Petition for Writ of Certiorari — City of El Centro v. United States, 111 S. Ct. 2851 (1991) (No. 90-1508)

Supreme Court brief1991

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No. MAR 27 1991

OFFICE OF THE CLERK }

In The

Suncom Court of the United States

October Term, 1990

CITY OF EL CENTRO,

Petitioner,

VS.

THE UNITED STATES,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of

Appeals For The Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

J. Mark WaxMan

Counsel of Record

James R. KaAtyvas

WEISSBURG AND ARONSON, INC.

2049 Century Park East

Suite 3200

Los Angeles, California 90067

(213) 277-2223

Attorneys for Petitioner

City of El Centro

March 27, 1991

COCKLE Bd BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTIONS PRESENTED FOR REVIEW

1. Whether suspected illegal aliens were detained where

Border Patrol officers activated their red emergency lights

during a vehicular pursuit, pulled alongside the pursued

vehicle, a chase and crash ensued and, during the aliens’

entire hospital stay for treatment of injuries resulting

from the crash, the Immigration and Naturalization Ser-

vice (“INS”) continued on-site investigation, monitoring,

and control of the aliens?

2. Can the United States avoid the payment obligation

of an implied-in-fact contract created in an emergency

situation, where it has requested the services provided

and accepted their benefits, by claiming, after the fact, its

representative lacked actual authority to enter into the

contract?

LIST OF PARTIES

The parties before the Court of Appeals for the Fed-

eral Circuit were the City of El Centro and the United

States.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

ERG RANG e6 5b sceseerressosascacencas ii

er Vv

CSE Wh AG GRA RAs chasdaccassences 1

TREC he SiGe weep hobs sens ceeecsssenes 2

CONSTITUTIONAL PROVISIONS AND STATUTES

PEP ECGCCSSS G4 G0N65 560404 scceressseces 2

PRM SO BURA GATE ete eee 3

REASONS FOR GRANTING REVIEW .............. 10

I. THIS COURT SHOULD RESOLVE THE CLEAR

CONFLICT AMONG THE JUDICIAL CIRCUITS,

MANIFESTED BY THIS DECISION, AS TO

WHETHER A SEIZURE OR DETENTION OF

THE OCCUPANTS OF A VEHICLE HAS

OCCURRED WHERE, IN A VEHICULAR PUR-

SUIT, LAW ENFORCEMENT AUTHORITIES

ACTIVATE THEIR EMERGENCY LIGHTS SIG-

NALING THE VEHICLE TO STOP............. 10

SG c Gh aces cna Sasa vencescsccens 10

ae ESE e eT Tae Tee ee 12

C. The Split Among The Circuits............. 13

D. The Importance Of The Issue.............. 19

TABLE OF CONTENTS - Continued

Page

ll. THIS COURT SHOULD DECIDE WHETHER, IN

AN EMERGENCY SITUATION, THE GOVERN-

MENT CAN REQUEST SERVICES UNDER CIR-

CUMSTANCES CREATING AN IMPLIED-IN-FACT

CONTRACT TO PAY FOR THE SERVICES, KNOW-

INGLY ACCEPT THE BENEFITS OF THE SER-

VICES REQUESTED, AND SUBSEQUENTLY

REFUSE TO PAY ON THE GROUND THAT THE

GOVERNMENT REPRESENTATIVE AGREEING

TO PAYMENT LACKED ACTUAL AUTHORITY... 23

J RMT TE TTT TT TT OTT CTT ETL TCO TCTe 23

i ee I CNN. Sek ka decd bass ecauseues 24

C. The Importance of the Issue............... 26

ES hace veh sss aknncne ern rends nceekees 30

APPENDIX —

Opinion of the Court of Appeals.............. A-1-A-24

Opinion of the Claims Court on Defendant's

Motion For Reconsideration................ A-25-A-44

Opinion of the Claims Court................. A-45-A-68

TABLE OF AUTHORITIES

Page

Cases

Brower v. Cousty of Inyo, 489 U.S. 593, 109 S. Ct.

ko ee Be Oe OE eee passim

Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969).. 13, 15, 16

City of El Centro v. United States, 16 Cl. Ct. 500

GENIE s6- 00 00kncnceheesccenesetsesneesckeswen 3, 12, 25

City of El Centro v. United States, 922 F.2d 816

GUOPOR cc dewcoccoceedencsdushecscstaucenquaness passim

City of El Centro v. United States, 17 Ct. Cl. 794

GEE Sccubascowecutannse.cseeunsecnees 006000060085 25

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.

oe Fe OM Op rereeerTerererr Te rrree 26

Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75

MAN. GP QUO 5 005 sce cecnteseaceeeesssenes ene 19

Galas v. McKee, 801 F.2d 200 (6th Cir. 1986) ...... 16, 17

Halvorson v. United States, 126 F. Supp. 898 (E.D.

WORD, CED ohn cc cccncentscsesesenasnusaetesasans 28

International Paper Company v. United States, 282

U.S. 399, 51 S. Ci. 176, 75 L.Ed. 410 (1931). 24, 26, 27

Jamieson v. Shaw, 772 F.2d 1205 (5th Cir. 1985)....... 23

Landol-Rivera v. Cruz Cosme, 906 F.2d 791 (1st Cir.

Reyer ye oer errr er ea? 22, 23

Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct.

1975, 100 L.Bd.2d S65 (1968)............... 11, 19, 20

Patterson v. City of Joplin, Mo., 878 F.2d 262 (8th

So. WD 050.0% 000 ceuacaduavessncceauaeeens 13, 16, 22

TABLE OF AUTHORITIES - Continued

Philadelphia Suburban Corp. v. United States, 217 Ct.

ee PE ED nv cctRnccpetoncceseseuedsceneccceess 28

Prestex, Inc. v. United States, 320 F.2d 367 (1963)..... 28

Roach v. City of Frederickstown, Mo., 882 F.2d 294

i es as Re UK keke ae keteee 13, 16, 22

Silverman v. United States, 679 F.2d 865 (Ct. Cl.

Dis cere akkk CRRA Ree h6e ee COk ed EEUeL Rae es 28

Terry v. State of Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20

ERR a se eg eae PA eR 19

United States v. Kerr, 817 F.2d 1384 (9th Cir. 1987) .13, 14

United States v. Mendenhall, 446 U.S. 544, 100 S. Ct.

es ae Cae SY SOME s 60.64.66 45a ban sb boouees 19

United States v. Morrison, 546 F.2d 319 (9th Cir.

es. cae Mi cid cake eke h ate Ran ee oe 13, 14

United States v. Nicholas, 448 F.2d 622 (8th Cir.

Ul. og kc ehh s bE Ad RARE 4 OER RRR ALOLR eee 13, 16

United States v. Owens, 472 F.2d 780 (8th Cir. 1973) .13, 16

Linited States v. Robert L., 874 F.2d 701 (9th Cir.

PN CG ROtUHKRCACCENS6ieReekecREANONSSKKRRROLSS 13, 14

STATUTES

Se en Oh WEPMEED 00 0050 cesecesesessasees (nekathw hus 2

EG aE UNEEDS Ab. A 5 c000bcesiccssectetetcenes 10

Sg a GUE 6a cca KA sce eb a sneceseaneaseaenntanks 10

2 th Err errr eT eer erer rere er vert 2

BM WO iv sacakcnsncaccsacnccanea 16, 17, 21

vii

TABLE OF AUTHORITIES - Continued

Page

TREATISES

3 W. LaFave, Search AND Seizure, § 9.2(h) (2d Ed.

Pes IN 0.00 anes daensienececetcessecscens 21

No.

— 4

In The

Supreme Court of the United States

October Term, 1990

—*

CITY OF EL CENTRO,

Petitioner,

vs.

THE UNITED STATES,

Respondent.

—_

Petition For A Writ Of Certiorari

Jo The United States Court Of

Appeals For The Federal Circuit

. ae

PETITION FOR A WRIT OF CER: IORARI

>...

—_

The City of El Centro petitions for a writ of certiorari

to review the decision of the United States Court or

Appeals for the Federal Circuit in this case.

OPINIONS BELOW

The opinions of the United States Claims Court are

reported at 16 Cl. Ct. 500 (1989) (Appendix A-45-A-68,

infra) and 17 Cl. Ct. 794 (1989) (Appendix A-25-A-44,

infra). The opinion of the court of appeals is reported at

922 F.2d 816 (Fed. Cir. 1990) (Appendix A-1-A-24, infra).

JURISDICTION

The opinion of the court of appeals issued and judg-

ment was entered on December 28, 1990. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

42 U.S.C. § 249:

Medical care and treatment of certain quaran-

tined and detained persons

Persons entitled to treatment

(a) Any person when detained in accor-

dance with quarantine laws, or, at the request of

the Immigration and Naturalization Service, any

person detained by that Service, may be treated

and cared for by the Public Health Service.

Temporary treatment in emergency cases

(b) Persons not entitled to treatment and

care at institutions, hospitals, and stations of the

Service may, in accordance with regulations of

the Surgeon General, be admitted thereto for

-temporary treatment and care in case of emer-

gency.

Authorization for outside treatment

authorized by subsection (a) of this section may,

in accordance with regulations, receive ‘sucht

care and treatment at the expense of the Service

from public or private medical or hospital facili-

ties other than those of the Service, when autho-

rized by the officer in charge of the station at

which the application is made.

-_—

STATEMENT OF THE CASE

Petitioner adopts, substantially unchanged, the trial

court’s statement of the case as set forth in City of El

Centro v. United States, 16 Cl. Ct. 500, 501-503 (1989).

Appropriate references to the record have been inserted.

At approximately one o’clock on the morning of Jan-

uary 23, 1985, agents of the Border Patrol observed a van

parked on the American side of the boundary between

the United States and Mexico near El Centro, California.

(J. Stip., 9 3, J.A. pp. 481-82 Exs. 101 and 102, J.A. pp.

429-33.)! The van was parked at a location which was

notorious to the Border Patrol as a rendezvous point for

alien smugglers and persons who had crossed the border

illegally. (id.) At about the same time, Border Patrol sen-

sors indicated that a large group of persons was moving

on foot in the direction of the van. (Id.)

1 “J. Stip.” refers to the Joint Memorandum Re: Stipula-

tions filed in the Claims Court. “Ex.” or “Exs.” refers to exhibit

or exhibits. “J.A.” refers to the joint appendix lodged with the

Court of Appeals. “Tr.” refers to testimony of witnesses con-

tained in the trial transcript.

Shortly thereafter, agents observed the van leaving

the area. (J. Stip. 7 5, J.A. p. 482; Exs. 101 and 102, J.A. pp.

429-33.) Two Border Patrol agents followed in their

cruisers, activating their red emergency lights. (J. Stip. 7

5, J.A. p. 482; Tr. 181 and 189, J.A. pp. 221, 229.) In fact, at

one point during the pursuit, Border Patrol Agent Pacrem

pulled alongside the van with his red emergency lights

activated. The driver of the van refused to stop, and a

high-speed chase ensued. (J. Stip. J 5, J.A. p. 482.)

After having been pursued for some distance on Cali-

fornia’s Highway 8, the van, still travelling at speeds in

excess of 60 miles per hour, turned onto an exit ramp.

Unable to negotiate the ramp’s curve at that speed, the

van vaulted over an embankment, crashed, exploded and

began to burn. The two agents in pursuit quickly arrived

at the crash scene, extinguished the flames, and radioed

for help. (J. Stip. ¥ 5, J.A. p. 482; Tr. pp. 176-177 and

185-86, J.A. pp. 217-218 and 225-26; Exs. 101 and 102, J.A.

pp. 429-33)

All nineteen of the persons inside the van had

entered the United States illegally. The driver and two of

the passengers died in the crash. (Exs. 15 and 18, J.A. pp.

376 and 388.) Many of the survivors were grievously

injured; all were unable to leave the scene under their

own power. (Tr. pp. 85, 178, 185-86, J.A. pp. 128, 219,

225-26; Ex. 3, J.A. p. 344; Exs. 101 and 102, J.A. pp.

429-33.) Fourteen of the aliens were taken by ambulance

to El Centro Community Hospital (“ECCH”) for treat-

ment. (Exs. 15 and 16, J.A. pp. 376 and 388.)? (Trial

2 The other two surviving aliens were taken to another

hospital, and the cost of their care is not the subject of this

litigation. (J. Stip. 7 10, J.A. p. 483, Ex. 51, J.A. p. 427.)

testimony established that, were it not for their physical

condition, the survivors would have immediately been

taken into physical custody and ultimately deported by

INS.) (Tr. p. 182, J.A. p. 222; Tr. pp. 88-89, J.A. pp. 228-29.)

Supervisory Border Patrol Agent Douglas Roy

ordered Agent Mario Hernandez to proceed to ECCH

and, inter alia, gather information on the names, dates

and places of birth, and medical conditions of the aliens.

(Tr. p. 74, J.A. p. 117.) Agent Hernandez was dispatched

to the hospital before the aliens arrived and reached the

hospital ahead of them. (Tr. p. 76, J.A. p. 119.) Although

he had not participated in the high-speed chase, Agent

Hernandez was aware of the facts leading to the accident.

(Tr. p. 74, J.A. p. 117.) Moreover, Agent Hernandez was

wearing his Border Patrol uniform on which his badge

was displayed. (Tr. pp. 78-79, J.A. pp. 121-22.)

At the hospital, Agent Hernandez identified himself

as a Border Patrol Agent. (Tr. pp. 30-31, J.A. pp. 75-76.)

He then informed Kaye Fox, the Assistant Director of

Finance, that the Border Patrol had been in pursuit of the

van involved in the accident. (Tr. pp. 31-32, J.A. pp.

74-75.) Exactly what happened next is the subject of some

disagreement. On this issue, the court heard testimony at

trial from Kaye Fox, Jay Comstock, the hospital’s admin-

istrator, and Agent Mario Hernandez.> (Tr. pp. 45-46,

63-66, and 76-77, J.A. pp. 88-89, 106-09, and 119-20.)

3 Fox’s testimony was in the form of a videotaped deposi-

tion, as she had died of cancer prior to the date of trial.

Addressing the credibility of Ms. Fox’s testimony, the court

noted that “In Ms. Fox’s position, when she testified in March

of ‘86 I believe it was, she was dying of cancer and knew it. She

(Continued on following page)

The testimony of all three witnesses established that

a further conversation took place between Fox and the

uniformed Agent Hernandez just as the injured aliens

were being admitted to ECCH. (/d.) In that conversation,

Fox identified herself as ECCH’s financial officer. She

then asked Agent Hernandez who was responsible for

payment of the cost of the alien’s care. According to Fox

and Comstock, Agent Hernandez replied that the INS

was responsible and would pay the bill since the injured

aliens were in the custody of the Border Patrol. (Tr. pp.

45-46 and 64-65, J.A. pp. 88-89; Ex. 18, J.A. pp. 107-08.)

According to Agent Hernandez, when Fox asked him

who would pay, his response was “Me and you.” (Tr. pp.

97-99, 105 and 109-110, J.A. pp. 140-42, 148, and 151-52.)

At trial, Agent Hernandez explained that in saying this,

he meant “the taxpayers” as distinct from “the govern-

ment or the Agency.” (Tr. pp. 97-99, J.A. pp. 140-42.)

Hernandez further testified that he informed Super-

visory Border Patrol Agent Douglas Roy, his supervisor,

by telephone that ECCH’s financial officer had raised a

concern with respect to payment and he had responded,

“Me and you.” (Tr. pp. 109-110, J.A. pp. 140-42.) Despite

the susceptibility of this response to varying interpreta-

tions, the government presented no evidence or testi-

mony that there was any subsequent INS effort to clarify

it.

(Continued from previous page)

had left the hospital and knew that she couldn’t be undercut in

any way or affected by plain testimony.” (Tr. p. 258, J.A. p. 22.)

The court also found that Ms. Fox, as Assistant Director of

Finance, and Mr. Comstock, as the hospital administrator,

would both have payment concerns very much in mind. (J/d.)

