
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                                         -3-            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                                    __________    _____________                                         -5-            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                                         -6-                      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.                                                            __   _____                                         -8-            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).            _____________                                         -9-                      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                                         -11-            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.                                         -12-
