The opinion of the court was delivered by: Urbina, District Judge.
GRANTING THE DEFENDANTS'
MOTION TO DISMISS
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.
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 ¶ 18.104.22.168.
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 ...