Rhodes v. U.S.

• Decision Date: 20 May 1985
• Docket Number: No. 84-8123,84-8123
• Parties: Jeanette P. RHODES and Oscar Earl Rhodes, Plaintiffs-Appellees, v. The UNITED STATES of America, and Clifford Alexander, Secretary of the Army, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1180

760 F.2d 1180

Jeanette P. RHODES and Oscar Earl Rhodes, Plaintiffs-Appellees, v. The UNITED STATES of America, and Clifford Alexander, Secretary of the Army, Defendants-Appellants.

No. 84-8123.

United States Court of Appeals, Eleventh Circuit.

May 20, 1985.

Edmund A. Booth, Jr., Asst. U.S. Atty., Augusta, Ga., William Kanter, Peter R. Maier, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendants-appellants.

Percy J. Blount, Augusta, Ga., for plaintiffs-appellees.

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

Before HENDERSON and HATCHETT, Circuit Judges, and NICHOLS ^*, Senior Circuit Judge.

NICHOLS, Senior Circuit Judge:

The threshold and dispositive issue in this case is whether a United States district court has subject matter jurisdiction to review a decision by the Secretary of the Army denying a claim under 32 U.S.C. Sec. 715, disapprove the same, and remand the case to the Secretary for reconsideration, despite the statutory preclusion of review of such a decision in Sec. 715(g) and (h). We hold that the court lacked jurisdiction and reverse.

Facts

This case has had a prolonged and unhappy career. Major John Shealy, an officer of the Georgia National Guard on temporary training duty, on June 12, 1973 was involved in a collision on a Georgia highway in which he lost his life and the Rhodes, in the other car, were severely injured. The car Shealy was driving was United States Government property and he had been permitted to use it to register for a course at a Georgia college in furtherance of his civilian career. His immediate destination was, however, a military post. Because Shealy as a Guard officer was not a federal employee, the Rhodes had no claim against the government cognizable under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 and ff, as it then was. Accordingly they filed a claim under 32 U.S.C. Sec. 715, which provides, among other things, for settlement of claims up to $25,000 for injury inflicted by members of the Army National Guard while engaged in training duty and within the scope of their employment. The Chief of the Army Claims Service rejected the claim holding that Shealy was not acting within the scope of his employment.

Section 715 ends with the following preclusory provisions:

(g) Notwithstanding any other provision of law, the settlement of a claim under this section is final and conclusive.

(h) In this section, "settle" means consider, ascertain, adjust, determine, and dispose of a claim, whether by full or partial allowance or disallowance.

Disregarding this, claimants filed a suit in the Southern District of Georgia for a declaratory judgment, and obtained one. The government appealed and argued statutory preclusion based on Sec. 715(g) and (h) as well as failure to exhaust administrative remedies. The reversal and remand, Rhodes v. United States, 574 F.2d 1179 (5th Cir.1978), passes over the preclusion defense and relies entirely on failure to exhaust, though intimating rather broadly that the Army position was unwarranted. At any rate, claimants did exhaust, to no avail, as the Army refused to modify its ruling. The new and present complaint makes the necessary allegations of exhaustion. A district court order of April 4, 1980, denied cross-motions for summary judgment, but opines in favor of the Rhodes claimants. The preclusion question is answered by recourse to the "basic presumption of judicial review to one 'suffering legal wrong because of agency action * * *.' " Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) (quoting 5 U.S.C. Sec. 702). The preclusion language is passed over by the contention that finality in administrative procedure was all that Congress intended, and this is substantiated in the court's eyes by reference to legislative history. "Clear and convincing evidence of Congressional intent" is not found, the search for it by the court having been perhaps not overly eager. The defense of sovereign immunity is likewise thrust aside. Reasons are then found why Major Shealy was acting within the scope of his employment. Summary judgment was not awarded the plaintiffs only because some of the facts relied on by them appeared only in unsworn statements. While one might have thought plaintiffs were pretty close to victory at that point, actually it eluded them for almost four more years. The court (a different judge) entered an order December 15, 1983, setting aside the Secretary's adverse decision and remanding for reconsideration. Judgment was entered accordingly, from which the government again appeals.

