Opinion
Civil Action NO. 01-3863, Section "N"
April 17, 2002
ORDER AND REASONS
Before the Court is a Motion to Dismiss, or Alternatively, for Summary Judgment, filed by the defendants in this matter: United States Public Health Service, Tommy G. Thompson, United States Department of Health and Human Services, David Satcher, Office of Public Health and Science, Andrew Von Eschenbach, The National Cancer Institute ("NCI"), Randolph F. Wykoff, The Office of Disease Prevention and Health Promotion, The United States Preventive Services Task Force, John M. Eisenberg, and The Agency for Health Care Research and Quality (the "defendants"). For the reasons that follow, the motion is GRANTED.
I. BACKGROUND
Plaintiff, a smoker with no symptoms of lung cancer, brings this action (purportedly on behalf of all Americans at risk of lung cancer), seeking an order directing the defendants to recommend low-dose helical computed tomography ("Spiral CT") to detect lung cancer. Plaintiff alleges that, although he has been examined by doctors who know he is a smoker, no doctor has recommended that he receive Spiral CT. He claims that this would not have happened if the defendants had recommended the test because such a recommendation would impose a duty on all physicians to recommend the test and a duty on Health Maintenance Organizations (HMO's) and Medicaid/Medicare to pay for it. Using this logic, plaintiff claims that the defendants owe him damages for depriving him of the right to determine what will be done to his body. He also seeks an order directing the defendants to reconunend Spiral CT to detect lung cancer.
Plaintiff does not allege that he asked his physicians for a Spiral CT screen. Nor does it appear that he has sued any of these physicians.
II. LAW AND ANALYSIS
Defendants move to dismiss plaintiff's claims pursuant to Rule 12(b)(1) and (b)(6) or, alternatively, Rule 56, on grounds (1) that plaintiff cannnot satisfy the case or controversy requirement of Article III, and (2) that plaintiff cannnot establish a cause of action against any of the defendants.
A. Plaintiff Has Failed to Demonstrate a Case or Controversy .
Defendants argue that plaintiff lacks standing to bring the instant action because he fails to meet the case or controversy requirement of Article III of the United States Constitution. The case or controversy requirement is the "`irreducible constitutional minimum' of standing." Bennett v. Spear, 520 U.S. 154, 162 (1997). To satisfy it requires: "(1) that the plaintiff have suffered an `injury in fact' — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, nnot conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and nnot the result of the independent action of some third party nnot before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 167.
The party invoking federal jurisdiction — here, the plaintiff — "bears the burden of establishing these elements," and "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Thus, to defeat summary judgment, "the plaintiff can no longer rest on . . . `mere allegations,' but must `set forth' by affidavit or other evidence `specific facts,' . . . which for purposes of the summary judgment motion will be taken to be true." Id. Plaintiff has nnot met this burden.
The Complaint in this matter was verified by the plaintiff, and the Court has accepted as true each of the allegations therein.
First, plaintiff has failed to set forth any specific facts demonstrating a real, non-conjectural injury. For "a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action." Lujan, 504 U.S. at 577. "[I]t is not sufficient that he has merely a general interest common to all members of the public." Id. Here, plaintiff argues that his injury is that he, like all other Americans at risk for lung cancer, has lost the right to determine what will be done with his body as a result of the NCI's decision to further study Spiral CT rather than recommend it immediately, without further study, as a screen for all Americans at risk for lung cancer. Thus, as a threshold matter, his claim of injury does nnot satisfy Article III standing requirements because it is held in common with the ninety-one million other Americans he claims are at risk for lung cancer. Moreover, plaintiff has presented no specific facts showing that he ever has asked anyone — physician or HMO — that he be given a Spiral CT screen. He simply alleges (1) that physicians who knew he was a smoker examined him without recommending a Spiral CT screen and (2) that his HMO will nnot pay for the test unless it is ordered by a covered physician. See Complaint at ¶¶ 29, 31, 32. Thus, he has failed to set forth specific facts showing that anyone, much less defendants, has denied him the right to self-determination. Nor has he shown any other non-conjectural injury.
