Sigman v. United States

Citations: 217 F.3d 785; 2000 U.S. App. LEXIS 27806Docket: Nos. 98-35913, 98-35922, 98-35935 to 98-35939, 98-35946 to 98-35948, 98-35950, 98-35951, 98-35960 to 98-35963, 98-35965 to 98-35967 and 98-36077

Court: Court of Appeals for the Ninth Circuit; March 28, 2000; Federal Appellate Court

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The United States filed a Petition for Rehearing and/or Clarification, which was denied. The opinion from March 29, 2000, addressed jurisdictional issues related to the government's sovereign immunity claim and allows the government to present evidence on compliance with applicable standards on remand. Key amendments to the slip opinion include: 

1. The assertion that the applicable regulations prevented the treating physician and reviewing officer from qualifying Dean Mellberg for enlistment without investigating his prior mental health treatment.
2. Clarification that the regulations do not grant the Medical Evaluation Board (MEB) discretion to recommend a return to duty if a service member has a non-worldwide qualified rating.
3. The indication that the government's justification for Mellberg's separation lacked compliance with mandatory regulations.

The case background reveals that shortly after his honorable discharge from the U.S. Air Force, Mellberg committed a shooting at Fairchild Air Force Base, killing four and injuring 23. Victims' representatives allege negligence on the part of the government for Mellberg's enlistment and retention despite known mental health issues. The government sought summary judgment based on the "discretionary function" exception to the Federal Tort Claims Act (FTCA), while plaintiffs argued that the government's actions were not protected by this immunity. The district court partially granted the government's motion, leading to appeals from both parties. Mellberg's enlistment was marked by conflicting medical evaluations regarding his mental health, which raised questions about adherence to regulations during his entry into the military and subsequent training.

Mellberg was recommended for immediate administrative separation from the Air Force and referral to civilian mental healthcare, but his squadron commander chose to retain him. After reporting for technical training at Lowry Air Force Base in August 1992, Mellberg was evaluated for mental health issues on two occasions due to threatening behavior and unusual conduct. Records of these evaluations are missing, possibly removed by Mellberg. 

In April 1993, Mellberg joined the 92nd Maintenance Squadron and exhibited further troubling behavior, leading to another mental health evaluation on June 2, 1993, prompted by complaints from his roommate about Mellberg's actions. On June 14, 1993, he was diagnosed with a generalized personality disorder and recommended for discharge, but the commander opted against it after discussions with Mellberg and his parents.

Following a public confrontation on September 1, 1993, Mellberg underwent another evaluation. Psychologists concluded he posed a danger and arranged for his psychiatric evaluation at Lackland Air Force Base on September 9, 1993. The initial medical evaluation board (MEB) diagnosed him with an anxiety disorder and paranoid personality disorder, resulting in a 20 percent disability rating and a recommendation for discharge.

Mellberg requested a formal physical evaluation board (PEB), which was deferred after his mother demanded an additional civilian evaluation. Dr. John J. Campbell subsequently downgraded Mellberg’s diagnosis to Axis II autism and indicated significant impairment for military service. On December 20, 1993, his MEB paperwork was recalled, and a second MEB on January 4, 1994, confirmed the autism diagnosis and recommended discharge.

Despite these recommendations, the Air Force validated Mellberg for return to duty on January 10, 1994. After reporting to Cannon Air Force Base in March 1994, he was detained for erratic behavior and discovered to have accessed his medical file under false pretenses. Records related to his earlier evaluations were not recovered. On April 20, 1994, he underwent another commander-directed evaluation, resulting in diagnoses of autism and paranoid personality disorder, with a recommendation for discharge.

On May 11, 1994, the commander of Cannon Air Force Base informed Mellberg of plans to discharge him due to conditions affecting military service. He was honorably discharged on May 23, 1994, under AFR 39-10, receiving 60 days of medical care and two years of base privileges. Following observations of his presence on base at unusual hours, Mellberg was barred from Cannon Air Force Base on May 25, 1994, except for medical treatment accompanied by military police. Cannon Air Force Base did not notify other bases, including Fairchild Air Force Base, where Mellberg subsequently traveled. He visited a psychiatrist at Lackland Air Force Base and later went to Elmendorf Air Force Base. A week later, he returned to Washington, purchased a semiautomatic rifle, and on June 20, 1994, entered Fairchild Air Force Base without security interference. He killed Drs. London and Brigham and fired shots throughout the facility before being killed by a military policeman, resulting in four deaths and 23 injuries.

