LINDA WHEELER TARPEH-DOE, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF NYENPAN TARPEH-DOE, PETITIONERS V. UNITED STATES OF AMERICA, ET AL. No. 90-745 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Brief For The Respondents In Opposition TABLE OF CONTENTS Question presented Opinions below Jurisdiction Statement Argument Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals, Pet. App. 1a-16a, is reported at 904 F.2d 719. The opinion of the district court, Pet. App. 17a-25a, is reported at 712 F. Supp. 1. JURISDICTION The judgment of the court of appeals was entered on June 8, 1990. A petition for rehearing was denied on August 13, 1990. Pet. App. 46a. The petition for a writ of certiorari was filed on November 9, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Secretary of State's discretionary authority to pay foreign tort claims in connection with Department of State operations abroad creates a property interest to which the Due Process Clause applies. STATEMENT Petitioner Linda Wheeler Tarpeh-Doe gave birth in Liberia to a baby who contracted infections leading to permanent brain damage. Petitioners filed an administrative tort claim in which they alleged that the negligence of State Department employees caused the baby's injury. The State Department's investigation of petitioners' claim determined that the baby's injuries were not the fault of any government employee, and the Secretary of State's designee denied the claim. Petitioners filed suit charging that the administrative claims process followed in their case violated the Due Process Clause of the Fifth Amendment. The district court agreed and on that premise ordered the disclosure of certain information and reconsideration of petitioners' claim. On appeal, the court of appeals reversed on the ground that no statute or regulation gave petitioners a property interest protected by the Due Process Clause. 1. According to the second amended complaint, petitioner Linda Wheeler Tarpeh-Doe was an International Development Intern with the Agency for International Development. In 1981, she was assigned to the American Embassy in Monrovia, Liberia. On May 18, 1982, she gave birth to Nyenpan Tarpeh-Doe II. Less than three weeks later, the baby became very ill, and an embassy physician ordered the baby evacuated immediately to the United States. The evacuation order was countermanded later that day, however, after the embassy physician had the baby examined by an American missionary doctor who was in charge of the pediatric ward at John F. Kennedy Hospital in Monrovia. The pediatrician ordered the child transfered to Kennedy Hospital because he believed he could treat the baby. Mrs. Tarpeh-Doe and her husband objected to the transfer and demanded that their baby be evacuated as originally planned, but the embassy physician agreed with the pediatrician and declined to order the evacuation. On June 17, 1982 -- after 12 days during which the baby's condition showed no improvement -- the baby was evacuated to the United States. The child, who is blind and has suffered permanent brain damage, is currently institutionalized in Denver. C.A. App. 13-19. 2. In 1984, petitioners filed an administrative tort claim with the Department of State alleging negligence by the Department and its employees. C.A. App. 23. The claim invoked the first paragraph of 28 U.S.C. 2672 of the Federal Tort Claims Act (FTCA). That paragraph authorizes the head of each federal agency to consider any claim for money damages against the United States arising from the negligence of any agency employee while acting in the scope of his employment. Although the FTCA itself does not apply to "(a)ny claim arising in a foreign country," 28 U.S.C. 2680(k), the Act of August 1, 1956, ch. 841, Section 2(f), 70 Stat. 890, provides: (T)he Secretary of State may use funds appropriated or otherwise available to the Secretary to -- * * * * * (f) pay tort claims, in the manner authorized in the first paragraph of section 2672, as amended, of title 28, when such claims arise in foreign countries in connection with Department of State operations abroad. 22 U.S.C. 2669(f). Regulations promulgated under the Act of August 1, 1956, establish the procedures by which the Secretary of State will exercise his discretionary authority to pay foreign tort claims. See 22 C.F.R. Pt. 31. Section 31.6(a) states that the "Foreign Service establishment" out of whose activities the claim arose "shall make such investigations as may be necessary or appropriate" and "thereafter shall forward the claim, together with all pertinent material, and a recommendation, based on the merits of the case, with regard to allowance or disallowance of the claim." Section 31.7 states that "(c)laims will be determined in accord with the applicable statute and the applicable subpart of this part." The applicable statute (the Act of August 1, 1956) requires that the claim satisfy the first paragraph of 28 U.S.C. 2672. See 22 U.S.C. 2669(f). The applicable subparts of 22 C.F.R. Pt. 31 make further provision with respect to adjustment or settlement of claims, 22 C.F.R. 31.8, payment of claims, 22 C.F.R. 31.9, and denial of claims, 22 C.F.R. 31.10, /1/ but do not require the payment of foreign tort claims merely because payment is consistent with the governing statute. 