The Lujan court explained the reasoning behind this rule:
To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an `individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to `take Care that the Laws be faithfully executed,' Art. II, § 3. It would enable the courts, with the permission of Congress, `to assume a position of authority over the governmental acts of another and co-equal department,' . . . and to become `virtually continuing monitors of the wisdom and soundness of Executive action.'. . . . We have always rejected that vision of our role. . . . [U]nder Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power. `Individual rights,' within the meaning of this passage, do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public.Lu]an, 504 U.S. at 577-78 (internal quotations and citations omitted).
The Court notes that Lugenbuhl v. Dowling, the case relied upon by plaintiff for the proposition that defendants have deprived him of self-determination, does not support the existence of a compensable interest under the circumstances alleged here. See Lugenbuhl v. Dowling, 701 So.2d 447,455-56 (La. 1997) (holding that invasion of patient's right to privacy was compensable where surgeon disregarded that patient's consent to surgery was expressly conditioned on use of a specific procedure).
Plaintiff argues that he also has lost a part of his medical history — i.e., the Spiral CT films that he would have had if defendants had recommend this test. This argument suffers from the same infirmities as the lost self determination argument.
Second, even if plaintiff had set forth facts demonstrating a non-conjectural injury, which he has not, he nevertheless has failed to establish standing, for he has set forth no specific facts showing that this alleged injury was caused by the defendants and not "the independent action of some third party nnot before the court." Bennett, 520 U.S. at 167. He also has failed to show a likelihood that his alleged injury will be redressed by a favorable ruling. Plaintiff does nnot maintain that he personally was the object of any action by any of the defendants. Rather, he theorizes that his physicians surely would have prescribed Spiral CT screening, and his HMO surely would have paid for it, if the defendants had recommended that all persons at risk for lung cancer be so screened. Under these circumstances, it is "the burden of the plaintiff to adduce facts showing that [the choices of actors nnot before the Court] have been or will be made in such manner as to produce causation and permit redressability of injury." Lujan, 504 U.S. at 561. Plaintiff has failed to carry this burden. Accordingly, plaintiff also has failed to establish either the second or the third element of standing, and his claims must be dismissed.
B. This Court Lacks Subject Matter Jurisdiction Over Plaintiff's Claim for Damages .
Defendants argue that plaintiff's claim for damages would fail even if he had standing to bring it, for he has failed to exhaust his administrative remedies as required by the Federal Tort Claims Act ("FTCA"). The FTCA waives the government's sovereign immunity with respect to certain claims seeking damages for injuries caused by federal employees. However, the Court's subject matter jurisdiction over such a claim is "conditioned on compliance with 28 U.S.C. § 2675(a), which declares that `an action shall nnot be instituted' unless the plaintiff has filed an administrative claim and either obtained a written denial or waited six months." Price v. United States, 69 F.3d 46, 54 (5th Cir. 1995) (quoting 28 U.S.C. § 2675(a)), cert. denied, 519 U.S. 927 (1996). "This requirement is jurisdictional, and may not be waived." Id. Plaintiff does not dispute that he has failed to satisfy the FTCA's jurisdictional requirement. Accordingly, this Court has no jurisdiction over the claim for damages, and it must be dismissed.
Instead, plaintiff responds to defendants' FTCA argument by urging the Court to certify a nation-wide class for purposes of injunctive relief only.
C. Plaintiff's Remaining Claims Cannnot Survive Summary Judgment .
Because both plaintiff and defendants have submitted matters outside the pleadings, the Court will treat the Rule 12(b)(6) motion as one for summary judgment. See Fed.R.Civ.P. 12(b). "Summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Kee v. City of Rowlett, Texas, 247 F.3d 206,210(5th Cir.), (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c))), cert. denied, 122 5. Ct. 210 (2001). "A dispute over a material fact is genuine if the evidence is such that a jury reasonably could return a verdict for the nonmoving party." Id. (internal quotations omitted).
Defendants argue that plaintiff cannnot establish a cause of action against them under any of the statutes cited in the Complaint. The Court agrees.
In addition to the FTCA and the statutes discussed below, plaintiff mentions in his complaint the Public Health Service Act and the Declaratory Judgment Act. However, as defendants point out, these statutes do not provide a cause of action to plaintiff, and plaintiff does nnot argue that they do.
