                                            ORIGIt\|AI
          lJrtllt @nite! $rtutts @ourt otfr[ersl @kims                                     FILED
                                          No. l3-464C
                                     (Filed: May     r6,2oL4)                            [lAY 1 6     2014

                                                                                        U.S,@URTS
                                                                                      FEDERALc|.AT
AARON G. FILLER,
                              )                       Pro Se Plaintiffs; Motion to Dismiss for
                              )
                       Plaintiff,                     Lack of Subject Matter Jurisdiction;
                              )                       RCFC 12(bXl); Motion to Dismiss for
                              )                       Failure to State a Claim upon Which
                              )                       Relief Can Be Granted; RCFC 12(b)(6);
THE UNITED STATES OF AMERICA, )                       Taking of Property Without Just
                              )                       Compensation; Medical License
                Defendant.    )
                                                 )
                                                 )
                                                 )

       Aaron G. Filler, SxfaMonica, CA, Plaintiff, pro se

       James Sweet,   Civil Division, United   States Department of Justice, Washington, DC,   for
defendant.

               OPINION AND ORDER GRANTING MOTION TO DISMISS

KAPLAN, Judge:

        Dr. Aaron Filler has filed a p1q se complaint alleging that the United States ("the
govemment") effected a Fifth Amendment taking of his medical license without just
compensation. He claims that the taking occurred as a result of the acts of Susan Walker, a
biologist and regional director with the National Marine Fisheries Service ("NMFS") of the
National Oceanic and Atmospheric Administration ('NOAA'), a division within the United
States Department of Commerce. He requests "damages in an amount to be proven at trial but
no less than ten million dollars." Am. Compl. !l 130.

         Pending before the Court is the govemment's motion to dismiss for lack of subject matter
jurisdiction or failure to state a claim upon which reliefcan be granted, pursuant to Rules
 12(b)(1) and 12(bX6) of the Rules of the Court of Federal Claims ("RCFC"), respectively. With
respect to subject matter jurisdiction, the govemment argues that the conduct about which Dr.
Filler complains, if anything, constitutes a tort, not a taking, and thus, this Court lacks subject
 matter jurisdiction over Dr. Filler's claim. Furthermore, the govemment argues, Dr. Filler "fails
to articulate [a takings] claim within this Court's jurisdiction" because, according to the
 government, he has not alleged sufficient facts to establish that Ms. Walker acted on behalf of
the govemment when she engaged in the acts alleged to have resulted in the taking of his
property. Def.'s Mot. to Dismiss 6-7 [hereinafter "Def.'s Mot."]. Finally, the government
argues that Dr. Filler fails to state a claim upon which reliefcan be granted because there is no
compensable property interest in a medical license for purposes of the Takings Clause. For the
reasons that follow, the Court grants the govemment's motion under RCFC 12(b)(6) and
dismisses Dr. Filler's complaint with prejudice.

                                        BACKGROUND

        Dr. Filler is a neurosurgeon based in Santa Monica, Califomia. Am. Compl. ,lf 6. In
2010, Susan Walker sought treatment from Dr. Filler, and Dr. Filler performed medical
procedures on her, including injections ofmedication. See id. fl 87, Ex. 1l at265. The
complaint alleges that on January 31, 2011, Ms. Walker posted the following comment, refening
to Dr, Filler and his treatments, on www.RunningForums.com under the usemame
"sueinjuneau":

       Dr. Filler uses Wydase, which is a brand name of the enzyme hyaluronidase, in
       his piriformis injections to, in theory, break down scar tissue.

       Wydase is a medical preparation of highly purified bovine testicular erzyme,
       made previously by Wyeth Pharmaceuticals in England. Production ceased due to
       the possible transmission of bovine spongiform encephalitis, or mad cow disease,
       though there is no documentation of transmission through this route.

       Interestingly, Wydase is no longer manufactured and has not been manufactured
       in at least seven years, so I'm not sure why Filler refers to the use of Wydase, and
       given the remote risk of CSE' transmission that it poses, injecting it directly
       adjacent to a nerve does not seem advised.