3. Upon receiving petitioners' claim, a claims attorney in the State Department began an investigation. The attorney conducted interviews with persons familiar with the case, consulted outside experts, reviewed relevant documents, and met with petitioners' counsel. Pet. App. 3a. In a detailed memorandum, App., infra, 1a-25a, the claims attorney concluded that "most or all" of the baby's neurological damage was caused by an "infection (that) had already occurred when the child was brought in to the Embassy health clinic, and that the treatment received was prompt and effective in eliminating the infection," id. at 21a. /2/ The attorney found that the baby had been ill for at least three days before Mrs. Tarpeh-Doe brought him to the embassy clinic, and that the baby's infections had not received medical attention even though a government physician and nurse treated Mrs. Tarpeh-Doe at her home for post-natal infections during this period. Id. at 3a, 13a. When Mrs. Tarpeh-Doe and her husband finally brought the baby to the embassy clinic, his situation was grave: he had large lesions on his groin, buttocks, and legs and had suffered a seizure earlier that morning. Id. at 13a. The embassy physician, alone except for the presence of a clinical nurse, had to make a "clinical decision on the spot" and decided to administer antibiotics to counter the infection. Id. at 14a. On the basis of his interviews with medical professionals, the claims attorney determined that the physician's decision was correct. Id. at 14a-15a. The antibiotics that he administered did not mask a salmonella infection; the preexisting infection -- not salmonella -- caused the baby's injuries; and the antibiotics were effective against salmonella. Ibid. /3/ Based on his findings that the damage had occurred before the baby was brought to the embassy clinic, and that the doctors rendered proper care under the circumstances, the claims attorney recommended that petitioners' claim be denied. App., infra, 25a. Before drafting his final recommendation, the claims attorney met with petitioners' counsel to discuss his investigation. C.A. App. 92. At the meeting, the claims attorney "addressed each element" of petitioners' claim and stated "the bases for (his) views thereon." Ibid. In particular, the claims attorney stated that "the principal theory of the claim (that the baby's injuries were caused by a salmonella infection) was not substantiated based on the documents submitted to the (State) Department on behalf of the claimant and confirmed by the experts with whom (the attorney) consulted." Id. at 92-93. In light of his discovery that the preexisting infection was responsible for the baby's injuries, the claims attorney noted the "serious problem of proximate cause created by the factual circumstances." Id. at 93. The claims attorney's recommendation was forwarded to the Assistant Legal Advisor for International Claims and Investment Disputes, who issued a formal denial of petitioners' claim in a letter sent by certified mail. /4/ Pet. App. 31a-32a. The letter did not repeat the bases for denying petitioners' claim. Ibid. 4. Petitioners filed suit against the United States and the Secretary of State under the FTCA. The district court granted partial summary judgment for petitioners. /5/ The court held that the State Department's procedures for resolving foreign tort claims violate the Fifth Amendment's Due Process Clause because they fail to require disclosure of the evidence on which a claim has been denied. Pet. App. 23a-24a. The district court remanded the case to the State Department for reconsideration, and required the Department to: (1) disclose to plaintiffs the evidence relied upon in the original denial of their claim and to be relied upon in reconsideration of it, (2) afford plaintiffs an adequate opportunity to comment on and counter that evidence, and (3) make and provide to plaintiffs findings of fact that address the evidence relied upon by the decisionmaker in the original decision and the reconsideration of it, and any comment or counter submitted by plaintiffs in response to evidence disclosed to them. Id. at 25a. On appeal, the court of appeals reversed. /6/ Pet. App. 1a-10a. It explained that this Court has required individuals asserting a constitutional right to certain procedures to demonstrate that they have been deprived of a protected liberty or property interest. Id. at 7a. Only interests that rest on a "legitimate entitlement" as opposed to "an abstract need or desire" are considered "protected interests." Ibid. (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). Whether a given statutory scheme gives rise to a protected interest depends on whether the statutes