In addition to the discussion of payment, Agent Her-

nandez had further interaction with hospital personnel

during his visit there on the night of the accident. An

ECCH nurse brought Agent Hernandez a Guatemalan

passport which belonged to one of the injured aliens;*

Agent Hernandez took possession of the passport and

signed for it. (Tr. pp. 31-32 and 79-80, J.A. pp. 74-75 and

122-23; Ex. 35, J.A. p. 400.) Further, over a four hour

period on the night of the accident, agent Hernandez

obtained information on each of the alien patients as his

supervisor had directed; in addition, he informed a nurse

that as soon as any of the aliens was ready to be released

from ECCH, such alien was to be released to the custody

of the Border Patrol. (Tr. pp. 75 and 77, J.A. pp. 118 and

120.) A nurse then notified Agent Hernandez that one of

the aliens had minor injuries and was likely to be

released in the morning; after conferring with his super-

visor by telephone, Agent Hernandez instructed the

nurse to call the Border Patrol when the alien was ready

to be released, and said that the Border Patrol would

come for him. (J. Stip. 9 17, J.A. p. 485.)

On the next morning and continuing through the

ensuing days, a number of other Border Patrol and INS

officials continued on-site investigation, monitoring, and

control of the aliens at ECCH. On the morning of January

23, Donald L. Davis, Officer-in-Charge of the El Centro

Border Patrol station, telephoned Kaye Fox and

4 The passport belonged to Cesar Augusto Flores de Leon,

who, although initially admitted to ECCH, was air-lifted to

University Hospital in San Diego that same night. (J. Stip. ]] 22,

|.A. p. 487.)

requested that she notify the Border Patrol when any of

the aliens was about to be released. (Tr. p. 34, J.A. p. 77;

Ex. 19, J.A. p. 389.) On January 23 and 24, two INS

investigators, Mel Gray and R.E. Novak, visited ECCH

and took photographs of the aliens. (J. Stip. 7] 19 and 20,

J.A. p. 486; Tr. pp. 38-44, J.A. pp. 81-87; Ex. 18, J.A. p. 388.)

Several of the aliens were unable to sign ECCH’s required

consent form. Notwithstanding the fact that no judicial

action was taken to authorize it, Investigator Novak

signed the forms on behalf of these aliens on a line

marked “Patient/Parent/Conservator/Guardian.” (/d.,

Ex. 17, J.A. pp. 378-87.) In addition, an INS physician, Dr.

Pavlik, visited ECCH and, again without attempting to

obtain judicial authority to do so, secured the release of

the aliens’ medical records. Dr. Pavlik stated he was

“responsible for medical follow-up to make sure [ECCH]

doctors were taking care” of the aliens, and that he would

be working with the ECCH doctors as a “consultant” or

“referring physician” during the aliens’ treatment. (Tr.

pp. 48-50, J.A. pp. 91-92; Ex. 18, J.A. p. 388.)

Each time an alien patient became ready for release

from hospitalization, ECCH personnel informed the Bor-

der Patrol, which then sent agents who took the alien into

physical custody.> (J. Stip. 4 22, J.A. p. 487, Exs. 23-31, 33,

34, and 36, J.A. pp. 394-405, 407, 408 and 410.) The only

exception was Miguel Perez-Lopez who surreptitiously

left the hospital on or about January 26. But even as to

Lopez, ECCH communicated with INS. (J. Stip. J 24, J.A.

pp. 487-488.) An internal Border Patrol memorandum on

> The last alien patient to be released from hospitalization

was Olga Cerrito-Escobar, discharged March 18, 1985, more

than seven weeks after the accident. (Ex. 21, J.A. p. 392.)

this subject, written by Agent Jeffrey Parsons to Officer-

in-Charge Davis, stated:

At 12:05 p.m. on January 26, 1985[,] I received a

call from the Charge Nurse, Debbie Eugenio,

from El Centro Community Hospital. She stated

that one of our injured aliens was missing and

_they presumed that he had escaped.

(emphasis added) (Ex. 2, J.A. p. 343.) Officer Davis entered

the notation “escape” next to Lopez’ name on a Border Patrol

list. (Tr. p. 120; Ex. 51 J.A. pp. 162 and 428.)

Finally, within hours of their admission to ECCH, Kaye

Fox wrote two memoranda on the subject of the aliens, one

to the nursing staff, the other to Jay Comstock, ECCH

administrator. In them, Fox manifested her understanding

that (1) the aliens were “in custody” of the INS, and (2) the

INS had assumed payment responsibility for their care. (Exs.

18 and 19, J.A. pp. 388 and 389; J. Stip. J] 14, 15 and 16, J.A.

pp. 484-485; Tr. pp. 35-36, J.A. pp. 78-79.)

The medical expenses incurred by ECCH in treating the

fourteen injured aliens were stipulated to be $183,263.64. (J.

Stip., 7 30, J.A. p. 490.) ECCH made repeated contacts to

individuals at all levels of the INS regarding its claims for

payment and to where they should be directed, including

Deputy Chief Manuel Cazares, the INS Regional Counsel,

and James O'Keefe, the Administrator in charge of manage-

ment of the INS Western Regional Office. (Ex. 20, J.A. pp.

390-391; Tr. pp. 46-49, J.A. pp. 89-92; Tr. p. 116, J.A. p. 158.)

Ultimately, the separately filed claims were individually

denied by the Regional Commissioner of the Western Region

of the INS, Harold W. Ezell. (J. Stip. 7] 31 and 32, J.A. pp.

490-491; Exs. 41-50. J.A. pp. 415-426.)

The government has stipulated in this case that:

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

illegal aliens.

(J. Stip. J 2, J.A. p. 481.)

The United States Claims Court asserted jurisdiction

under the Tucker Act, 28 U.S.C. § 1491. The court of

appeals accepted jurisdiction under 28 U.S.C.

§ 1295(a)(3).

REASONS FOR GRANTING REVIEW

THIS COURT SHOULD RESOLVE THE CLEAR CON-

FLICT AMONG THE JUDICIAL CIRCUITS, MANI-

FESTED BY THIS DECISION, AS TO WHETHER A

SEIZURE OR DETENTION OF THE OCCUPANTS OF

A VEHICLE HAS OCCURRED WHERE, IN A VEHICU-

LAR PURSUIT, LAW ENFORCEMENT AUTHORITIES

ACTIVATE THEIR EMERGENCY LIGHTS SIGNALING

THE VEHICLE TO STOP.

A. Introduction

This case arises in the context of a stipulation by the

government that the Immigration and Naturalization Ser-

vice is responsible for the care of individuals taken into

custody or detained by the United States Border Patrol as

suspected illegal aliens. Because of the government’s stip-

ulation, whether there was a detention in this case is

determinative of the government’s obligation to pay

ECCH. Consequently, this case squarely presents the

issue of when, in circumstances involving a vehicular

. 11

pursuit by law enforcement officers there has been a

show of authority sufficient to constitute a seizure or

detention.

In Michigan v. Chesternut, 486 U.S. 567, 575, n.9, 108 S.

Ct. 1975, 1980, n.9, 100 L.Ed.2d 565 (1988), this Court

noted that the United States suggested in its amicus cur-

iae brief that in some circumstances, “police pursuit ‘will

amount to a stop from the outset or from an early point in

the chase, if the police command the person to halt and

indicate that he is not free to go.’ ...” Noting that such

circumstances were not presented to the Court in that

case, the Court stated “[w]e therefore leave to another

day the determination of the circumstances in which

police pursuit could amount to a seizure under the

Fourth Amendment.” Id. This case presents the oppor-

tunity for the Court to (1) determine the circumstances in

which police pursuit amounts to a seizure; (2) resolve a

conflict among the judicial circuits as to the circumstance

in which a police pursuit amounts to a seizure; and (3)

clarify for the lower federal and state courts and law

enforcement agencies throughout the country the scope

of its decision in Brower v. County of Inyo, 489 U.S. 593, 109

S. Ct. 1378, 103 L.Ed.2d 628 (1989) on this issue.

The position of the Ninth Circuit and pre-Brower

Eighth Circuit decisions is that when a law enforcement

officer signals a motorist to stop, through the use of

either his or her siren or red or blue emergency lights,

there has been a seizure which must be justified under

the Fourth Amendment. The position of the Sixth and

Federal Circuits is that no seizure occurs under such

circumstances. Instead, those circuits have held that dur-

ing the initial stages of a pursuit, where an individual

flees rather than obey the officer’s directive to stop con-

veyed by activation of his or her vehicle’s emergency

lights, there is no seizure.

The Court should resolve this conflict to provide

direction to the circuit, district and state courts, and law

enforcement offices at all levels of government, as to the

circumstances in which a vehicular pursuit amounts to a

seizure, thereby invoking the protections of the Fourth

Amendment.

B. The Decision Below

In this case, the government stipulated that it is

responsible for the medical care of suspected illegal

aliens taken into custody or detained by the Border

Patrol. City of El Centro v. United States, 922 F.2d 816, n.4

(Fed. Cir. 1990); City of El Centro v. United States, 16 Cl. Ct.

500, 505; J. Stip., 7 2, J.A. p. 481. The trial court deter-

mined that based on all of the circumstances surrounding

this incident, the illegal aliens were detained by the INS,

and therefore the government had a duty to provide and

pay for medical treatment for the detainees. The trial

court based its conclusion, in part, on the fact that “two

Border Patrol agents followed [the suspected illegal

aliens} in their cruisers, activating their red emergency

lights. The driver of the van refused to stop, and a high

speed chase ensued.” City of El Centro v. United States, 16

Cl. Ct. at 501. The Court of Appeals, relying on this

Court’s decision in Brower v. County of Inyo, supra, deter-

mined that “the INS pursuit of the fleeing vehicle which

ended in the crash was insufficient to place the aliens in

INS detention; to the extent the Claims Court’s holding is

to the contrary it is incorrect as a matter of law.” City of El

Centro v. United States, 922 F.2d at 823. The circuit court

also stated that “the events [in this case] appear insuffi-

cient to constitute the government's having ‘detained’ the

aliens either prior to or during their hospitalization.” id.

(citing Brower v. County of Inyo, 489 U.S. at 596, 109 S. Ct.

at 1381.)

C. The Split Among The Circuits

The decision of the Federal Circuit in this case as to

when a vehicular pursuit by law enforcement officers

constitutes a detention is consistent with the holdings of

the Sixth Circuit on this issue. However, the Federal

Circuit and Sixth Circuit positions are in direct conflict

with decisions of the Eighth and Ninth Circuits, which

have held that when a law enforcement officer signals a

motorist to stop, through the use of. a siren or activation

of red or blue emergency lights, there has been a seizure

which must be justified under the Fourth Amendment.

United States v. Robert L., 874 F.2d 701 (9th Cir. 1989);

United States v. Morrison, 546 F.2d 319, 320 (9th Cir. 1976)

(per curiam); see also United States v. Kerr, 817 F.2d 1384,

1386 (9th Cir. 1987) (“the vast majority of automobile

stops are initiated by police officers using flashing lights

or a siren and are clearly Fourth Amendment seizures”);

United States v. Owens, 472 F.2d 780 (8th Cir. 1973); United

States v. Nicholas, 448 F.2d 622 (8th Cir. 1971); Carpenter v.

Sigler, 419 F.2d 169 (8th Cir. 1969). But cf. Roach v. City of

Frederickstown, Mo., 882 F.2d 294 (8th Cir. 1989); Patterson

v. City of Joplin, Mo., 878 F.2d 262 (8th Cir. 1989).

The Ninth Circuit position on the issue of when

police pursuit amounts to a detention or seizure is sum-

marized by the court in its per curiam decision in United

States v. Morrison, 546 F.2d 319 (9th Cir. 1976). In that case,

the court considered the government's appeal of the trial

court’s decision granting appellee’s motion to suppress

evidence. The government asserted that the trial court

erroneously disregarded evidence of the appellee’s -

actions after Border Patrol officers signaled him to stop in

determining whether the agents made the stop based

upon reasonable suspicion. United States v. Morrison, 546

F.2d at 320.

In upholding the trial court’s ruling, the court of

appeals held that:

When a law enforcement officer signals a motor-

ist to stop by use of a siren or red light, there

has been a seizure which must be justified under

the Fourth Amendment. United States v. Ward,

488 F.2d 162, 169 (9th Cir. 1973) (in banc); Carpen-

ter v. Sigler, 419 F.2d 169, 171 (8th Cir. 1969). The

seizure occurs when the officer first communi-

cates the command to halt. The command must

be valid when given; its character is not

changed by the motorists’ response, any more

than probable cause for a search can be estab-

lished by what the search discloses. United States

v. Di Re, 332 U.S. 581, 595, 68 S. Ct. 222, 92 L.Ed.

210 (1948).

United States v. Morrison, 546 F.2d at 320. Accord U.S. v.

Robert L., 874 F.2d 701 (9th Cir. 1989); see also United States

v. Kerr, 817 F.2d 1384, 1386 (9th Cir. 1987).

The Eighth Circuit has also addressed the issue of the

circumstances under which police pursuit constitutes a

detention on several occasions. The pre-Brower position of

the Eighth Circuit is set forth in Carpenter v. Sigler, 419

F.2d 169 (8th Cir. 1969). In Carpenter, the court reviewed

the trial court’s determination finding that certain evi-

dence admitted against the defendant was not the result

of an unlawful search and seizure in violation of the

Fourth Amendment. Carpenter v. Sigler, 419 F.2d at 170.

The operative facts in Carpenter are set forth by the

court as follows:

The [police] © ficers kept [a] . . . vehicle under

surveillance for a pe <iod noticing it slowly move

by several business establishments which were

closed. Then by the use of their flashing red

light, the officers signaled the driver to puli the

vehicle to the curb. No traf%c violation was

observed. The driver of the auto complied with

the flashing red light and the car stopped with

the police car approximately twenty-five feet

behind the other auto.

ld. at 170. Ultimately, the stop of the car resulted in a

search of its interior and discovery of burglary tools

which lead to the defendant's conviction.

In affirming the trial court’s determination that the

evidence was validly seized, the court of appeals noted

that the important Fourth Amendment issues presented

were (1) whether there was a “search” or “seizure,” and

(2) whether they were “reasonable.” In finding that there

was a seizure, the court stated that:

The Supreme Court recently in Terry v.

Ohio . . . defined the Fourth Amendment term

seized for the purpose of police-citizen street

encounters. The Court said ‘It must be recog-

nized that whenever a police officer accosts an

individual and restrains his freedom to walk

away, he has seized that person.’ [citations omit-

ted]. [J] It would appear from the record in this

case that [the dstendantl was ‘seized’ when the

police officers signaled him to pull to curb by

the use of their flashing red light... .

Id. at 171. The holding in Carpenter regarding the point of

seizure has been followed by the Eighth Circuit in its

subsequent opinions in United States v. Nicholas, 448 F.2d

622, 624 (8th Cir. 1971) and United States v. Owens, 472

F.2d 780, 785 (8th Cir. 1973). But cf. Roach v. City of

Frederickstown, Mo., 882 F.2d 294 (8th Cir. 1989) (Without

reference to its prior decisions on the issue of seizure in

the context of police pursuit, and citing Brower v. County

of Inyo, 489 U.S. 593, 109 S. Ct. 1378, 103 L.Ed.2d 628

(1989), the court concluded that no seizure occurred,

despite activation of red flasher lights, where the suspect

attempted to flee and subsequently lost control of his car

and crashed); Patterson v. City of Joplin, Mo., 878 F.2d 262,

263 (8th Cir. 1989) (“The Court [in Brower] also stated that

where a police car chases a suspect, who unexpectedly

loses control of the car and crashes, no fourth amendment

seizure occurs.” )é

6 In an action pursuant to 42 U.S.C. § 1983, the court must

determine whether there is a “seizure,” and if so, whether the

seizure is unreasonable. See Brower, 489 U.S. at 596, 109 S. Ct. at

1382. The Eighth Circuit decisions in Roach and Patterson seem-

ingly collapse this two part test into a single test of whether

there is a “seizure.” In Roach, Patterson, and Galas v. McKee, 801

F.2d 200 (6th Cir. 1986), the courts could have found, consistent

with the Ninth Circuit and other Eighth Circuit decisions, that

(Continued on following page)

The Sixth Circuit’s contrary analysis of the detention

issue, in the context of police pursuit, is represented by

the holding in Galas v. McKee, 801 F.2d 200 (6th Cir. 1986).

