Rodrigue v. United States

• Court: Court of Appeals for the First Circuit
• Decided: July 13, 1992
• Docket: 92-1009
• Status: Published

Opinion

USCA1 Opinion

July 13, 1992            ____________________

        No. 92-1009

                           LOUIS J. RODRIGUE, ADMINISTRATOR
                        OF THE ESTATE OF WILLIAM J. RODRIGUE,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Walter Jay Skinner, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________

                      Aldrich and Coffin, Senior Circuit Judges.
                                          _____________________

                                 ____________________

David Shaughnessy with whom John Wall and Law  Office of John Wall
            _________________           _________     ________________________
        were on brief for appellant.
            Diana  Gordon,  Torts   Branch,  Civil  Division,  Department   of
            _____________
        Justice, with whom Stuart M.  Gerson, Assistant Attorney General, John
                           _________________                              ____
        Pappalardo,  Acting United  States Attorney,  Mary Elizabeth  Carmody,
        __________                                    _______________________
        Assistant United  States Attorney,  Jeffrey  Axelrad, Director,  Torts
                                            ________________
        Branch,  Civil Division,  Department of  Justice, and Paul  F. Figley,
                                                              _______________
        Deputy Director, Torts Branch,  Civil Division, Department of Justice,
        were on brief for appellee.
                                 ____________________

____________________
                      ALDRICH,  Senior Circuit  Judge.   This declaratory
                                _____________________

            judgment  action, 28 U.S.C.   2201,  involving the death of a

            serviceman raises at the outset a question  of subject matter

            jurisdiction.    Because   Airman  William  Rodrigue's  death

            occurred  out of the country,  relief lay not  in the Federal

            Tort Claims Act (FTCA), but in the Military Claims Act (MCA),

            10  U.S.C.     2731 et  seq.   Unlike  the FTCA,  where prior
                                __  ___

            administrative denial  is but a condition  precedent to suit,

            28  U.S.C.   2675,  the MCA,  10 U.S.C.    2735, provides  as

            follows.

                      Notwithstanding  any  other provision  of
                      law, the  settlement[1] of a  claim under
                      section  2733    . . . of  this  title is
                      final and conclusive.[2]

            Plaintiff,  representative  of  the  deceased   airman,  upon

            administrative  rejection, took the position that the federal

            courts  can nevertheless  review at  least questions  of law.

            The district court so  held.  Rodrigue v. United  States, 760
                                          ________    ______________

            F. Supp. 223 (D. Mass. 1991).  We partially concur.

                      Briefly, William Rodrigue was on active duty at the

            United  States Air Force  Kadena Air Base  in Okinawa, Japan.

            While  on  leave, he  and  several  other enlisted  men  went

            swimming at  the beach on Hedo Point,  some twenty-five miles

____________________

            1.  "Settlement"  includes  administrative disallowance.   10
            U.S.C.   2731.

            2.  As we shall  develop later, the statute is to  be read as
            if there were added "for all purposes."

from  the Base.  He, and  another airman, were carried out to

            sea by strong currents.  When the shore airmen, and the local

            Japanese  police, were  unable to  accomplish a  rescue, they

            notified  the  Base,  which  promised to  send  a  helicopter

            shortly,  but then  took nearly  four hours.   Unfortunately,

            this was too late.

                      In seeking Air Force  approval of damages under the

            MCA plaintiff alleged that the Air Force owed a duty based on

            the  military  relationship,   and,  alternatively,  that  it

            incurred  a Good Samaritan duty  of care when  it promised to

            launch  a rescue.  The Air Force rejected, its final decision

            being  that  its  Good  Samaritan conduct  was  on  a  purely

            voluntary basis,  but that  if  there was  any obligation  it

            arose out  of military  service, and  was barred  because the

            airman's  activity at  the  time was  "incident to  service,"

            excluded under the act.  10 U.S.C.   2733, subsection (b)(3).

            In response, plaintiff asked the district court  to remand to

            the Air Force with  instructions that there was a  legal duty

            and that Rodrigue  was not barred.   Although, as  previously

            stated,  the court  found jurisdiction,  it dismissed  on the

            merits.  We first consider jurisdiction.

FINALITY
                                       ________

                      The manifest difference in the FTCA  and the MCA in

            the  power given  the  government  agency suggests  radically

            different  consequences.    At the  same  time  it  is to  be

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recognized that total  finality of administrative rulings  is

            the exception.  In Lindahl v. Office of Personnel Management,
                               _______    ______________________________

            470 U.S. 768 (1985), plaintiff's application to defendant for

            disability benefits was rejected by defendant, and its action

            was  sustained  by  the   Merit  Systems  Protection   Board.

