# City of El Centro v. The United States > Court of Appeals for the Federal Circuit · December 28, 1990 · 922 F.2d 816 URL: https://www.frixlaw.com/law-library/cases/9481182 ## Case - **Full name:** CITY OF EL CENTRO, Plaintiff-Appellee, v. the UNITED STATES, Defendant-Appellant - **Court:** Court of Appeals for the Federal Circuit - **Decided:** December 28, 1990 - **Citations:** 922 F.2d 816; 37 Cont. Cas. Fed. 76,044; 1990 U.S. App. LEXIS 22285; 1990 WL 212223 - **Precedential status:** Published - **Opinion:** Dissent by Rich - **Judges:** Rich, Plager, Duplantier - **Cited by:** 322 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481182 ## How later opinions describe it (automated extraction) - holding that in order to establish an implied-in-fact contract, a plaintiff must demonstrate: (1) “mutuality of intent to contract;” (2) “consideration;” (3) “lack of ambiguity in offer and acceptance;” and (4) “the Government representative whose conduct is relied upon must h… - finding no institutional ratification when there was “no express promise, by an official empowered to bind the Government to pay for the care rendered ... [and no] individual with contracting authority exercised that authority to bind the United States in this matter” - finding that the issue of authority does not concern “whether some authority exists that prohibits [the government agent] from obligating the Government in contract ... [but] whether [the agent] had been granted the authority to affirmatively obligate the Government” - stating that an implied-in-fact contract requires mutuality of intent, consideration, and lack of ambiguity in offer and acceptance, as well as authority of the Government agent if the contract is made with the United States - holding that the party asserting the existence of a contract with the United States bears the burden of establishing that the person upon whose alleged promises the party relied had the requisite actual contracting authority ## Opinion text RICH, Circuit Judge, dissenting. The question posed by this suit, which went to trial before Claims Court Judge Turner, sitting in San Diego near where the events occurred, is whether the costs of hospital treatment of 14 indigent, illegal aliens shall be borne by the local municipal hospital (ECCH), unfortunately located near the U.S. Mexican border, or by the U.S. Immigration and Naturalization Service (INS) which was effectively in charge of those injured aliens (whatever legal label is stuck on their status) during and after their hospitalization. It is undisputed that as they left the hospital they went directly and involuntarily into INS "custody.” Judge Turner, after a post-trial oral opinion from the bench pointing out the many problems in reaching a decision on the sole question of who pays, wrote an extensive opinion and then a second opinion answering the government’s arguments in support of its motion for reconsideration. He decided on the basis of extensive reasoning that INS should pay and adhered to that decision on reconsideration, adding supporting authority to his original opinion. I agree with his decision and to the reasoning in support of it. As would be expected, government counsel raise every conceivable reason and legal argument against payment by the INS, which is their duty to their client and the public fisc, but I am not impressed. The reasoning of the majority does not convince me either. It states the factual background in skeletonized form but the flesh is to be found in Judge Turner’s opinions and in the evidence. There are essentially no disputed facts. The government’s Reply Brief states on page 2 that “we have taken care to limit our challenges to the legal determinations that the Claims Court made based upon its factual findings.” These determinations, it says on the next page, “this court is free to review de novo.” It then recites the three legal conclusions it chooses to attack, which are, briefly: (1) de facto custody of the aliens by INS; (2) the existence of an implied-in-fact contract that INS would pay; and (3) that, assuming applicability of the Contract Disputes Act (CDA), its provisions were complied with. My opinion is that on all three, Judge Turner’s holdings are supported by the evidence and legally correct. Most of the essential facts and many of the legal points are covered by the stipulations of the parties. Paragraph 2 of the stipulation reads: 2. Defendant, United States of America, through the Immigration and Naturalization Service (“INS”) is responsible for the care of individuals taken into custody or detained by the United States Border Patrol as suspected aliens. *825 The majority would escape Judge Turner’s conclusion on custody or de facto detention, as I read its opinion, by reliance on the Supreme Court decision in Brower v. County of Inyo, 489 U.S. 593 , 109 S.Ct. 1378 , 103 L.Ed.2d 628 (1989). Apparently it turns to Brower and its ilk because it can find no case on a fact situation like that here. While I can agree that Brower has a bearing on whether the aliens were taken into custody or detained as of the moment the van crashed or solely as a result thereof, and that the crash did not create custody according to Brower dictum, that is unimportant. It was the subsequent INS conduct through the actions of numerous INS personnel that shows the custody or de facto detention through a continuing pattern of behavior. INS’s behavior speaks more loudly than its counsel’s words. Agent Hernandez was sent to