In Galas, the parents of a thirteen-year-old driver brought

an action, pursuant to 42 U.S.C. § 1983, on behalf of the

minor driver and themselves against the police for inju-

ries to the driver following a high speed chase of the

driver resulting in a crash. The court recited the principal

facts of that case as follows:

On March 16, 1983, Officer Richard McKee... of

the Metropolitan Nashville-Davidson County,

Tennessee Police Department observed a 1972

Oldsmobile automobile allegedly travelling well

in excess of speed limit at a speed the officer

estimated to be between 65 and 70 miles per

hour. By activating the blue lights and siren on

the police motorcycle he was operating, Officer

McKee signaled the driver of the Oldsmobile to

pull over and stop. However, rather than stop-

ping, the operator of the Oldsmobile acceler-

ated, and a high speed pursuit by Officer McKee

ensued. (4) The pursuit, which reached speeds

of 100 miles per hour, ended when the driver of

the Oldsmobile lost control of his automobile,

ran off the roadway and wrecked... .

(Continued from previous page)

activation of the emergency lights constituted a “seizure,” but

that for purposes of civil liability under 42 U.S.C. § 1983, the

“seizure” was not unreasonable. This analysis is consistent

with the dicta in Brower v. County of Inyo, supra, in which this

Court stated that no unconstitutional seizure occurs when a

person being chased in a vehicular pursuit loses control and

crashes. The Constitution only protects against unreasonable

searches and seizures. Therefore, even if there is a seizure, as

long as it is not conducted in an unreasonable manner, there is

no constitutional violation.

Id. at 201-202. In reaching its decision that no seizure

occurred in that case, the court reasoned that:

In the instant case, there was no exercise of

physical force. Thus, the remaining question is

whether the defendant officer, by a show of

authority, restrained the liberty of the minor

plaintiff. Clearly, during the initial stages of the

pursuit when the minor plaintiff decided to flee

rather than to obey the defendant officer’s

directive to stop, the minor plaintiff was not

restrained. Just as clearly, when the pursuit ter-

minated in an accident with personal injury to

the minor plaintiff, he was not restrained by, or

as a result of, the officer’s show of authority.

Rather, the minor plaintiff’s inability to leave

was because he wrecked his automobile, and no

seizure occurred.

Id. at 203.

Thus, the test employed by the Sixth Circuit and fol-

lowed by the Federal Circuit to determine whether a seizure

has occurred does not examine the “show of authority” and

whether, in response to that showing, a reasonable person

would believe he or she was free to leave; rather, it focuses

on whether an individual suspect chooses to flee rather than

submit to the show of authority.

In summary, in the Ninth Circuit, activation by police or

law enforcement officers of emergency lights constitutes a

seizure for purposes of the Fourth Amendment. The Sixth

and Federal Circuits have found that the activation of emer-

gency lights does not constitute a detention or seizure under

the Fourth Amendment. The Eighth Circuit has taken posi-

tions on both sides of the issue. The conflict among and

within the circuits on this fundamental issue affecting federal

and state courts, as well as the administration of justice

throughout the country, is ripe for resolution by this Court,

and the present case provides the vehicle for the Court to

resolve the conflict.

D. The Importance Of The Issue

Since its decision in Terry v. State of Ohio, 392 U.S. 1,

88 S. Ct. 1868, 20 L.Ed.2d 889 (1968), this Court has

repeated its position that “a person has been ‘seized’

within the meaning of the Fourth Amendment only if, in

view of all of the circumstances surrounding the incident,

a reasonable person would have believed that he was not

free to leave.” United States v. Mendenhall, 446 U.S. 544,

554, 100 S. Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); Michigan

v. Chesternut, 486 U.S. 567, 575, 108 S. Ct. 1975, 1977, 100

L.Ed.2d 565 (1988); Florida v. Royer, 460 U.S. 491, 502, 103

S. Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). This Court has

noted that:

While the ‘free to leave’ test is flexible enough to

be applied to the whole range of police conduct in

an equally broad range of settings, it calls for

consistent application from one police encounter to

the next, regardless of the particular individual's

response to the actions of the police. The test’s

objective standard - looking to the reasonable

man’s interpretation of the conduct in question -

allows the police to determine in advance whether

the conduct contemplated will implicate the Fourth

Amendment. [citations omitted.]

Michigan v. Chesternut, 486 U.S. at 574, 108 S. Ct. at 1979.

Further, in Michigan v. Chesternut, this Court rejected

the petitioner’s argument that “the Fourth Amendment is

never implicated until an individual stops in response to

the police’s show of authority.” Michigan v. Chesternut,

486 U.S. at 572, 108 S. Ct. at 1979. Rather, the Court

stated:

that any assessment as to whether police con-

duct amounts to a seizure implicating the

Fourth Amendment must take into account ‘all

the circumstances surrounding the incident’ in

each individual case. [citations omitted.]

Id.”

As is evident from the conflict in the decisions of the

circuit courts of appeals discussed above, there is no

consistent application of the “free to leave” concept in the

context of vehicular pursuits by police or law enforce-

ment officers. Further, application of the concept has

become more divergent as a result of various interpreta-

tions of this Court’s decision in Brower.

Prior to the Court’s decision in Brower, although

application of the “free to leave” test, in the context of

vehicular pursuits, varied depending on the circuit con-

sidering the issue, the parameters of the test as

announced by the Supreme Court were clear. As summa-

rized by one commentator:

If the actions towards the police would be per-

ceived by a reasonable person as directed

toward taking custody of the suspect, that is

sufficient to bring the Fourth Amendment’s pro-

tections into play, for then, as stated in Men-

denhall, ‘a reasonable person would have

believed that he was not free to leave.’ The ‘free

to leave’ concept, in other words, has nothing to

7 Applying the above test in Michigan v. Chesternut, this

Court concluded no seizure had occurred, noting:

The record does not reflect that the police activated a

siren or flashers; or that they commanded respon-

dent to halt, or displayed any weapons; or that they

operated the car in an aggressive manner. .

Michigan v. Chesternut, 486 U.S. at 579, 108 S. Ct. at 1980.

do with a particular suspect’s choice to flee rather

than submit or with his assessment of the proba-

bility of successful flight. Were it otherwise, police

would be encouraged to utilize a very threatening

but sufficiently slow chase as an evidence-gather-

ing technique whenever they lack even the reason-

able suspicion needed for a Terry stop.

3 W. LaFave, SEARCH AND Seizure, § 9.2(h) (2d Ed. 1987, 1990

Supp. at pp. 59-62). Since this Court’s decision in Brower, the

test to be applied in determining whether a seizure has

occurred in such instances is no longer clear. Although not

essential to its holding in Brower, there is language in the

opinion which is arguably contrary to the test for determin-

ing when a “seizure” has occurred announced in the Court’s

prior decisions.

The holding in Brower is that “it is enough for a seizure”

that a person pursued is stopped by “the very instru-

mentality set in motion or put in place in order to achieve

that result.” Brower, 489 U.S. at 599, 109 S. Ct. at 1382. Thus,

the Court in Brower concluded, the allegations of the com-

plaint that Brower was meant to be stopped by a roadblock,

and was stopped, were sufficient to allege a seizure had

occurred for purposes of the plaintiff's civil action pursuant

to 42 U.S.C. § 1983. However, in its opinion the Court

addressed various hypothetical situations and issues, not

presented for determination in that case, which have been

interpreted by both federal and state courts in a manner

inconsistent with this Court’s prior decisions regarding the

determination of whether a “show of authority” amounts to

a seizure or detention.

In particular, in cases where a suspect is being pursued

by police or law enforcement officials in a law enforcement

vehicle, and the suspect loses control of that vehicle during

the chase resulting in a crash and injuries result, several

courts have relied on the Brower decision to support a hold-

ing that, as a matter of law, a vehicle collision resulting after

a vehicular pursuit by law enforcement officers does not

constitute a “seizure,” regardless of the surrounding circum-

stances. See City of El Centro v. United States, 922 F.2d 826

(1990); Roach v. City of Frederickstown, Mo., 882 F.2d 294 (8th

Cir. 1989); Patterson v. City of Joplin, Mo., 878 F.2d 262 (8th Cir.

1989).

Further, statements in this Court’s decision in Brower

have lead to divergent interpretations by the circuits regard-

ing whether the “governmental intent” necessary to support

a finding of a “seizure” is to be judged by an objective or

subjective standard. Despite the Court’s statement in Brower

that “we do not think it practical to conduct . . . an inquiry

into subjective intent,” Brower, 489 U.S. at 598, 109 S. Ct. at

1382, subsequent to the Brower decision, the circuit courts

have not consistently used an objective test in determining

whether the government intended to terminate an individ-

ual’s freedom of movement.

In Landol-Rivera v. Cruz Cosme, 906 F.2d 791 (1st Cir.

1990), the First Circuit held that no Fourth Amendment

seizure occurred when a hostage was inadvertently shot

during police pursuit of a robbery suspect, where police

officers shot at the car for the purpose of stopping the

robber’s flight. The First Circuit held that:

{a] police officer’s deliberate decision to shoot at

a car containing a robber and a hostage for the

purpose of stopping the robber’s flight does not result

in the sort of willful detention of the hostage that

the Fourth Amendment was designed to gov-

ern... . [Njo Fourth Amendment seizure occurred

here because [the plaintiff] was not the object of the

police bullet that struck him.

Landol-Rivera, 906 F.2d at 795 (emphasis in original). In

contrast, the Fifth Circuit in Jamieson v. Shaw, 772 F.2d

1205 (5th Cir. 1985), held that the plaintiff was seized

when officers deliberately placed a roadblock in front of

the car in which they knew she was a passenger, even

though it was undisputed that the plaintiff was not the

target of the roadblock. The Fifth Circuit held that the

intent to stop the car was enough to constitute a seizure

under the Fourth Amendment. Id. Thus, the varying

interpretations of Brower are creating inconsistent deter-

minations of when a “seizure” occurs, and such inconsis-

tent determinations should be addressed by this Court.

The present case presents an opportunity for the

Court to insure uniformity in the application of the test

for determining when a seizure or detention takes place

in a vehicular pursuit and to clarify for the lower federal

courts, state courts, and law enforcement agencies the

parameters of its decision in Brower.

II.

THIS COURT SHOULD DECIDE WHETHER, IN AN

EMERGENCY SITUATION, THE GOVERNMENT CAN

KEQUEST SERVICES UNDER CIRCUMSTANCES CRE-

ATING AN IMPLIED-IN-FACT CONTRACT TO PAY

FOR THE SERVICES, KNOWINGLY ACCEPT THE

BENEFITS OF THE SERVICES REQUESTED, AND

SUBSEQUENTLY REFUSE TO PAY ON THE GROUND

THAT THE GOVERNMENT REPRESENTATIVE

AGREEING TO PAYMENT LACKED ACTUAL

AUTHORITY

A. Introduction

This Court has not addressed the limits of the gov-

ernment’s right to repudiate payment obligations

incurred by it for services or goods needed to respond to

an emergency situation on the ground that the govern-

mental representative promising payment lacks the requi-

site authority. Third parties coming to the aid of

government in times of emergency, by providing goods

or services at the request of the government and pursuant

to a promise by the government to pay, are precluded by

the emergency at hand from performing a diligent inves-

tigation into the authority of the governmental actor

requesting such services. Therefore, the Court must pro-

vide guidance for such parties as to when, under such

circumstances, the government will be required to per-

form its promises.

Although this Court has addressed a related issue in

the context of a Fifth Amendment taking (/nternational

Paper Company v. United States, 282 U.S. 399, 51S. Ct. 176,

75 L.Ed. 410 (1931)), it has not addressed the applicability

of the lack of authority defense in the context of an

implied-in-fact contract created in an emergency situa-

tion. Third parties dealing with the government are at

risk for having accurately ascertained the limits of gov-

ernmental authority. An investigation into the limits of

authority of each government representative is not possi-

ble in an emergency situation. Therefore, the Court

should address and resolve this issue so that individuals

providing service at the request of government officials in

an emergency situation will know, in advance, whether a

government promise to pay will be honored and, there-

fore, whether to provide the service.

B. The Decision Below

The trial court, after consideration of all of the facts

n this case, concluded that:

These circumstances illustrate that, between

these parties, the equivalent of mutual assent

was present [citation omitted]. Put another way,

the parties’ conduct indicates that plaintiff and

defendant, in fact, took upon themselves corre-

sponding obligations and liabilities and, viewed

objectively, came to that meeting of the minds

sufficient to establish an implied-in-fact con-

tract. [Citations omitted.]

City of El Centro v. United States, 16 Ct. Cl. at 507-08.

The trial court also concluded that because the case

arose from an emergency situation the implied-in-fact

contract was enforceable, even though the government

representative creating the contract, Agent Hernandez,

did not have actuai authority to do so. Id. at 508-509; El

Centro v. United States, 17 Ct. Cl. 794, 797-799. The court

reached its conclusion based on an application of the

theories of inherent authority, acceptance of benefits, and

institutional ratification.

The circuit court determined that the trial court’s

factual finding that there was “a sufficient meeting of the

minds to establish mutuality of intent to contract,” was

not clearly erroneous. City of El Centro v. United States, 922

F.2d 816, 820 (1990). Nevertheless, the circuit court

rejected the application of the doctrines of inherent

authority, acceptance of benefits, or institutional ratifica-

tion as theories which would preclude the government

from repudiating its obligation to pay created by the

implied-in-fact contract. Id. at 821. The circuit court’s

legal conclusion regarding the authority issue in this case

is due to its erroneous application of existing authority in

the area and the absence of guidance by this Court as to

the circumstances in which the above doctrines preclude

the government from repudiating a payment obligation

based on an implied-in-fact contract created in an emer-

gency situation on the ground that the party promising to

pay did not have actual contracting authority.

C. The Importance of the Issue

As noted by the circuit court in its opinion, “what-

ever the form in which the government functions, anyone

entering into an arrangement with the government takes

the risk of having accurately ascertained that he who

purports to act for the government stays within the

bounds of his authority.” City of El Centro v. United States,

922 F.2d at 820 (quoting Federal Crop Ins. Corp. v. Merrill,

332 U.S. 380, 384, 68 S. Ct. 1, 3, 92 L.Ed. 10 (1947)).

Precisely because third parties contracting with the gov-

ernment are presumed to know the circumstances under

which the government is required to keep its promises, it

is critical that this Court provide clear guidance to third

parties and the lower federal! courts on this issue.

This Court has previously addressed the issue of

repudiation by the government of its obligations in the

context of an action seeking compensation for the taking

of property rights. See International Paper Company v.

United States, 282 U.S. 399, 51 S. Ct. 176, 75 L.Ed. 410

(1931). In that case, the petitioner sought to recover com-

pensation for property rights in water of the Niagara

River alleged to have been taken by the United States for

war purposes. The petitioner had been notified by the

Secretary of War that the United States was requisitioning

all of its electrical power output resulting from the use of

water diverted from the Niagara River. In reversing the

Court of Claims’ decision refusing compensation, this

Court, in an opinion delivered by Justice Holmes, stated:

The government has urged different defences

with varying energy at different stages of the

case. The latest to be pressed is that it does not

appear that the action of the Secretary was

authorized by Congress. We shall give scant

consideration to such a repudiation of respon-

sibility. The Secretary of War in the name of the

President, with the power of the country behind

him, in critical time of war, requisitioned what

was needed and got it. Nobody doubts, we pre-

sume, that if a technical defect of authority had

been pointed out it would have been remedied

at once. The government exercised its power in

the interests of the country in an important mat-

ter, without difficulty, so far as appears, until

the time comes to pay for what it has had. The

doubt is rather late. . . .

Id. at 406.

