Poindexter v. U.S., 85-4080

• Citation: 777 F.2d 231
• Decision Date: 26 November 1985
• Docket Number: No. 85-4080,85-4080
• Parties: Robert L. POINDEXTER and Earnestine Poindexter, Plaintiffs-Appellants, v. UNITED STATES of America and John O. Marsh, Jr., Secretary of the United States Department of the Army, Defendants-Appellees. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 231

777 F.2d 231

Robert L. POINDEXTER and Earnestine Poindexter, Plaintiffs-Appellants, v. UNITED STATES of America and John O. Marsh, Jr., Secretary of the United States Department of the Army Defendants-Appellees.

No. 85-4080

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 26, 1985.

Carroll Rhodes, Hazlehurst, Miss., for plaintiffs-appellants.

George Phillips, U.S. Atty., L.A. Smith, III, Asst. U.S. Atty., Jackson, Miss., Michael Kimmel, Atty., U.S. Dept. of Justice, Civil Div., Constance Wynn, Robert S. Greenspan, Attys., Appellate Staff, Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge.

Appellants Robert and Earnestine Poindexter appeal the dismissal of their Military Claims Act suit by the district court for lack of subject matter jurisdiction. We affirm.

Facts and Proceedings Below

As alleged in the complaint, on March 19, 1980, Sharon Lynn Poindexter Walker, an Army enlisted woman, and her three-year-old son Daimon Jamol Poindexter, were found dead in their apartment at the United States Army Base in Frankfurt, West Germany; Jerome Walker, her husband, an Army enlisted man who lived in the apartment with Sharon and Daimon, was subsequently convicted of their murders in a military court martial. Thereafter, appellants, the parents of Sharon Walker and the grandparents of Daimon Poindexter, filed an administrative claim for damages with the United States Army Claims Service for the wrongful death of their daughter and grandson, respectively, under the Military Claims Act, 10 U.S.C. Sec. 2733, the Foreign Claims Act, 10 U.S.C. Sec. 2734 and 2734a, and the Federal Torts Claims Act, 28 U.S.C. Secs. 2671-2680. The Army Claims Service denied appellants' claims and they pursued an administrative appeal under the Military Claims Act and the Foreign Claims Act to the Secretary of the Army, who also rejected their claims. Appellants were then notified that this denial was final pursuant to 10 U.S.C. Sec. 2735, which states: "Notwithstanding any other provision of law, the settlement of a claim under Section 2733, 2734, [or] 2734(a) ... of this title is final and conclusive."

The appellants sought judicial review of the administrative disposition of their claims and for this purpose filed the instant complaint, against the United States and the Secretary of the Army in his official capacity only, in the United States District Court for the Southern District of Mississippi seeking declaratory relief, monetary damages, and attorneys' fees.

Appellants alleged that the cause of death of Sharon and Daimon was "asphyxiation by strangulation and/or suffocation" and that

"[d]uring the weekend of March 15 and 16, 1980, Jerome Walker was very upset at his wife and made several threats to co-workers and supervisors working in his military unit. On or about March 17, 1980, Jerome Walker was upset, and his immediate supervisor gave him the remaining afternoon off. Jerome Walker failed to report for work on Tuesday, March 18, 1980 and was absent without leave (AWOL). No supervisor or U.S. Army official filed a formal complaint or charge charging Jerome Walker with being AWOL, nor did any of Jerome Walker's supervisors or U.S. Army official make a personal visit to his and his wife's (base housing) apartment to inquire as to Jerome's condition or Sharon Lynn Poindexter's condition."

Appellants asserted jurisdiction under Article Three of the Constitution, the Federal Tort Claims Act, the Declaratory Judgment Act, the Military Claims Act, the Foreign Claims Act, and the due process clause of the Fifth Amendment. The complaint alleges that appellants were informed in writing by the Army Claims Service that " 'traditional principles of negligence law' would apply in their case, and to recover under the Military Claims Act, plaintiffs would have to prove negligence on the part of the United States Army," and that their claim under the Military Claims Act was denied on the basis that such negligence was not found. Appellants specifically asserted below that "the Military Claims Act does not require a claimant to prove that a member of the Army, Navy, Air Force, Marine Corps, or Coast Guard or civilian officer or employee of that department negligently caused personal injury or death of the claimant or the claimant's decedent," and that "regulations promulgated by the United States Department of the Air Force, Department of Navy and Coast Guard do not require that a claimant prove negligence in order to recover under the Foreign Claims Act or the Military Claims Act." Consequently, the appellants asserted to the district court that the regulations promulgated by the Department of the Army under the Military Claims Act required negligence, and that that requirement was arbitrary and capricious, overbroad, and placed a greater degree of proof on the claimant than the statute required. The appellants also asserted that this requirement violated the due process clause of the Fifth Amendment.