or regulations making up that "scheme" direct officials that if the "substantive predicates are present, a particular outcome must follow." Pet. App. 7a (quoting Kentucky Dep't of Corrections v. Thompson, 109 S. Ct. 1904, 1910 (1989)). Applying those principles, the court ruled that: (t)he plain language of Section 2669(f) does not give a claimant the right to demand either payment of tort claims or procedures for the consideration of such claims. Pet. App. 8a. The court of appeals also held that the regulations promulgated to implement the Act of August 1, 1956, entitled a claimant only to an investigation and to the decision maker's opportunity to review the claim and the results of the investigation. Ibid. Thus, neither the statute nor the regulations "provide(d) a sufficient basis for the district court's conclusion that the administrative scheme for handling tort claims arising abroad implicates the due process clause." Id. at 9a. Chief Judge Wald dissented. Pet. App. 11a-16a. She concluded that "the Regulations do explicitly and implicitly assume that an administrative claim, foreign or domestic, will be decided on the same legal and equitable principles that govern court determinations." Id. at 15a. ARGUMENT The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Further review is not warranted. 1. Analysis of the question presented -- whether petitioners have a liberty or property interest protected by the Fifth Amendment's Due Process Clause -- requires identification of the interests they seek to protect. Petitioners claim that this case involves "denial of a claim for congressionally-authorized benefits." Pet. 14. Those "benefits" appear to be financial compensation "to Mrs. Tarpeh-Doe and her son to assist their recovery from injury," Pet. 15, and "a merit-based decision pursuant to the criteria set forth in the Department's regulations," Pet. 16. a. Petitioners' understandable desire for financial compensation is not a property interest protected by the Due Process Clause. It is well settled that the Clause "is not implicated by the lack of due care of an official causing unintended injury to life, liberty, or property. In other words, where a government official is merely negligent in causing the injury, no procedure for compensation is constitutionally required." Davidson v. Cannon, 474 U.S. 344, 347 (1986); see Daniels v. Williams, 474 U.S. 327, 333 (1986). Petitioners' complaint alleges at most negligent conduct by the embassy physician in rendering professional care. C.A. App. 19-30. The interest in compensation for injury negligently inflicted by government agents is not by itself sufficient to invoke the Due Process Clause. b. Petitioners' claimed property interest in a "merit-based decision" is not supported by either the governing statute or applicable regulations, and is not protected by the Due Process Clause. The Act of August 1, 1956, creates no entitlement to a merit-based decision because the language of the Act ("(t)he Secretary of State may use funds" (emphasis added)) is entirely discretionary. 22 U.S.C. 2669(f). As this Court held in Olim v. Wakinekona, 461 U.S. 238 (1983): Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement. Id. at 250. If no entitlement exists, as in this case where the decisionmakers' discretion is unfettered, due process protection does not attach. Id. at 250 n.10. Nor is such an entitlement created by the Secretary of State's regulations. As explained at p. 4, supra, the regulations require only that the responsible foreign service establishment conduct an investigation and that the claim and results of the investigation be submitted to the ultimate decisionmaker for review. 22 C.F.R. 31.6(a). As the court of appeals correctly observed, "this is where the chain necessary to (petitioners') claim of entitlement ends": As noted, the Regulations nowhere provide that the decisionmaker must comply with the recommendation prepared by the officer investigating the claim's validity or, alternatively, that the decisionmaker must provide a statement of reasons for not following the investigator's recommendation. We cannot say, therefore, that the Secretary has erred in construing his own Regulations not to require the Department to pay claims even if the investigator determines that the claim is valid and recommends payment. Pet. App. 8a-9a. In her dissent, Chief Judge Wald relied entirely on what she regarded as a "crucial sentence" in 22 C.F.R. 31.18. Pet. App. 14a. That provision, which constitutes all of Subpart C of the regulations, reads in its entirety: The act of August 1, 1956 (5 U.S.C. 170g) authorizes the Secretary of State, when funds are appropriated therefor, to pay tort claims in the manner authorized in the first paragraph of 28 U.S.C. 2672, as amended, when such claims arise in foreign countries in connection with Department of State operations abroad. Consequently, the Federal Tort Claims Act and Subpart B of this part are applicable to claims filed under the act of August 1, 1956, except that no provision has been made in that act for the institution of suit if a claim is denied. Judge Wald read into the second sentence of the provision a requirement that the Secretary "pay meritorious claims." Pet. App. 14a. But neither the sentence in itself nor the provision of which it is a part can bear such an extraordinary weight. On the contrary, the provision simply echoes the congressional extension, to foreign tort claims, of the authorization in the first paragraph of 28 U.S.C. 2672, and the consequent extension to those claims of the administrative procedures of Subpart B of the Secretary's regulations. 