In legal proceedings, the district court analyzed the plaintiffs' negligence claims concerning the discretionary function exception. It determined that this exception barred all claims except for "negligent enlistment" and "medical malpractice," leading to a judgment on the barred claims and certification for immediate review under 28 U.S.C. § 1292(b). The government appealed, and the plaintiffs cross-appealed. Under the Federal Tort Claims Act (FTCA), the United States typically enjoys sovereign immunity from lawsuits, which Congress waived for traditional tort claims. The FTCA (28 U.S.C. §§ 2671-2680) allows claims against the U.S. to the extent that a private individual would be liable. However, the "discretionary function" exception (28 U.S.C. § 2680(a)) applies to claims based on government employees' acts in executing statutes or regulations or exercising discretion, regardless of whether such discretion is abused. This exception aims to prevent judicial second-guessing of policy decisions. Courts assess the applicability of the exception by determining if the challenged action involved an element of choice or judgment.

The discretionary function exception does not apply when a federal statute, regulation, or policy mandates specific actions for an employee. Courts must assess if the choice or judgment involved aligns with the discretionary function exception intended by Congress, which only covers judgments related to social, economic, and political policy. The burden of proof for this exception lies with the United States, and if applicable, the court lacks subject matter jurisdiction over the claim.

In the case of Mellberg’s enlistment, he completed Form SF 93, indicating prior treatment for a mental condition. The key issue is whether regulations required follow-up inquiries about this treatment. It is agreed that neither the examining physician nor the required reviewing officer pursued additional questioning regarding Mellberg's mental health history, allowing his enlistment without adequate information on his prior condition.

The district court determined that Army Regulation (AR) 40-501 applied, which mandates clarification of any affirmative responses regarding previous medical treatments. This regulation aims to evaluate the examinee's background and protect both the individual and the government from future disability claims. The government contends that AR 40-501 did not apply because Mellberg's enlistment occurred at a Military Entrance Processing Station (MEPS), arguing that only AFR 33-7 should govern the process. However, AFR 33-7 incorporates medical fitness standards from AR 40-501, Chapter 2, though it does not explicitly include the requirements of AR 40-501, Chapter 8. The government asserts that the examination's conduct was a matter of discretion for the examining physician and reviewing officer, although there is skepticism about the Air Force adopting standards without implementing corresponding procedures.

Mellberg's examination utilized the SF 93 form as mandated by AR 40-501, Chapter 8, which requires follow-up if there is an affirmative response regarding prior mental health treatment. The regulations cited, including AFR 33-7 and Chapter 10 of AR 40-501, emphasize the necessity of conducting a thorough medical examination and a psychiatric interview after completing the SF 88 and SF 93 forms. The Air Force's failure to follow up on Mellberg's reported mental health treatment is viewed as a violation of these procedures. 

The government argued that the district court erred by not deferring to Dr. Charles Arrants’ declaration, which claimed that in 1992 there were no specific guidelines for handling enlistment candidates with a history of family counseling. However, this declaration, prepared for litigation, conflicts with later memoranda from Dr. Arrants that assert the need to obtain all relevant civilian medical records when prior counseling is noted, with a requirement to disqualify applicants if disqualifying conditions are revealed.

Additionally, the senior liaison non-commissioned officer was tasked with reviewing Mellberg’s enlistment forms for any disqualifying information, which was not left to unchecked discretion. The district court affirmed that plaintiffs could pursue their claim of negligence against the government, as the failure to conduct further mental evaluations constituted a breach of duty. The government’s claim of sovereign immunity based on discretionary functions was rejected, as regulations required following up on Mellberg's mental health disclosures. The plaintiffs also raised claims under the Federal Tort Claims Act (FTCA) regarding subsequent failures to diagnose and treat Mellberg's serious mental disorders despite multiple referrals for evaluations.