The government moved to dismiss appellants' complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, which the district court granted. The court below held that since no cognizable constitutional claim was pleaded, the finality statute controlled and thus no jurisdiction existed. No question is raised on appeal with respect to the Foreign Claims Act or the Federal Tort Claims Act. The only issue the appellants raise on appeal is whether the Rule 12(b)(1) dismissal of their complaint, in so far as it predicated recovery on the Military Claims Act, was correct.

Discussion

Judicial Preclusion Under the Military Claims Act

Decisions on administrative claims brought under the Military Claims Act are not ordinarily reviewable. Under 10 U.S.C. Sec. 2735, the "settlement" of a claim by the Secretary of the Army under the Military Claims Act is "final and conclusive." "Settlement," as used in the Military Claims Act, does not mean that there is or will be an actual disbursement of funds as that term generally connotes, but is instead defined by the Act as a process that will "consider, ascertain, adjust, determine, and dispose of a claim, whether by full or partial allowance or by disallowance." 10 U.S.C. Sec. 2731 (emphasis added). Thus whether a claimant receives money in the settlement of a claim--here the appellants did not--is irrelevant to whether judicial review is available. Taken at face value, the combined effect of sections 2731 and 2735 precludes all judicial review of the encompassed administrative rulings, and the courts have indeed held that the broad effect of these sections is to bar judicial review of these Military Claims Act agency determinations. See Broadnax v. U.S. Army, 710 F.2d 865, 867 (D.C.Cir.1983); Labash v. U.S. Department of the Army, 668 F.2d 1153, 1155-56 (10th Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2299, 73 L.Ed.2d 1303 (1982); Towry v. United States, 459 F.Supp. 101, 107 (E.D.La.1978), adopted and affirmed 620 F.2d 568 (5th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981); but see Welch v. United States, 446 F.Supp. 75, 78 (D.Conn.1978) (suggesting broad judicial review for Military Claims Act adjudications).

Despite this broad affirmance of the principle of judicial preclusion in Military Claims Act determinations, our colleagues in other circuits have intimated, in dicta, that review of these administrative adjudications might be available in some circumstances. See Labash, supra, at 1157; Broadnax, supra, at 867. In Labash, the Tenth Circuit suggested that federal courts may have jurisdiction to review the administrative settlement of a Military Claims Act claim if there is "a sufficiently pleaded allegation that a cognizable constitutional right has been violated." 668 F.2d at 1157. Similarly, in Broadnax, the District of Columbia Circuit noted that "[section] 2735 may well permit some limited review, for example, 'where there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error "going to the heart of the administrative determination." ' " 710 F.2d at 867 (quoting Scroggins v. United States, 397 F.2d 295, 295, 184 Ct.Cl. 530, cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968) (citation omitted) (construing the finality clause governing review of Merit Systems Protection Board determinations)).

This Court has adopted an arguably somewhat more restrictive view. See Towry, supra, at 107-08. The district court's opinion in Towry, which we adopted and affirmed, held that the due process clause of the Fifth Amendment does not authorize court review of a Military Claims Act settlement simply because the outcome "is alleged to be arbitrary, capricious, an abuse of discretion, and not based on substantial evidence." 459 F.Supp. at 108. The Towry opinion makes it clear that mere allegations of unconstitutional arbitrariness by a claimant as a means of attacking an administrative ruling are not sufficient. ¹

We find the legal concepts and facts involved in Towry and those at issue here to be analogous. In both cases, judicial review is sought on broad constitutional grounds. The appellants in Towry claimed in the district court that the administrative adjudication was arbitrary, capricious, an abuse of discretion, and not based on the evidence; here the claims below were conclusory assertions, inter alia, that the denial of appellants' claims was a violation of substantive due process and that the requirement of negligence on the part of the Army for their type of claim was arbitrary, capricious, overbroad, and unconstitutional. The petitioners' claims do not raise colorable constitutional concerns. Even if the possibly broader Broadnax and Labash constitutional...