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Col. George S. Lakner, M.D v. U.S. Department of Defense

December 15, 2010

COL. GEORGE S. LAKNER, M.D., PLAINTIFF,
v.
U.S. DEPARTMENT OF DEFENSE, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Colonel George S. Lakner, M.D., filed a Petition for Writ of Mandamus against the Department of Defense ("DoD"). Col. Lakner's Petition seeks to compel DoD or the Assistant Secretary of Defense for Health Affairs ("ASDHA") to set a hearing and/or issue a decision regarding Col. Lakner's appeal of the revocation of his clinical privileges by the U.S. Army Medical Command. See Pet. for Writ of Mandamus ("Pet.") [Dkt. #1] at 1, 19-20. DoD has moved to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), because Plaintiff has not established the prerequisites for mandamus jurisdiction. Col. Lakner's appeal already was decided by the designated authority, The Army Surgeon General. Because the ASDHA has no duty to act, Col. Lakner has failed to establish jurisdiction under the Mandamus Act and the case will be dismissed.

I. FACTS

Col. Lakner is a psychiatrist who served in the U.S. military for approximately twenty-five years. The Army revoked his clinical privileges in 2005. This suit arises from that revocation.

In July of 2004, when Col. Lakner was almost sixty-five years old, he was deployed as commander of the Mental Health Task Force in support of NATO forces in Kosovo. Shortly thereafter, in an effort to cover manpower shortages elsewhere, the U.S. Army Medical Command dispersed the Task Force and reassigned personnel. Col. Lakner objected to the disbanding of the Task Force. Subsequently, several deaths occurred among civilian DoD employees. Col. Lakner classified these deaths as suicides and reported that the deaths may have been prevented if the civilians had access to the mental health care that previously had been available from the Task Force. Col. Lakner filed a complaint with the Inspector General.*fn1

Thereafter, the Army terminated Col. Lakner's tour of duty.*fn2 In November of 2004, the Army Medical Command convened a Credentialing Committee to review Col. Lakner's medical credentials. See, Pet., Ex. 27 (Minutes of 11/8/04 Committee Meeting). The Committee examined whether certain reference letters written in support of Col. Lakner were in fact written by the individuals who signed them. Id. at 1. After further investigation, the Committee recommended that Col. Lakner's clinical privileges be revoked. Via a memorandum dated November 15, 2005, Brigadier General Carla Hawley-Bowland accepted the recommendation of the Credentialing Committee and revoked Col. Lakner's clinical privileges. See Pet., Ex. 37 (Nov. 14, 2005 Memo).

The memorandum advised Col. Lakner of his appeal rights as follows:

In accordance with [Army Regulation] 40-68, para. 10-10, you have 10 duty days from the date of service of this document to submit an appeal/request for reconsideration to me. If you do not request reconsideration, the action will be submitted to the USAMEDCOM*fn3 QMD, with a copy furnished to MEDCOM as my next higher headquarters, for reporting to the National Practitioner Data Bank (NPDB). If you elect to appeal, I will act upon that appeal within 14 calendar days from receipt of your submission. If I deny your appeal in whole or in part, the action will be automatically endorsed to The Surgeon General (TSG) as an appeal. TSG is the final appellate authority for denying, suspending, restriction, reducing, or revoking clinical privileges.

Id. at 1-2. Col. Lakner requested reconsideration, and on December 22, 2005, BG Hawley-Bowland denied reconsideration and forwarded the appeal to the U.S. Army Medical Command Medical Appeals Board, which makes recommendation on appeals to The Army Surgeon General. Pet. at 10.

On March 16, 2006, the U.S. Army Medical Command Medical Appeals Board met to consider Col. Lakner's appeal. See Pet., Ex. 41 (Minutes of Board Meeting dated 5/2/06) at 2 ("The chairman asked whether the group agreed that [Col.] Lakner engaged in misconduct to change [sic] the letters with the intent to use them for an official purpose."). The Board voted to recommend that The Army Surgeon General uphold the "adverse privileging action." Id. at 3.

The Army Surgeon General accepted the recommendation. In a letter to Col. Lakner dated May 16, 2006, The Army Surgeon General indicated that it had determined that the revocation of Col. Lakner's clinical privileges was proper. See Pet., Ex. 40 (Letter dated May 17, 2006). The letter noted that "[u]nder the provisions of Army Regulation 40-68, this is the final action in the appeals process. This action will be reported to the National Practitioner Data Bank, The Federation of State Medical Boards, and known states of licensure." Id.

Ignoring The Army Surgeon General's indication that its decision was final, on June 25, 2007, Col. Lakner appealed the decision of the Medical Command Appeals Board to the Assistant Secretary of Defense for Health Affairs ("ASDHA"). The ASDHA has not acted. On July 15, 2010, Col. Lakner filed this case against DoD, seeking a writ of mandamus to compel DoD or the ASDHA to set a hearing and/or issue a decision regarding Col. Lakner's appeal. Col. Lakner's Petition for Writ of Mandamus indicates that it is filed pursuant to: the Mandamus Act, 28 U.S.C. § 1361; the All Writs Act, 28 U.S.C. § 1651; and the Administrative Procedure Act ("APA"), 5 U.S. C. §§ 702-706. See Pet. at 1. DoD has moved to dismiss for lack of jurisdiction.

II. LEGAL STANDARD

Federal district courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), the court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged, Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004), although the court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is an Article III and statutory requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 ...


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