            Plaintiff  then, in effect, sought review by an action in the

            Court  of Claims.    Defendant resisted  on  the basis  of  a

            statute, 5 U.S.C.   8347(c), that provided,

                      Questions  of  dependency and  disability
                      arising  under  the   section  shall   be
                      determined by  . . . , and determinations
                      concerning  these  matters are  final and
                      conclusive and are not subject to review.

            See Lindahl, 470 U.S. at 773.3
            ___ _______

                      Quoting from  earlier cases, the Court  stated that

            preclusion of judicial review  required "clear and convincing

            evidence"  of legislative  intent  in the  light of  "express

            language, . . .  the structure of  the statutory  scheme, its

            objectives, its  legislative history,  and the nature  of the

            administrative  action involved."   470  U.S. at 778-9.   The

            Court  concluded that  section  8347(c)'s  words  "concerning

            these matters"  meant that  "factual underpinnings  . . . may

            not be judicially reviewed, [but] such review is available to

            determine  whether  'there has  been a  substantial departure

            from  important procedural rights,  a misconstruction  of the

____________________

            3.  The statute has  had a kaleidoscope history, but  this is
            the wording the Court considered.

                                         -4-

governing legislation, or some like error "going to the heart

            of  the administrative determination."'   Scroggins v. United
                                                      _________    ______

            States, 184Ct. Cl., at534, 397 F.2d, at297."  470U.S. at 791.
            ______

                      Before  discussing Lindahl  we review the  Court of
                                         _______

            Appeals  cases that  have  previously  considered  10  U.S.C.

              2735.  In  Towry v. United States,  620 F.2d 568 (5th  Cir.
                         _____    _____________

            l980),  cert. denied, 449 U.S.  1078 (1981), affirming on the
                    ____________

            opinion below, 459 F.  Supp. 101, the court held  that   2735

            forbad  review where the  decision was arbitrary, capricious,

            an  abuse  of  discretion,   and  not  based  on  substantial

            evidence, and that this was not a denial of due process.

                      Without going into that detail, in Labash v. United
                                                         ______    ______

            States  Department of  the Army, 668  F.2d 1153  (10th Cir.),
            _______________________________

            cert.  denied, 456  U.S.  1008 (1982),  the  court held  that
            _____________

              2735  was "clear  and convincing  evidence" that  there was

            intended  to be  no review,  and  that in  the  absence of  a

            constitutional claim there could be no relief.

                      In  Broadnax v.  United States  Army, 710  F.2d 865
                          ________     ___________________

            (D.C.  Cir. 1983), the court  stated that review  may well be

            permitted  in  special  circumstances,  citing  Scroggins  v.
                                                            _________

            United States, 397 F.2d 295 (Ct. Cl.), cert. denied, 393 U.S.
            _____________                          ____________

            952 (1968), ante, but held it did not have such a case.
                        ____

                      All of these, and a district court case holding the

            other way,  Welch v. United States, 446 F. Supp. 75 (D. Conn.
                        _____    _____________

            1978), were reviewed in Poindexter v. United States, 777 F.2d
                                    __________    _____________

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231  (5th  Cir. 1985),  the court  repeating its  decision in

            favor of preclusion announced in Towry, ante.
                                             _____  ____

                      Interestingly enough,  none of these  Circuit Court

            cases  indicated  whether its  implied  reservation regarding

            constitutionality  was based upon  found Congressional intent

            or on judicial force majeure.  In Lindahl the Court rested on
                                              _______

            presumed  Congressional  intent  not rebutted  by  clear  and

            convincing  evidence.   It found  a lack  in that  the phrase

            "concerning these matters are final" referred to "[q]uestions

            of dependency and disability,"  which were questions of fact,

            so that there was no provision precluding review of questions

            of  law.  "Section 8347(c) speaks of the preclusive effect of

            OPM  determinations, but  says nothing one  way or  the other

            about the  finality of MSPB judgments."  470 U.S. at 779.  In

            our  case    2735   refers  to  "settlement,"  the   ultimate

            decision.

                      Incidentally, as a matter of language, we note that

            when what is  now 10  U.S.C.   2735 was  originally drawn  in

            1943, 57 Stat. 372,  it read, in part, "final  and conclusive

            for all purposes."  See, United States v. Wade, 170 F.2d 298,
                                ___  _____________    ____

            299  (1st Cir.  1948).   There  the  plaintiff, who  suffered

            personal injury and property  damage, purported to settle the

            latter, and then brought suit.  We said, 170 F.2d at 300,

                      We think the District Judge was right  in
                      holding  that  the   items  for   medical
                      expenses  and property damage were out of
                      the   case,   because   covered  by   the

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settlement with the  War Department,  but
                      that  appellees  were  still entitled  to
                      recover  for pain  and suffering  and for
                      loss of earning capacity.