2. Petitioners offer a variety of reasons for this Court's review. None of them has merit. a. First, petitioners contend that the court of appeals' decision creates a "conflict with the majority of the circuits," Pet. 12, 14 which find property interests when "the state creates an entitlement to general assistance," Pet. 14 (citing Gregory v. Town of Pittsfield, 470 U.S. 1018, 1021-1022 (1985) (O'Connor, J., dissenting from denial of certiorari)). But whether or not those decisions are correct, /7/ this is not an entitlement case. The governing statute and regulations, examined above, establish that petitioners have no entitlement to compensation for torts committed by government agents outside the United States. b. Second, petitioners argue that the court of appeals' decision conflicts with this Court's decision in Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). Pet. 17. In Logan, this Court reaffirmed the holding in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 311-315 (1950), that "a cause of action is a species of property protected by the Fourteenth Amendment's Due Process Clause." 455 U.S. at 428. In Logan and Mullane, the claimant's "right to redress (wa)s guaranteed by the State, with the adequacy of his claim assessed under what (wa)s, in essence, a 'for cause' standard." 455 U.S. at 431; see id. at 430 ("The hallmark of property * * * is an individual entitlement * * * which cannot be removed except 'for cause.'"). In this case, by contrast, petitioners have no right to redress. Congress's authorization to pay foreign tort claims is merely permissive. Although the State Department's regulations require the observance of certain procedural steps, they do not establish a cause of action such as would create a property right protected by the Due Process Clause. c. Third, petitioners claim that the decision below "encourages arbitrary treatment of claimants." Pet. 19. They find it "difficult to conceive of any rational reason why the Department should be free to deny meritorious claims." Pet. 27. In fact, it appears that Congress's primary purpose in vesting the Secretary with discretion was to reduce the volume of private bills. As petitioenrs acknowledge in their chronology of the FTCA, Pet. 21, Congress retained sovereign immunity from foreign tort claims when it enacted the FTCA in 1946. For the next decade, Congress continued the practice of entertaining private bills to compensate the victims of tortious conduct committed by government agents abroad. Congress enacted the Act of August 1, 1956, to give the Secretary the authority, "in the event of an automobile accident or some other tort claims abroad," to settle those claims "without a great deal of red tape." H.R. Rep. No. 2508, 84th Cong., 2d Sess. 9 (1956). This description of the purpose of the 1956 Act suggests that it was primarily intended to transfer the discretionary compensation function from Congress (which could act only by private bill) to the Secretary of State (who could establish an informal administrative process "without a great deal of red tape"). The process adopted by the State Department is entirely in keeping with that objective. Of course, Congress could have reduced the volume of private bills simply by removing the FTCA exemption for foreign torts. That Congress instead authorized discretionary payments of foreign tort claims suggests an additional purpose: to give the Secretary of State flexibility in compensating claims for tortious conduct originating in the territory of another sovereign. As attested by the Assistant Legal Advisor, "(t)he discretionary structure of 22 U.S.C. Section 2669(f) and its implementing regulations permits the Department to take foreign policy interests into account in the disposition of foreign tort claims." C.A. App. 97-98. The question whether to pay in a given case is affected by a variety of factors in the foreign policy context. These factors include whether intelligence or confidential activities are involved and whether a foreign government may take offense. Because the foreign policy interests of the United States might require denial of a claim in an appropriate case, Congress may well have found it important that the system for compensating foreign torts be informal as well as discretionary. A holding that Congress must provide a formal, adversary compensation system if it provides an administrative claims process at all might force it to return to the practice of entertaining private bills. Such a reversion would benefit neither claimants nor the Congress. