City of El Centro v. U.S.

• Decision Date: 28 December 1990
• Docket Number: No. 90-5003,90-5003
• Citation: 922 F.2d 816
• Parties: 37 Cont.Cas.Fed. (CCH) 76,044 CITY OF EL CENTRO, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 816

922 F.2d 816

37 Cont.Cas.Fed. (CCH) 76,044

CITY OF EL CENTRO, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.

No. 90-5003.

United States Court of Appeals, Federal Circuit.

Dec. 28, 1990.

J. Mark Waxman, of Weissburg and Aronson, Los Angeles, Cal., argued for plaintiff-appellee. Of counsel was James R. Kalyvas.

Stephen J. McHale, of Dept. of Justice, Washington, D.C., argued for defendant-appellant. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., and David M. Cohen, Director.

Before RICH and PLAGER, Circuit Judges, and DUPLANTIER, District Judge. ^*

PLAGER, Circuit Judge.

Plaintiff-appellee City of El Centro, State of California, owns and operates El Centro Community Hospital (ECCH). ECCH found itself treating 14 illegal aliens injured, some seriously, when the vehicle in which they were riding crashed while attempting to flee United States Border Patrol agents. The course of treatment of these individuals incurred $183,263.64 in costs for ECCH. ECCH requested defendant-appellant United States Government to pay these costs. The Government refused to pay. The Claims Court found an implied-in-fact contract and granted relief to ECCH. City of El Centro v. United States, 16 Cl.Ct. 500, reconsid. denied, 17 Cl.Ct. 794 (1989). Despite the appealing nature of plaintiff's case, as a matter of law we reverse.

I. Background

Early in the morning of January 23, 1985, Border Patrol agents observed several vans parked on the American side of the border between the United States and Mexico, near El Centro, California. The vans were parked in an area known to be a rendezvous point for smugglers of illegal aliens. At about the same time, the Border Patrol had indications that a group of people was moving on foot in the general direction of the vans.

A short time later, the agents saw one of the vans traveling eastward on the highway. The agents followed in their vehicle, activating their emergency lights. The van did not stop and a high speed chase began. With the border patrol agents in hot pursuit, the van raced along California Highway 8. In an unsuccessful attempt to elude the pursuing agents, the van, still travelling at speeds in excess of 60 miles per hour, swerved off the highway and onto an exit ramp. Reaching the top of the ramp, the van failed to negotiate a turn and, vaulting over an embankment, crashed, exploded and burned.

The pursuing agents quickly arrived at the crash scene, extinguished the flames and radioed for assistance. Fourteen aliens in the van were taken by ambulance to ECCH for treatment. The driver and two of the passengers died in the accident.

Responding to the emergency call, ECCH prepared for the arrival of the injured aliens. Medical personnel as well as Assistant Director of Finance for ECCH, Kaye Fox, arrived at ECCH ahead of the injured aliens. Uniformed Border Patrol Agent Mario Hernandez also arrived at the hospital ahead of the injured aliens. The Claims Court found that when Ms. Fox asked Agent Hernandez who would pay for the treatment of the aliens, Agent Hernandez responded, "me and you" [sic]. Ms. Fox testified ¹ that it was her understanding, based on her conversation with Agent Hernandez, that the Border Patrol would be responsible for the costs of hospitalization.

Agent Hernandez instructed the hospital to notify the Border Patrol prior to the release of any of the aliens so that each alien would be released from ECCH directly into the custody of the Border Patrol. While hospitalized, the aliens were photographed by Immigration and Naturalization Service (INS) investigators and had their medical records reviewed by an INS doctor visiting ECCH. At least one INS investigator also signed ECCH consent forms for those aliens unable to sign. The investigator signed on a line marked "Patient/Parent/Conservator/Guardian."

The Claims Court found that an implied-in-fact contract was created and that ECCH was entitled to recovery under that contract.

II. Discussion

A.

The Constitution vests in the Federal Government the authority and responsibility to protect the integrity of the borders of the United States. U.S. Const. art. I, Sec. 8; Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1891). In the course of implementing this responsibility, Congress has assigned the duty of apprehending aliens who illegally enter the country to the Attorney General. The Attorney General carries out this duty, in part, through the vehicle of the Border Patrol Division of the Immigration and Naturalization Service's Office of Enforcement. See 8 U.S.C. Sec. 1103(a) (1988); 28 C.F.R. Sec. 0.105 (1990); 8 C.F.R. Sec. 100.2 (1990).