            Over the years the statute has been changed,  and in the 1956

            revision  the  last  clause   was  shortened  to  "final  and

            conclusive."  The present Explanatory Notes state, "The words

            'for all purposes' . . . are omitted as surplusage."  This is

            correct.    An unnumbered  House  Report  (Judiciary) on  the

            revision of Title  10 (and  Title 32 --  National Guard,  see
                                                                      ___

            post) reprinted in 1956 U.S. Code and Admin. News 4613, 4620,
            ____

            84th Cong. 2d Sess., confirms that the revised statute should

            be read as the old.

                      Further,  from  a  historical  standpoint,  in 1943

            Congress, rather  than having  Lindahl, had before  it United
                                           _______                 ______

            States  v.  Babcock, 250  U.S.  328 (1919),  where  the Court
            ______      _______

            denied  further  action in  the  Court  of  Claims where  the

            statute provided, see 250 U.S. at 331, without indicating any
                              ___

            exceptions,

                      That  any claim which  shall be presented
                      and acted  on under authority of this act
                      shall be held  as finally determined, and
                      shall  never  thereafter  be reopened  or
                      considered.[4]  250 U.S. at 331.

____________________

            4.  See, also,  Williamsport Wire Rope Co.  v. United States,
                ___  ____   __________________________     _____________
            277 U.S. 551, 561 (1928); Merrifield v. United States, 14 Ct.
                                      __________    _____________
            Cl. 180  (1988) (no review  in analogous  statute); Shull  v.
                                                                _____
            United  States, 228 Ct.  Cl. 750, 755  (1981) (unsigned order
            ______________
            and opinion).

                                         -7-

Significantly,  Babcock involved  a substantive  precursor of
                            _______

            the MCA.

                      The  Eleventh   Circuit  has  noted   that  Lindahl
                                                                  _______

            involved  a  contractual obligation.    In  Rhodes v.  United
                                                        ______     ______

            States, 760 F.2d 1180  (11th Cir. 1985) there was  a statute,
            ______

            32  U.S.C.   715,  like the  MCA, except  that it  applied to

            injuries occasioned by the National Guard, not covered in the

            MCA.  The  finality provision  copied 10 U.S.C.    2735.   In

            refusing to  review  an administrative  rejection  the  court

            commented on the  fact that  if intent  to preclude  judicial

            recourse  requires "clear  and convincing evidence,"  so does

            government  consent to  suit for  torts.   See, e.g.,  United
                                                       ___  ____   ______

            States  v. King, 395 U.S. 1, 4 (1969) ("must be unequivocally
            ______     ____

            expressed").     On  this  basis   it  might  be   said  that

            presumptions as to interpretation conflict, and should cancel

            out.

                      With   this  array  of   decisions,  and  statutory

            language, read  as "for all purposes,"  that, unlike Lindahl,
                                                                 _______

            shows  no apparent ambiguity, we  do not pause  to detail the

            small   bits  of   legislative   comment  cited   to  us   as

            contradictory,  except to  say that  our examination  reveals

            inconsistency  and  nothing persuasive.    We  also need  not

            resolve  the erudite question  whether Congress affirmatively

            intended  that  constitutional   questions  be  reviewed  or,

            simply,  that the  constitution requires  it.   Cf.  Bowen v.
                                                            __   _____

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Michigan Academy of Family Physicians, 476 U.S. 667, 681 n.12
            _____________________________________

            (1986).   We  do not propose  to break new  ground by holding

            that Congress can forbid it.  Cf. Bartlett v. Bowen, 816 F.2d
                                          __  ________    _____

            695  (D.C. Cir.  1987)  (2-1).    Like our  sister  Circuits,

            however, we  find, contrary  to the  district court,  and the

            decision  is for  us  de novo,  G.D.  v. Westmoreland  School
                                            ____     ____________________

            District, 930 F.2d  942, 946 (1st  Cir. 1991), that  Congress
            ________

            intended no other review.   We turn, accordingly, to  further

            consideration of the facts  to determine, simply, whether any

            due process issue is raised.

MERITS
                                        ______

                      There is  no claim  that the Air  Force recommended

            Hedo Point  Beach for swimming, or  exercised any supervision

            or  control  over  it.   Passing  the  question  of the  Good

            Samaritan rule, it owed  Rodrigue as a member of  the general

            public, no duty  of rescue.  Cf. Daley v.  United States, 499
                                         __  _____     _____________

            F. Supp. 1005 (D. Mass. 1980) and cases cited.  While special

            relationships  may create  a  duty, e.g.,  ship and  crewman,

            Frank v. United  States, 250  F.2d 178, 180  (3d Cir.  1957),
            _____    ______________

            cert. denied,  356 U.S. 962 (1958), we  have found no case to
            ____________

            the  effect  that  an  individual,  simply  because he  is  a

            serviceman, has a  claim against  the Armed Forces.   And  as

            soon  as  there is  a  special  relationship, i.e.,  activity

            incident  to service,  Feres precludes  liability.   Feres v.
                                   _____                         _____

