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May 11, 1989

LINDA WHEELER TARPEH-DOE, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER


 This case involves the claim of Linda Wheeler Tarpeh-Doe, employed by the Agency for International Development ("AID"), and her infant daughter. The mother was assigned in 1981 to the U.S. Embassy in Monrovia, Liberia, married Nyenpan Tarpeh-Doe, and on May 18, 1982, gave birth in a clinic in Monrovia to Nyenpan Tarpeh-Doe II, the minor plaintiff in this action. On the morning of June 5, 1982, the baby "became rigid," Second Amended Complaint at para. 5, and his mother brought him immediately to embassy physicians. Following examination, an embassy physician informed plaintiff that the baby would be medically evacuated to the United States that night. Later in the morning, however, an American missionary physician conducted a further examination, ordered the baby transferred to a Liberian hospital, over the objection of plaintiff, and withdrew the approval to evacuate the baby. Plaintiff continued to demand evacuation, as originally recommended. The baby's condition remained unimproved, and on June 17, 1982, evacuation was finally effected.

 In a United States hospital, the baby's illness was correctly diagnosed, and treatment undertaken. The child is presently institutionalized in Denver, Colorado; he is blind, and may suffer permanent brain damage. Plaintiff claims that she was never informed of the practice for State Department and AID employees to be permitted to deliver their babies in the United States, an option which she would have chosen had she known of its existence.

 On January 31, 1984, plaintiffs filed an administrative claim with the Department of State for damages and injury. Upon its denial, they filed an action here against the United States and the Secretary of State for negligence and for denial of due process. Now before the court is plaintiffs' claim that the procedure followed by defendant in reviewing plaintiffs' out-of-country claims violates even minimal due process requirements.

 Plaintiffs' motion supports the observation of the December 22 Memorandum with tangential, but persuasive, authority. In Greene v. McElroy, 360 U.S. 474, 3 L. Ed. 2d 1377, 79 S. Ct. 1400 (1959), the Supreme Court invalidated a Defense Department order debarring an employee from access to classified information without a hearing at which he would be afforded an opportunity to confront and cross-examine witnesses. The Court ruled that neither Congress nor the President had delegated to the Defense Department the authority to deny petitioner "these traditional and well recognized rights." The Court described these rights with emphasis:

Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. . . .

 Greene, 360 U.S. at 496. The Court there stated:

Before we are asked to judge whether, in the context of security clearance cases, a person may be deprived of the right to follow his chosen profession without full hearings where accusers may be confronted, it must be made clear that the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use.

 Id. at 507. The Court continued:

[Such decisions] must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized, but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.
Where administrative action has raised serious constitutional problems, the Court has assumed that Congress or the President intended to afford those affected by the ...

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