Am. Compl. fl 49. This comment and others that Ms. Walker posted on various other web sites
were the bases ofan action for defamation and interference with prospective economic
advantage in California state court and an administrative claim under the Federal Tort Claims
Act, 28 U.S.C. $ 1346, with the Department of Commerce, which Dr. Filler pursued prior to
bringing his takings claim in this Court. See Def.'s Mot. 4-5.

        Dr. Filler alleges that Ms. Walker posted the comment on RunningForums.com during
working hours on a government computer and that the comment drew from Ms. Walker's NOAA
training and constituted a "public waming about danger to the health and safety of the United
States populace." Am. Compl. \fl 4,48-49. He also alleges that the comment, 'though false, is
certain to cause fear in those patients who have been injected, their families and co-workers as
well as causing fear in others considering visiting Dr. Filler for treatment." Id. tf 42. He claims
that Ms. Walker acted as an agent of the United States when she posted the comment and that the
comment diminished the value of his medical license so completely that it constituted an inverse




' By'CSE," Ms. Walker likely meant "BSE"-that is, bovine spongiform encephalitis.
condemnation,' for which the Fifth Amendmenl requires just compensation. Id. flfl 5, 36-37,
129-31.

                                          DISCUSSION

    I.     The Court Has Jurisdiction over Dr. Filler's Takings Claim

        The United States Court of Federal Claims is a court of limited jurisdiction that, pursuant
to the Tucker Act, may hear "any claim against the United States founded either upon the
constitution, or any Act ofcongress or any regulation ofan executive department, or upon any
express or implied contract with the United States, or for liquidated or unliquidated dalnagcs rn
cases not sounding in tort." 28u.s.c. $ 1a91(a)(1)(2006). The Tucker Act serves as a waiver
ofsovereign immunity and ajurisdictional grant, but it does not create a substantive cause of
action. Jan's Helicopter Serv.. Inc. v. Fed. Aviation Admin., 525 F.3d 1299,1305-06 (Fed. cir.
2008). A plaintiff, therefore, must establish that "a separate source of substantive law. . . oeates
the right to money damages." Id. (quoting Fisher v. United States ,402 F.3d 1167, 1172 (Fed,.
Cir. 2005) (en banc in relevant part)).

        Takings claims fall squarely within this court's subject matter jurisdiction. McKown v.
United States, 114 Fed. Cl. 553, 555 (2014) (citing Keene Corp. v. United States, 50g U.S. 200,
205 (1993)). Nonetheless, the govemment argues that Dr. Filler's complaint should be dismissed
for lack of subject matter jurisdiction because, "[n]otwithstanding that Dr. Filler alleges a takings
claim here, that claim in fact sounds in tort," and the Tucker Act specifically excludes tort claims
from this court's jurisdiction. Def.'s Mot. 7; 28 u.S.c. g 1a9l(a)(1). To support this,ugument,
the govemment cites Ridge Line. Inc. v. United States, 346 F.3d 1346, 1355 (Fed. Cir. 2003),
which sets forth a "two-part inquiry" for "distinguishing potential physical takings from possible
torts."

         The govemment's reliance on Ridee Line is misplaced. Contrary to the government's
argument, the Ridge Line analysis addresses the merits of a takings claim, not this court's
subject matter jurisdiction. see Moden v. united states,404 F.3d 1335, 1340(Fed. cir.2005).
Because confusion between merits and jurisdictional issues occurs with some ffequency,
especially in cases arising under the Tucker Act, the Federal Circuit has clarified that "subject
matter jurisdiction exists when a [plaintiffl asserts a nonfrivolous claim" that falls within this
court's general subject matter jurisdiction. Id. In other words, "[d]ismissal for lack of subject-
matter jurisdiction because ofthe inadequacy ofthe federal claim is proper only when the claim
is 'so insubstantial, implausible, foreclosed by prior decisions . . ., or otherwise completely
devoid ofmerit as not to involve a federal controversy." Steel co. v. citizens for a Better Env't,


2
  "Inverse condemnation" is a type oftakings claim; whereas condemnation occurs when the
govemment undertakes the legal proceedings necessary to assume ovvnership ofproperty under
its eminent domain power, inverse condemnation occurs when the property owner undertakes
legal proceedings to have a government action declared a taking and to recoverjust
compensation due pursuant to the Fifth Amendment. see Moden v. United States, 404 F.3d
1335,1342 (Fed. Cir. 2005).
523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of N.Y. v. Cntv. Of Oneida,4l4 U.S. 661,
666 (1974\.

