UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BARBARA DUNCAN, personally and on
behalf of her deceased child, BABY
BOY SCOTT,
Plaintiff-Appellant,
                                                                   No. 97-1876
v.

TOGO D. WEST, JR., Secretary of the
Army,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T.S. Ellis, III, District Judge.
(CA-96-1648-A)

Submitted: June 2, 1998

Decided: June 24, 1998

Before WILKINSON, Chief Judge, and ERVIN and
WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Mickale C. Carter, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Thomas M. Ray, Special Assistant
United States Attorney, Alexandria, Virginia; Lieutenant Colonel
Richard O. Hatch, Arlington, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Barbara Duncan appeals the district court's order dismissing her
claim for a lack of subject matter jurisdiction. Finding no error, we
affirm.

Duncan commenced an action on behalf of herself and her
deceased child, seeking review of the Secretary of the Army's disal-
lowance of her administrative claim for medical malpractice under the
Military Claims Act ("MCA"), 10 U.S.C.A. § 2733 (West 1983 &
Supp. 1998). In September 1991, Duncan, the wife of an active duty
soldier residing in Germany, sought health care at an Army medical
facility in Darmstadt, Germany. Duncan, who was four months preg-
nant, complained of nausea, vomiting, diarrhea, a decreased appetite,
and a burning sensation while urinating. A military doctor diagnosed
gastroenteritis and advised her to increase her liquid intake and main-
tain a bland diet. She returned to the medical facility the next day and
was seen by a civilian doctor participating in the Civilian Health and
Medical Program of Uniformed Services ("CHAMPUS") partnership
program. Duncan was diagnosed with cystitis.

The next day, Duncan was seen by her gynecologist, a German
doctor, and was hospitalized for the next ten days in a German hospi-
tal for bladder and kidney infections. Approximately three weeks after
her release from the hospital, a German surgeon diagnosed appendici-
tis. Duncan's appendix had ruptured and she developed peritonitis. At
the advice of a physician, she terminated her pregnancy resulting in
the loss of Baby Boy Scott who was about 5 months' gestation.

Duncan filed an administrative claim against the United States
Army alleging that both the military doctor and the civilian CHAM-
PUS doctor negligently failed to diagnose appendicitis resulting in a
ruptured appendix, peritonitis, and premature termination of her preg-

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nancy. The Army denied the claim, finding that the military doctor
was not negligent under the circumstances and the CHAMPUS doctor
was not a civilian officer or employee of the Army. Duncan appealed
the decision to the Secretary of the Army. The appeal was denied and
the claim disapproved. The notice denying the appeal stated that
under 10 U.S.C. § 2735 (1994), the decision was "final and conclu-
sive." Shortly thereafter, Duncan commenced the instant action in the
district court.

Duncan made the following assertions below: (1) the Secretary's
decision was not supported by the record; (2) the Secretary acted arbi-
trarily and capriciously in denying her claim; (3) the Secretary
improperly applied the MCA to her claim instead of the Foreign
Claims Act ("FCA"), 10 U.S.C.A. § 2734 (West 1983 & Supp. 1998);
(4) a finding of negligence was not required; (5) the Secretary did not
refer to the general principles of tort law common to the majority of
states as required by regulations; (6) the Secretary erred in finding
that the Army was not liable for the conduct of CHAMPUS doctors;
(7) the Secretary erroneously applied certain provisions of the Federal
Tort Claims Act, 28 U.S.C. §§ 2671 - 2680 (1994); (8) the Secretary
denied Duncan procedural due process by refusing to disclose certain
information concerning the denial of the claim; and (9) the disparate
treatment between military dependents injured in military facilities in
foreign countries and military dependents injured in military facilities
in the United States does not have a rational basis and violates princi-
ples of equal protection.

The district court found that the Secretary properly construed Dun-
can's claim as one under the MCA instead of the FCA. The court then
found that 10 U.S.C. § 2735 (1994) barred judicial review of the Sec-
retary's denial of Duncan's claim. The court also concluded that Dun-
can's complaint did not present a substantial violation of a
constitutional protection, which may have been an exception to the
bar against judicial review. See Duncan v. West , 965 F. Supp. 796
(E.D. Va. 1997). The instant appealed followed.

A dismissal for lack of subject matter jurisdiction is reviewed de
novo. See Republic of Paraguay v. Allen, 134 F.3d 622, 626 (4th
Cir.), cert. denied, ___ U.S. #6D6D 6D#, 66 U.S.L.W. 3684 (U.S. Apr. 14,
1998) (Nos. 97-8214 (A-732), 97-1390 (A-738), 97-8660 (A-767)).

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Under 10 U.S.C. § 2735, "[n]otwithstanding any other provision of
law, the settlement of a claim under section 2733, 2734, 2734a,
2734b, or 2737 of this title is final and conclusive." Settlement means
to "consider, ascertain, adjust, determine, and dispose of a claim,
whether by full or partial allowance or by disallowance." 10 U.S.C.
§ 2731 (1994) (emphasis added). Although this Court has not had
occasion to address the issue, seven of our sister circuit courts that
have considered it concluded that judicial review of a denial of a
claim under the MCA is barred. See Collins v. United States, 67 F.3d
284, 288 (Fed. Cir. 1995); Schneider v. United States, 27 F.3d 1327,
1332 (8th Cir. 1994); Hata v. United States, 23 F.3d 230, 233 (9th
Cir. 1994); Rodrigue v. United States, 968 F.2d 1430, 1434 (1st Cir.
1992); Poindexter v. United States, 777 F.2d 231, 233 (5th Cir. 1985);
Broadnax v. United States Army, 710 F.2d 865, 867 (D.C. Cir. 1983);
LaBash v. United States Dep't of the Army, 668 F.2d 1153, 1156
(10th Cir. 1982).