In this case, the Border Patrol, in the apparent lawful exercise of its authority, set in motion a chain of events which imposed significant costs upon the hospital. There can be little question but that these are costs incurred as a natural and foreseeable consequence of the conduct by the United States Government in fulfilling its Constitutional duties. As a matter of equity, there is good argument that these costs should be assessed against all the taxpayers of the United States. The question before the court, however, is whether, as a matter of law, the United States is obligated to pay these costs, or whether, as it has chosen to do, the Government is free to let these costs fall upon ECCH and those whose obligation it is to support the hospital.

The Government is of the view that there is no legal basis under which the hospital can be reimbursed for these costs. It argues that there was no express or implied contract for services that met the statutory requirements for contracting with the United States. The Government argues further that the injured aliens were neither in the Government's custody, nor had the Government assumed responsibility for their care.

ECCH argues that the Border Patrol's hot pursuit of these individuals was sufficient for a court to find that the aliens were in custody, and that as a result they were under the care of the Government so that the services rendered to them were the usual medical services rendered upon authorized request for persons in Government custody, and for which payment is statutorily provided. In the alternative, ECCH argues that the conduct of various INS agents in the course of these events created an implied-in-fact contract.

We review findings of fact from the Claims Court under the clearly erroneous rule. As regards the legal conclusions of the Claims Court, we will affirm the court's conclusions unless they are incorrect as a matter of law. Fed.R.Civ.P. 52(a); Heisig v. United States, 719 F.2d 1153, 1158 (Fed.Cir.1983).

B.

ECCH cites two statutes as the basis for its claim that the Government is mandated by law to pay these medical expenses. The Claims Court held neither to be applicable. Title 8, United States Code, section 1252(c) (1982), cited by ECCH, authorizes the Attorney General to expend funds for, inter alia, the operation of facilities for the detention of aliens against whom a final order of deportation has already been made. The Claims Court correctly observed that the "plain language precludes its being read as a money-mandating provision." 16 Cl.Ct. at 504.

The other statutory section on which ECCH bases its argument is 42 U.S.C. Sec. 249 (1982). Section 249(a) provides that "any person detained by [the Immigration and Naturalization Service], may be treated and cared for by the Public Health Service." When treatment is supplied outside of a Public Health Service facility or by other than Public Health Service personnel, Sec. 249(c) provides:

Persons whose care and treatment is authorized by subsection (a) of this section may, in accordance with regulations, receive such care and treatment at the expense of the [Public Health] Service from public or private medical or hospital facilities other than those of the [Public Health] Service, when authorized by the officer in charge of the [Public Health Service] station at which the application is made.

As the Claims Court noted, the problem with this provision from ECCH's viewpoint is that it does not mandate compensation, but simply provides authorization for payment when properly requested and authorized by the designated government agent. Furthermore, the parties appear to have misread Sec. 249(c) by suggesting that the care and treatment of the aliens potentially authorized by that section is the responsibility of the Immigration and Naturalization Service rather than the Public Health Service. Section 201(a) states that "[t]he term 'Service' means the Public Health Service."

For the aliens in the present matter to fall within the ambit of Sec. 249 authority, ECCH would have needed to show that application for payment was "authorized by the officer in charge of the [Public Health Service] station" where that application was made. The record shows that discussions regarding payment involved Border Patrol Agent Hernandez and that claims for payment were submitted only to the INS, not to the Public Health Service.

The Claims Court found that "[n]o 'application' was made to a Public Health Service station nor approved by the 'officer in charge of the station.' " 16 Cl.Ct. at 504. We agree and therefore Sec. 249 does not provide authorization for reimbursement of the expenses incurred by ECCH in treating the aliens.

C.

ECCH considered that, in addition to the statutory theory for recovery discussed above, it had an independent cause of action in contract. With regard to ECCH's argument that the contract was implied-in-law--that is, a restitutionary theory--the Claims Court held that Congress had not relinquished the Government's sovereign immunity with respect to implied-in-law contract obligations. 16 Cl.Ct. at 505. Neither party has disputed that holding in this appeal.

The Claims Court, however, agreed with ECCH that there was an implied-in-fact contract,...