        Although the Court ultimately finds that Dr. Filler fails to state a claim upon which rslief
can be granted, his claims are not so "insubstantial" or "devoid of merit" as to bring into question
this Court's subject matter jurisdiction to hear them. Thus, because Dr. Filler has asserted a
nonfrivolous takings claim founded upon the Fifth Amendment-a money-mandating
constitutional provision grounding a cause of action-jurisdiction under the Tucker Act is
proper. See Moden,404 F.3d at1341.

   II.        Dr. Filler Fails to State a Claim Upon Which Relief Can Be Granted

        When considering a motion to dismiss for failure to state a claim under RCFC 12(bX6),
the court "must accept all well-pleaded factual allegations as true and draw all reasonable
inferences in... [the plaintiffs] favor." Bovlev. United States,200F.3d 1369,1372 (Fed. Cir.
2000). The motion will be granted when the facts asserted by the plaintiff fail to "raise a right to
relief above the speculative level." Am. Contractors Indem. Co. v. United States,570F.3d,1373,
 1376 (Fed. Cir. 2009) (quoting Bell Atl. Com. v. Twomblv, 550 U.S. 544,555 (2007)). In other
words, plaintiff s claim must be plausible on its face. Twomblv, 550 U.S. at 570; Acceptance
Ins. Cos.. Inc. v. United States, 583 F.3d 849, 853 (Fed. Cir. 2009). "A claim has facial
plausibility when the plaintiffpleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 556). "Conclusory allegations of law and
unwarranted inferences of fact do not," however, "suffrce to support a claim." Bradley v. Chiron
Corp., 136 F.3d 1317, 1322 (Fed. Cir.1998) (citations omitted).

        Where, as here, the plaintiffis p1q se, his pleading is held "to less stringent standards than
formal  pleadings drafted by lawyers." Haines v. Kemer, 404 U.S. 519,520 (1972).
Nonetheless, even taking into consideration Dr. Filler's p1q se status, the Court concludes that
his allegations are insufficient, as a matter of law, to state a claim for relief under the Takings
Clause. Specifically, the facts that Dr. Filler alleges in his complaint do not support his
conclusory assertion that Ms. Walker acted on behalf of the govemment when she posted the
comments in question on RunningForums.com. Further, and in any event, Dr. Filler's medical
license does not, as a matter of law, constitute a compensable property interest within the
meaning ofthe Takings Clause.

         A.      Dr. Filler has not alleged sufficient facts to support a reasonable inference
                 that Ms, Walker acted on behalf of the government when she posted her
                 online comment.

         It is well settled that              taking does not arise unless there is action by the
                                   a compensable
govemment and even then, "'only if the government action in question is authorized,"' PI Elec.
Corp. v. United States, 55 Fed. Cl.279,288 (2003) (quoting Del-Rio Drilling Programs. Inc. v.
United States, 146 F.3d 1358,1362 (Fed. Cir. 1998)); see also Bd. Mach.. Inc. v. United States,
49 Fed. Cl. 325,328 (2001) (observing that "[i]n order to obtain compensation for a govemment
taking, the ast must be attributable to the sovereign"). Ifthe action is not authorized, it "is not



                                                   A
the act of the govemment" at all. Blanchette v. Conn. Gen. Ins. Coms.,419 U.S. 102,127 n.l6
(1974) (quoting Hooe v. United States,218 U.S. 322,336 (1910)). An action by a government
agent is authorized, and implicates the Takings Clause, if the agent "act[s] within the general
scope of [her] duties, i.e., if [her] actions are a 'natural consequence of Congressionally approved
measures,' or are pwsuant to 'the good faith implementation of a Congressional Act."' Del-Rio,
146 F.3d at 1362 (intemal citations omifted) (quoting NBH Land Co. v. United States, 576 F.3d
317,319 (Ct. Cl. 1978); S. Cal. Fin. Corp. v. United Srates,634F.2d52l,525 (Ct. Cl. 1980));
see also Americooters. LLC v. United States, 95 Fed. Cl.224,232 (2010) (observing that
permitting takings claims based on actions of govemment employees that are not within the
scope ofagency actions authorized by Congress or of tleir own individual duties "would open
the Treasury to takings claims in which the government, qu4 govemment, had no intention to act,
much less to take property").

