1 2 3 4 5 6 7 8 9 10 11 12 13 14 UNITED STATES DISTRICT COURT 15 SOUTHERN DISTRICT OF CALIFORNIA 16 17 MICHELLE LEE Case No.: 3:23-cv-0576-W-MSB

18 Plaintiff,

ORDER GRANTING MOTION TO

19 v. DISMISS [DOC. 6] 20 UNITED STATES DEPARTMENT OF

THE NAVY,

21 Defendant. 22 23 24 Pending before the Court is the United States Department of the Navy’s 25 (“Defendant” or “Navy”) motion to dismiss ([Doc. 6], “Motion”) this case for lack of 26 subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim 27 upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). (Motion at 1.) Plaintiff 28 1 Michelle Lee (“Plaintiff”) opposes the Motion. ([Doc. 7], “Opposition”.) Defendant has 2 replied. ([Doc. 8.], “Reply”.) 3 The Court decides the matter on the papers submitted and without oral argument. 4 See Civ. L.R. 7.1(d)(1). For the following reasons, the Court GRANTS the Motion 5 without leave to amend and ORDERS the case DISMISSED. 6 7 I. RELEVANT BACKGROUND 8 Plaintiff is the civilian spouse of Kenneth L. Lee (“Mr. Lee”). (Complaint at ¶ 21.) 9 The Complaint alleges that in 2018, while an active-duty member of the U.S. Navy, Mr. 10 Lee was the victim of medical malpractice at the hands of Navy medical personnel at 11 Balboa Naval Hospital in San Diego, California. (Id. at ¶¶ 21, 39, 44.) Specifically, 12 Plaintiff asserts that Mr. Lee suffered a heart attack after a Navy nurse “mistakenly 13 injected” him with epinephrine instead of the ephedrine ordered by a Navy physician. 14 (Id. at ¶ 34.) 15 While Mr. Lee fortunately survived the heart attack, the Complaints alleges he 16 suffered “serious and permanent physiological and emotional damages which continue to 17 this day.” (Id. at ¶ 35.) For these alleged injures, Plaintiff claims Mr. Lee filed an 18 administrative claim with the Navy under the Military Medical Malpractice Act 19 (“MMMA”) on September 16, 2020. (Opposition at 6.) That same day, Plaintiff alleges 20 that she too submitted her own administrative claim to the Navy—under a loss of 21 consortium theory resulting from Mr. Lee’s injuries—under the MMMA. (Complaint at 22 ¶¶ 24-25.) The Complaint alleges that the Navy ultimately denied Plaintiff’s 23 administrative claim, reasoning that she (the civilian spouse of the serviceman who 24 suffered the alleged injury) was “not a proper claimant” under the MMMA and that the 25 statue “does not permit derivative claims” like loss of consortium. ([Doc. 1-2], “Denial 26 Letter” at 6.) 27 Plaintiff has now filed the instant lawsuit, not seeking judicial adjudication of her 28 loss of consortium claim, but instead seeking a declaratory judgment that “the [civilian] 1 spouse of an injured service member whose injury resulted from medical malpractice by 2 military medical personnel” may “file and pursue a claim for loss of consortium under the 3 Military Medical Malpractice Act.” (Complaint at ¶ 20.) In turn, Defendant contends 4 that this case must be dismissed because: (1) the United States has not waived sovereign 5 immunity as to this declaratory judgment suit; (2) Congress has explicitly precluded 6 judicial review of administrative decisions made by the Secretary of Defense under the 7 MMMA; and (3) Defendant correctly interpreted the MMMA as not permitting the 8 civilian spouses of injured servicemembers to file their own administrative claims for 9 injuries like loss of consortium. (Motion at 2.) 10 11 II. LEGAL STANDARD 12 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to file a motion 13 to dismiss for “lack of subject matter jurisdiction.” FED. R. CIV. P. 12(b)(1). While 14 a claim of sovereign immunity is technically not a pure jurisdictional issue, it is 15 “quasi jurisdictional” and a “Rule 12(b)(1) [motion] is still the proper vehicle for 16 invoking sovereign immunity from suit.” Pistor v. Garcia, 791 F.3d 1104, 1111 17 (9th Cir. 2015); see Tobar v. United States, 639 F.3d 1191, 1194 (9th Cir. 2011). 18 When evaluating sovereign immunity via a Rule 12(b)(1) motion, the Court must 19 start with the presumption that the United States is immune from suit, and it is 20 Plaintiff’s burden to show that the United States has expressly consented to be sued 21 in this way. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 22 377 (1994); Shalaby v. Johnston, 2023 WL 3047051, at *2 (N.D. Cal. Apr. 21, 23 2023). 