Dr. Aaron Filler, a Santa Monica neurosurgeon, filed a pro se Complaint alleging that the United States government
effected a 5th Amendment taking of his medical license without just
compensation. He claims the taking occurred as a result of the acts of Susan
Walker, a biologist and regional director with the National Marine Fisheries
Service (`NMFS’) of the National Oceanic and Atmospheric Administration (`NOAA’),
a division within the United States Department of Commerce. He requests `damages
in an amount to be proven at trial but no less than ten million dollars.’ Amended
Complaint ¶ 130.
Filler v. U.S., 2014
WL 2000439 (U.S. Court of Federal Claims 2014).
The basis for the lawsuit was the final phrase in the 5th
Amendment to the U.S. Constitution, i.e., “nor shall private property be taken
for public use, without just compensation”.
This is known as the “Takings Clause” of the 5th Amendment
(or “eminent domain”).
The U.S. Department of Justice’s Civil Division represented
the government and moved to dismiss Filler’s suit under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, which lets a judge dismiss a lawsuit if the
plaintiff has failed to state a viable cause of action. As Wikipedia explains, the Rule 12(b)(6) motion
is how lawsuits with
insufficient legal theories underlying
their cause of action are dismissed from court. For
example, assault requires intent, so if the plaintiff has failed
to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion. `While
a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).’ Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
In the Department of Justice’s Rule 12(b)(6) motion in this
case, it argued that
Dr. Filler `fails to articulate [a
takings] claim within this Court's jurisdiction’ because . . . he has not
alleged sufficient facts to establish that Ms. Walker acted on behalf of the
government when she engaged in the acts alleged to have resulted in the taking
of his property. [Defense’s Motion to Dismiss]. Finally, the government argues
that Dr. Filler fails to state a claim upon which relief can be granted because
there is no compensable property interest in a medical license for purposes of
the Takings Clause.
Filler v. U.S., supra.
The judge began his analysis of the issues in the case by
explaining that in 2010,
Susan Walker sought
treatment from Dr. Filler, and [he] performed medical procedures on her,
including injections of medication. . . . The complaint alleges
that on January 31, 2011, Ms. Walker posted the following comment, referring to
Dr. Filler and his treatments, on www.RunningForums.com under the username
`sueinjuneau’:
`Dr. Filler uses Wydase, which is a
brand name of the enzyme hyaluronidase, in his piriformis injections to, in
theory, break down scar tissue.’
`Wydase is a medical preparation of
highly purified bovine testicular enzyme, made previously by Wyeth
Pharmaceuticals in England. Production ceased due to the possible transmission
of bovine spongiform encephalitis, or mad cow disease, though there is no
documentation of transmission through this route. . . .’
`Wydase is no longer manufactured and
has not been manufactured in at least seven years, so I'm not sure why Filler
refers to the use of Wydase, and given the remote risk of CSE transmission
that it poses, injecting it directly adjacent to a nerve does not seem advised.’
Amended Complaint 49. This comment and
others Ms. Walker posted on various other web sites were the bases of an action
for defamation and interference with prospective economic advantage in
California state court and an administrative claim under the Federal TortClaims Act, 28 U.S. Code § 1346, with the Department of Commerce, which
Dr. Filler pursued prior to bringing his takings claim in this Court.
Dr. Filler alleges that Ms. Walker
posted the comment on RunningForums.com during working hours on a government
computer and that the comment drew from Ms. Walker's NOAA training and
constituted a `public warning about danger to the health and safety of the
United States populace.’ Amended Complaint ¶¶ 4, 48–49. He also alleges that the comment,
`though false, is certain to cause fear in those patients who have been
injected, their families and co-workers as well as causing fear in others
considering visiting Dr. Filler for treatment.’ Id. ¶ 42. He
claims Ms. Walker acted as an agent of the United States when she posted
the comment and that the comment diminished the value of his medical license so
completely it constituted an inverse condemnation, for which
the 5th Amendment requires just compensation. . . .
Filler v. U.S., supra.
