to Federal Rules of Civil Procedure 12(b)(1) and (6). The defendants
alternatively move for summary judgment pursuant to Federal Rule of Civil
Procedure 56. Evelyn L. Lewis ("the plaintiff" or "Commander Lewis"),
brings this suit for damages under the Administrative Procedure Act
("APA"), 5 U.S.C. § 701 et seq. The plaintiff claims that her
employer, the U.S. Department of Defense ("DOD"), acted arbitrarily and
capriciously by issuing a regulation that bars her promotion to Commander
status. Specifically, the plaintiff alleges that the Assistant Secretary
of Defenses interpretation of Title 10 U.S.C. § 1094 is flawed
because it requires all physicians to hold an unrestricted license,
regardless of whether they provide direct patient care. See Compl. at
7-8. The defendants are Secretary of Defense Donald Rumsfeld, Acting
Assistant Secretary of Defense J. Jarrett Clinton, and Secretary of the
Navy Gordon R. England ("the defendants"), all named in their official
The defendants move to dismiss this action under Rule 12(b)(1) on the
grounds that the court lacks subject-matter jurisdiction because the
issue is not ripe and that the plaintiff failed to exhaust her
administrative remedies. See Mot. to Dis. at 8-15. The plaintiff counters
that the delay of her promotion is ripe because agency delay can be
actionable. See Pl's Opp'n to Mot. to Dis. ("Pl's Opp'n") at 2. She
argues that no further administrative action is necessary before the
issue can be subject to judicial review. The defendants also move to
dismiss under Rule 12(b)(6) on the ground that the DOD acted within its
authoritative capacity when it issued its directive. See Mot. to Dis. at
17-20. Responding to this argument, the plaintiff contends that the DOD
issued its directive without proper authority and therefore is not
entitled to judicial deference. See Pl's Opp'n at 7-9.
For the reasons that follow, the court holds that because the statute
that authorizes the Secretary of the Navy's delay of the plaintiffs
promotion does not provide any standard for the Secretary's discretion,
the decision is non-reviewable under the APA. The court also rules that
the plaintiff has failed to exhaust her administrative remedies.
Accordingly, the court will grant the defendants' motion to dismiss.
Evelyn Lewis, M.D., a physician since 1983, is an active-duty Commander
in the Navy Medical Corps. See Compl. at 5. She currently holds the
position of Vice Chair in the Department of Family Medicine, and her
responsibilities include administration, instruction and research. See
id. at 6. She does not provide direct patient care. See id. President
Clinton nominated Commander Lewis for promotion to Captain status on
April 21, 1999, and the Senate confirmed her the same year. See id. at 5.
Commander Lewis holds a restricted medical license from the State of
Oklahoma. See Mot. to Dis. at ¶ 2-4. The restricted license allows
her to practice medicine only in federal facilities. See id.
Although she was to be promoted on August 1, 2000, Navy personnel
delayed Commander Lewis's promotion on June 27, 2000. See Compl. at 7;
Mot. to Dis. ¶ 13. On or about September 7, 2000, the Navy informed
her that because she failed to meet the unrestricted license requirements
of 10 U.S.C. § 1094, her promotion would be delayed for 18 months.
See Compl. at 9; Mot. to Dis. ¶ 15. The Navy also informed her that
if she does not obtain an unrestricted license by the end of this
period, the Chief of Naval Personnel will recommend that her name be
removed from the promotion list. See Compl. at 9-10. If she obtains her
license, however, her promotion will take effect. See Defs.' Reply to
Pl's Opp'n ("Reply") at 2.
On July 20, 1995, the Deputy Secretary of Defense issued DOD Directive
6025.13, which interpreted the language of 10 U.S.C. § 1094 to mean
that health-care practitioners must possess and maintain unrestricted
licenses before practicing. Practitioners who do not possess a license
can practice under a written plan of supervision with a licensed person
of the same discipline. See DOD Directive 6025.13 ¶ 220.127.116.11.
As amended effective October 1, 1999, section 1094(a)(1) provides:
A person under the jurisdiction of the Secretary of a
military department may not provide health care
independently as a health-care professional under this
chapter unless the person has a current license to
provide such care. In the case of a physician, the
physician may not provide health care as a physician
under this chapter unless the current license is an
unrestricted license that is not subject to limitation
on the scope of practice ordinarily granted to other
physicians for a similar specialty by a jurisdiction
that granted the license.
10 U.S.C. § 1094 (a)(1). On January 29, 1999, Dr. Sue Bailey, then
the Assistant Secretary of Defense, issued a memorandum interpreting the
language of the newly amended 10 U.S.C. § 1094. Dr. Bailey's
memorandum and subsequent supplements to that memorandum stated that all
DOD physicians are subject to the unrestricted licensure requirement,
regardless of whether they provide direct patient care or hold purely
administrative positions. See Compl. at 3-4; Mot. to Dis. ¶¶ 8-9.
