Vogelaar v. US

Decision Date25 June 1987
Docket NumberNo. 86-CV-10315-BC.,86-CV-10315-BC.
PartiesDorothy M. VOGELAAR, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Western District of Michigan


Shirley J. Burgoyne, Ann Arbor, Mich., for plaintiff.

James A. Brunson, Asst. U.S. Atty., Bay City, Mich., Major James W. Hatten, Office of the Judge Advocate General, Dept. of the Army, Washington, D.C., for defendant.


CHURCHILL, District Judge.

This is an action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-80, and the Military Claims Act (MCA), 10 U.S.C. § 2733-37, for money damages. Plaintiff, Dorothy Vogelaar, is the mother of and next of kin to Alan Barton, deceased. Defendant, United States of America, moves to dismiss under Fed.R. Civ.P. 12(b)(1) and 12(b)(6), and for summary judgment pursuant to Fed.R.Civ.P. 56, asserting that sovereign immunity, the political question doctrine, and the foreign country, combatant activities, and misrepresentation exclusions of the FTCA bar plaintiff's claim.

Barton died in Vietnam on July 28, 1970, while serving in the United States Army. At the time of his death, Barton was listed as a deserter from his unit at Camp Radcliff, Republic of Vietnam. Alan Barton failed to appear for his unit's formation on July 19, 1970. He was reported as absent without leave, and subsequently designated as a deserter. Barton's unit departed its location at Camp Radcliff without him on October 20, 1970. On March 28, 1972, as a result of observations by the Vietnamese National Police, a squad of American soldiers was led to the site of a previously undiscovered skeleton at Camp Radcliff, later determined to be that of private Barton. Only a few of the major bones of Barton's skeleton were taken for identification. His unidentified remains were transferred to the U.S. Army mortuary in Saigon until March 23, 1973, when they were sent to Thailand and finally to Hawaii in May of 1976. On January 21, 1983, the skeletal remains of case number TSN 0138 X-15 were determined to be those of private Barton by the Central Identification Laboratory, Hawaii. The Army thereafter retracted its classification of Alan Barton as a deserter, and his recovered remains were buried with full military honors at St. Charles, Michigan on February 12, 1986.

Plaintiff alleges that following her son's death, defendant's employees, acting within the scope of their employment, failed to properly investigate the circumstances of his disappearance and improperly identified him as a deserter. She further alleges that after the remains of her son were recovered, defendant's employees failed to properly care for them and failed to timely identify and deliver them to plaintiff. The above acts and omissions are characterized as negligence and breach of contract.

The United States is generally immune from suit, except for situations in which it consents to be sued by expressly waiving its sovereign immunity. Carelli v. Internal Revenue Service, 668 F.2d 902, 904 (6th Cir.1982). There must be an independent basis for a waiver of the government's sovereign immunity other than jurisdictional statutes such as 28 U.S.C. § 1346. Id. Plaintiff relies on the Federal Tort Claims Act and the Military Claims Act, as well as 28 U.S.C. § 1346(b) to meet her jurisdictional burden. While the FTCA provides an expansive waiver of the sovereign's immunity, the Act does not represent a total waiver. Garbarino v. United States, 666 F.2d 1061, 1064 (6th Cir.1981).

The language of the statute itself is the initial guidepost in determining the scope of the waiver. "Waivers of immunity must be construed strictly in favor of the sovereign and not enlarged beyond what the language requires." Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983) (citations and quotations omitted). Although plaintiff attempts to assert claims for breach of contractual duties, the plain language of the FTCA provides a waiver of the sovereign's immunity only for actions sounding in tort. 28 U.S.C. § 2674 provides as follows:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances....

(emphasis added). Additionally, the legislative history reflects the congressional intention that the FTCA apply to "ordinary common-law torts." Dalehite v. United States, 346 U.S. 15, 28, 73 S.Ct. 956, 964, 97 L.Ed. 1427 (1953); Garbarino, 666 F.2d at 1064. Therefore, to the extent that plaintiff asserts a cause of action under the FTCA for breach of contract, or to the extent that plaintiff's claim falls within one of the express exclusions of the FTCA, this Court lacks subject matter jurisdiction to hear the claim. See Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985).