            United States, 340 U.S. 135 (1950).
            _____________

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The  Good  Samaritan   rule  presents  a   narrower

            question.   The government is  not exempt from  this rule, at

            least  with respect to the general public.  Cf. United States
                                                        __  _____________

            v.  Sandra & Dennis, 372  F.2d 189 (1st  Cir.), cert. denied,
                _______________                             ____________

            389  U.S. 836  (1967).   It has  at least a  plausible claim,

            however, that it is not liable here.  We are not impressed by

            the  Air  Force's   exculpatory  finding  that   recreational

            swimming, 25 miles from the base, was an incident of service;

            we  know of no case  supporting such a  conclusion.5  Compare
                                                                  _______

            Lauer v. United States,  decided this day, ___ F.2d  ___ (1st
            _____    _____________

            Cir. 1992)  (walking  on approach  road  to base,  owned  and

            maintained  by  Navy).   But  even  if applicable,  the  Good

            Samaritan rule  does not impose liability  for mere negligent

            failure to confer a benefit,  but only for negligently making

            matters  worse.  United States  v. DeVane, 306  F.2d 182, 186
                             _____________     ______

            (3d  Cir. 1962); Rest. (second)  of Torts,   323  (1965).  In

            our earlier case on  this subject, United States v.  Sandra &
                                               _____________     ________

            Dennis Fishing  Corp., ante, the Coast Guard undertook to tow
            _____________________  ____

            a  disabled vessel that was not in any immediate danger, and,

            through negligence, caused her to strand.  The district court

            made the  significant finding that  there would have  been no

            stranding but for the Coast Guard's misconduct.  Petition  of
                                                             ____________

____________________

            5.  Woodside v. United States, 606 F.2d  134 (6th Cir. 1979),
                ________    _____________
            cert.   denied,  445   U.S.  904   (1980),  illustrates   the
            ______________
            government's difficulties in finding  recreational activities
            far from the base to be service related.

                                         -10-

the  United States, 255 F. Supp. 737, 750-51 (D. Mass. 1966).
            __________________

            So,  here, plaintiff does not state a case simply by alleging

            the  Air Force was negligent;  it is necessary  to show, more

            likely than not, Goudy & Stevens, Inc. v. Cable Marine, Inc.,
                             _____________________    __________________

            924 F.2d 16, 20-21 (1st Cir. 1991), that by its negligence it

            worsened Rodrigue's position.

                      Plaintiff's  claim to  the  Air Force  was that  at

            about 6:30 p.m., after rescue attempts by  the local Japanese

            police had failed, the Air Force was notified of the airmen's

            exposure and danger  of drowning  and replied  that it  would

            respond  shortly.  When it  did not come,  further calls were

            made and, again, it said it would come shortly.  However, the

            helicopter did not  arrive until 10:15,  which was too  late.

            No  cries  had  been  heard from  the  swimmers  after  9:00.

            Plaintiff's final  appeal  letter  read,  and we  can  go  no

            further  here, Lopez v. United States, 758 F.2d 806, 809 (1st
                           _____    _____________

            Cir.  1985); Bush v. United  States, 703 F.2d  491, 494 (11th
                         ____    ______________

            Cir. 1988), 

                      Had  Air  Force personnel  not repeatedly
                      assured  callers  of  imminent rescue  by
                      helicopter,  other rescue  attempts might
                                                          _____
                      have been  successfully undertaken during
                      __________________________________
                      the  four  hours   Sr.  Airman   Rodrigue
                      struggled in the water crying for help.

            (Emphasis supplied).  Unfortunately, the original claim, from

            whose  denial  plaintiff had  appealed,  was  not before  the

            court.   Whether it supported the more specific allegation in

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the  complaint6  does not  appear,  but, even  so,  there was

            apparently no  claim  beyond "might  have  been  successfully

            undertaken."

                      This is  a factual  difficulty;  "might have  been"

            falls short of  "would have been."   But even if  this should

            have been interpreted by the Air Force in  plaintiff's favor,

            an incorrect application  of the  law of torts  by an  agency

            does  not violate the Constitution.  We are in agreement with

            Towry  v. United States, ante.  To hold otherwise would place
            _____     _____________  ____

            all   administrative  decisions  in  the  constitutional  law

            classification.  There is  a substantial difference between a

            mistake and failure of due process.

                      Affirmed.
                      ________

____________________

            6.  16.  At  approximately 8:05 p.m. Kadena  Air Base learned
            that   the  Japanese  Maritime   Safety  Agency,  the  agency
            responsible for  Japanese rescue  efforts, would not  aid the
            swimmers in  distress until the U.S.  military resources were
            exhausted.

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