After she learned that the Navy had delayed her promotion Commander
Lewis responded by arguing that the memorandum both misinterprets
10 U.S.C. § 1094 and does not apply to her situation because she does
not provide direct patient care. See Compl. at 7-9. She received no
response. See id. at 10. Although Commander Lewis is currently taking
steps to secure an unrestricted license, she brings this case before the
court, seeking an examination of the DOD's interpretation of
10 U.S.C. § 1094. See id. at 10-11.
The defendants now move to dismiss. For the reasons that follow, the
court will grant the defendants' motion.
A. Legal Standard
In reviewing a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1), the court must accept all the
complaints well-pled factual allegations as true and draw all reasonable
inferences in the plaintiff's favor. See, e.g., Pitney Bowes v. United
States Postal Serv., 27 F. Supp.2d 15, 19 (D.D.C. 1998) (Urbina, J.). On
a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the
burden of establishing that the court has jurisdiction. See District of
Columbia Retirement Bd. v. United States, 657 F. Supp. 428, 431
(D.D.C.1987). In evaluating whether subject-matter jurisdiction exists,
the court must accept all uncontroverted, well-pleaded facts as true and
attribute all reasonable inferences to the plaintiffs. See Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court
is not required, however, to accept inferences unsupported by the facts
alleged or legal conclusions that are cast as factual allegations. See,
e.g., Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
Moreover, the court need not limit itself to the allegations of the
Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir. 1986), vacated on
other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987).
Rather, "[t]he court may consider such materials outside the pleadings as
it deems appropriate to resolve the question whether it has jurisdiction
in the case." Scolaro v. D.C. Bd. of Elections and Ethics,
104 F. Supp.2d 18, 22 (D.D.C. 2000) (citing Herbert v. National Academy
of Sciences, 974 F.2d 192, 197 (D.C.Cir. 1992)).
For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need
only provide a short and plain statement of the claim and the grounds on
which it rests. See FED. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41,
47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss under Rule
12(b)(6) tests not whether the plaintiff will prevail on the merits, but
instead whether the plaintiff has properly stated a claim. See FED. R.
Civ. P. 12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40
L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald,
457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, the court may
dismiss a complaint for failure to state a claim only if it is clear that
no relief could be granted under any set of facts that could be proved
consistent with the allegations. See Hishon v. King & Spalding,
467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Atchinson v.
District of Columbia, 73 F.3d 418, 422 (D.C.Cir. 1996). Moreover, the
court should draw all reasonable inferences in the nonmovant's favor.
See Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 7 (D.D.C.1995).
The APA governs judicial review of agency action. See 5 U.S.C. § 706
(2); Public Citizen v. Heckler, 653 F. Supp. 1229, 1236 (D.D.C. 1986).
The APA authorizes a reviewing court to "compel agency action withheld or
unreasonably delayed" and to "hold unlawful and set aside agency action,
findings and conclusions of law" that are, among other things,
"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." See 5 U.S.C. § 706. A court has subject-matter
jurisdiction to review agency action under the APA if the agency action
is final. See 5 U.S.C. § 704 ("final agency action for which there is
no other adequate remedy in a court [is] subject to judicial review").
In this case, the defendants argue that because the Navy has only
delayed the plaintiffs promotion instead of removing her name from the
promotion list, the plaintiff has failed to identify a specific, final
agency action as required by the APA. See Mot. to Dis. at 9-10. The
defendants contend that the Navy has complied with the 18-month delay
procedures set forth in 10 U.S.C. § 624 (d)(4). Although the plaintiff
does not dispute that 10 U.S.C. § 624 (d) lays out the applicable
delay procedures, she counters that agency delay itself can be actionable
under the APA. See Pl's Opp'n at 2.
Although unreasonable agency delay may be reviewable under the APA,
see Cobell v. Norton, 240 F.3d 1081, 1096 (D.C .Cir. 2001), the
defendants' decision to delay the plaintiffs promotion is not reviewable
because 10 U.S.C. § 624 (d)(4) does not provide a standard that can
guide a court's evaluation of agency action. The statute provides that:
An appointment of an officer may not be delayed under
this subsection for more than six months after the
date on which the officer would otherwise have been
appointed unless the Secretary concerned specifies a
further period of delay. An officer's appointment may
not be delayed more than 90 days after final action
has been taken in any criminal case against such
officer in a Federal or State court, more than 90 days
final action has been taken in any court-martial case
against such officer, or more than 18 months after the
date on which such officer would otherwise have been
appointed, whichever is later.
10 U.S.C. § 624 (d)(4).