I. The Military Claims Act Claim

Plaintiff filed an administrative claim under the Federal Tort Claims Act with the Army in the first instance. Because the Army initially took the position that any acts or omissions occurred in Vietnam, plaintiff then filed an administrative claim under the Military Claims Act, 10 U.S.C. §§ 2733-37, with the Navy, which is the branch of the military designated by the Department of Defense to entertain all such claims arising out of Vietnam. The Navy denied her claim. Plaintiff seeks judicial review of her Military Claims Act claim.

The Military Claims Act is a congressionally mandated system of compensation applicable to acts or omissions occurring overseas. The MCA expressly excludes judicial review of claims adjudicated under its provisions. 10 U.S.C. § 2735. Plaintiff contends that this prohibition violates the due process clause of the fifth amendment as applied to this case, because the determination of this Court where the acts or omissions occurred might result in a "catch-22" if contrary to the administrative finding: the administrative tribunal could find that the acts occurred in the United States precluding recovery under the Military Claims Act, whereas this Court might find that the acts occurred in a foreign country precluding recovery under the Federal Tort Claims Act.1 From the plaintiff's point of view, the alleged negligent acts or omissions must have occurred somewhere.

The Sixth Circuit has not addressed whether 10 U.S.C. § 2735 violates due process. However, the Third, Fifth, and Tenth Circuit Courts of Appeals have held that it does not. Heller v. United States, 776 F.2d 92, 98, (3rd Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1948, 90 L.Ed.2d 358 (1986); Towry v. United States, 459 F.Supp. 101, 108 (E.D.La.1978), aff'd, 620 F.2d 568 (5th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981); Labash v. United States, 668 F.2d 1153, 1156 (10th Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2299, 73 L.Ed.2d 1303 (1982). An analysis of a procedural due process challenge requires a balancing between the private interest affected and the governmental interest involved. Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976). "It is well-recognized that the administrative claims procedure is an appropriate balance between individual rights and Congress' desire to avoid the disruptive effect that judicial review may have on `the prompt and authoritative settlement of claims' against the military." Heller, 776 F.2d at 98. Although the above analysis is sound, it is, respectfully, misplaced.

The issue of whether Congress can create a remedy that is solely administrative, unenforceable and unreviewable through the courts, is one of sovereign immunity not due process. See Spagnola v. Mathis, 809 F.2d 16, 28 (D.C.Cir.1986); Bartlett ex rel. Neuman v. Bowen, 816 F.2d 695, 712 (D.C.Cir.1987) (Bork, J., dissenting). That the government may not be sued without its consent is "all embracing." Lynch v. United States, 292 U.S. 571, 581, 54 S.Ct. 840, 844, 78 L.Ed. 1434 (1934). "When the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through the courts. It may limit the individual to administrative remedies." Id. at 582, 54 S.Ct. at 844 (citations omitted). The role of the courts is limited to the elucidation of congressional intent, when asked to review claims, as here, that do not arise under the Constitution. Spagnola, 809 F.2d at 28.

10 U.S.C. § 2735 provides: "Notwithstanding any other provision of law, the settlement of a claim under section 2733, 2734, 2734a, 2734b, or 2737 of this title is final and conclusive." Settlement includes the "disallowance" of a claim. 10 U.S.C. § 2731. The legislative history evinces a policy of prohibiting the review by other governmental entities of the administrative "settlement" of claims under the Military Claims Act. S.Rep. No. 1056, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin. News 3106, 3109. Additionally, the courts are virtually uniform in holding that § 2735 precludes judicial review of administrative determinations under the MCA, although the law is less clear in those rare instances where the denial of benefits itself is challenged on constitutional grounds. See, e.g., Poindexter v. United States, 777 F.2d 231, 233-34 (5th Cir. 1985) (no judicial review even where such review is sought on "broad constitutional grounds" as arbitrary, capricious, overbroad, and violative of substantive due process) (citing Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977)); see also 5 K. Davis, Administrative Law Treatise § 28:3, at 264 (2d ed. 1984). ("whether a statute that bars judicial review of a substantial constitutional issue would be constitutional has no clear answer in present law") the Supreme Court has never indicated that sovereign immunity may not be invoked even with respect to...

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