        Here, the factual allegations in Dr. Filler's complaint do not support his conclusory
assertion that Ms. Walker was acting in her official capacity or on behalf of the government
when she posted the comments in question. In fact, his factual assertions actually demonstrate
precisely the opposite. Dr. Filler alleges in his complaint that Ms. Walker is employed as a
marine biologist at the NMFS within the NOAA, a division of the Department of Commerce.
Am. Compl. !l 7. This agency's authority derives from the Magnuson-Stevens Fishery
Conservation and Management Act, 16 U.S.C. Ch. 38, the Marine Mammal Protection Act, 16
U.S.C. Ch. 31, and the Endangered Species Act, 16 U.S.C. Ch. 35. These statutes authorize the
NMFS to manage, conserve, and protect living marine resources in waters controlled by the
United States. NMFS does not have the authority to regulate medical practices or drug safety.
Therefore, even if Ms. Walker's posting on RunningForums.com is construed as, in Dr. Filler's
words, "a public waming about danger to the health and safety of the United States populace,"
Am. Compl. fl 4, such an action would not fall within the official scope of authority of an
employee of the NMFS generally, much less of Ms. Walker in particular.

        In asserting that Ms. Walker acted "within the scope of her authorized duties," Am.
Compl. tltl 95, 108, Dr. Filler cites various statutes and regulations reflecting "[t]he interest ofthe
United States in . . . preventing the spread of . . . BSE." Am. Compl. flfl 51, 55 (citing a
provision within the Animal Health Protection Act, several provisions within Titles 9 and 2l of
the C.F.R., as well as 49 C.F.R. $ 173.134). Each provision that Dr' Filler lists, however, falls
within the enforcement purview of either the Department of Agriculture or the Food and Drug
Administration; none implicates the authority of the Department of Commerce, let alone the
NOAA or NMFS. See. e.s., 7 U.S.C. $ 8302(14) (indicating that the Secretary of Agriculture is
responsible for the implementation of the Animal Health Protection Act); 21 C.F'R. S 810.2
(indicating that the regulations in the part of the C.F.R. implement the Federal Food, Drug, and
Cosmetic Act). Dr. Filler himself recognizes that the authorities he cites for "[t]he role ofthe
United States in public wamings," 21 C.F.R. $$ 810.2, 7.42, are addressed to the Food and Drug
Administration. See Am. Compl. 'lf 55. Thus, they cannot have provided the authorization for
Ms. Walker to post an anonymous comment regarding the safety of any particular medical
practice on RunningForums.com.

         Leaving aside the conclusory assertions in Dr. Filler's complaint, such as the statement
that "[t]he purpose of [Ms. Walker's] action was to serve the public purpose of protecting the
United States population from infection by the Bovine Spongiform Encephalopathy prion agent,"
Am. Comp. fl 48, the facts alleged in the complaint do not raise the prospect, even at the
speculative level, that Ms. Walker acted in her capacity as a government official when she posted
the comment on RunningForums.com. To the contrary, the facts show that Ms. Walker acted in
her individual capacity as a former patient of Dr. Filler for her independent purpose ofconveying
her personal views on the efficacy and advisability of the treatment that she believed Dr. Filler
had used on her and other patients. Therefore, because he failed to sufficiently allege an
authorized govemment action that could conceivably constitute a taking, Dr. Filler's complaint
must be dismissed.

        B.     In any   case, a medical license does not constitute a cognizable    property
               interest within the meaning of the Takings Clause.

