th Cir. 1982). The Fourth Circuit has further carved out an exception to

finality of the MCA when the allegations concern an agency "violating a clear statutory mandate,"

though it did so in an unpublished opinion. See Duncan v. West, No. 97-1876, 1998 WL 387191,

at *3 (4th Cir. June 24, 1998) (per curiam).

For purposes of the present motion to dismiss, the Court will assume without deciding that

an exception to the MCA's finality provision exists and that it includes (1) procedural violations

going to the heart of the administrative determination, (2) constitutional violations, (3) violations

of clear statutory mandates. Even so, Lt. Petitfrere has not met her burden of showing that such an

exception would apply in her case and that the Court would have jurisdiction.

Lt. Petitfrere principally relies upon the Accardi doctrine, which permits judicial review

under the AP A of an agency action that would otherwise be unreviewable as committed to the

agency's discretion, on the ground that the agency did not follow its own regulation in taking that

action. Pl.'s Opp'n at 11; see United States ex. rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954);

Service v. Dulles, 354 U.S. 363 (1957). She contends that Accardi, taken together with Broadnax,

6 creates an exception to the MCA's finality provision when "the agency fails to adhere to its own

implementing regulation constituting [a] procedural error that undermines the heart of the

procedural framework of the MCA." Pl.'s Opp'n at 11-12. Lt. Petitfrere asserts that DoD failed to

follow its regulations implementing the MCA, namely 32 C.F.R. § 45.12(d), which requires it to

provide a "meaningful explanation" to the claimant for its denial of a claim. Id. at 12. She claims

that DoD instead provided an unmeaningful and "boilerplate" explanation as to the denial of her

claim, constituting "the kind of procedural error warranting judicial review contemplated by

Broadnax." Id. at 14. The Court finds that argument unpersuasive.

Though DoD's explanation of its denial of Lt. Petitfrere's claim was brief, such brevity

does not necessarily indicate a lack of meaningfulness. DoD explained that it denied Lt. Petitfrere' s

claim because its concluded after its investigation that the applicable standard of care was met in

her case. Compl. ,r 64. Lt. Petitfrere subsequently attempted to rebut that exact reasoning on

appeal, when she produced an expert opinion arguing that the standard of care was not in fact met

in her case. Id. ,r 65. Though the DHA appeals board ultimately disagreed with Lt. Petitfrere and

adopted DoD's Initial Determination, the Court concludes that DoD at least arguably adhered to

the regulatory requirements prescribed by 32 C.F.R. § 45.12(d) and explained its reasoning

specifically enough to allow Lt. Petitfrere to make her case, and thus that no procedural error

"going to the heart of the administrative determination" occurred to warrant judicial review.

Broadnax, 710 F.2d at 867 (internal quotation marks and citation omitted).

Alternatively, Lt. Petitfrere argues that DoD's brief explanation amounts to a constitutional

due process violation. Pl.'s Opp'n at 13. She asserts that the appropriate "test" used by courts to

determine a due process violation is whether "the acts of the government shock the conscience."

Id. at 9 (citing County ofSacramento v. Lewis, 523 U.S. 833, 848-50 (1998)). As an initial matter,

7 that is a standard for substantive due process claims, not procedural ones like Lt. Petitftere's. See

Lewis, 523 U.S. at 839. Moreover, she fails to explain how that standard is met in her case; Her

only argument as to why her due process rights were violated is that DoD's explanation was

"formulaic" and "boilerplate," and that it did not conform to her own standards of meaningfulness.

Id. at 13-14. But while formulaic, boilerplate explanations from government bureaucrats may be

frustrating, they are hardly shocking.

Finally, Lt. Petitfrere argues that DoD's failure to provide a more meaningful explanation

for its denial of her claim resulted in "a violation of ... the clear statutory mandates of the MCA."

Pl.'s Opp'n to Mot. to Dismiss at 13. It appears that Lt. Petitftere confuses the possible exception

for violations of clear statutory mandates with the Accardi doctrine, which permits judicial review

when an agency fails to adhere to its own regulations, as her briefing focuses on how DoD

allegedly failed to adhere to 32 C.F.R. § 45.12 when issuing its decision in her case. The Court has

already deemed her Accardi argument unpersuasive, and Lt. Petitfrere fails to provide any

additional basis for her claim that DoD violated any statutory mandate of the MCA. 1

For these reasons, the Court is without jurisdiction to hear Lt. Petitfrere's claims. What

happened to Lt. Petitfrere was tragic, and the Court is sympathetic both to her anguish at the

stillbirth and her frustration at medical personnel not taking her concerns seriously. But Congress

chose to place determinations under the MCA outside the jurisdiction of the courts to review, and

this Court is powerless to. second-guess that decision.

1 Lt. Petitfrere does assert in the complaint itself that DoD violated a provision of the MCA requiring it to make malpractice determinations "consistent with generally accepted standards used in a majority of States," 10 U.S.C. § 2733a(f)(2)(B), by failing to cite expert opinion evidence for its determination. Specifically, the complaint asserts that "[ d]etermining whether medical malpractice occurred depends on determining if the standard of care was breached," and "(b]y necessary extension, this requires consultation with experts to determine what the standard of care is." Comp!. ,r,r 85-86. But even assuming Lt. Petitfrere is right on the merits, a statutory mandate can hardly be "clear" if it is found nowhere in the text.

8 IV. CONCLUSION

For the foregoing reasons, it is Defendant's Motion [4] to Dismiss will be GRANTED,

and the Court will DISMISS the complaint for lack of subject-matter jurisdiction pursuant to Rule

12(b)(l).

A separate Order shall issue this date.

Date: August -1,,/ 2023 Royce C. Lamberth United States District Judge