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General ROBERT S. GREENSPAN WILLIAM G. COLE Attorneys JANUARY 1991 /1/ 22 C.F.R. 31.10 provides in full as follows: Final denial of an administrative claim shall be in writing and sent to the claimant, his or her attorney, or legal representative by certified or registered mail. Except in the case of claims arising in foreign countries, the notification of final denial shall contain a statement that if the claimant is dissatisfied with the decision, he may file suit in an appropriate U.S. District Court not later than 6 months after the date of the notification. /2/ We reproduce the claims attorney's memorandum because amici American Foreign Service Ass'n et al. claim that it constitutes an "impermissible secret law" and that it improperly applied Liberian law. Amici Br. 8-9. Amici also promise that these issues "will be more particularly described in Petitioner's Reply to the Opposition to Petition for Certiorari." Id. at 9. Review of the claims attorney's memorandum reveals a careful and comprehensive investigation of petitioners' claim. Despite the sinister connotations of amici's reference to "secret law," the district court held only that the memorandum "would, unless disclosed, be impermissible 'secret law,'" Tarpeh-Doe v. United States, No. 88-0270-LFO (D.D.C. Nov. 13, 1990), slip op. 10 (emphasis added), because it constituted "the essence of the decision making process," id. at 7. The discovery dispute to which the district court decision refers -- whether the memorandum is privileged or otherwise protected from disclosure -- has absolutely no relevance to the question presented here and casts no doubt on the propriety of the State Department action in this case. The choice of law question to which amici allude is likewise irrelevant to the proper disposition of this petition. But we note that insofar as the memorandum looked to Liberian law, it is consistent with the reference, in the first paragraph of 28 U.S.C. 2672, to "the law of the place where the act or omission occurred." Moreover, in view of the analysis and conclusions reached in the memorandum, it does not appear that the source of applicable law was of controlling significance. /3/ Although petitioners alleged that the embassy physician was negligent in not evacuating the baby to the United States as originally planned, the claims attorney found that the embassy physician and pediatrician "together determined that the risk that the gravely ill child would not survive evacuation to the United States outweighed the advantages of the medical care available in the U.S." App., infra, 15a; see id. at 5a, 7a. Instead of evacuating the baby to the United States, the attending physicians placed him in Kennedy Hospital, where the pediatrician -- "the best qualified and most experienced physician in Liberia for treating neonatal meningitis," id. at 25a -- could closely supervise his care. Although the conditions of the hospital were "deplorable" by U.S. standards, the baby was moved to a more distant hospital with "notably more sanitary" conditions the next morning. Id. at 5a-6a. After 12 days of treatment, "the doctors determined that because of the baby's overall stable condition it would be safe to medevac him." App., infra, 7a. The doctors' concern about the stress of evacuation on the baby was borne out by the event. The evacuation took more than 22 hours and weakened the baby to the point where "(i)t was necessary to give mouth-to-mouth breathing." Ibid. Upon arrival in the United States, the baby was admitted to the University of Colorado hospital and released a little more than two weeks later. Id. at 8a. He is currently a full-time patient at a Colorado facility at state expense. Ibid. /4/ Petitioners assert that the Assistant Legal Advisor was "not authorized" to act on petitioner's claim. Pet. 6 n.5. Petitioners do not present that issue for this Court's review, and in fact, the Assistant Legal Advisor had authority, on the basis of long-standing State Department practice, to deny administrative tort claims. That practice now appears at 22 C.F.R. 31.2 (codified Nov. 11, 1987). /5/ The balance of the case -- which involves alleged negligent acts or omissions in the United States -- has since been tried before the district judge. No judgment has been entered. /6/ Petitioners moved to dismiss the appeal for lack of jurisdiction. By order issued November 9, 1989, the court of appeals denied the motion, ruling that the district court's decision was an appealable collateral order under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). /7/ Cf. Lyng v. Payne, 476 U.S. 926, 942 (1986) ("We have never held that applicants for benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by the Due Process Clause of the Fifth or Fourteenth Amendment."). APPENDIX