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LEWIS v. RUMSFELD

August 15, 2001

EVELYN L. LEWIS, PLAINTIFF,
V.
DONALD RUMSFELD, SECRETARY, U.S. DEPARTMENT OF DEFENSE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Urbina, District Judge.

MEMORANDUM OPINION

GRANTING THE DEFENDANTS' MOTION TO DISMISS

I. INTRODUCTION

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.

II. BACKGROUND

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 ¶ 4.1.4.1.

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. ยง 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 ...


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