The district court rejected the government's motion to dismiss claims on immunity grounds, determining that the allegations constituted medical malpractice and thus fell outside the discretionary function exception. The court referenced established case law, including Fang v. United States and Lather v. Beadle County, which clarifies that the exception is meant to protect the government from liability related to policy decisions, not standard medical malpractice claims. The government contended that the Air Force psychiatrists and psychologists were executing a command directive focused on military fitness rather than patient well-being, thereby claiming their actions were protected under the Federal Tort Claims Act (FTCA). However, citations such as Foster v. United States, which involved specialized governmental evaluations, were distinguished from the current case, where the claim pertains to negligence akin to routine professional medical practice. The court emphasized that the discretionary function exception applies only to governmental discretion, not to routine professional decisions made by individuals such as medical practitioners. This distinction was underscored by referencing past rulings that supported the notion of separating governmental discretion from professional medical actions, affirming that once emergency medical personnel are engaged, their actions should not be shielded by the exception.

The United States is not immune from claims challenging the administration of medical care by its employees, provided these claims do not involve decisions influenced by competing policy considerations. In this case, the plaintiffs' claims regarding Air Force physicians' failure to diagnose Mellberg's condition involve professional duties rather than policy-driven actions, thus allowing the claims to proceed. The district court dismissed claims against the Air Force for failing to warn medical personnel at Fairchild Air Force Base about Mellberg's release from military service. Plaintiffs argued that the case resembled ordinary negligence claims rather than those involving discretionary decision-making. However, the court deemed the situation distinct from prior cases, as the risks were less predictable, and privacy interests were significant. Despite the decision being questionable, it was based on the need to balance safety, resource preservation, and preventing undue alarm. 

Additionally, claims regarding inadequate security measures at Fairchild Air Force Base were also rejected. Base commanders exercise discretion in security decisions, taking into account various policy factors. Plaintiffs contended that the base violated mandatory security controls, but the medical facility was not required to be within the fenced area, and no regulation mandated this. The discretion granted to the installation commander includes assessing security needs based on environmental threats and resource allocation.

Air Force regulation AFR 125-37 mandates that medical facilities adapt standard protection principles to their unique 24-hour operational needs, thus justifying the location of the medical installation outside areas with stricter security requirements. Consequently, plaintiffs' claims of negligent security at Fairchild Air Force Base are barred by the discretionary function exception to the Federal Tort Claims Act (FTCA).

Regarding Mellberg’s medical treatment and discharge, substantial confusion exists. He was rated "non-worldwide qualified" following a Medical Evaluation Board (MEB) assessment at Lackland Air Force Base, but was nonetheless retained on active duty, allegedly violating AFR 168-4, which dictates that only medically qualified members can return to duty. The regulation does not allow MEB discretion to recommend return if a member receives a non-worldwide qualified rating. This provides grounds for plaintiffs' claims against the government for negligent breach of duty.

Additionally, plaintiffs assert that Lackland's medical facility neglected to complete the AF Form 422, which is required for MEB procedures under AFR 168-4. This claim was improperly dismissed.

After transfer to Cannon Air Force Base, Mellberg’s behavior led to a mental health evaluation before his discharge. He was found "world-wide qualified," enabling his release without medical restrictions, but plaintiffs argue that his discharge did not follow the required outprocessing provisions under AFR 168-4, which necessitate adequate medical care upon release. They contend that the discharge recommendation lacked proper evaluation as mandated by AFR 39-10 because it was not supported by a report from a board-certified psychiatrist or clinical psychologist, as required. The evaluation by Captain Lisa Snow was deemed insufficient due to her lack of board certification at the time, disallowing the government’s use of the discretionary function exception to avoid liability for Mellberg's discharge.

The district court's dismissal of the plaintiffs' claims regarding violations of mandatory regulations linked to Mellberg’s return to duty with a “non-worldwide qualified” rating and his honorable discharge is reversed, and these claims are remanded for further proceedings. The court affirms the dismissal of the remaining claims, except those related to Mellberg's enlistment and alleged medical malpractice by Air Force doctors. The court does not express any opinion on the merits of the claims but clarifies that they are not barred by sovereign immunity. Each party is responsible for its own costs. Relevant regulations include AFR 168-4, Chapter 13-32, which requires a proper AF Form 422 to communicate a member's medical status and duty limitations following Medical Evaluation Board (MEB) action, and AFR 168-4, Chapter 12-98, outlining the procedures for releasing patients based on their mental health status.