1. Administrative Procedure Act:
This Court had serious concerns as to whether it has jurisdiction over plaintiff's Administrative Procedure Act ("APA") claim. The APA authorizes review only of "final agency action." 5 U.S.C. § 704; see also American Airlines Inc. v. Herman, 176 F.3d 283, 287 (1999). To qualify as "final," the agency action in question "must mark the `consummation' of the agency's decision making process — it must not be of a merely tentative or interlocutory nature." Id (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (emphasis omitted)). Plaintiff does not complain of any agency action that satisfies this requirement No agency has decided nnot to endorse use of Spiral CT as a screen for lung cancer. In fact, NCI just approved a $200 million eight-year trial to study whether screening with Spiral CT reduces mortality from lung cancer. See Defendant's Exh. B. It is this approval that plaintiff claims constitutes a final action reviewable by this Court under the APA. See Opp. Memo at p. 14 (Rec.Doc. 20). The Court disagrees that this decision to gather more facts is a final action reviewable by this Court. Indeed, one reason behind the finality requirement is "to let the agency develop the necessary factual background upon which decisions should be based." United States Postal Serv. v. Notestin, 857 F.2d 989, 993 (1988). Like American Airlines, this simply "is not a case in which `no further administrative proceedings are contemplated.'" American Airlines, 176 F.3d at 292. Accordingly, the Court is without jurisdiction to review the decision under the APA.
Action that is merely "preliminary, procedural, or intermediate" is subject to review upon review of the final action. 5 U.S.C. § 704.
Moreover, even if this Court did have jurisdiction to review the NCI's decision to conduct a study of the effects of using Spiral CT to screen for lung cancer, the plaintiff's APA claim would nnot survive summary judgment, for plaintiff has set forth no facts from which a fact finder reasonably could conclude that the decision was arbitrary, capricious, an abuse of discretion, or otherwise nnot in accordance with law. See 5 U.S.C. § 706. Instead, the documents submitted that relate to Spiral CT screening for lung cancer show careful assessment of the merits of further study through the use of careful procedures.
In addition to submitting documents relating to Spiral CT screening for lung cancer, plaintiff has filed dozens of documents and other materials relating to the guidelines for using mammography as a screen for breast cancer. Counsel for plaintiff previously submitted these same materials to a different section of this Court in connection with a similar case filed against the defendants on behalf of a plaintiff diagnosed with breast cancer. See Berthelot v. United States Preventative Services Task Force, et al, No. 01-1854 (E.D. La. 2001) and No. 01-30920 (5th Cir. Feb. 4, 2002) (dismissing as frivolous plaintiff's appeal of Judge Barbier's dismissal of that action). This Court can find no relevance of these materials to the issues in the instant action.
2. Mandamus Act:
Plaintiff concedes that mandamus is "an extraordinary remedy." Opp. Memo at p. 17 (quoting Dunn-McCampbell Royalty Interest, Inc. v. National Park Service, 112 F.3d 1283, 1288 (5th Cir. 1997)). It is "available only where government officials clearly have failed to perform nodiscretionary duties." Dunn-McCampbell, 112 F.3d at 1288. To obtain relief under the Mandamus Act, plaintiff "must demonstrate that a government officer owes [him] a legal duty that is a specific, ministerial act, devoid of the exercise ofjudgment or discretion." Id. "The legal duty must be set out in the Constitution or by statute, . . . and its performance must be positively commanded and so plainly prescribed as to be free from doubt." Id. Plaintiff maintains that NCI's decision to further study Spiral CT scans and its failure to recommend Spiral CT scanning of smokers absent such study constitute a breach of the defendants' ministerial duty to protect the public health and promote preventive health services. The Court disagrees. The performance of such duties entail enormous exercise ofjudgment. Indeed, they are the antithesis of ministerial. Accordingly, plaintiff's Mandamus Act claim must be dismissed.
D. Injunctive Relief:
Plaintiff seeks preliminary injunctive relief in the form of an Order compelling the NCI to recommend Spiral CT screening for plaintiff and for all American smokers and ex-smokers over age forty-five. To obtain a preliminary injunction, a party must show, inter alia, a substantial likelihood that he will prevail on the merits. Walgreen Co. v. Hood, 275 F.3d 475, 477 (5th Cir. 2001). For all the reasons discussed above, plaintiff has failed to demonstrate a likelihood of success on the merits under any theory.
III. CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that the defendants' Mnotion to Dismiss, or Alternatively, for Summary Judgment is GRANTED.