the hospital before the ambulances with the aliens arrived, in effect saying “Be on notice these people are illegal aliens whom we, INS, are pursuing.” Later, INS sent its photographers who took their pictures, signing some hospital forms in connection therewith on behalf of the aliens. INS sent its doctor to check on the aliens’ condition, health, and the treatments the hospital was providing them. One alien who was well enough to walk out and did so surreptitiously was said to have “escaped.” One escapes custody, not a hospital. All this and more the majority describes with the single word “insufficient” with no support for that legal conclusion other than a citation to Brower . I find Brower about as far afield from the factual situation of this case as one could get. That case involved a wrongful death action brought by the administrator and heirs of the deceased, one William Caldwell, on the legal theory that the Fourth Amendment prohibition of unreasonable seizures had been violated by a roadblock set up by the Inyo County police, against which Caldwell crashed to his death. The question was whether the complaint stated a claim. The district court held it did not and the Ninth Circuit affirmed by a divided court. The Supreme Court majority, after much discussion of other cases, hypothetical situations, the Fourth Amendment, and what is or is not seizure, reached the following decision: The complaint here sufficiently alleges that respondents, under color of law, sought to stop Brower [i.e., Caldwell] by means of a roadblock and succeeded in doing so. That is enough to constitute a “seizure” within the meaning of the Fourth Amendment. I don’t know how this helps either the government or the majority, considering what they make of other statements in Brower about what is not seizure, which are, of course, dicta. The Court continued: Accordingly, we reverse the judgment of the Court of Appeals and remand for consideration of whether the District Court properly dismissed the Fourth Amendment claim on the basis that the alleged roadblock did not effect a seizure that was “unreasonable.” Four justices joined the judgment but declined to join the majority opinion because, inter alia, there was too much dicta in it seemingly “designed to decide a number of cases not before the Court and to establish the proposition that ‘[violation of the Fourth Amendment requires an intentional acquisition of physical control’.” The present case does not involve seizure, unreasonableness, wrongful death, or the Fourth Amendment and the question is not the sufficiency of a complaint to state a case. It involves who shall pay hospital bills. Brower is no support for the government or the majority. Respecting the majority’s point “C”, I of course agree there was no express contract, a point neither side argues, discussion of which is therefore superfluous. The majority accepts the INS argument that nobody involved in this case from INS had any authority to contract or at least that the hospital should name someone specifically. This is a convenient screen for the government to hide behind. As a legal proposition, I find ECCH’s “institutional ratification” approach, as developed in Judge Turner’s second written opinion on reconsideration, 17 Cl.Ct. at 797-798, more persuasive, including the Court of Claims *826 decision in Silverman v. United States, 230 Ct.Cl. 701 , 679 F.2d 865 (1982). That case is, of course, a binding precedent in this court. I also agree with Judge Turner’s conclusions about CDA compliance and its applicability. Of course I agree with the majority that the hospital’s case is “appealing,” which I take to mean that the Claims Court’s judgment appeals to one’s sense of justice. I depart from the majority in my inability to see any clear legal necessity for reversing the Claims Court’s judgment. The stated reasons seem to me an heroic effort by the majority to support the government’s refusal to pay. An equally plausible rationale can be presented in favor of supporting the decision of the Claims Court. The opinions of Judge Turner constitute such a rationale and cite authority in support of his conclusions, not only in Silverman , just mentioned, but also Philadelphia Suburban Corp. v. United States, 217 Ct.Cl. 705 (1978), and many other sources of “law.” As the majority opinion says, “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. ...” It goes even further in saying that “[a]s a matter of equity, there is good argument that these costs should be assessed against all the taxpayers of the United States.” It then concludes, in effect, that the government, and we, are helpless because the legislators failed to foresee an emergency situation such as this and make a statutory provision for it with the result that there is no “law” under which we can affirm the Claims Court. Other courts have not been so helpless. I cannot agree that this case “is not one in which emergency action [had to] be taken by government agents to protect life.... ” Clearly it was, and it should be treated accordingly. Of course, the government (INS at least) was benefitted by the hospital’s care of its detainees. I would hazard the guess that the government has expended, in fighting this claim, many times the amount of assets that it would have taken to pay this claim. So much for the federal expenditures which so concern the majority. I would affirm the judgment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481182. Public record. Not legal advice.