In International Paper Company, the Supreme Court

found it sufficient to support the obligation to pay the

fact that the President was authorized to make such an

appropriation even though at that time the Secretary was

not delegated such authority by Congress. Thus, in an

emergency situation, where the government requested

and received services and retained the benefit thereof, the

Supreme Court has determined avoidance of the payment

obligation for such services cannot be accomplished

through a claim of lack of authority on behalf of the

governmental actor requesting the services. Although

International Paper was not decided in the context of an

implied-in-fact contract, its reasoning is equally sound in

this context.

In addition to this Court’s holding in International

Paper Company, decisions by the Court of Claims and

several district courts have applied similar reasoning in

finding that a claim of lack of authority will not justify

the government's refusal to pay for services requested

and received.®

8 Halvorson v. United States, 126 F. Supp. 898, 901 (E.D.

Wash. 1954) (at government inspector’s request contractor

removed one to four feet of snow from building attics after

blizzard, the district court permitted recovery to the contractor

noting “whether or not the resident inspector, Mr. Jackson, and

his superior, the resident engineer, had authonty to bind the

government by express contract or to modify the written con-

tract by oral agreement, they did, in the emergency situation

created by the damage done by the blizzard, have authority to

direct the contractors to proceed at once to minimize the dam-

age by immediate remedial action.”); Philadelphia Suburban

Corp. v. United States, 217 Ct. Cl. 705, 707 (1978) (Coast Guard

requested and suggested it would pay for plaintiff's fire rctar-

dant foam in fighting oil fire resulting from the collision of two

vessels. The Coast Guard never paid and claimed Coast Guard

representative at fire had no authority to contract. The Court of

Claims concluded that it was “inherent or implied in the

authority of the federal personnel acting in such emergency

firefighting situations, to procure and use, on the spot, the

necessary or appropriate fire-fighting supplies.”); Prestex, Inc.

v. United States, 162 Ct. Cl. 620, 628-30, 320 F.2d 367, 373-374

(1963) (“Even though a contract be unenforceable against the

government, because not properly advertised, not authorized,

or for some other reason, it is only fair and just that the

government pay for goods delivered, or services rendered and

accepted under it.”); Silverman v. United States, 679 F.2d 865,

870 (Ct. Cl. 1982) (“Although the senior FTC official was not a

contracting officer for the FTC, with expressly delegated

authority to make contracts for the government, the FTC

retained and utilized the transcripts which the plaintiff

released to the FTC on the basis of the official’s promise. By

accepting the benefits flowing from the senior FTC official's

promise of payment, the FTC ratified such a promise and was

bound by it... . ”).

In this case, as stated by the circuit court:

. 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 foresee-

able consequence of the conduct by the United

States government in fulfilling its constitutional

duties.

City of El Centro v. United States, 922 F.2d at 818. Despite

the above, the circuit court determined that because, as

triage was being performed in the hospital emergency

room on the injured aliens at approximately 2:00 a.m. on

the date of the crash, the hospital did not determine that

the governmental representative promising the govern-

ment would pay for the services had such authority, the

hospital and the citizens of the City of El Centro should

not be precluded from recovery for the services provided.

As noted by Judge Rich in his dissent in this case, the

reasons of the circuit court for reversing the Claims

Court’s judgment “seem to me an heroic effort by the

majority to support the government’s refusal to pay.” Id.

at 826. Such legal heroics are contrary to the strong public

policy in favor of encouraging citizens to cooperate with

the government in emergency situations. Such coopera-

tion enables the government to perform its role in such

circumstances and protect against injury to persons and

property. The government should not be permitted to

take advantage of its citizens in such situations.

In conclusion, such heavy-handedness by the govern-

ment should not be tolerated. As stated by Judge Rich in

his dissent:

I would hazard the guess that the government

has expended, in fighting this claim, many times

the arnount of assets that it would have taken to

pay this claim. So much for the federal expendi-

tures which so concern the majority.

Id. at 826.

—_

CONCLUSION

The circuit court’s opinion will perpetuate the con-

flict in the circuits regarding whether the activation of

emergency lights on a police or other law enforcement

vehicle, while pursuing another vehicle, constitutes a sei-

zure or detention of the occupants of the vehicle. The

circuit court’s holding will also perpetuate a misin-

terpretation by the lower federal courts of this Court’s

decision in Brower v. County of Inyo, 489 U.S. 593, 109 S.

Ct. 1378, 103 L.Ed.2d 628 (1989). Finally, the circuit

court’s holding works an injustice on petitioner and fur-

ther confuses the issue of when the government can be

held to payment agreements made by it in exchange for

services needed in an emergency situation. This Court

has not previously addressed that issue. For these rea-

sons, petitioner requests that the Court accept review and

reverse the decision below.

Respectfully submitted,

J. Mark WaxMan

Counsel of Record

James R. Katyvas

WEISSBURG AND ARONSON, INC.

2049 Century Park East

Suite 3200

Los Angeles, California 90067

(213) 277-2223

Attorneys for Petitioner

City of El Centro

A-1

APPENDIX

CITY OF EL CENTRO,

Plaintiff-Appellee,

Vv.

The UNITED STATES,

Defendant-Appellant.

No. 90-5003.

United States Court of Appeals,

Federal Circuit.

Dec. 28, 1990.

J. Mark Waxman, of Weissburg and Aronson, Los

Angeles, Cal., argued for plaintiff-appellee. Of counsel

was James R. Kalyvas.

Stephen J. McHale, of Dept. of Justice, Washington,

D.C., argued for defendant-appellant. With him on the

brief were Stuart M. Gerson, Asst. Atty. Gen., and David

M. Cohen, Director.

Before RICH and PLAGER, Circuit Judges, and

DUPLANTIER, District Judge.*

PLAGER, Circuit Judge.

Plaintiff-appellee City of El Centro, State of Califor-

nia, owns and operates El Centro Community Hospital

(ECCH). ECCH found itself treating 14 illegal aliens

injured, some seriously, when the vehicle in which they

were riding crashed while attempting to flee United

States Border Patrol agents. The course of treatment of

* The Honorable Adrian G. Duplantier, United States District

Court for the Eastern District of Louisiana, sitting by designa-

tion.

A-2

these individuals incurred $183,263.64 in costs for ECCH.

ECCH requested defendant-appellant United States Gov-

ernment to pay these costs. The Government refused to

pay. The Claims Court found an implied-in-fact contract

and granted relief to ECCH. City of El Centro v. United

States, 16 Cl.Ct. 500, reconsid. denied, 17 Cl.Ct. 794 (1989).

Despite the appealing nature of plaintiff’s case, as a mat-

ter of law we reverse.

I. Background

Early in the morning of January 23, 1985, Boarder

Patrol agents observed several vans parked on the Ameri-

can side of the border between the United States and

Mexico, near E] Centro, California. The vans were parked

in an area known to be a rendezvous point for smugglers

of illegal aliens. At about the same time, the Border Patrol

had indications that a group of people was moving on

foot in the general direction of the vans.

A short time later, the agents saw one of the vans

traveling eastward on the highway. The agents followed

in their vehicle, activating their emergency lights. The

van did not stop and a high speed chase began. With the

border patrol agents in hot pursuit, the van raced along

California Highway 8. In an unsuccessful attempt to

elude the pursuing agents, the van, still traveiling at

speeds in excess of 60 miles per hour, swerved off the

highway and onto an exit ramp. Reaching the top of the

ramp, the van failed to negotiate a turn and vaulting over

an embankment, crashed, exploded and burned.

The pursuing agents quickly arrived at the crash

scene, extinguished the flames and radioed for assistance.

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Fourteen aliens in the van were taken by ambulance to

ECCH for treatment. The driver and two of the pas-

sengers died in the accident.

Responding to the emergency call, ECCH prepared

for the arrival of the injured aliens. Medical personnel as

well as Assistant Director of Finance for ECCH, Kaye Fox,

arrived at ECCH ahead of the injured aliens. Uniformed

Border Patrol Agent Mario Hernandez also arrived at the

hospital ahead of the injured aliens. The Claims Court

found that when Ms. Fox asked Agent Hernandez who

would pay for the treatment of the aliens, Agent Her-

nandez responded, “me and you” [sic]. Ms. Fox testified!

that it was her understanding, based on her conversation

with Agent Hernandez, that the Border Patrol would be

responsible for the costs of hospitalization.

Agent Hernandez instructed the hospital to notify

the Border Patrol prior to the release of any of the aliens

so that each alien would be released from ECCH directly

into the custody of the Border Patrol. While hospitalized,

the aliens were photographed by Immigration and Natu-

ralization Service (INS) investigators and had their medi-

cal records reviewed by an INS doctor visiting ECCH. At

least one INS investigator also signed ECCH consent

forms for those aliens unable to sign. The investigator

signed on a line marked “Patient/Parent/Conservator/

Guardian.”

The Claims Court found that an implied-in-fact con-

tract was created and that ECCH was entitled to recovery

under that contract.

1 Ms. Fox’s testimony was in the form of a videotaped

deposition as she had died prior to trial.

A-4

II. Discussion

The Constitution vests in the Federal Government the

authority and responsibility to protect the integrity of the

borders of the United States. U.S. Const. art. I, § 8;

Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct.

336, 338, 35 L.Ed. 1146 (1891). In the course of implement-

ing this responsibility, Congress has assigned the duty of

apprehending aliens who illegally enter the country to

the Attorney General. The Attorney General carries out

this duty, in part, through the vehicle of the Border Patrol

Division of the Immigration and Naturalization Service’s

Office of Enforcement. See 8 U.S.C. § 1103(a) (1988); 28

C.F.R. § 0.105 (1990); 8 C.FR. § 100.2 (1990).

In this case, 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 in fulfilling its Constitu-

tional duties. As a matter of equity, there is a good

argument that these costs should be assessed against all

the taxpayers of the United States. The question before

the court, however, is whether, as a matter of law, the

United States is obligated to pay these costs, or whether,

as it has chosen to do, the Government is free to let these

costs fall upon ECCH and those whose obligation it is to

support the hospital.

The Government is of the view that there is no legal

basis under which the hospital can be reimbursed for

these costs. It argues that there was no express or implied

+ oy os iil

A-5

contract for services that met the statutory requirements

for contracting with the United States. The Government

argues further that the injured aliens were neither in the

Government’s custody, nor had the Government assumed

responsibility for their care.

ECCH argues that the Border Patrol’s hot pursuit of

these individuals was sufficient for a court to find that

the aliens were in custody, and that as a result they were

under the care of the Government so that the services

rendered to them were the usual medical services ren-

dered upon authorized request for persons in Govern-

ment custody, and for which payment is statutorily

provided. In the alternative, ECCH argues that the con-

duct of various INS agents in the course of these events

created an implied-in-fact contract.

We review findings of fact from the Claims Court

under the clearly erroneous rule. As regards the legal

conclusions of the Claims Court, we will affirm the

court’s conclusions unless they are incorrect as a matter

of law. Fed.R.Civ.P. 52(a); Heisig v. United States, 719 F.2d

1153, 1158 (Fed. Cir.1983).

ECCH cites two statutes as the basis for its claim that

the Government is mandated by law to pay these medical

expenses. The Claims Court held neither to be applicable.

Title 8, United States Code, section 1252(c) (1982), cited

by ECCH, authorizes the Attorney General to expend

funds for, inter alia, the operation of facilities for the

detention of aliens against whom a final order of deporta-

tion has already been made. The Claims Court correctly

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observed that the “plain language precludes its being

read as a money-niandating provision.” 16 Cl.Ct. at 504.

The other statutory section on which ECCH bases its

argument is 42 U.S.C. § 249 (1982). Section 249(a) pro-

vides that “any person detained by [the Immigration and

Naturalization Service], may be treated and cared for by

the Public Health Service.” When treatment is supplied

outside of a Public Health Service facility or by other than

Public Health Service personnel, § 249(c) provides:

Persons whose care and treatment is authorized

by subsection (a) of this section may, in accor-

dance with regulations, receive such care and

treatment at the expense of the [Public Health]

Service from public or private medical or hospi-

tal facilities other than those of the [Public

Health] Service, when authorized by the officer

in charge of the [Public Health Service] station

at which the application is made.

As the Claims Court noted, the problem with this

provision from ECCH’s viewpoint is that it does not

mandate compensation, but simply provides authorization

for payment when properly requested and authorized by

the designated government agent. Furthermore, the par-

ties appear to have misread § 249(c) by suggesting that

the care and treatment of the aliens potentially autho-

rized by that section is the responsibility of the Immigra-

tion and Naturalization Service rather than the Public

Health Service. Section 201(a) states that “[t]he term ‘Ser-

vice’ means the Public Health Service.”

For the aliens in the present matter to fall within the

ambit of § 249 authority, ECCH would have needed to

show that application for payment was “authorized by

A-7

the officer in charge of the [Public Health Service] sta-

tion” where that application was made. The record shows

that discussions regarding payment involved Border

Patrol Agent Hernandez and that claims for payment

were submitted only to the INS, not to the Public Health

Service.

The Claims Court found that “[n]o ‘application’ was

made to a Public Health Service station nor approved by

the ‘officer in charge of the station.’ ” 16 Cl.Ct. at 504. We

agree and therefore § 249 does not provide authorization

for reimbursement of the expenses incurred by ECCH in

treating the aliens.

ECCH considered that, in addition to the statutory

theory for recovery discussed above, it had an indepen-

dent cause of action in contract. With regard to ECCH’s

argument that the contract was implied-in-law — that is, a

restitutionary theory — the Claims Court held that Con-

gress had not relinquished the Government's sovereign

immunity with respect to implied-in-law contract obliga-

tions. 16 Cl.Ct. at 505. Neither party has disputed that

holding in this appeal.

The Claims Court, however, agreed with ECCH that

there was an implied-in-fact contract, obligating the Gov-

ernment to pay for the medical services rendered to the

injured aliens. The Government disputes this holding. An

implied-in-fact contract requires findings of: 1) mutuality

of intent to contract; 2) consideration; and 3) lack of

ambiguity in offer and acceptance. Russell Corp. v. United

States, 210 Ct.Cl. 596, 537 F.2d 474, 482 (1976), cert. denied,

A-8

429 U.S. 1073, 97 S.Ct. 811, 50 L.Ed.2d 791 (1977); Fincke v.

United States, 230 Ct.Cl. 233, 675 F.2d 289, 295 (1982).

When the United States is a party, a fourth requirement is

added: the Government representative “whose conduct is

relied upon must have actual authority to bind the gov-

ernment in contract.” Juda v. United States, 6 Cl.Ct. 441,

452 (1984) (citing Federal Crop Ins. Corp. v. Merrill, 332 U.S.

380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947)).

The Government argues that it did not intend to

enter into a contract and that Agent Hernandez did not

have authority to bind the United States in contract. The

Claims Court held that, as a matter of fact, the various

discussions between emplovees of the Government and

of ECCH when taken as a whole evidenced a sufficient

meeting of the minds to establish mutuality of intent to

contract. We cannot say that that finding is clearly erro-

neous.

With regard to the question of whether the Govern

ment’s agents had authority to bind the Government in

contract, ECCH argues: that Agent Hernandez was the

Government official sent to ECCH to coordinate the situa-

tion; that the agent’s supervisor, Agent Roy, knew of the

discussion between Agent Hernandez and Ms. Fox; and,

that because no Government representative did anything

_ to dispel Ms. Fox’s belief that the Government would pay

the expenses incurred by the aliens, the supervisor, and

therefore the Government, had ratified Agent Her-

nandez’s statements and had bound the Government in

contract.

A-9

The Claims Court concluded that it knew of “no

statute, regulation or case which would preclude Agent

Hernandez’ exercise of government authority to obligate

funds for emergency medical treatment of detainees

injured during the course of apprehension.” 16 CI.Ct. at

508. But the issue is not whether some authority exists

that prohibits Agent Hernandez from obligating the Gov-

ernment in contract; rather, the issue is whether Agent

Hernandez had been granted the authority to affirma-

tively obligate the Government. No such authority has

been cited by ECCH nor is such authority evident from

the record.

The United States Government employs over 3 mil-

lion civilian employees.? Clearly, federal expenditures

would be wholly uncontrollable if Government

employees could, of their own volition, enter into con-

tracts obligating the United States. Regardless, ECCH

argues that-Agent Hernandez had authority to bind the

Government in the instant matter. We disagree.