        A threshold element of a takings claim is whether the plaintiffhas a cognizable property
interest for purposes of the Fifth Amendment. Am. Pelaqic Fishing co. v. United states, 379
F.3d 1363, 1372 (Fed. Cir.2004). "lf a plaintiffis unable to prove that he held a protected
property interest, his takings claim will fail." Webster v. United States ,74 Fed,. Cl. 439,446
(2006) (citing Wyatt v. United States,271F.3d 1090, 1096(Fed. Cir.2001)). Inthis case, even
assuming that Dr. Filler had alleged sufficient facts to establish that Ms. walker was actinc
within the scope of her duties when she posted the comments at issue, his claim would
necessarily fail because, as a matter of laq a medical license does not constitute property
cognizable under the Takings Clause.

        "The Constitution neither creates nor defines the scope ofproperty interests compensable
under rhe Fifth Amendment." Conti v. United States,2gl F.3d 1334, 1340 (Fed. Cir. 2002)
(citing Bd. ofRegents of state colls. v. Roth,408 u.s. 564,577 (1972)). Therefore, "'existing
rules and understandings' and'background principles' derived from an independent sou.ce, such
as state, federal, or common law, define the dimensions of the requisite property rights for
purposes ofestablishing a cognizable taking." Conti,29l F.3d at 1340 (quoting Lucas v. S.
Carolina Coastal Council. 505 U.S. 1003, 1030 (1992).

        "The rights to sell, assign, or otherwise transfer are traditional hallmarks of property."
Qonti' 291 F.3d at 1341 (citing Loretto v. Teleprompter Manhattan GATV com., 459 u.s.419,
435-36 (1982)). Accordingly, the Federal Circuit has held that, assuming..the absence of
express statutory language precluding the formation ofa property right," a cognizable property
interest in a government permit or license requires both a "right to transfer" and a "right to
exclude." Members of Peanut ouota Holders Ass'n. Inc. v. united States , 421 F.3d 1323, 1331
(Fed. cir. 2005). The goverffnent argues that, as a matter of law, a medical license does not
meet either of these requirements. The Court agrees.

        First, it is clear that the holder ofa medical license cannot sell or transfer his medical
license to another individual or entity; a medical license can only be obtained by meeting the
requirements specified in state law for the holders of such licenses. See webster, 74 Fed. cl. at
447 (holding that "[b]ecause plaintiffdoes not have the right to sell, assign, or otherwise transfer
her medical license, a medical license does not possess the requisite indiiia of transferability").
Dr. Filler's arguments to the contrary are unpersuasive. See pl.'s Resp. 14-20. He argues, ior
instance, that a medical license is subject to forfeiture under 2l U.S.C. $ 853 if it is used to
commit a controlled substances violation, and that generally, a civil forfeiture order transfers title
in the property to the govemment. See Pl.'s Resp. 18-19 (citing Shelden v. United States, 7 F.3d
1022, 1026 (Fed. Cir. 1993)). As the govemment observes, however, whether something is
transferable for purposes of establishing a compensable property interest depends upon "whether
the citizen had the right[] to . . . transfer[] or dispose of the property," not whether the
government could compel the citizen to relinquish it. Def.'s Reply 7 (quoting Peanut Quota
Holders, 421 F.3d at 1330 (emphasis added)).

        Dr. Filler also argues that a medical license is transferable to a medical corporation and
that a medical license hansfers to a physician's heirs upon the physician's death, citing Palmer v.
Superior Court, 127 Cal. Rptr. 2d 252 (Cal. Ct. App. 2002), and Flores v. Natividad Medical
Center,238 Cal. Rptr. 24 (Cal. Ct. App. 1987). Pl.'s Resp. 19-20. These cases do not support
Dr. Filler's arguments, however. Rather, they analyze whether statutory limitations on damages
in medical malpractice actions apply when the defendant is a medical corporation or the estate of
a deceased physician.


         Nor does a "right to exclude" exist with respect to a medical license. As the Federal
Circuit reasoned with respect to fishing licenses in Peanut Ouota Holders:

       A   license represents a limited suspension of the otherwise general restrictions
       imposed by the govemment-in the case of a fishing license, it is merely a
       representation by the govemment that it will not interfere with the licensee's
       efforts to catch fish. The number of licenses to be issued under such a scheme is
       not fixed. Each additional license dilutes the value of the previously issued
       licenses. So long as the govemment retains the discretion to determine the total
       number of licenses issued, the number of market entrants is indeterminate. Such a
       license is by its very nature not exclusive.