24 25 III. DISCUSSION 26 It has long been understood that, as a default rule, the United States enjoys 27 immunity from suit. E.g., Alden v. Maine, 527 U.S. 706, 712-31 (1999) 28 (explaining the history of sovereign immunity and its relationship to the Eleventh 1 Amendment). This presumption of sovereign immunity can only be overcome by 2 Congressional waiver. United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is 3 axiomatic that the United States may not be sued without its consent.”); Esquivel v. 4 United States, 21 F.4th 565, 572 (9th Cir. 2021) (“An action can be brought by a 5 party against the United States only to the extent that the Federal Government 6 waives its sovereign immunity.”). Any such waiver must be express, as “[w]aivers 7 of sovereign immunity are . . . ‘construed strictly in favor of the sovereign.’” 8 United Aeronautical Corp. v. United States Air Force, 80 F.4th 1017, 1029 (9th 9 Cir. 2023) (quoting McGuire v. United States, 550 F.3d 903, 912 (9th Cir. 2008)). 10 In 1946, Congress enacted the Federal Tort Claims Act (“FTCA”), waiving 11 the United States’ “sovereign immunity for claims arising out of torts committed 12 by federal employees.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 13 (2008) (citing 28 U.S.C. § 1346(b)(1)). However, in Feres v. United States, the 14 Supreme Court held that the FTCA does not waive the United States’ sovereign 15 immunity “for injuries to servicemen where the injuries arise out of or are in the 16 course of activity incident to service.” 340 U.S. 135, 146 (1950). Under the Feres 17 doctrine, courts barred members of the military from suing the United States for 18 medical malpractice committed by military doctors, reasoning that servicemembers 19 receiving medical care from military doctors was “an activity incident to service.” 20 E.g., Atkinson v. United States, 825 F.2d 202, 206 (9th Cir. 1987) (barring medical 21 malpractice claim of a pregnant servicewoman in a non-combat military hospital). 22 In 1956, Congress enacted the Military Claims Act (“MCA”), which allowed 23 the Secretary of Defense to settle administrative claims brought against the United 24 States for noncombat property damage or personal injury caused by members of 25 the military or civilian employees of the Department of Defense “acting within the 26 scope of [their] employment.” 10 U.S.C. 2733 et seq. The MCA went on to 27 provide that the Secretary’s decision regarding an administrative claim brought 28 under the MCA was “final” and not subject to judicial review. 10 U.S.C. 2735 1 (“Notwithstanding any other provision of law, the settlement of a claim under 2 section 2733 . . . is final and conclusive.”); see Hata v. United States, 23 F.3d 230, 3 235 (9th Cir. 1994) (“Absent a cognizable constitutional claim, section 2735 of the 4 Military Claims Act expressly precludes judicial review of administrative rulings 5 by the Air Force.”). However, the MCA still did not permit servicemembers to 6 recover for medical malpractice committed by military doctors. 10 U.S.C. § 7 2733(b)(3) (“A claim may be allowed . . . only if . . . it is not for personal injury or 8 death of such a member or civilian officer or employee whose injury or death is 9 incident to his service.”); Hata v. United States, 23 F.3d at 235 (“[T]he Air Force 10 correctly relied on the Feres doctrine and determined that the MCA's incident to 11 service exclusion barred the [servicemember’s] family's claims.”). 12 In 2019, Congress sought to alter this by amending the MCA with passage 13 of the Military Medical Malpractice Act (“MMMA”). The MMMA provided a 14 limited waiver of the United States’ sovereign immunity by allowing “member[s] 15 of the uniformed services” to file administrative-only medical malpractice claims 16 with the Secretary of Defense. 10 U.S.C. § 2733a. Much like section 2733, the 17 Secretary’s decisions regarding administrative claims brought under section 2733a 18 are “final” and not subject to judicial review. 10 U.S.C. 2735 (“Notwithstanding 19 any other provision of law, the settlement of a claim under section . . . 2733a . . . is 20 final and conclusive.”). 21 22 A. The United States Has Not Waived Sovereign Immunity 23 The Court begins with the presumption that the United States is immune 24 from suit and looks for an express act of Congress waiving sovereign immunity. 25 Lane v. Pena, 518 U.S. 187, 192 (1996) (“A waiver of the Federal Government’s 26 sovereign immunity must be unequivocally expressed in statutory text”). 