In a footnote, the judge says that “[b]y `CSE,’ Ms. Walker likely meant
`BSE’ -- that is, bovine spongiform encephalitis.” Filler v. U.S., supra. And
in another note, the judge explains that “inverse condemnation” is
a type of takings claim; whereas condemnation occurs when the government
undertakes the legal proceedings necessary to assume ownership of property
under its eminent domain power, inverse condemnation occurs when the property
owner undertakes legal proceedings to have a government action declared a
taking and to recover just compensation due pursuant to the 5th
Amendment. . . .
Filler v. U.S., supra.
He then took up the first issue in the case, noting that the Court of Federal Claims is a
court
of limited jurisdiction that, pursuant to the Tucker Act, may hear `any claim
against the United States founded upon the Constitution, or any Act of
Congress or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.’ 28 U.S. Code § 1491(a)(1) (2006).
The Tucker Act serves as a waiver of
sovereign immunity and a jurisdictional grant, but it does not create a
substantive cause of action. Jan's Helicopter Serv., Inc. v. Fed.
Aviation Admin., 525 F.3d 1299 (U.S. Court of Appeals for the Federal Circuit 2008). A plaintiff, therefore, must establish that `a separate source
of substantive law . . . creates the right to money damages.’ Jan's
Helicopter Serv., Inc. v. Fed. Aviation Admin, supra. Takings claims fall
squarely within this Court's subject matter jurisdiction.
Filler v. U.S., supra.
Next, he analyzed the issue raised by the Rule 12(b)(6)
motion, i.e., whether Filler’s Complaint stated a viable cause of action. Filler v. U.S., supra. He noted that to survive a Rule 12(b)(6)
challenge to a Complaint’s factual allegations, those allegations “must be enough to raise a right
to relief above the speculative level”. Filler
v. U.S., supra. The judge found that Filler’s Complaint did not achieve this. Filler v. U.S., supra. He
noted that in analyzing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the judge
`must accept all
well-pleaded factual allegations as true and draw all reasonable
inferences in . . .[the plaintiff's] favor.’ Boyle v. U.S., 200
F.3d 1369 (U.S. Court of Appeals for the Federal Circuit 2000). The motion will
be granted when the facts asserted by the plaintiff fail to `raise a right to
relief above the speculative level.’ Am. Contractors Indem. Co. v. U.S., 570
F.3d 1373 (U.S. Court of Appeals for the Federal Circuit.2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
In other words, plaintiff's claim must
be plausible on its face. Bell Atl.
Corp. v. Twombly, supra. `A claim
has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.’ Ashcroft v. Iqbal, 556 U.S. 662 (2009). . . .
`Conclusory allegations of law and unwarranted inferences of fact do not,’
however, `suffice to support a claim.’ Bradley v. Chiron Corp., 136
F.3d 1317 (U.S. Court of Appeals for the Federal Circuit 1998).
Where, as here, the plaintiff is pro
se, his pleading is held `to less stringent standards than formal pleadings
drafted by lawyers.’ Haines v. Kerner, 404 U.S. 519 (1972).
Nonetheless, even taking into consideration Dr. Filler's pro se status,
the Court concludes that his allegations are insufficient, as a matter of law,
to state a claim for relief under the Takings Clause. Specifically, the facts
Dr. Filler alleges in his complaint do not support his conclusory assertion
that Ms. Walker acted on behalf of the government when she posted the comments .
. . on RunningForums.com.
Further, and in any event, Dr. Filler's
medical license does not, as a matter of law, constitute a compensable property
interest within the meaning of the Takings Clause.
Filler v. U.S., supra.
The judge then analyzed each factor in detail, beginning
with the issue of whether Walker acted on behalf of the government in posting
the comments at issue:
It is well settled that a compensable
taking does not arise unless there is action by the government and even then,
‘”only if the government action in question is authorized,’” PI Elec. Corp.
v. U.S., 55 Fed. Cl. 279 (U.S. Court of Federal Claims 2003) (quoting Del–Rio
Drilling Programs. Inc. v. U.S., 146 F.3d 1358 (U.S. Court of Appeals
for the Federal Circuit 1998)). . . . If the action is not authorized, it `is
not the act of the government’ at all. Blanchette v. Conn. Gen. Ins.