Peanut Quota Holders ,421 F.3d at 1333-34.

        As this Court observed in Webster,T4 Fed. Cl. at 447, the same result obtains with
respect to medical licenses. Thus, because "[t]he number ofmedical licenses issued is not
subject to a fixed limit by the Govemment," and because the issuance of medical licenses rs
controlled by the states and not the federal govemment, "medical licenses, like the fishing
licenses described in Peanut Ouota Holders, are not exclusive by their very nature." Webster, 74
Fed. Cl. at 447; see also Am. Pelaeic FishingCo., 379 F.3d at 1374 (citing Conti,29l F.3d at
1341-42 (no property interest in fishing licenses or permits that 'did not confer exclusive fishing
privileges" and that "the government at all times retained the right to revoke, suspend, or
modify").

        The Court is not persuaded by Dr. Filler's argument that Peanut Ouota Holders and
similar cases articulate "an extremely narrow aspect ofexclusion" and that a better indicator of
the right to exclude is a physician's discretion to permit or not permit nurses, paramedics, and
medical assistants from working under his or her supervision. See Pl.'s Resp. 15- 16. Dr. Filler's
altemative theory is at odds with the Federal Circuit's approach, which holds that a citizen does
not possess the "right to exclude" if "the citizen is in an area subject to government control,"
such as medical licensing. Mitchell Arms. Inc. v. United States,T F.3d212,216(FedCir. 1993).
In an area ofsuch pervasive government regulation, a person has "no right to exclude the
govemment from intruding upon its possession of the property at issue," and "that property
interest [is] not a compensable one." Mike's Contracting. LLC v. United States ,92 Fed. C|.302,
307-08 (2010) (citing Mitchell Arms,7 F.3d at 215).

         Finally, Dr. Filler cites a number ofdecisions holding that medical licenses are
considered property for purposes      ofthe due process clause. Pl.'s Resp. 1l-12. The question of
whether there is a property interest in a government benefit like a license for purposes ofthe due
process clause is whether an individual has a "legitimate claim of entitlement" to the license or
benefit. Roth.408u.s. at577. AstheD.c. circuit observed in Kizas v. webster,707 F.2d,524,
539 (D.C. Cir. 1983), however, the presupposition that a "legitimate claim of entitlement" rises
to the level of "property" protected by the Takings clause is "without foundation." As the court
noted, "the fifth amendment employs two independent clauses to address two independent issues.
A claim of deprivation ofproperty without due process of law cannot be blended as one and the
same with the claim that property has been taken for public use without just compensation." Id.
at 539 (alteration omitted).

        In short, the test ofwhether a property interest exists in a medical license for purposes of
the Takings Clause is set forth in Peanut Ouota Holders and related cases. For the .ei.onr set
forth above, a medical license is not considered "property" for purposes ofthe Takings ciause
because it does not carry with it a right to transfer or a right to exclude. Accordingly, on this
basis as well, Dr. Filler's complaint fails to state a claim for which reliefcan be srinted.3

                                      CONCLUSION

      Based on the foregoing, the government's motion to dismiss pursuant to RCFC 12(b)(6)
.
is GRANTED, and the complaint is dismissed with prejudice. The clerk is directed to enter
judgment accordingly.

       IT IS SO ORDERED.

                                                    ELAINE D. KAPLAN
                                                    Judge



' Given the Court's conclusion that Dr. Filler has failed to establish the existence ofa propeny
interest in his medical license or to allege facts sufficient to show that Ms. walker acted on
behalfthe government and in her official capacity when she posted her online comment, the
court finds it unnecessary to reach the merits ofthe government's argument, based on Ridge
Line, that any interference with plaintiffs medical license was not "substantial and freouent
enough to rise to the level of a taking." Def.'s Mot. 8 (quoting Ridqe Line, 346 F.3d ui   llsll;
see Air Pegasus of D.c.. Inc. v. United Srates ,424 F .3d 1206, t2l3 (Fed. cir. 2005) (where there
is no valid property interest at stake, court will not determine whether the governmenial action at
issue amounted to a compensable taking ofproperty).