27 Examining the Complaint, Plaintiff fails to specifically identify any express 28 Congressional wavier of sovereign immunity that would allow this declaratory 1 judgment suit. (See generally, Complaint.) While the Complaint alleges that the 2 Court has “subject matter jurisdiction pursuant to the Federal Declaratory 3 Judgement Act . . . to interpret a federal statute (10 [U.S.C.] section 2773a [the 4 MMMA]),” the Declaratory Judgment Act (28 U.S.C §§ 2201) is not itself a 5 waiver of sovereign immunity. Brownell v. Ketcham Wire & Mfg. Co., 211 F.2d 6 121, 128 (9th Cir. 1954) (“the Declaratory Judgment Act . . . is not a consent of the 7 United States to be sued, and merely grants an additional remedy in cases where 8 jurisdiction already exists in the court.”); Shoshone-Bannock Tribes of Fort Hall 9 Rsrv. v. United States, 575 F. Supp. 3d 1245, 1255 (D. Idaho 2021) (quoting B.R. 10 MacKay & Sons, Inc. v. United States, 633 F. Supp. 1290, 1295 (D. Utah 1986)) 11 (“the Declaratory Judgment Act does not waive sovereign immunity. . . . 12 Therefore, ‘plaintiff[s] must look to the statute giving rise to the cause of action for 13 such a waiver.’”). (Complaint at ¶ 23.) 14 Accordingly, Plaintiff must identify some other, underlying statute waving 15 sovereign immunity. Other than the Declaratory Judgment Act, the Complaint 16 only mentions two other statues: the MMMA and the FTCA. (Complaint at ¶¶ 23, 17 45.) Neither of which provide Plaintiff with the waiver needed for her Complaint 18 to continue. 19 First, as discussed above regarding Feres, the FTCA plainly does not waive 20 sovereign immunity for this kind of suit. Second, while the MMMA does provide 21 a limited waiver of sovereign immunity, that waiver only allows “member[s] of the 22 uniformed services” to file administrative claims with the Secretary of Defense—it 23 does not allow civilian spouses of servicemembers to seek judicial review of the 24 Secretary’s decisions. See 10 U.S.C. § 2733a. In fact, Congress went out of its 25 way to explicitly preclude judicial review of the Secretary’s MMMA decisions. 10 26 U.S.C. 2735 (“Notwithstanding any other provision of law, the settlement of a 27 claim under section . . . 2733a [the MMMA] . . . of this title is final and 28 conclusive.”) (emphasis added); see Hata v. United States, 23 F.3d at 235 (“Absent 1 a cognizable constitutional claim, section 2735 of the Military Claims Act 2 expressly precludes judicial review of administrative rulings by the Air Force.”). 3 Thus, the MMMA also cannot be understood as an “unequivocally express” wavier 4 of sovereign immunity. 5 Plaintiff raises for the first time in her Opposition that the Administrative 6 Procedures Act (“APA”) is also a relevant waiver of sovereign immunity. 7 (Opposition at 10.) While it is true that “[a]dministrative decisions are 8 presumptively subject to judicial review” under the Administrative Procedures Act 9 (“APA”), Congress can overcome this presumption of reviewability by “‘clear and 10 convincing evidence’ of a contrary legislative intent.” Hata v. United States, 23 11 F.3d at 232 (9th Cir. 1994) (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 12 349 (1984)). This occurs when, for example, Congress expressly “preclude[s] 13 judicial review” of the relevant statute. Block v. Cmty. Nutrition Inst., 467 U.S. at 14 345. As discussed above, Congress has expressly precluded judicial review of the 15 Secretary’s administrative decisions under the MMMA by declaring them “final 16 and conclusive.” 10 U.S.C. § 2375. As such, the APA is also not a waiver of 17 sovereign immunity here. 18 Plaintiff also argues for the first time in her Opposition that she has also 19 suffered a constitutional due process violation that is judicially reviewable. 20 (Opposition at 11.) Relying on the language for Hata that “[a]bsent a cognizable 21 constitutional claim, section 2735 of the Military Claims Act expressly precludes 22 judicial review of administrative rulings by the Air Force,” Plaintiff argues she 23 may seek judicial review of the Secretary’s decision, despite 10 U.S.C. § 2735, 24 because she has a constitutional due process claim. 23 F.3d at 235 (emphasis 25 added). (Opposition at 11.) However, the due process violation Plaintiff 26 complains of in her Opposition—that the Navy “faile[ed] to timely process and 27 permit Plaintiff’s claim”—does not appear anywhere in the Complaint. 