Corps., 419 U.S. 102 (1974) (quoting) Hooe v. U.S., 218 U.S.
322 (1910)). An action by a government agent is authorized, and implicates the
Takings Clause, if the agent `act[s] within the general scope of [her]
duties, i.e., if [her] actions are a “natural consequence of
Congressionally approved measures,” or are pursuant to “the good faith implementation
of a Congressional Act.”’ Del–Rio Drilling Programs. Inc. v. U.S., supra. . . .
Here, the factual allegations in Dr. Filler's
complaint do not support his conclusory assertion that Ms. Walker was acting in
her official capacity or on behalf of the government when she posted the
comments in question. In fact, his factual assertions actually demonstrate
precisely the opposite. Dr. Filler alleges in his complaint that Ms. Walker is employed
as a marine biologist at the NMFS within the NOAA, a division of the Department
of Commerce. . . .
This agency's authority derives from
the Magnuson–Stevens Fishery Conservation and Management Act, 16 U.S. Code Ch.
38, the Marine Mammal Protection Act, 16 U.S.C. Ch. 31, and the Endangered
Species Act, 16 U.S.C. Ch. 35. These statutes authorize the NMFS to manage,
conserve, and protect living marine resources in waters controlled by the
United States. NMFS does not have the authority to regulate medical practices
or drug safety. Therefore, even if Ms. Walker's posting on RunningForums.com is
construed as, in Dr. Filler's words, `a public warning about danger to the
health and safety of the United States populace,’ Am. Compl. ¶ 4, such an
action would not fall within the official scope of authority of an employee of
the NMFS generally, much less of Ms. Walker in particular.
In asserting that Ms. Walker acted `within
the scope of her authorized duties,’ . . . Am. Dr. Filler cites various statutes
and regulations reflecting `[t]he interest of the United States in . . . preventing the spread of . . . BSE.’ Amended
Complaint. ¶¶ 51, 55. . . . (citing a
provision within the Animal Health Protection Act, several provisions within
Each provision Dr. Filler lists, however, falls within the enforcement purview
of either the Department of Agriculture or the Food and Drug Administration;
none implicates the authority of the Department of Commerce, let alone the NOAA
or NMFS. See, e.g.,7 U.S. Code § 8302(14) (indicating the
Secretary of Agriculture is responsible for the implementation of the Animal
Health Protection Act); 21 C.F.R. § 810.2 (regulations in the part of
the C.F.R. implement the Federal Food, Drug, and Cosmetic Act). Dr. Filler recognizes that the authorities he cites for `[t]he role of the United
States in public warnings,’ 21 C.F.R. §§ 7.42, 810.2, , are
, are addressed to the
Food and Drug Administration. . . .
Thus, they cannot have provided the
authorization for Ms. Walker to post an anonymous comment regarding the safety
of any particular medical practice on RunningForums.com.
Leaving aside the conclusory assertions
in Dr. Filler's complaint, such as the statement that `[t]he purpose of [Ms.
Walker's] action was to serve the public purpose of protecting the United
States population from infection by the Bovine Spongiform Encephalopathy prion
agent,’ . . . the facts alleged in the complaint do not raise the prospect,
even at the speculative level, that Ms. Walker acted in her capacity as a
government official when she posted the comment on RunningForums.com.
To the contrary, the facts show Ms.
Walker acted in her individual capacity as a former patient of Dr. Filler for
her independent purpose of conveying her personal views on the efficacy and advisability
of the treatment she believed Dr. Filler had used on her and other patients.
Therefore, because he failed to sufficiently allege an authorized government
action that could conceivably constitute a taking, Dr. Filler's complaint must
be dismissed.
Filler v. U.S., supra.
