Lunney v. U.S.

Decision Date13 February 2003
Docket NumberDocket No. 02-6044.
Citation319 F.3d 550
PartiesJ. Robert LUNNEY, Administrator of the Estate of Peter Tomich, a/k/a Peter Tonich, a/k/a Peter Herceg Tonic, a/k/a Petar Herceg Tonic, Plaintiff-Appellant, v. UNITED STATES of America, Richard J. Danzig, Secretary of the Navy and Department of the Navy, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Phillip C. Landrigan, Lunney & Murtagh, LLC, White Plains, New York, for Plaintiff-Appellant.

Robert W. Sadowski, Assistant United States Attorney, New York, New York (James B. Comey, United States Attorney for the Southern District of New York, Jeffery S. Oestericher, Assistant United States Attorney, on the brief), for Defendants-Appellees.

Before: JACOBS and SACK, Circuit Judges, and TRAGER, District Judge.*

JACOBS, Circuit Judge.

The Navy Medal of Honor was awarded posthumously in 1942 to Peter Tomich for extraordinary heroism exhibited on December 7, 1941 (the "Medal"). It was presented in 1944 to a representative of the United States Navy itself, no next of kin having been found, and the Medal has been in the Navy's custody ever since. Plaintiff J. Robert Lunney, as recently-appointed Administrator of the Tomich Estate, sued the United States, the Secretary of the Navy, and the Department of the Navy to compel presentation of the Medal, or its delivery or custody, to a person recently identified by Lunney's researches as Tomich's next of kin. Lunney appeals from a judgment of the United States District Court for the Southern District of New York (McKenna, J.) dismissing his complaint for lack of subject matter jurisdiction. Lunney alleges jurisdiction by virtue of 28 U.S.C. § 1331, and the federal government's waiver of sovereign immunity under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq.

The district court ruled that ultimate authority for "matters pertaining to the Medal of Honor rests with the President of the United States," who is not an "agency" within the meaning of the APA and whose actions may therefore not be challenged under it. Lunney v. United States, 2001 WL 1636965 at *3, 01 Civ. 0897(LMM), 2001 U.S. Dist. LEXIS 21178, at *6 (S.D.N.Y. Dec. 20, 2001). On appeal, Lunney argues that the district court erred because his APA claim challenged actions of the Navy, not any action of the President. For the reasons that follow, we affirm the dismissal for lack of subject matter jurisdiction. Plaintiff has failed to establish that the federal government waived its sovereign immunity under the APA as to his claim.


Peter Tomich was born in 1893 near the Dalmatian coast in the village of Prolog, which was then in Austria-Hungary. He immigrated to the United States in 1912, enlisted in the Army in 1917, and became a citizen in 1918. He was discharged from the Army in January 1919, promptly enlisted in the Navy, and held the rank of Chief Water Tender aboard the U.S.S. Utah on December 7, 1941. He sacrificed his life at Pearl Harbor to save many shipmates.

On March 4, 1942, Franklin D. Roosevelt awarded Tomich the Medal of Honor, with the following citation:

For distinguished conduct in [the] line of his profession and extraordinary courage and disregard of his own safety during the attack on the Fleet in Pearl Harbor, Territory of Hawaii, by the Japanese forces on December 7, 1941. Although realizing that the ship was capsizing, as a result of enemy bombing and torpedoing, he remained at his post in the engineering plant of the U.S.S. UTAH, until he saw that all boilers were secured and all fireroom personnel had left their stations, and by so doing he lost his own life.

The Medal was awarded pursuant to the former 34 U.S.C. § 363 (1919), recodified as amended as 10 U.S.C. § 6250, which allowed the President to award a posthumous Medal of Honor if "presented" to a "representative" of the hero, as designated by the President, within five years of the act or service justifying the award. Id.

Following the award of the Medal, the Navy tried unsuccessfully to find next of kin. The only family history available was in "Beneficiary Slips" filled out years earlier for the Navy, in which Tomich said he was "[n]ot married" and listed a "[c]ousin" John Tonich at an address in Los Angeles. In March 1942, the Secretary of the Navy wrote to the cousin in Los Angeles, "deem[ing] it an honor to transmit" the Medal, which was forwarded under separate cover. The Medal was returned with the postal notation "[n]o such address."

The Medal was formally presented on January 4, 1944 to the commander of the Destroyer Escort U.S.S. Tomich. Plaintiff and the government agree that this ceremony amounted to a "presentation" of the Medal within the meaning of 10 U.S.C. § 6250. Internal Navy records concerning the presentation state that the Medal was "to be displayed on board [the U.S.S. Tomich], in the status of a loan, to be recalled should a next of kin make a claim for same."