Whatever the form in which the Government

functions, anyone entering into an arrangement

with the Government takes the risk of having

accurately ascertained that he who purports to

act for the Government stays withir the bounds

of his authority. The scope of this authority may

be explicitly defined by Congress or through the

rule-making ‘power. And this is so even though,

as here, the agent himself may have been

unaware of the limitations upon his authority.

2M. Hoffman, World Almanac and Book of Facts 1990 106

(1990).

A-10

Federal Crop Ins. Corp. v. Merrill, 332 U.S. at 384, 68 S.Ct. at

3. Further, it is ECCH’s responsibility to show that Agent

Hernandez had the requisite contracting authority. Hous-

ing Corp. of America v. United States, 199 Ct. Cl. 705, 468

F.2d 922, 925 (1972).

The Claims Court believed this to be an emergency

situation such as that described in Halvorson v. United

States, 126 FSupp. 898 (E.D.Wash.1954), where, following

a three day Montana blizzard, the weight of snow on

several partially-constructed government buildings

threatened their safety. The local Corps of Engineers offi-

cer enlisted immediate assistance of others to save the

buildings. He was held to have authority to obligate the

Government to pay for such aid.

The present situation is not one in which emergency

action must be taken by government agents to protect life

and property, and an implied authority to obligate gov-

ernment resources is found. In terms of the medical needs

of the injured aliens, Federal officials had no care-provid-

ing duties to perform. The hospital was preparing to

attend to the injured aliens; the only question was pay-

ment. Even assuming the casual remark by Agent Her-

nandez could be considered a serious contractual

undertaking on behalf of the Government, ECCH failed

to meet its burden of showing authority to contract. It is

reversible error for the trial court to have found such

authority vested in Agent Hernandez.

Even so, ECCH argues, because Supervisor Roy was

aware of the conversation between Ms. Fox and Agent

Hernandez regarding payment for costs incurred by the

aliens, and because no INS representative overtly sought

A-11

to dispel any possible misconception about such pay-

ments, some type of “institutional ratification” had

occurred. Again, we disagree.

The Claims Court cited Silverman v. United States, 230

Ct. Cl. 701, 679 F.2d 865 (1982), as binding authority in

this Circuit that permits a finding of institutional ratifica-

tion. 17 Cl.Ct. at 798. Silverman was a suit by a sub-

contractor (a court reporter) against the Government for

unpaid services he had performed, and which the Gov-

ernment acknowledged it had received. The contractor

who had the contract with the Government to provide the

stenographic services found itself in financial difficulty,

at a time when, without having paid the subcontractor for

his work, it had already received partial payment from

the Government for the services. When plaintiff Silver-

man realized that his employer-contractor was in finan-

cial difficulties, he contacted a senior official of the

Federal Trade Commission (FTC) for whom the services

were being performed. That official, who had authority to

approve vouchers for payment for goods and services, told

plaintiff that if he would provide the remaining services

and deliver the remaining transcripts, he would “see to it

that the plaintiff received payment... . ” Silverman, 679

F.2d at 868. And he did. He paid plaintiff some $7488.19

of the $10,091.71 plaintiff claimed was due him for all his

as yet unpaid services; plaintiff sued for the balance due.

The court agreed that plaintiff as a subcontractor had

no contract with the Government - “the subcontractor

cannot properly maintain an action in such a situation” —

but that an implied-in-fact contract arose, ratified by the

action of the FTC in accepting the benefits flowing from

the senior FTC official’s promise of payment: “the FTC

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retained and utilized the transcripts which the plaintiff

released to the FTC on the basis of the official’s promise.”

Id. at 869-70.3

By contrast, in the case before us there was no prom-

ise, certainly no express promise, by an officizi

empowered to bind the Government to pay for the care

rendered. ECCH has not shown that aay individual with

contracting authority exercised that authority to bind the

United States in this matter.

A second requirement for finding an implied-in-fact

contract is consideration. The Government received none.

ECCH argues that because the aliens were detained by

the Government and because the Government is respons-

ible for the care and treatment of such detainees,‘ the care

given by ECCH to the aliens conferred a benefit on the

Government and was thus consideration in an implied-in-

fact contract.

3 The case took a curious twist. The court found that the

implied-in-fact contract was only for those services for which

the Government had not already paid the contractor. As a

consequence, not only did plaintiff not get the balance for

which he sued, but he had to return part of the money that the

Government had paid him.

4 The record reflects that the Government stipulated that it

assumes responsibility for the care of suspected aliens taken

into custody or detained by the Border Patrol. The exact

authority under which the Department of Justice found the

Government responsible for such care does not appear in the

record.

oS at he

A-13

The Government's responsibility to care for the aliens

is set out in § 249. As previously noted, the language of

§ 249 is permissive - “any person detained by the [INS]

may be treated and cared for. . . ” (emphasis added) -

rather than mandatory. Further, § 249 would only apply

to the aliens if they were “detained” by the INS. The

meaning of the term “detained” in § 249 is a question of

law based on the underlying facts. In this case, the Claims

Court found as a fact that at no time during the period at

issue was physical custody taken of the aliens by INS.

City of El Centro v. United States, No. 208-86C, bench

ruling at 260-61 («Cl.Ct. Dec. 18, 1987). Nevertheless, the

court held that the term encompassed a “de factor deten-

tion” which existed as a result of the conduct of the INS.

16 CL.Ct. at 504.

In the absence of a statutory or judicial definition of

“detained” as it is used in § 249, we look to analogous

law. An area in which fact patterns comparable to this

have arisen is search and seizure law, specifically, when

government action, typically by police, results in the sei-

zure of a person under the Fourth Amendment.

The Supreme Court has phrased the test of when the

Government has “seized” someone in various ways: a

meaningful interference with an individual’s freedom of

movement, or a willful governmental termination of an

individual’s freedom of movement through means inten-

tionally applied. See, e.g., Brower v. County of Inyo, 489

U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989); Tennessee

v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985);

United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80

L.Ed.2d 85 (1984); Florida v. Royer, 460 U.S. 491, 103 S.Ct.

1319, 75 L.Ed.2d 229 (1983); Michigan v. Summers, 452 U.S.

A-14

692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981); Terry v. Ohio,

392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In the recent Brower case, the issue was whether a

high speed chase which ended in a crash constituted a

seizure in violation of the Fourth Amendment. The police

had employed a roadblock consisting of an 18 wheel

tractor-trailer truck which completely blocked the two-

lane road on which the fleeing driver was traveling. The

chase terminated abruptly when the fleeing vehicie

rounded a curve in the road and rammed into the truck,

resulting in the death of the driver. The Court held that a

Fourth Amendment seizure occurred: “A seizure occurs

even when an unintended person or thing is the object of

the detention or taking, but the detention or taking itself

must be willful.” Brower, 489 U.S. at 596, 109 S.Ct. at 1381

(citations omitted).

In reaching that conclusion, the Court emphasized

that a governmental seizure requires an intentional acqui-

sition of physical control. A seizure does not occur, said

the Court, whenever there is a governmentally caused

termination of an individual’s freedom of movement, nor

even whenever there is a governmentally caused and

governmentally desired termination of an individual’s

freedom of movement, but only when there is a govern-

mental termination of freedom of movement through

means intentionally applied. (The concurring opinion,

while joining in the judgment of the Court, disagreed

with the majority’s emphasis on the need for an inten-

tional acquisition of physical control. Brower, 489 U.S. at

600-01, 109 S.Ct. at 1383-84.)

A-15

Thus, the Court noted, while the roadblock used by

the County of Inyo resulted in a seizure, a police auto-

mobile chase in which the suspect unexpectedly loses

control of his or her car would not be a seizure. Id. at 595,

109 S.Ct. at 1381. The analogy is apt. The INS pursuit of

the fleeing vehicle which ended in the crash was insuffi-

cient to place the aliens in INS detention; to the extent the

Claims Court’s holding is to the contrary it is incorrect as

a matter of law.

INS activity afte: the crash also fails to constitute a

detention of the hospitalized aliens. That a Border Patrol

agent was present at ECCH when the aliens were admit-

ted was insufficient to place the aliens in INS detention.

The understanding of both the hospital and the Border

Patrol was that at the termination of each alien’s hospital-

ization, ECCH would contact INC so that at that time INS

could take custody of the individual aliens. The events

here appear insufficient to constitute the Government’s

having “detained” the aliens either prior to or during

their hospitalization. Brower, 489 U.S. at 596, 109 S.Ct. at

1381.

Because the aliens were not detained by the INS,

§ 249 does not provide authority for, much less create

responsibility in, the Government to provide care for the

aliens. Nor have the parties pointed to other statutory or

regulatory language imposing such authority or respon-

sibility. Because the Government was not required to

provide care to the aliens, the care provided by ECCH

benefited the aliens, not the Government. Therefore, the

Government received no consideration to support an

implied-in-fact contract.

A-16

The dissent would find that custody and respon-

sibility for the care and treatment of the aliens was taken

by the Government at some undefined time after they

arrived at the hospital, but before they were released into

Government hands. Brower is said to be inapplicable on

the facts, and dictum anyway. However, no alternative

authority - either statutory or case — is offered for this

contrary conclusion. That of course was the trial court’s

problem as well. Even if that problem were overcome, the

dissent offers no basis for concluding that an application

for reimbursement was ever filed with or approved by

the Public Health Service in accordance with § 249.

Authority is offered for the dissent’s conclusion that

a contract remedy lies. The two cases cited are Silverman

v. United States, 230 Ct.Cl. 701, 679 F.2d 865 (1982) and

Philadelphia Suburban Corp. v. United States, 217 Ct.Cl. 705

(1978). Silverman was discussed above.

The Philadelphia Suburban case was one where again

the Government received a direct benefit — the Govern-

ment took and used plaintiff’s firefighting foam to put

out a fire on two ships that had collided. When the

plaintiff sued to make the Government pay for what it

took, the Government moved for summary judgment on

the grounds that it had not contracted for what it took

and therefore could not be made to pay. Not surprisingly,

the court denied the Government’s motion, and sent the

case back for trial to see if plaintiff could develop “proof

of a contract implied-in-fact arising from the totality of

the circumstances.” Philadelphia Suburban, 217 Ct.Cl. at

707.

A-17

In the case before us, ECCH had the opportunity to

make its proof that the Government, given the totality of

the circumstances, contracted, if not formally at least in

fact, for the goods-and services involved, and that these

goods and services were for the benefit of the Govern-

ment. In this, ECCH failed.

If this suit was against a party other than the Govern-

ment, a court might sympathetically respond to the siren

call of restitutionary relief, a contract “implied in law” as

the euphemism goes. But, as the Claims Court recog-

nized, the Government has long been held immune from

such claims for relief. United States v. Mitchell, 463 U.S.

206, 218, 103 S.Ct. 2961, 2968, 77 L.Ed.2d 580 (1983) (citing

Merritt v. United States, 267 U.S. 338, 341, 45 S.Ct. 278, 279,

69 L.Ed. 643 (1925)). Even when as harsh a result is called

for as this seems to be, it is not for us to reverse that long

standing doctrine. The alluring umbrella of “totality of

the circumstances” and an implied-in-fact contract when

the law does not permit it is not a satisfactory alternative

to an absence of legal right. If a remedy is to be had in

cases such as this, it must be provided by a branch of

government empowered to grant it.°

> Congress has established a variety of Federal programs

providing financial assistance to hospitals. If there is to be a

special program of relief for a hospital that provides services

under the circumstances of this case, the Congress is in the best

position to determine the nature of such a program, and its

boundaries.

i ate

A-18

III. Jurisdiction

The Government argued that ECCH failed to file its

claim pursuant to the requirements of the Contract Dis-

putes Act (CDA). As a result, the Claims Court, in the

Government’s view, was without jurisdiction to hear the

case. In view of the fact that we conclude that no contract

existed between the Government and ECCH,, it is unnec-

essary for us to determine whether a claim for breach of

that alleged contract was properly filed. The Claims

Court is thus without jurisdiction under the CDA count.

Of course, jurisdiction still attached under the § 249

count.

IV. Conclusion

However compelling the hospital’s claim may be,

neither the Claims Court nor this court has been pre-

sented with a legal basis for relief. The judgment of the

Claims Court is reversed.

REVERSED.

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), unfor-

tunately 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 (what-

ever legal label is stuck on their status) during and after

their hospitalization. It is undisputed that as they left the

A-19

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 deci-

sion 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 pay-

ment 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 evi-

dence. There are essentially no disputed facts. The gov-

ernment’s Reply Brief states on page 2 that “we have

taken care to limit our challenges to the legal determina-

tions 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.

ss lliciiaatceettiiaiaeateenes ean

A-20

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.

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 there-

of, 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 per-

sonnel 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 Her-

nandez 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 pursu-

ing.” Later, INS sent its photographers who took their

pictures, signing some hospital forms in connection there-

with 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

A-21

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 an 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 unrea-

sonable 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 com-

plaint 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 dis-

missed the Fourth Amendment claim on the

A-22

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 proposi-

tion that ‘[vJiolation of the Fourth Amendment requires

an intentional acquisition of physical control’.”

The present case does not involve seizure, unrea-

sonableness, 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 major-

ity 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 rat-

ification” approach, as developed in Judge Turner’s sec-

ond written opinion on reconsideration, 17 Cl.Ct. at

797-798, more persuasive, including the Court of Claims

decision in Silverman v. United States, 230 Ct.Cl. 701, 679

F.2d 865 (1982). That case is, of course, a binding prece-

dent 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

A-23 —

Court’s judgment appeals to one’s sense of justice. |

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 opin-

ions of Judge Turner constitute such a rationale and cite

authority in support of his conclusions, not only in Silver-

man, 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 hos-

pital’s care of its detainees.

A-24

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.

A-25

CITY OF EL CENTRO, Plairtiff,

UNITED STATES of America,

Defendant.

No. 208-86-C.

United States Claims Court.

Aug. 7, 1989.

j. Mark Waxman, Los Angeles, Cal., argued, for

plaintiff. With him on the opposition to defendant's

motion for reconsideration or rehearing was James R.

Kalyvas, Los Angeles, Cal.

Stephen J. McHale, Washington, D.C., argued, for

defendant. With him on the motion for reconsideration or

rehearing were Acting Asst. Atty. Gen., Stuart E. Schiffer

and David M. Cohen, Washington, D.C.

OPINION ON RECONSIDERATION

TURNER, Judge.

In an opinion filed March 16, 1989, this court deter-

mined that plaintiff had established an implied-in-fact

contract with the Immigration and Naturalization Service

entitling it to compensation for medical care rendered to

14 illegal aliens. City of El Centro v. United States, 16 Cl.Ct.

500 (1989). On March 30, 1989, defendant filed a motion

for reconsideration or rehearing. This opinion addresses

defendant’s motion.

The parties have briefed and argued the issues raised

by defendant. For reasons set forth below, we conclude

A-26

that defendant’s motion should be denied. Because the

matters raised in defendant’s motion merit discussion

and analysis, this opinion supplements the court’s March

16, 1989 opinion, with which familiarity is presumed.

In its motion for reconsideration or rehearing, the

government argues that the court improperly awarded

recovery under an implied-in-fact contract because plain-

tiff had abandoned its implied-in-fact contract claim prior

to trial. Further, defendant asserts that plaintiff’s case

lacked an essential element of an implied-in-fact contract

because of its failure to establish either (1) that the gov-

ernment actors on whose conduct the contract was based

possessed authority to bind the government, or (2) that

the conduct in question was nevertheless ratified by the

government. Finally, defendant argues that plaintiff's

implied-in-fact contract claim must be dismissed for fail-

ure to meet the jurisdictional prerequisites of the Contract

Disputes Act, 41 U.S.C. §§ 601-613. Defendant seeks dis-

missal of the complaint, or, in the alternative, re-opening

of the proceedings on the issues of authority ard ratifica-

tion.

