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West Virginia Board of Risk and Insurance Management v. United States

United States District Court, S.D. West Virginia

August 23, 2019



          John T. Copenhaver, Jr. Senior United States District Judge

         Pending is the petition for a writ of mandamus, filed on February 28, 2018 by the West Virginia Board of Risk and Insurance Management (the “Board”).

         I. Background

The Board administers the West Virginia Patient Injury Compensation Fund (the “Fund”), which was enacted to provide “fair and reasonable compensation to claimants in medical malpractice actions for any portion of economic damages awarded that is uncollectible as a result of limitations on economic damage awards for trauma care [such as the $500, 000 cap established in West Virginia Code § 55-7B-9c(a)], or as a result of the operation of the joint and several liability principles and standards.” W.Va. Code § 29-12D-1(a). One of the ways in which the Fund receives money is by being granted “an assessment of one percent of the gross amount of any settlement or judgment in” claims filed under the Medical Professional Liability Act from July 1, 2016 through December 31, 2021. Id. § 29-12D-1a(c).[1]

         On December 16, 2014, Sara M. Lambert Smith and Scott Smith filed a medical malpractice claim against the United States in the United States District Court for the Southern District of West Virginia, Smith v. United States, No. 5:14-cv-30075, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80. Compl., ECF No. 1-1, at ¶¶ 1-3. The plaintiffs alleged that malpractice occurred at Raleigh General Hospital and that the United States was liable for the negligence of its public health service employees. Id. ¶¶ 8, 14. On November 15, 2016, the court ordered that “judgment be entered in favor of the Plaintiffs in the amount of $672, 681.67 . . . .” Judgment Order, ECF No. 1-2. The United States says that it has paid the entire amount of the judgment to the underlying plaintiffs without withholding any of it. ECF No. 8, at 8 n.4

         The Board avers that the United States owes a one-percent assessment of that judgment pursuant to West Virginia Code § 29-12D-1a(c) and “seeks to compel the United States of America to remit a one-percent assessment of the final judgment entered . . . in Smith.”[2] ECF No. 1, at 1. Because the United States has refused to remit the one-percent assessment on the judgment, the Board petitioned the court for a writ of mandamus. It appears, and the United States does not contest, that the type of medical malpractice claim made in the underlying case is a qualifying claim under § 29-12D-1a(c).

         The United States has responded in opposition to the Board's petition, contending that there is no basis for the court's jurisdiction over them in this matter. In the alternative, the United States argues that even if the court has jurisdiction, the Board's demand for contribution by the United States to the Fund puts an unauthorized tax or penalty on the United States. The petitioner has filed a reply to the United States' response.

         II. Standard of Review

         “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361.

         The Court of Appeals for the Fourth Circuit has stated:

The propriety of entertaining a petition for writ of mandamus in the federal system is, of course, well defined. It may be invoked only where three elements co-exist: (1) the petitioner has shown a clear right to the relief sought; (2) the respondent has a clear duty to do the particular act requested by the petitioner; and (3) no other adequate remedy is available.

In re First Fed. Sav. & Loan Ass'n of Durham, 860 F.2d 135, 138 (4th Cir. 1988) (citations omitted). “Mandamus against a public official will not lie unless the alleged duty to act involves a mandatory or ministerial obligation which is so plainly prescribed as to be free of doubt.” Id. (citations omitted).

         III. Jurisdiction

“[A]ny waiver of the National Government's sovereign immunity must be unequivocal, ” U.S. Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992), and “must be strictly construed in favor of the United States, and not enlarged beyond what the language of the statute requires, ” United States v. Idaho ex rel. Dir., Idaho ...

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