United States District Court, S.D. West Virginia
WEST VIRGINIA BOARD OF RISK AND INSURANCE MANAGEMENT, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge
is the petition for a writ of mandamus, filed on February 28,
2018 by the West Virginia Board of Risk and Insurance
Management (the âBoardâ).
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. Â§ 29-12D-1a(c).
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
Board avers that the United States owes a one-percent
assessment of that judgment pursuant to West Virginia Code Â§
29-12D-1a(c) and âseeks to compel the United States of
America to remit a one-percent assessment of the final
judgment entered . . . in Smith.â 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
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.
Standard of Review
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. §
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
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).
“[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 ...