A. Abandonment of Implied-in-Fact Contract Claim

Defendant’s contention that plaintiff abandoned its

implied-in-fact contract claim (which was explicitly set

forth in the complaint) rests on assertions that (1) no

mention of the implied-in-fact contract claim can be

A-27

found in the parties’ “Joint Statement of Issues of Facts

and Law to be Resolved by the Court” filed before trial

and (2) trial proceeded solely on plaintiff’s statutory the-

ory. We conclude that an implied-in-fact contract theory

was not abandoned by. plaintiff.

While it is true that the pariies’ joint statement of

issues filed pursuant to RUSCC, Appendix G, 915! does

not contain an explicit statement of an implied-in-fact

contract issue, several of the issues set forth in the par-

ties’ joint statement could pertain to a contract theory.

For example, the very first issue of fact listed by the

parties was

Whether any representative of the Immigration

and Naturalization Service (INS) advised any

representative of El] Centro Community Hospital

(ECCH) that ECCH would be reimbursed for

medical care furnished to individuals injured in

[the] automobile accident [that] follow[ed] the

high speed chase by Border Patrol Agents ... on

or about January 23, 1985.

1 RUSCC, appendix G, 715 provides in pertinent part:

Issues of Fact and Law... . [T]he parties shall also

file a joint statement setting forth the issues of fact

and the issues of law to be resolved by the court.

issues should be set forth in sufficient detail to

enable the court to resolve the case in its entirety by

addressing each of the issues listed. The statement of

issues shall control the admissibility of evidence at

trial and evidence will be deemed to be irrelevant

unless it pertains to one or more of the issues.

A-28

Joint Statement of Issues of Facts and Law to be Resolved

by the Court at 1, 91. Similarly, listed as an issue of law

was

Whether the INS is responsible for reimburse-

ment of medical expenses for ECCH’s treatment

of the injured fourteen individuals when the

INS had reasonable suspicion that these individ-

uals were illegal aliens, requested ECCH to con-

tact the INS when the individuals were to be

released and Border Patrol agents came to the

hospital to take them into physical custody

upon their discharge.

Joint Statement at 3, 74. These questions focus upon the

significance of government actors’ conduct in light of

surrounding circumstances — the core concern of any

implied-in-fact contract claim. E.g., Algonac Mf'g Co. v.

United States, 192 Ct.Cl. 649, 678-74, 428 F.2d 1241, 1255

(1970); DeRoo v. United States, 12 Cl.Ct. 356, 361 (1987). It

is concluded that it would be unfair to find an “abandon-

ment” of plaintiff’s contractual theory based on the par-

ties’ pretrial statement of issues.

Nor could it be said that trial proceeded solely on

plaintiff’s statutory theory. During his opening statement

at trial, defense counsel invited the court to find that

plaintiff had abandoned its contract theory, but the court

declined this invitation. Before the first witness was

sworn, the following exchange occurred between defense

counsel and the court:

[Government counsel]: Your Honor, just so I can

clarify that, are you suggesting then that there

might be some other theory rather than [42

U.S.C. § ] 249 that might be involved in this

case; is that what you’re looking for?

A-29

The Court: Well, I’m just sharing with you that

I’m wondering if that isn’t the case.

[Government counsel]: Yes, sir.

The Court: And it may be... [that] we all agree

that [42 U.S.C. § ] 249 just really isn’t addressing

the facts that occurred, whatever they turn out

to be.

[Government counsel]: Thank you, your Honor.

Trial Transcript at 20-21. During his closing argument,

government counsel stated:

In all honesty, your Honor, I thought that [the

implied-in-fact contract] claim had been aban-

doned. I don’t believe it’s raised as an issue in

the pre-trial statement but, to the extent that it is

an issue in the case, and maybe | missed it but I

don’t remember it being an issue, but to the

extent that it is an issue in the case, [there was no

proof by plaintiff of authority to bind the gov-

ernment].

Tr. at 236. (Emphasis added.) Finally, upon the court’s

request for post-trial briefs on theories of recovery (tran-

script of April 28, 1988 status conference, pp. 20-21), the

parties’ briefs addressed both statutory and implied-in-

fact contract theories.

In summary, because the implied-in-fact contract the-

ory (1) was expressly raised in the complaint, (2) was

never formally dismissed from the case, (3) remained

applicable to the parties’ statement of issues, (4) retained

vitality (as recorded in the transcript) at the start of trial,

(5) was supported by evidence presented at trial and (6)

was one of the theories on which the court received post-

trial briefing, the government’s claim of abandonment is

rejected.

A-30

B. Authority to Bind the Government

In the March 16 opinion, we stopped short of holding

that Agent Hernandez possessed authority to obligate the

government, finding instead that the issue “simply [did]

not admit of an easy answer.” City of El Centro, 16 C1.Ct.

at 509. However, citing Haivorson v. United States, 126

F.Supp. 898 (E.D.Wash.1954), we noted that

Government officials who might not otherwise

have authority to make arrangements and incur

obligations on behalf of the government may be

able to exercise such authority during an emer-

gency so that immediate remedial action can be

taken.

City of El Centro, 16 Cl.Ct. at 508.

In its opposition to the instant motion, plaintiff has

cited a case which reinforces this principle: Philadelphia

Suburban Corp. v. United States, 217 Ct.Cl. 705 (1978). In

Philadeiphia Suburban, a collision of two tankers on the

-Delaware River resulted in an oil fire. The U.S. Coast

Guard, acting through an officer and two enlisted men,

first assisted and later directed local firefighters in fight-

ing the blaze. In the course of battling the flames, the

firefighters used a substantial amount of plaintiff’s fire-

fighting foam. When plaintiff subsequently requested

payment for the foam, the government refused, asserting

that “none of the Coast Guard personnel at the fire had

any [government] authority to contract, either expressly

or impliedly, for any use of the foam.” Philadelphia Subur-

ban, 217 Ct.Cl. at 706-7. The Court of Claims remanded

for trial, declaring:

[I]t may turn out, when the facts and circum-

stances are fully canvassed, that it was inherent

A-31

or implied in the authority of the federal per-

sonnel acting in such emergency firefighting sit-

: uations to procure and use on the spot the

necessary or appropriate fire-fighting supplies.

Philadelphia Suburban, 217 Ct.Cl. at 707.2

The Court of Claims’ reasoning in Philadelphia Subur-

ban provides support for holding that the emergency

situation cloaked Agent Hernandez with authority to

obligate appropriate funds for the emergency medical

treatmert of the INS detainees in this case. Given the

emergency situation, the finding of de facto detention, the

existence of Congressionally-appropriated funds for INS

detainees’ emergency medical care, and the strength of

the Philadelphia Suburban holding, it is concluded that

such authority was inherent in, and a necessary and

integral part of, Agency Hernandez’ authorized duties.*

2 On remand, the trial judge concluded that although

Coast Guard firefighters on the scene had authority to use the

foam, they did not have authority to contract for the purchase of

the foam. Philadelphia Suburban Corp. v. United States, No.

446-75, slip opinion at 16 (Ct.Cl. March 6, 1981). Nevertheless,

the trial judge found that the government's actions constituted

a Fifth Amendment taking which entitled plaintiff to compen-

sation. Slip opinion at 11-12. In accordance with the suose-

quent stipulation of the parties, the Court of Claims entered

judgment for plaintiff. Philadelphia Suburban Corp. v. United

States, 229 Ct.Cl. 600 (1981).

3 During oral argument, government counsel urged that

the language of Philadelphia Suburban Corp. v. United States, 217 -

Ct.Cl. 705 (1978) indicates that more facts are needed before

authority could be found in this case. While it is true that the

Philadelphia Suburban court remanded so that “the facts and

(Continued on following page)

A-32

C. Ratification

In the March 16 opinion, we held that even if Agent

Hernandez lacked authority to bind the government, his

actions were nevertheless ratified by INS. City of El Cen-

tro, 16 Cl.Ct. at 509. The government asserts that ratifica-

tion can be effective only if such ratification is by an

official possessing authority to contract on behalf of the

United States. Further, defendant urges that “a particular

individual must be identified as the ratifying official and

some exploration must be made of his knowledge.” Def.

Motion for Reconsideration or Rehearing at 7. The sole

case which defendant cites on this point does not require

such a rule here.‘ Instead, there exists binding authority

(Continued from previous page)

circumstances [could be] fully canvassed,” Philadelphia Subur-

ban Corp., 217 Ct.Cl. at 707, trial had not yet been held at the

time the trial court had issued its ruling. In the instant case, by

contrast, trial has already been held and the facts and circum-

- stances pertinent to the emergency situation as well as to any

inference of Agent Hernandez’ inherent authority to deal with

it have been “fully canvassed.” Id.

4 Consortium Venture Corp. v. United States, 5 Cl.Ct. 47, 51

(1984), aff'd, 765 F.2d 163 (Fed.Cir. 1985) hinged its discussion

of ratification wholly upon 41 C.F.R. § 1-1.405 (1984) (“Ratifica-

tion of unauthorized contract awards”), a provision which was

superseded when the Federal Acquisition Regulations (FAR)

went into effect on April 1, 1984 and which thereafter applied

only to contracts formed prior to April 1, 1984. See 50 Federal

contain any similar provision; indeed, no like provision

appeared in the FAR until February 1988 when 48 C.F.R.

§ 1.602-3 (“Ratification of unauthorized commitments”)

became effective. Hence, even assuming the FAR applied to

(Continued on following page)

A-33

A etapa

in this Circuit that permits a finding of institutional rat-

ification. Silverman v. United States, 230 Ct.Cl. 701, 710,

679 F.2d 865, 870 (1982). Institutional ratification occurred

in this case.

In Silverman, a senior Federal Trade Commission

(FTC) official, whom the court recognized as lacking

authority to obligate the government in contract, advised

a court reporting company that if it delivered certain

transcripts to FTC, then FTC would pay the company for

the transcripts. The transcripts were delivered, but FTC

refused to pay for them. The Court of Claims held that

FTC was liable for the cost of the transcripts based on an

implied-in-fact contract. The lack-of-authority problem

was cured by ratification: “By accepting the benefits flow-

ing from the senior FTC official’s promise of payment, the

FTC ratified such promise and was bound by it.” Silver-

man, 230 Ct.Cl. at 710, 679 F.2d at 870 (emphasis added).

It would be difficult to read the Court of Claims’

phrasing (“the FTC ratified”) as anything other than a

finding that the FTC as an institution ratified the contract;

this court is persuaded, therefore, that it is legally possi-

ble for a government agency to ratify an otherwise tech-

nically unauthorized commitment and that a particular

ratifying official possessing contractual authority need

not necessarily be identified in order to show ratification.

(Continued from previous page)

this contract, defendant’s proposed ratification rule would still

not govern, since FAR contained no provision respecting rat-

ification that was effective at the time this contract was

formed.

A-34

Apart from its holding that institutional ratification is

possible in the government contracts area, Silverman also

stands for the principle that acceptance of benefits can consti-

tute ratification and thus render enforceable an otherwise

defective government contract. Many cases echo this princi-

ple, e.g., United States v. Amdahl Corp., 786 F.2d 387, 393

(Fed.Cir.1986); Philadelphia Suburban, 217 Ct.Cl. at 707; Pres-

tex, Inc. v. United States, 162 Ct.Cl. 620, 628-30, 320 F.2d 367,

373-74 (1963); New York Mail & Newspaper Transp. Co. v.

United States, 139 Ct.Cl. 751, i54 FSupp. 271, cert. denied, 355

US. 904, 78 S.Ct. 332, 2 L.Ed.2d 260 (1957). In this case, there

can be no dispute that INS and the Border Patrol accepted

the benefits flowing from their agents’ legally-significant

conduct. Accordingly, “ratification by acceptance of benefits”

is added to the ratification by silence, inaction, and confirm-

ing conduct that this court found in its original opinion. City

of El Centro, 16 Cl.Ct. at 509.5

5 During oral argument, defense counsel protested that the

ratification-through-acceptance-of-benefits cases are actually

implied-in-law contract cases which introduce inconsistency

into the otherwise strong principle that the United States can-

not be sued on obligations implied-in-law. We find no inconsis-

tency. Those cases (and this one) consider the government’s

acceptance of benefits only for purposes of determining

whether the authority element of the implied-in-fact contract has

been satisfied through ratification. All the other elements of an

express contract must also be established before recovery can

be had. This renders such cases readily distinguishable from

implied-in-law contracts, where recovery derives solely from

the conferral of a benefit, and the usual contractual element of

mutual assent need not be shown. Aetna Casualty & Surety Co.

v. United States, 228 Ct.Cl. 146, 164, 655 F.2d 1047, 1059-60

(1981); Collins v. United States, 209 Ct.Cl. 413, 424, 532 F.2d

1344, 1351 (1976); Restatement of Contracts 2d § 4 Comment b;

see also Restatement of Restitution §§ 112-117.

A-35

D. Contract Disputes Act

Defendant contends that this court’s March 16, 1989

opinion and order was void for lack of jurisdiction inso-

far as it addressed plaintiff’s implied-in-fact contract

claim, since plaintiff never fulfilled the jurisdictional pre-

requisites of the Contract Disputes Act (CDA), 41 U.S.C.

§§ 601-613. Plaintiff counters that the CDA does not

apply to its contract claim but that_even if it does apply,

its requirements “ave been met.

1. Applicability of the CDA

By its terms, the CDA applies to “any . . . implied

contract . . . entered into by an executive agency

for... the procurement of services.” 41 U.S.C. § 602(a)(2).

This clear statutory language covers the instant contract.

The authorities cited by plaintiff for a contrary conclusion

are distinguishable.® Accordingly, unless plaintiff has sat-

isfied the jurisdictional prerequisites of (1) submitting

6 In each case cited, the court expressly found that the

contract at issue was not for the procurement of goods or

services. In Busby School of Northern Cheyenne Tribe v. United

States, 8 Cl.Ct. 596, 600 (1985), the contracts were “grant or

sociological type contracts designed to accomplish government

social policy goals.” In Newport News Shipbuilding & Dry Dock

Co. v. United States, 7 Cl.Ct. 549 (1985) and Delta S.S. Lines, Inc.

v. United States, 3 Cl.Ct. 559 (1983), the contracts were for

government subsidy of shipbuilding, pursuant to statute,- in

exchange for possible governmental use of the ships in time of

war or national emergency. And the contract at issue in Coastal

Corp. v. United States, 713 F.2d 728, 730 (Fed.Cir.1983) was an

implied contract to consider bids fairly and honestly.

A-36

each claim to the contracting officer in writing, (2) certi-

fying any claim over $50,000, and (3) awaiting a decision

or deemed decision thereon, this court would lack juris-

diction over plaintiff’s implied-in-fact contract claims. 41

U.S.C. § 605; W.M. Schlosser Co. v. United States, 705 F.2d

1336, 1339 (Fed.Cir.1983); Paragon Energy Corp. v. United

States, 227 Ct.Cl. 176, 184, 645 F.2d 966, 971 (1981); Acousti

Engineering Co. v. United States, 15 Cl.Ct. 698, 700 (1988).

See also Claude E. Atkins Enters., Inc. v. United States, 15

Cl1.Ct. 644, 646 (1988); Rider v. United States, 7 Cl.Ct. 770,

775 (1985), aff'd, 790 F.2d 91 (Fed.Cir.1986) and cases

therein cited.

2. Submission of a “Claim” to “the Contracting Officer”

Defendant’s contention that plaintiff never submitted

a claim to the contracting officer rests on assertions that

(1) plaintiff submitted mere invoices, and mere invoices

are not CDA “claims,” (2) defendant’s letters denying

liability contain no reference to any alleged contract, and

(3) nothing in the record suggests plaintiff submitted

anything to, or even contacted, any government contract-

ing official.

The CDA provides: “All claims by a contractor

against the government relating to a contract shall be in

writing and shall be submitted to the contracting officer

for decision.” 41 U.S.C. § 605(a). As this court has noted,

“{njeither the CDA nor its legislative history contains a

specific definition of the term ‘claims.’” Z.A.N. Co. v.