We find this weight of authority persuasive. It is well settled that
the United States cannot be sued without its consent. See Hercules
Inc. v. United States, 516 U.S. 417, 422 (1996). While there is a
strong presumption that Congress intends judicial review of adminis-
trative action, the presumption can be defeated by"`specific language
or specific legislative history that is a reliable indicator of congressio-
nal intent,' or a specific congressional intent to preclude judicial
review that is `fairly discernible' in the detail of the legislative
scheme." Bowen v. Michigan Academy of Family Physicians, 476
U.S. 667, 670-73 (1986) (quoting Block v. Community Nutrition Inst.,
467 U.S. 340, 349 (1984)). Section 2735 contains specific language
indicating a congressional intent to bar judicial review. Because the
Secretary's decision is final and conclusive, "notwithstanding any
other provision of law," 5 U.S.C. § 702 (1994) of the Administrative
Procedure Act cannot be a source for the court's authority to review
the Secretary's decision.1 See Schneider, 27 F.3d at 1330. Thus, judi-
cial review of the Secretary's action is barred unless Duncan's allega-
tions fall into one of two narrow exceptions.
_________________________________________________________________

1 Section 702 provides for a general cause of action for persons
adversely aggrieved by a final agency decision.

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Even though statutory language may bar judicial review, we recog-
nize that review may nonetheless occur if the allegation concerns the
agency exceeding the scope of its authority or violating a clear statu-
tory mandate. See Hanauer v. Reich, 82 F.3d 1304, 1307 (4th Cir.
1996). In such circumstances, the court should conduct a cursory
review of the merits of the allegation. Review is limited and available
only in extraordinary circumstances. See Boire v. Greyhound Corp.,
376 U.S. 473, 481 (1964). In addition, constitutional claims regarding
the denial of relief under § 2733 may, in some instances, be reviewed.
See Schneider, 27 F.3d at 1332; Hata, 23 F.3d at 233-34.

Even if review were possible under either exception, however, we
nonetheless find the district court properly declined to exercise juris-
diction. Duncan alleges a number of errors which could be construed
as asserting that the Secretary exceeded the scope of his authority or
violated a statutory mandate. However, we find these claims are with-
out merit. The Secretary did not violate a statutory mandate by decid-
ing the claim under the MCA rather than the FCA. The MCA is
clearly applicable to Duncan's claim.2

Relief under the FCA is available only to foreign countries, politi-
cal subdivisions of foreign countries, or "inhabitants" of foreign coun-
tries. See 10 U.S.C.A. § 2734. An"inhabitant" is "[o]ne who resides
actually and permanently in a given place, and has his domicile
there." Black's Law Dictionary 782 (6th ed. 1990). Thus, we con-
clude the Secretary has not clearly violated a statutory mandate by
determining that Duncan was not an inhabitant for purposes of
§ 2734.

Nor is it a violation or in excess of the scope of authority to limit
relief to those claims which show that military personnel were negli-
gent in causing the injury. See 32 C.F.R.§ 536.23(a)(1) (1997). Dun-
can's contention that the Secretary violated 32 C.F.R. § 536.6 (1997)
_________________________________________________________________
2 Under 10 U.S.C.A. § 2733(a)(3), "[the Secretary] . . . or, subject to
appeal to him, the Judge Advocate General of an armed force under his
jurisdiction, or the Chief Counsel of the Coast Guard, as appropriate, if
designated by him, may settle, and pay in the amount not more than
$100,000, a claim against the United States for-- . . . personal injury or
death."

                    5
by not applying the prevailing common law standard for general tort
principles is merely an attempt to have the court review the merits of
her personal injury claim. Furthermore, the Secretary did not act
improperly by declining to award relief for any injury caused by the
negligence of the CHAMPUS doctor. Under the MCA, in order for
the Secretary to award relief, the injury must be"caused by a civilian
officer or employee of" the Army. See 10 U.S.C.A. § 2733. It is
within the Secretary's authority, conferred by § 2733, to exclude inde-
pendent contractors from the definition of civilian officers or employ-
ees. See 32 C.F.R. § 536.3. Duncan's claim that the Secretary's
reliance upon the FTCA in creating its regulations is improper is
without merit and has no bearing on the merits of Duncan's personal
injury claim.

We agree with the district court that Duncan's constitutional claims
are insufficient to permit an exception to the bar against judicial
review. Even if the Secretary violated the regulations by not disclos-
ing certain information or by not informing Duncan of the basis for
the denial of the claim, there was no due process violation. Duncan
received notice of the reasons for the denial. She then made use of the
opportunity for review by the Secretary by submitting extensive argu-
ment, expert opinion and other materials. She received all the process
she was due.

Equal protection claims like Duncan's have been considered and
rejected by other circuit courts. See Schneider , 27 F.3d at 1332; see
also Heller v. United States, 776 F.2d 92, 98 (3d Cir. 1985) (FTCA's
provision denying relief to claims arising in foreign countries does not
violate equal protection). We find a rational basis exists for granting
judicial review under the FTCA while not providing the same oppor-
tunity to claimants proceeding under the MCA.

For the foregoing reasons, the district court's order is affirmed.
Having previously granted Appellee's motion to submit this appeal on
the briefs, we dispense with oral argument since the factual and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED

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