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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Aldrich and Coffin, Senior Circuit Judges.
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David Shaughnessy with whom John Wall and Law Office of John Wall
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were on brief for appellant.
Diana Gordon, Torts Branch, Civil Division, Department of
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Justice, with whom Stuart M. Gerson, Assistant Attorney General, John
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Pappalardo, Acting United States Attorney, Mary Elizabeth Carmody,
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Assistant United States Attorney, Jeffrey Axelrad, Director, Torts
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Branch, Civil Division, Department of Justice, and Paul F. Figley,
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Deputy Director, Torts Branch, Civil Division, Department of Justice,
were on brief for appellee.
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ALDRICH, Senior Circuit Judge. This declaratory
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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
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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
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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
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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
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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,
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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
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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
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3. The statute has had a kaleidoscope history, but this is
the wording the Court considered.
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governing legislation, or some like error "going to the heart
of the administrative determination."' Scroggins v. United
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States, 184Ct. Cl., at534, 397 F.2d, at297." 470U.S. at 791.
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Before discussing Lindahl we review the Court of
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Appeals cases that have previously considered 10 U.S.C.
2735. In Towry v. United States, 620 F.2d 568 (5th Cir.
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l980), cert. denied, 449 U.S. 1078 (1981), affirming on the
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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
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States Department of the Army, 668 F.2d 1153 (10th Cir.),
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cert. denied, 456 U.S. 1008 (1982), the court held that
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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
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(D.C. Cir. 1983), the court stated that review may well be
permitted in special circumstances, citing Scroggins v.
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United States, 397 F.2d 295 (Ct. Cl.), cert. denied, 393 U.S.
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952 (1968), ante, but held it did not have such a case.
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All of these, and a district court case holding the
other way, Welch v. United States, 446 F. Supp. 75 (D. Conn.
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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.
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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
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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,
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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
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post) reprinted in 1956 U.S. Code and Admin. News 4613, 4620,
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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
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States v. Babcock, 250 U.S. 328 (1919), where the Court
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denied further action in the Court of Claims where the
statute provided, see 250 U.S. at 331, without indicating any
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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.
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4. See, also, Williamsport Wire Rope Co. v. United States,
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277 U.S. 551, 561 (1928); Merrifield v. United States, 14 Ct.
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Cl. 180 (1988) (no review in analogous statute); Shull v.
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United States, 228 Ct. Cl. 750, 755 (1981) (unsigned order
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and opinion).
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Significantly, Babcock involved a substantive precursor of
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the MCA.
The Eleventh Circuit has noted that Lindahl
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involved a contractual obligation. In Rhodes v. United
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States, 760 F.2d 1180 (11th Cir. 1985) there was a statute,
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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
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States v. King, 395 U.S. 1, 4 (1969) ("must be unequivocally
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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,
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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
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(1986). We do not propose to break new ground by holding
that Congress can forbid it. Cf. Bartlett v. Bowen, 816 F.2d
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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
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District, 930 F.2d 942, 946 (1st Cir. 1991), that Congress
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intended no other review. We turn, accordingly, to further
consideration of the facts to determine, simply, whether any
due process issue is raised.
MERITS
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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
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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),
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cert. denied, 356 U.S. 962 (1958), we have found no case to
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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.
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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
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v. Sandra & Dennis, 372 F.2d 189 (1st Cir.), cert. denied,
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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
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Lauer v. United States, decided this day, ___ F.2d ___ (1st
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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
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(3d Cir. 1962); Rest. (second) of Torts, 323 (1965). In
our earlier case on this subject, United States v. Sandra &
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Dennis Fishing Corp., ante, the Coast Guard undertook to tow
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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
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5. Woodside v. United States, 606 F.2d 134 (6th Cir. 1979),
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cert. denied, 445 U.S. 904 (1980), illustrates the
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government's difficulties in finding recreational activities
far from the base to be service related.
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the United States, 255 F. Supp. 737, 750-51 (D. Mass. 1966).
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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.,
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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
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Cir. 1985); Bush v. United States, 703 F.2d 491, 494 (11th
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Cir. 1988),
Had Air Force personnel not repeatedly
assured callers of imminent rescue by
helicopter, other rescue attempts might
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have been successfully undertaken during
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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
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all administrative decisions in the constitutional law
classification. There is a substantial difference between a
mistake and failure of due process.
Affirmed.
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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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