When the U.S.S. Tomich was decommissioned near the end of World War II, the Medal was returned to the Secretary of the Navy. In 1947, the Navy "forwarded" the Medal to the Utah state capital building for display alongside a memorial to the U.S.S. Utah. The Navy advised the Governor, however, that it might require return of the Medal in the "improbable" event that a "relative" of Tomich made a claim for it.

For reasons not in the record, the State of Utah returned the Medal in 1963. Since then, it has been in the custody of the Navy. The Medal is currently on display in the Navy Museum in Washington.

In 1997, the Congressional Medal of Honor Society (the "Society") and the New York Naval Militia (the "Militia") asked Lunney, a retired Rear Admiral and member of the Militia, to assist in locating Tomich's next of kin. The Society informed Lunney that Tomich's Medal was the only one of its kind in the last century that "ha[d] gone unclaimed," and requested Lunney's assistance in finding someone "to receive the award."

Lunney studied Navy files concerning Tomich's career, and traveled to Prolog, a village of about 400 that had been in Austria-Hungary when Tomich was born there (later part of Yugoslavia, now in the Federation of Bosnia and Herzegovina), where Lunney searched the birth, marriage, baptism, and death records of the local Roman Catholic church.

Lunney satisfied himself that Tomich's cousin John returned to Prolog in the early 1920s, and had a son named Dragutin Herceg Tonic, who survives. According to Lunney, Dragutin Herceg Tonic has designated his son, Screcko Herceg Tonic, as next of kin for purposes of receiving the Medal awarded to Tomich. Although Navy records stated that Tomich was "[n]ot married," Lunney reports that Tomich was married in Prolog in 1911 (a year before he left for America), and that his wife died in 1963 without issue.

Lunney offered the Navy his investigative materials, and urged the Navy to present the Medal to Screcko Herceg Tonic. In March 1998, the Secretary of the Navy referred the matter to the Navy's Board of Decorations and Medals (the "Board"), which in turn referred the matter to the Office of the Judge Advocate General of the Navy ("JAG").

JAG determined that the Medal had already been presented, to a Navy officer (commander of the U.S.S. Tomich) whom President Roosevelt designated as Tomich's representative. JAG opined therefore that the Medal was "property of the Navy" appropriately in the Navy's possession, that the Navy could take any action with respect to the Medal not prohibited by statute or regulation, and that transfer of the Medal was "a matter of policy and, subject to applicable restrictions, within the discretion of the Secretary of the Navy." In addition, JAG questioned Lunney's identification of the next of kin, pointing to discrepancies in the genealogical records.

On April 27, 1998, the Secretary of the Navy sent an internal memorandum to the Board stating that "[u]pon review of all relevant information concerning the Medal..., [the] Navy shall retain custody of the original medal." The Secretary suggested that "[c]ustody of the award shall continue under Navy control until such time as definitive evidence is presented to verify a next-of-kin relationship." On December 31, 1998, the Secretary informed the Militia of the Navy's decision. Lunney's subsequent petition to President Clinton was unsuccessful.

In May 2000 Lunney was issued Letters of Administration of Tomich's Estate by the Surrogate's Court of Queens County, New York. As administrator, Lunney commenced this federal lawsuit.

The complaint recites that the suit was "brought to insure that the only Medal of Honor that has been awarded in the past century but never presented be so presented," and argues that the Medal should be presented to Screcko Herceg Tonic as next of kin "at an appropriate ceremony."2 Presentation, according to Lunney, "would be at no cost to the Government," since "[o]nce the Medal [wa]s properly presented the next of kin w[ould] accept a reproduction or duplicate and allow the Navy to retain the original for appropriate display at mutually agreeable museums and other prominent locations."

Defendants moved to dismiss for lack of standing, lack of subject matter jurisdiction, and failure to state a claim. They argued (inter alia) that all decisions as to presentation of the Medal of Honor were wholly within the discretion of the President. Lunney's response conceded that, according to the Navy's records, the Medal had already been presented. Without abandoning his request for a presentation of the Medal, Lunney argued, that the relief he sought might be characterized as "custody" or "deliver[y]" of the Medal.

The district court granted defendants' motion to dismiss the APA claim on the ground that Lunney's claim was one for presentation by President Clinton, and that President Clinton's denial of Lunney's request for that relief was the only...

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