United States, 6 Cl.Ct. 298, 304 (1984). However, in con-

struing that term, the Federal Circuit has stated:

A-37

We know of no requirement in the [CDA] that a

‘claim’ must be submitted in any particular form

or use any particular wording. All that is

required is that the contractor submit in writing

to the contracting officer a clear and unequivo-

cal statement that gives the contracting officer

adequate notice of the basis and amount of the

- claim.

Contract Cleaning Maintenance, Inc. v. United States, 811

F.2d 586, 592 (Fed.Cir.1987).

Defendant furnishes no binding authority for its

assertion that invoices can never be CDA “claims.” The

cases defendant cites for this proposition are based not on

a CDA definition of “claims” but on definitions found (1)

in the disputes clauses of particular contracts or (2) in

non-binding regulations. Gardner Machinery Corp. v.

United States, 14 Cl.Ct. 286, 291-92 (1988); Esprit Corp. v.

United States, 6 Cl.Ct. 546, 548 (1984), aff’d, 776 F.2d 1062

(Fed.Cir.1985); Z.A.N. Co., 6 Cl.Ct. at 304 n. 11. Moreover,

the Federal Circuit recently declined a government invi-

tation to find that invoices are not “claims” under the

Act. Contract Cleaning Maintenance, Inc., 811 F.2d at 593.

In any event, it is evident that plaintiff submitted

more than “mere invoices” in this case. Although the

record is devoid of plaintiff’s claim letters, it is clear from

the reply letters - which are deemed to be decisions of

the INS — that plaintiff had made claims for final payment

for the medical services it rendered to patients who had

been injured in the course of apprehension by the Border

Patrol. The reply letters, which were all identical save the

name of the patient involved, stated as follows:

sialic

A-38

This letter is to advise you that the United States

Border Patrol and/or the Immigration and Nat-

uralization Service is not responsible for any

medical expenses incurred by [name of patient].

To the best of my information the Border

Patrol’s only involvement was as a ‘good

[S]amaritan’ in calling an ambulance on behalf

of [name of patient] to the scene of the accident.

Pursuant to 28 U.S.C. [§] 1274, the United States

Government is liable for tori ciaims in the same

manner and to the same extent as private indi-

viduals. For the United States to be liable, in

tort, there would have to be negligence on the

part of their agents. In the present case, the

United States did not cause the injury by any

negligent act or omission and therefore would

not be liable under the Federal Tort Claims Act,

28 U.S.C. [§] 2674.

The Immigration and Naturalization Service is

not responsible for the medical care of aliens

within the United States. The only exception to

this rule is an alien in custody, where Congress

has provided authority to provide such medical

care. 42 U.S.C. [§] 249(c). The Congress of the

United States appropriates funds to govern-

mental agencies. These appropriations specify

the usages to which these funds may be put. The

Immigration and Naturalization Service, there-

fore, may not lawfully expend funds from its

appropriation to reimburse state, local or pri-

vate hospitals for funds expended by them in

circumstances where the Immigration and Natu-

ralization Service is not responsible.

I must, therefore, refuse to entertain your claims.

If you have any information to suggest a basis

for liability pursuant to the principles discussed

herein, that information should be communi-

cated to this office and it will be reviewed.

A-39

Plaintiff’s Trial Exhibits 22 and 41-50 (emphasis added).

Each reply letter was signed by the Regional Commis-

sioner of the INS.

Defendant urges that because the reply letters dis-

cuss only liability based on tort or statute and lack any

mention of a contractual basis of recovery,” plaintiff must

not have provided “adequate notice of the basis . . . of [its]

claim.” Contract Cleaning Maintenance, Inc., 811 F.2d at 592

(emphasis added). This contention is rejected. Each reply

letter was clearly intended as a comprehensive denial of

governmental liability for the services rendered — a suita-

ble response to an unrestricted demand for payment. Use

of the phrase “the only exception” suggests that INS had

considered all legal bases of liability and rejected them

all. It appears that INS “was not at all confused as to the

nature of what was being requested.” Paragon Energy

Corp., 227 Ct.Cl. at 192, 645 F2d at 976. Certainly there

was no confusion in identifying the episode from which

plaintiff’s request originated. Under these circumstances,

it is concluded that plaintiff gave the government “ade-

quate notice of the basis and amount of [its] claim,”

Contract Cleaning Maintenance, Inc., 811 F.2d at 592, and

therefore did submit “claims” within the meaning of the

CDA.

7 The letters’ failure to give plaintiff notice of his rights

under the CDA (as required by 41 U.S.C. § 605(a)) is of some

legal significance. The significance is not, however, what

defendant suggests, i.e., that plaintiff must never have submit-

ted a CDA “claim.” Rather, it simply means that the reply

letters could not trigger the running of CDA’s one-year limita-

tions period against plaintiff. Pathman Constr. Co. v. United

States, 817 F.2d 1573, 1578 (Fed.Cir.1987).

A-40

Nor has defendant persuaded that plaintiff failed to

submit its claim “to the contracting officer.” 41 U.S.C.

§ 605(a). The contract involved in this case was an

implied-in-fact contract; in the typical implied-in-fact

contract situation (except when related to consideration

of bids), there never would be a contracting officer desig-

nated by that title. In such a situation, all that a contrac-

tor could fairly be expected to do would be to submit its

claim to the official designated by the agency for submis-

sion of that claim. Here there was uncontested testimony

at trial that INS identified a particular official as “the one

to determine payment.” Tr. at 47, Plaintiff duly submitted

its claims to that official. Accordingly, it is concluded that

piaintiff satisfied CDA’s requirement that claims be sub-

mitted “to the contracting officer.” 41 U.S.C. § 605(a).

3. Decision by the Contracting Officer

Before this court can exercise jurisdiction over a con-

tract claim covered by CDA, the claim must have been

the subject of a contracting officer’s final decision. Conoc

Constr. Corp. v. United States, 3 Cl.Ct. 146, 147 (1983)

(citing cases). Based on the reasoning set forth in section

2 above, we deemed defendant’s reply letters to be final

decisions of the contracting officer for purposes of this

requirement.

4. Certification

Defendant contends that plaintiff’s claims constitute

a “unitary claim” in an amount over $50,000 and thus

trigger CDA’s certification requirement. With respect to

certification, the CDA provides:

A-41

For claims of more than $50,000, the contractor

shall certify that the claim is made in good faith,

that the supporting data are accurate and com-

plete to the best of his knowledge and belief,

and that the amount requested accurately

reflects the contract adjustment for which the

contractor believes the government is liable.

41 U.S.C. § 605(c)(1). It is well-established that lack of

proper certification, where required, deprives this court

of jurisdiction to proceed on a contract claim. Tecom, Inc.

v. United States, 732 F.2d 935, 937 (Fed.Cir.1984); W.M.

Schlosser Co., 705 F.2d at 1337-38; Arlington Alliance, Ltd. v.

Untied States, 231 Ct.Cl. 347, 357, 685 F.2d 1353, 1359

(1982); Skelly & Loy v. United States, 231 Ct.Cl. 370, 372,

685 F.2d 414, 416 (1982). Moreover, where, as here, there

are several claims which taken together exceed $50,000

but taken separately do not, “the claims must be carefully

examined to determine whether they are separate and

individual claims not requiring certification, or merely

portions of a single, unified ‘claim’ which . . . must be

certified.” Walsky Constr. Co. v. United States, 3 Cl.Ct. 615,

618 (1983).

The test for whether separate claims should be

deemed “unitary” for certification purposes focuses upon

whether the claims “are so related to one another that

they form parts of a whole.” Walsky Constr. Co., 3 Cl.Ct. at

618, quoting Warchol Constr. Co. v. United States, 2 Cl.Ct.

384, 389 (1983). In applying this test, courts have given

great weight to the manner in which a litigant treated his

claims both at the agency level and in his complaint. Black

Star Security, Inc. v. United States, 5 Cl.Ct. 110, 116-17

(1984) (“plaintiff has .. . belatedly attempted to fragmen-

tize its claim. From the... record . . . it is clear that

A-42

plaintiff treated its claim as a single one until the filing of

defendant’s motion to dismiss”); Palmer & Sicard, Inc. v.

United States, 4 Cl.Ct. 420, 422 (1984) (“plaintiff submitted

to the contracting officer a single claim. . . . The letter

submitting the claim stated in the first sentence that ‘Our

claim . . . is attached with schedules’ ”); Warchol Constr.

Co., 2 Cl1.Ct. at 390 (plaintiff “characteriz[ed] the damaged

items as part of a single claim in its amended com-

plaint”); Fidelity & Deposit Co. of Maryland v. United States,

2 Cl.Ct. 137, 144 (1983) (“letters [to the contracting offi-

cer] clearly establish that plaintiff . . . dealt with [its]

package of demands in terms of a single claim”).

In this case, plaintiff submitted fourteen separate

claims to INS for the medical expenses related to fourteen

different patients. No single bill exceeded $50,000. Defen-

dant replied to these claims by sending fourteen separate

denial letters. Further, in its complaint, plaintiff requested

“reimbursement in the amount established by the hospi-

tal bills for those fourteen” patients for whom it had

provided treatment. Complaint at 3 (emphasis added).

Since plaintiff did not treat its claims as unitary at the

agency level or in its complaint, the instant case is distin-

guishable from Black Star, Palmer, Warchol and Fidelity.

Nevertheless, two judges of this court ave held that |

[ijn determining whether separately stated

claims are to be deemed unitary for certification

purposes, neither the language employed by the

contractor in making them, nor how they are

organized, governs. What is vital is whether the

demands arose out of essentially interrelated

conduct and services, and the same or closely

connected facts.

A-43

Walsky Constr. Co., 3 Cl.Ct. at 619; accord Warchol Constr.

Co., 2 Cl.Ct. at 389. Here, defendant asserts that plaintiff’s

claims for the cost of fourteen patients’ medical care

arose out of the same facts — that there was “a close and

significant relationship between the ostensibly separate

claims here.” Transcript of 6/22/89 Oral Argument at 13.

Moreover, defendant argues,

The dispute isn’t, are we liable for the medical

bills of one particular alien; it is whether we are

liable for the medical bills of all 14. It is one

dispute. It is one claim and it is a claim in excess

of $50,000 and it requires certification.

Tr. of 6/22/89 Oral Arg. at 14-15.

Close reading of Walsky and Warchol suggests, how-

ever, that their “unitary claim” findings rested on more

than a mere interrelationship of underlying facts. Both

cases involved construction contracts. In Walsky, plain-

liff’s claims arose from its repair work on one ski lift. 3

Cl1.Ct. at 619. In Warchol, plaintiff’s claims “flowed from

the same differing site condition.” 2 Cl.Ct. at 389. In both

cases, the claims were “so interrelated that separating

them [would have] serve[d] only to confuse if not’ mis-

lead” and therefore could “be understood and disposed

of properly only if considered together, and as one.”

Walsky Constr. Co., 3 Cl.Ct. at 619. In this case, by contrast,

viewing plaintiff's separately-submitted claims as sepa-

rate would neither confuse nor mislead. Further, given

plaintiff’s consistent treatment of its claims as separate,

plaintiff cannot be accused of having “belatedly

attempted to fragmentize its claim” in order to avoid the

certification requirement. Black Star Security, Inc., 5 Cl.Ct.

A-44

at 116. Accordingly, we are not persuaded by defendant’s

“unitary claim” argument.

Ill.

For the reasons stated, defendant’s motion for recon-

sideration or rehearing is DENIED.

A-45

CITY OF EL CENTRO, Plaintiff,

UNITED STATES of America,

Defendant.

No. 208-86-C.

United States Claims Court.

March 16, 1989.

James R. Kalyvas, Los Angeles, Cal., for plaintiff; J.

Mark Waxman and Paul Gustav Neumann, Los Angeles,

Cal., of counsel.

Stephen J. McHale, with whom were Asst. Atty. Gen.

John R. Bolton, David M. Cohen and Thomas W. Petersen,

Washington, D.C., for defendant.

OPINION AND ORDER

TURNER, Judge.

The City of El Centro, California, as owner and oper-

ator of El Centro Community Hospital (ECCH), claims

entitlement to compensation from the Immigration and

Naturalization Service for medical care rendered to 14

illegal aliens. The aliens had been injured in an accident

following a high-speed chase initiated by agents of the

Border Patrol. El Centro seeks payment of $183,263.64 in

medical bills, plus interest, under 8 U.S.C. § 1252(c) and

42 U.S.C. § 249, or, alternatively, under an alleged

implied-in-fact contract.

The case was tried in San Diego on December 17 and

18, 1987. At the conclusion of trial, the court found, inter

A-46

alia, that the hospitalized aliens were de facto detainees of

the INS. This opinion addresses issues argued in post-

trial briefs and supplements the findings announced from

the bench on December 18, 1987 (trial transcript pp.

257-273), which were memorialized in an order entered

December 21, 1987.

The parties have briefed the issues presented by both

the statutory and the contractual theories of recovery.

With respect to recovery based on statute, defendant

urges that there exists no Constitutional provision, stat-

ute or regulation that can fairly be interpreted as mandat-

ing compensation of plaintiff for the medical care

provided in this case. With respect to the question

whether plaintiff is entitled to recover under an implied-

in-fact contract theory, the government asserts (1) that

any contract claim in this case must be implied-in-law,

not implied-in-fact, and thus outside this court’s jurisdic-

tion, and (2) that in any event the officials on whose

conduct plaintiff relies to support its contract claim

lacked authority to bind the government.

For reasons set forth below, the court finds that plain-

tiff’s statutory theory does not afford a basis for recovery

but that plaintiff has established an implied-in-fact con-

tract and is entitled to recover on that basis.

I. FACTS!

At approximately one o’clock on the morning of Jan-

uary 23, 1985, agents of the Border Patrol observed a van

1 The facts set forth here were derived from joint stipula-

tions of the parties, findings announced in open court, and

such evidence and testimony as was uncontested at trial.

A-47

parked on the American side of the boundary between

the United States and Mexico near El Centro, California.

The van was parked at a location which was notorious to

the Border Patrol as a rendezvous point for alien smug-

glers and persons who had crossed the border illegally.

At about the same time, Border Patrol sensors indicated

that a large group of persons was moving on foot in the

direction of the van.

Shortly thereafter, agents observed the van leaving the

area. Two Border Patrol agents followed in their cruisers,

activating their red emergency lights. The driver of the van

refused to stop, and a high-speed chase ensued.

After having been pursued for some distance on Cali-

fornia’s Highway 8, the van, still travelling at speeds in

excess of 60 miles per hour, turned onto an exit ramp.

Unable to negotiate the ramp’s curve at that speed, the

van vaulted over an embankment, crashed, exploded and

began to burn. The two agents in pursuit quickly arrived

at the crash scene, extinguished the flames, and radioed

for help.

All nineteen of the persons inside the van had

entered the United States illegally. The driver and two of

the passengers died in the crash. Many of the survivors

were grievously injured; all were unable to leave the

scene under their own power. Fourteen of the aliens were

taken by ambulance to El Centro Community Hospital for

treatment. (Trial testimony established that, were it not

2 The other two surviving aliens were taken to another

hospital, and the cost of their care is not the subject of this

litigation.

A-48

for their physical condition, the survivors would have

immediately been taken into physical custody and ulti-

mately deported by INS.)

El Centro Community Hospital received warning that

accident victims were on their way and began to prepare

for their arrival. ECCH had established procedures for

handling such disasters. Pursuant to these procedures,

additional medical personnel were summoned to ECCH

to assist in treating the incoming wounded. In addition,

two ECCH officials, Kaye Fox and Jay Comstock, received

telephone calls at home, advising them that there had

been a grievous accident and that injured persons were

en route to ECCH. As Assistant Director of Finance, it

was Fox’s responsibility to coordinate the triage and

admission of the patients. Comstock, who was the hospi-

tal’s administrator, had supervisory responsibility over

ECCH’s handling of the disaster. Comstock, Fox and a

number of medical personnel arrived at ECCH ahead of

the injured aliens.

Meanwhile, Supervisory Border Patroi Agent Doug-

las Roy ordered Agent Mario Hernandez to proceed to

ECCH and, inter alia, gather information on the names,

dates and places of birth, and medical conditions of the

aliens. Agent Hernandez was dispatched to the hospital

before the aliens arrived and reached the hospital ahead

of them. Although he had not participated in the high-

speed chase, Agent Hernandez was aware of the facts

leading to the accident. Moreover, Agent Hernandez was

wearing his Border Patrol uniform on which his badge

was displayed.