Discussion

This case has taken so long and presented such difficulty, probably because it involves a small eddy of law that flows upstream contrary to the thrust of a mighty torrent. While Congress, the public, and the courts themselves vie in imposing new tasks of judicial review upon an already overloaded federal judiciary, so that one sometimes wonders if there is any decision judges will not eventually be required to make, there are a small number of instances when Congress has expressly or impliedly legislated on the view that decision-making by lawyers and judges, with judicialized procedures, are not for the benefit of the parties directly concerned. See, e.g., Woodrum v. Southern Railway Co., 750 F.2d 876 (11th Cir.1985). These instances seem anomalous to many minds, and much cerebral effort is devoted to finding ways to avoid them by persons not comfortable with them, as it is supposed there is no error or mistake the executive or legislative branches can make that the courts should not correct, or that a legal right is not really a legal right unless there is a court to enforce it.

The district court here observed the existence of preclusion language, but supposed it was directed at other agencies than itself, the General Accounting Office (GAO), perhaps. The presumption for judicial review of administrative action of Abbott Laboratories, 387 U.S. at 140, 87 S.Ct. at 1511, was made to do duty as it so often has, with the requirement for "clear and convincing evidence" of a contrary intent.

The court did not, when it spoke, have the benefit of Block v. Community Nutrition Institute, --- U.S. ----, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). Had it been otherwise, we believe the result would have been different. Our highest Court has, without dissent, restated and clarified the techniques by which one goes about determining the existence of congressional intent to override the Abbott Laboratories v. Gardner presumption. Like all presumptions, it "may be overcome by specific language or specific legislative history that is a reliable indicator of congressional intent." Id. at ----, 104 S.Ct. at 2456. It may also "be overcome by inferences of intent drawn from the statutory scheme as a whole." Id. The "clear and convincing evidence" standard is explained not to mean "unambiguous proof, in the traditional evidentiary sense," but rather whether the intent is " 'fairly discernable in the statutory scheme.' " Id. at ----, 104 S.Ct. at 2457 (quoting Data Processing Service v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 832, 25 L.Ed.2d 184 (1970)). The so-called test is "but a useful reminder to courts that, where substantial doubt about the congressional intent exists, the general presumption favoring judicial review of administrative action is controlling." Block, --- U.S. at ----, 104 S.Ct. at 2457.

The district court also relied on the Administrative Procedures Act (APA) which, in 5 U.S.C. Secs. 701, 702, consents to suits against the government brought under many laws, if one is seeking equitable or mandamus relief only and not money from the Treasury. It also excludes cases where liability is precluded expressly or by implication, so it says nothing to bypass express or implied preclusion in other law, and confers no jurisdiction to do so. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

The Supreme Court has been willing to find implied preclusion in the general structure of the statutory scheme without the presence of any express preclusion. This is true of Block v. Community Nutrition Institute, supra. Such an implied preclusion is found much less willingly if it is invoked to preclude access to a court to enforce a nonfrivolous constitutional right. See Califano v. Sanders, supra. See also United States v. Erika, 456 U.S. 201, 102 S.Ct. 1650, 72 L.Ed.2d 12 (1982). That is not a problem here.

Here express language is present, and to that extent the case for preclusion is stronger. We may note, however, that even apart from this factor, the express preclusion, as the district court supposed, of review other than judicial review only, would be anomalous. Thereby the courts would be denied the benefit they would otherwise derive from a screening of claims by officials having expertise. They would be obliged to plunge into the cases cold, as it were. A statutory scheme that precludes not all review, but only review other than judicial review, is certainly no favor to the courts, and no reason is apparent why they should presume in favor of congressional intent to establish such a scheme.

That more was intended to be precluded than review by the GAO is plain in the legislative history. H.R.Rep. No. 1928, 86th Cong., 2d Sess. 1, reprinted in 1960 U.S. Code Cong. & Ad.News 3492, sets the matter forth with perfect clarity. The Committee on the Judiciary had before it a bill, H.R. No. 5435, to extend Federal Tort Claims Act coverage to members of the National Guard while engaged in training duty. The latter Act, 28 U.S.C. Sec. 2671 and ff, and 28 U.S.C. Sec. 1346(b), consented to suits against the government for torts of federal employees, but did not include torts by members of the National Guard on training duties until the amendment effected by Pub.L. No. 97-124, too late to avail the plaintiffs here, as...