IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50258
Summary Calendar
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RICKY FARIAS,
Plaintiff-Appellant,
versus
DEPARTMENT OF THE UNITED STATES AIR FORCE,
Defendant-Appellee.
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Appeal from the United States District Court for
the Western District of Texas
(SA-96-CV-19)
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September 25, 1996
Before REAVLEY, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:*
Ricky Farias appeals the dismissal on grounds of
frivolousness of his lawsuit (28 U.S.C. 1915(d)) against the
Department of the Air Force for personal injuries allegedly
caused by defendants’ negligence and wrongful acts while
plaintiff was in training in the United States Air National
Guard. We affirm for the following reasons:
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
2
1. Plaintiff Farias initially brought administrative
claims on this matter before the Air Force Legal Services Agency,
which denied relief on the grounds that Section 2733(b)(3) of the
Military Claims Act (MCA) (Title 10 U.S.C. Sections 2731-2737)
bars payment for an employee’s personal injuries which are
incident to the employee’s service. Additional investigation by
the Air Force revealed no negligent or wrongful acts which caused
injury to plaintiff.
2. Plaintiff’s federal court complaint was also brought
under the Military Claims Act, did not present any new facts nor
raise any constitutional issues. In its dismissal, the District
Court properly ruled that it lacked subject matter jurisdiction
to review a final decision of the Air Force Legal Services
Agency, when no constitutional claim was made. Under the
provisions of the MCA and Fifth Circuit decisions, the agency
ruling is therefore deemed a “settlement” of the claim which is
“final and conclusive,” Title 10 U.S.C. § 2753. Poindexter v.
United States, 777 F.2d 231, 232 (5th Cir. 1985).
3. Plaintiff was at first permitted to proceed in forma
pauperis pursuant to Title 28 U.S.C. Section 1915, for both his
District Court action and his appeal to the Fifth Circuit.
Section 1915(d) authorizes the dismissal of frivolous claim when
it lacks an arguable basis in law or in fact. Neitzke v.
Williams, 490 U.S. at 325, 109 S.Ct. at 1831-32.
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4. On appeal, Plaintiff Farias states that he
misclassified his administrative claim under the Military Claims
Act, but should have submitted it under the Federal Tort Claims
Act. Farias apparently communicated this intention in a letter
sent to the District Court and received January 8, 1996, and now
argues that the District Court should have de novo review of his
claims. Even if the District Court did find that it had subject-
matter jurisdiction over the claims, the dismissal of Plaintiff’s
claim as frivolous under Section 1915(d) is proper. The Federal
Tort Claims Act has been construed to give district court
jurisdiction over claims brought against the government based on
negligence and for injury or death not incident to military
service. Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918.
However, Farias’ claim does not present an arguable basis for
relief either in law or fact, and is therefore subject to
dismissal as frivolous. Title 28 U.S.C. Section 1915 (d), and
Neitzke v. Williams, 490 U.S. at 325, 109 S.Ct. at 1831-32.
AFFIRMED.
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Farias v. Dept of US Air Force
Combined Opinion