28 (Opposition at 11; see generally Complaint.) All the Complaint alleges regarding 1 timing is that Plaintiff submitted her administrative claim to the Navy on 2 September 16, 2020, and received her denial letter just over a year later, on 3 October 12, 2021. (Complaint at ¶¶ 25-26). Plaintiff fails to articulate or support, 4 in either her Complaint or Opposition, how taking approximately 13 months to 5 adjudicate her claim amounts to a constitutional due process violation. See 6 Furthermore, even if the Complaint contained sufficient allegations 7 regarding timeliness (it does not), Plaintiff would still have to identify a protected 8 property interest to state a valid procedural due process claim. See Hata v. United 9 States, 23 F.3d at 234 (emphasis added) (“Even if Hata could establish a protected 10 property interest in her MCA claim, she has not shown that the administrative 11 procedures applied by the Air Force were constitutionally insufficient.”). Under 12 current Supreme Court precedent, a constitutionally protected property interest 13 only exists where a person has “a legitimate claim of entitlement to” the 14 government benefit at issue, not just “an abstract need or desire for it.” Bd. of 15 Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Here, it cannot be 16 said that Plaintiff has a “legitimate claim of entitlement to” payment under the 17 MMMA. To the contrary, the MMMA simply states that “the Secretary may 18 allow, settle, and pay a claim against the United States for” injuries to “member[s] 19 of the unformed services” resulting from medical malpractice. 10 U.S.C. § 2733a 20 (emphasis added). At no point does the MMMA provide that the Secretary “must” 21 or “shall” do much of anything, other than issue a written justification for denied 22 claims. 10 U.S.C. § 2733a(e). Since the MMMA does not actually confer any 23 entitlement on “member[s] of the uniformed services”—let alone their civilian 24 spouses—Plaintiff cannot be said to have the constitutionally protected property 25 interest necessary to assert a procedural due process claim here. 26 27 28 1 Accordingly, the Motion must be GRANTED because Plaintiff has failed to 2 identify any express waiver of sovereign immunity by the United States to this 3 suit.1 4 5 B. Leave to Amend 6 Plaintiff asks the Court for leave to amend the Complaint if it grants the 7 Motion. (Opposition at 13.) Federal Rule of Civil Procedure 15(a)(2) states that 8 courts “should freely give leave [to amend] when justice so requires.” However, 9 leave to amend is properly denied when “it is clear . . . that the complaint could not 10 be saved by any amendment.” Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th 11 Cir. 2009). 12 Here, leave to amend would indeed be futile. As explained above, every 13 avenue through which Plaintiff argues the United States waived sovereign 14 immunity fails as a matter of law. The Declaratory Judgment Act is not a waiver 15 of sovereign immunity; the FTCA is not a wavier here under the Feres doctrine; 16 instead of explicitly waiving sovereign immunity in the MMMA, Congress 17 expressly foreclosed judicial review of the Secretary’s MMMA decisions; and the 18 civilian spouses of servicemembers do not have a property interest in payment 19 under the MMMA for their own derivative claims. There are no additional facts 20 Plaintiff could plead that would change this. And even if she could, Plaintiff 21 certainly could not plead around the fact that the Secretary’s decision is statutorily 22

23 1 Since the Court holds that the United States has not waived its Sovereign Immunity to this suit, 24 it need not proceed to the other arguments made by Defendant in its Motion. However, the 25 Court notes that even if the United States lacked sovereign immunity in this case, the Complaint would still fail because: (1) Congress has explicitly deprived the judiciary of jurisdiction to 26 review the Secretary’s MMMA decisions and (2) the plaint text of the MMMA provides that only “member[s] of the uniformed services” (or their “authorized representative” in the event 27 that the “member” is “deceased or otherwise unable to file a claim due to incapacitation”) may file a claim for injury caused by malpractice—not civilian spouses of servicemembers seeking 28 1 unreviewable by the judiciary and the plain language of the MMMA only allows 2 ||“‘claim[s] .. . filed by the member of the uniformed services who is the subject of 3 medical malpractice claimed... .” 4 As such, the Court DENIES Plaintiff's request for leave to amend. 5 6 CONCLUSION & ORDER 7 For the foregoing reasons, the Court GRANTS the Motion [Doc. 6] without leave 8 amend and ORDERS the case DISMISSED. 9 IT IS SO ORDERED. 10 Dated: February 9, 2024 \ I hs bnDor 12 Hn. 7 omas J. Whelan 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28