The judge also found that a medical license is not a “property
interest within the meanings of the Takings Clause.” Filler
v. U.S., supra. He explained that a
“threshold element of a takings claim is whether the plaintiff has a cognizable
property interest for purposes of the 5th Amendment.” Filler
v. U.S., supra. If the plaintiff
cannot show he/she has such an interest, the claim will fail. Filler
v. U.S., supra. The judge found that
“even assuming Dr. Filler had alleged sufficient facts to establish that Ms.
Walker was acting within the scope of her duties when she posted the comments
at issue, his claim would necessarily fail because, as a matter of law, a
medical license does not constitute property cognizable under the Takings
Clause.” Filler v. U.S., supra.
He explained that the Constitution “`neither creates nor
defines’” the property interests that are compensable under the Takings Clause
of the 5th Amendment. Filler
v. U.S., supra. Courts therefore
look to property law to decide if a particular item qualifies as property under
the Takings Clause. Filler v. U.S.,
supra. He noted that the right to
`sell, assign, or otherwise transfer
are traditional hallmarks of property.’ Conti v. U.S., 291 F.3d 1334
(U.S. Court of Appeals for the Federal Circuit 2002). . . . Accordingly, the Federal Circuit has held that, assuming `the absence
of express statutory language precluding the formation of a property right,’ a
cognizable property interest in a government permit or license requires both a
`right to transfer’ and a `right to exclude.' Members of Peanut Quota
Holders Ass'n, Inc. v. United States, 421 F.3d 1323 (U.S. Court of
Appeals for the Federal Circuit 2005). The government argues that . . . a
medical license does not meet either of these requirements. The Court agrees.
Filler v. U.S., supra.
He noted, first, that “it is clear” that the holder of a
medical license
cannot sell or transfer his medical
license to another individual or entity; a medical license can only be obtained
by meeting the requirements specified in state law for the holders of such
licenses. See Webster v. U.S.,
74 Fed. Cl. 439 (U.S. Court of Federal Claims 2006) (`[b]ecause plaintiff does
not have the right to sell . . . or otherwise transfer her medical license, a
medical license does not possess the requisite indicia of transferability’).
Dr. Filler's arguments to the contrary are unpersuasive. . . . He
argues, for instance, that a medical license is subject to forfeiture
under 21 U.S. Code § 853 if it is used to commit a controlled
substances violation, and that generally, a civil forfeiture order transfers
title in the property to the government. . . . As the government
observes, however, whether something is transferable for purposes of
establishing a compensable property interest depends upon `whether the
citizen had the right[ ] to . . . transfer[ ] or dispose of the
property,’ not whether the government could compel the citizen to relinquish
it. . . .
Filler v. U.S., supra.
Walker also argued that “property compensable under the
takings clause must possess certain indicia of private property, including the
ability to transfer and the ability to exclude others from use or enjoyment of
that property.” Filler v. U.S., supra. The judge agreed, explaining that in Members
of the Peanut Quota Holders Ass'n v. U.S., 421 F.3d 1323 (U.S. Court of
Appeals for the Federal Circuit 2005), the court held that
`decisions by both the Supreme Court
and this court imply that a compensable interest is indicated by the absence of
express statutory language precluding the formation of a property right in
combination with the presence of the right to transfer and the right to
exclude.’ . . . Thus, plaintiff is required to demonstrate a right
to transfer and to exclude in order to present a valid compensable property
interest.
Filler v. U.S., supra.
The judge explained that medical licenses are not private
property “as they do not possess the characteristics of exclusivity and right
to transfer”. Filler v. U.S., supra. He noted that medical licenses are not
“exclusive” because “the number of medical licenses issued is not subject to a
fixed limit by the Government”. Filler v. U.S., supra. Walker also noted that the medical
license was not “property” under the 5th Amendment because it was
not transferable, i.e., Filler could not “sell, assign or otherwise transfer” the
license to someone else. Filler v. U.S.,
supra.
For these and other reasons, he granted the government’s
Rule 12(b)(6) motion to dismiss Filler’s Complaint and the cause of action
predicated on it with prejudice. Filler v. U.S., supra.
No comments:
Post a Comment