A-49

At the hospital, Agent Hernandez identified himself

as a Border Patrol Agent. He then informed Kaye Fox that

the Border Patrol had been in pursuit of the van involved

in the accident. Exactly what happened next is the subject

of some disagreement. On this issue, the court heard

testimony at trial from Kaye Fox, Jay Comstock and

Agent Mario Hernandez.? The testimony of all three wit-

nesses established that a further conversation took place

between Fox and the uniformed Agent Hernandez just as

the injured aliens were being admitted to ECCH. In that

conversation, Fox identified herself as ECCH’s financial

officer. She then asked Agent Hernandez who was

responsible for payment of the cost of the aliens’ care.4

According to Agent Hernandez, when Fox asked him

who would pay, his response was “Me and you.” At trial,

Agent Hernandez explained that in saying this, he meant

“the taxpayers” as distinct from “the Government or the

Agency.”

Agent Hernandez added that he told his immediate

supervisor of his conversation with Kaye Fox. Specifi-

cally, Agent Hernandez testified that he informed Super-

visory Border Patrol Agent Douglas Roy by telephone

3 Fox’s testimony was in the form of a videotaped deposi-

tion, as she had died of cancer prior to the date of trial.

4 The testimony conflicts as to how Agent Hernandez

responded. According to Fox and Comstock, Agent Hernandez

replied that the INS was responsible and would pay the bill

since the injured aliens were in the custody of the Border

Patrol. Resolution of the conflict is not essential to a decision in

this case since, as explained in text, even accepting defendant's

understanding of the objective facts, an implied-in-fact con-

tract resulted.

A-50

from the hospital that ECCH financial officer Fox had

raised the concern of who would pay and he had

responded, “Me and you.” Despite the susceptibility of

this response to varying interpretations, the government

presented no evidence or testimony that there was any

subsequent INS effort to clarify it.

In addition to the discussion of payment, Agent Her-

nandez had further interaction with hospital personnel

during his visit there on the night of the accident. An

ECCH nurse brought Agent Hernandez a Guatemalan

passport which belonged to one of the injured aliens;>

Agent Hernandez took possession of the passport and

signed for it. Agent Hernandez obtained information on

each of the alien patients as his supervisor had directed;

in addition, he informed a nurse that as soon as any of

the aliens was ready to be released from ECCH, such

alien was to be released to the custody of the Border

Patrol. A nurse then notified Agent Hernandez that one

of the aliens had minor injuries and was likely to be

released in the morning; after conferring with his super-

visor by telephone, Agent Hernandez instructed the

nurse to call the Border Patrol when the alien was ready

to be released, and said that the Border Patrol would

come for him.

On the morning after the accident and continuing

into the ensuing days, a number of other Border Patrol

and INS officials came into contact with ECCH concern-

ing the aliens. On the morning of January 23, Donald L.

5 The passport belonged to Cesar Augusto Flores de Leon,

who, although initially admitted to ECCH, was air-lifted to

University Hospital in San Diego that same night.

A-51

Davis, Officer-in-Charge of the El] Centro Border Patrol

station, telephoned Kaye Fox and requested that she

notify the Border Patrol when any of the aliens was about

to be released. On January 23 and 24, two INS investiga-

tors, Mel Gray and R.E. Novak, visited ECCH and took

photographs of the aliens. Several of the aliens were

unable to sign ECCH’s required consent form; Investiga-

tor Novak signed the forms on behalf of these aliens on a

line marked “Patient/Parent/Conservator/Guardian.” In

addition, an INS physician, Dr. Pavlik, visited ECCH and

secured the release of the aliens’ medical records. Kaye

‘Fox’s uncontested testimony was that Dr. Pavlik stated he

was “responsible for medical follow-up to make sure

[ECCH] doctors were taking care” of the aliens, and that

he would be working with the ECCH doctors as a “con-

sultant” or “referring physician” during the aliens’ treat-

ment.

Further, each time an alien patient became ready for

release from hospitalization, ECCH personnel informed

the Border Patrol, which then sent agents who took the

alien into physical custody. The only exception was

Miguel Perez-Lopez who surreptitiously ieff tire hospital

on or about January 26. But even as to Lopez, ECCH

communicated with INS. An internal Border Patrol mem-

orandum on this subject, written by Agent jeffrey Parsons

to Officer-in-Charge Davis, stated:

6 The last alien patient to be released from hospitalization

was Olga Cerrito-Escobar, discharged March 18, 1985, more

then seven weeks after the accident. (Plaintiff’s trial exhibit

21).

A-52

At 12:05 p.m. on January 26, 1985[,] I received a

call from the Charge Nurse, Debbie Eugenio,

from El Centro Community Hospital. She stated

that one of our injured aliens was missing and

they presumed that he had escaped.

(emphasis added). Furthermore, Officer Davis testified

that he had entered the notation “escape” next to Lopez’

name on a Border Patrol list.

Finally, it should be noted that within hours of their

admission to ECCH, Kaye Fox wrote two memoranda on

the subject of the aliens, one to the nursing staff, the other

to Jay Comstock, ECCH administrator. These memoranda

were received in evidence. In them, Fox manifested her

understanding that (1) the aliens were “in custody” of the

INS, and (2) the INS had assumed payment responsibility

for their care.

When ECCH presented invoices to INS for the aliens’

medical care, INS refused payment. INS’ letter denying

liability gave three grounds: (1) There had been no injury-

causing negligence on the part of the Border Patrol, (2)

the injured aliens had not been in custody when hospi-

talized, and (3) Border Patrol agents’ only involvement

was an “good Samaritans” in calling an ambulance on

behalf of the aliens. The government now contends, in its

post-trial brief, that notwithstanding this court’s finding

of de facto detention, no “duly authorized [INS] official

[ever] agree[d] to obligate the United States” to pay

ECCH for the aliens’ care.

A-53

iI. THEORIES OF RECOVERY

A. Statutory Basis

Plaintiff cites 8 U.S.C. § 1252(c) and 42 U.S.C. § 249 as

the statutory basis for recovery. It is well established that

the United States, as sovereign, is immune from suit

except to the extent that it has consented to be sued.

United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953,

47 L.Ed.2d 114 (1976). In order for a claim against the

United States founded on statute to be successful, the

statute relied upon must contain language which could

tairly be interpreted as mandating recovery of compensa-

tion from the government. 28 U.S.C. § 1491(a)(1); Duncan

v. United States, 229 Ct.Cl. 120, 138, 667 F.2d 36, 47 (1981),

cert. denied, 463 U.S. 1228, 103 S.Ct. 3569, 77 L.Ed.2d 1410

(1983); Morgan v. United States, 12 Cl.Ct. 247, 253 (1987).

Accordingly, statutory language which is alleged to con-

stitute a waiver of sovereign immunity with respect to

money compensation “must be clear or strong before the

court can say that the statute mandates compensation.”

Mitchell v. United States, 229 Ct.Cl. 1, 6, 664 F.2d 265,

268-69 (1981), affirmed, 463 U.S. 206, 103 S.Ct. 2961, 77

L.Ed.2d 580 (1983).

Title 8 U.S.C. § 1252(c)(1982) provides in pertinent

part: “The Attorney General is authorized and directed to

arrange for appropriate places of detention for those

aliens whom he shall take into custody and detain under

this section.” Title 42 U.S.C. § 249 (1982) provides:

(a) ...{[AJ]t the request of the Immigration and

Naturalization Service, any person detained by

that Service, may be treated and cared for by the

Public Health Service.

A-54

rized by subsection (a) of this section may, in

accordance with regulations, receive such care

and treatment at the expense of the Service from

public or private medical or hospital facilities

other than those of the Service, when authorized

by the officer in charge of the station at which

the application is made.

The problem with these statutes is that neither man-

dates compensation from the United States. Section

1252(c) cannot afford relief to plaintiff for its plain lan-

guage precludes its being read as a money-mandating

provision. Section 249(c) authorizes the payment of money

by the Public Health Service to health care providers such

as ECCH but only if two conditions are met: (1) Persons

° treated must be INS detainees, and (2) some “applica-

tion” has to be made to and approved by a particular

Public Health Service official. The first condition is satis-

fied in this case, given the finding of “de facto detention”

which was announced in open court. But it is abundantly

clear that plaintiff cannot satisfy the second condition. No

“application” was made te a Public Health Service station

nor approved by the “officer in charge of the station.”

Thus, notwithstanding defendant’s clear statutory

authority to have arranged for the compensation of plain-

tiff for the medical services it rendered, and despite the

fact that Congress has appropriated money for the very

purpose,” the strict nature of the sovereign immunity

? Defense counsel acknowledged at a post-trial status con-

ference that INS receives an appropriation to pay for necessary

medical care of alien detainees (transcript of April 28, 1988

conference at 7, 15, 14, 16 and 18). See Medical Treatment of

(Continued on following page)

“

A-55

doctrine dictates that ECCH cannot recover under its

statutory theory. The statutes cited, which must be nar-

rowly construed since defendant is the sovereign, simply

do not appear to have been written with this kind of

emergency situation in mind. To construe these statutes

as mandating compensation under the facts of this case

would amount to fitting a square peg into a round hole.

B. Contract Implied-in-Law

If the United States could be sued on contract obliga-

tions implied-in-law, this case would be easy to resolve.

Here is a textbook example of a situation in which, “for

reasons of justice and equity,” the law routinely “creates”

an obligation of reimbursement. Collins v. United States,

209 Ct.Cl. 413, 424, 532 F2d 1344, 1351 (1976); see also

Hargrove v. United States, 1 Cl.Ct. 228, 230 (1982). Had this

case it.volved private parties, plaintiff would have been

entitled to restitution under the implied-in-law, or “quasi-

contractual,” doctrine of emergency assistance. That doc-

trine holds:

(Continued from previous page)

Illegal Aliens: Hearing on H.R. 2400, H.R. 3697, H.R. 5031, H.R.

5977 and H.R. 6440 Before the Subcomm. on Health and the Envi-

ronment of the House Comm. on Interstate and Foreign Commerce,

95th Cong., 1st Sess. 32 (1977) (statement of Hon. Leonel Cast-

illo, Commissioner, INS); see also Supplement to Commissioner

Castillo’s subcommittee testimony (a legal memorandum pre-

pared by INS’ Office of General Counsel) at 2: “Each year, the

[INS] requests and receives an appropriation from Congress

tor the express purpose of providing medical care to alien

detainees” (Appendix to Plaintiff’s Post-trial Brief).

A-56

A person who has performed the duty of

another by supplying things or services

although acting without the other’s knowledge

or consent, is entitled to restitution from the

other if

(a) he acted unofficiously and with intent to

charge therefor, and

(b) the things or services supplied were imme-

diately necessary to satisfy the requirements of

public decency, health or safety.

Restatement of Restitution § 115; Peninsular & Oriental

Steam Navigation Co. v. Overseas Oil Carriers, Inc., 553 F.2d

830, 834 (2d Cir.), cert. denied, 434 U.S. 859, 98 S.Ct. 183, 54

L.Ed.2d 131 (1977); United States v. Consolidated Edison of

New York, 580 F.2d 1122, 1127 (2d Cir.1978).

In the case at bar, given (1) the emergency situation,

(2) ECCH’s clearly manifested intention to be compen-

sated for its services, (3) this court’s finding of de facto

INS detention and (4) the conceded duty of INS to furnish

necessary medical care to its detainees,’ plaintiff has

, as

8 Parties’ “Joint Memorandum Re: Stipulations,” filed

October 9, 1987, 92 (“Defendant ... through the... INS... is

responsible for the care of individuals taken into custody or

detained by the United States Border Patrol as suspected illegal

aliens”); Transcript of April 28, 1988 Status Conference at 7; see

also Legal Memorandum of INS Gencral Counsel, supra note 7

at 2 (and cases therein cited); Revere v. Massachusetts General

Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605

(1983) (“the Due Process Clause requires the responsible gov-

ernment agency to provide medical care to suspects in police

custody who have been injured while being apprehended by

the police”).

A-57

established all the requisites for recovery under the emer-

gency assistance doctrine. However, because the defen-

dant is the government, special rules apply. The

government can be sued, in this or any court, only to the

extent that it has relinquished its sovereign immunity.

United States v. Testan, 424 U.S. at 399, 96 S.Ct. at 953;

United States v. Sherwood, 312 U.S. 584, 587-88, 61 S.Ct.

767, 770-71, 85 L.Ed. 1058 (1941); Tucker v. United States, 7

Cl.Ct. 374, 376 (1985), Congress has undertaken no such

relinquishment with respect to contract obligations

implied-in-law. Aetna Casualty & Surety Co. v. United

States, 228 Ct.Cl. 146, 164, 655 F.2d 1047, 1059-60 (1981);

People’s Bank & Trust Co. v. United States, 11 Cl.Ct. 554, 566

(1987).

C. Contract Implied-in-Fact

The government may be liable on contract obliga-

tions implied-in-fact, however, and this court has juris-

diction over such actions. 28 U.S.C. § 1491(a)(1); Nitol v.

United States, 7 Cl.Ct. 405, 415 (1985); Brannan v. United

States, 7 Cl.Ct. 399, 404 (1985). But defendant contends

that the only contract plaintiff can establish here is one

implied-in-law, on which the sovereign is immune to suit.

This case dues present an implied-in-law contract situa-

tion; however, the presence of an implied-in-law contract

does not necessarily preclude the availability of alterna-

tive contractual bases of recovery. For example, in United

States v. Consolidated Edison Co. of New York, 452 F.Supp.

638 (S.D.N.Y.1977), affirmed in pertinent part, 580 F.2d 1122

(2d Cir.1978), the court awarded implied-in-law contrac-

tual recovery under the doctrine of emergency assistance

A-58

- while noting that the plaintiff would also have been

entitled to recover for breach of an express oral contract

were it not for a Statute of Frauds problem. 452 F.Supp. at

653.

Whether recovery under an implied-in-fact contract

is available to plaintiff in the instant case depends on

whether plaintiff has shown all tise elements required to

establish an express contract. Yachts America, Inc. v. United

States, 779 F.2d 656, 661 (Fed.Cir.1985), cert. denied, 479

U.S. 832, 107 S.Ct. 122, 93 L.Ed.2d 68 (1986). There must

be mutuality of intent, consideration, and a lack of ambi-

guity in offer and acceptance. Id.; Squirrel Creek Associates

v. United States, 11 Cl.Ct. 212, 216\(1986); Nitol v. United

States, 7 Cl.Ct. at 415. These contractual elements may be

inferred from the conduct of the parties which shows, in

light of the surrounding circumstances, their tacit under-

standing. Algonac Mfg. Co. v. United States, 192 Ct.Cl. 649,

673-74, 428 F.2d 1241, 1255 (1970); DeRoo v. United States,

12 Cl.Ct. 356, 361 (1987); Hargrove v. United States, 1 Cl.Ct.

at 230.

In determining whether mutuality of intent has been

established, it is important to remember that “for a con-

tract to exist there does not have to be, and rarely is, a

subjective ‘meeting of the minds’ all along the line.”

Penn-Ohio Steel Corp. v. United States, 173 Ct.Cl. 1064, 1084

n. 19, 354 F.2d 254, 266 n. 19 (1965), quoting WPC Enter-

prises, Inc. v. United States, 163 Ct.Cl. 1, 11, 323 F.2d 874,

879 (1963) (emphasis added). Rather, the inquiry is an

objective one. Acceptance of the offer must be manifested

by conduct which, viewed objectively, indicates assent to

the proposed bargain. See Russell Corp. v. United States,

210 Ct.Cl. 596, 609, 537 F.2d 474, 482 (1976), cert. denied,

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429 U.S. 1073, 97 S.Ct. 811, 50 L.Ed.2d 791 (1977). It is

neither necessary nor practical to enter the minds of the

parties. As the Court of Claims observed,

A manifestation of mutual assent by the parties

to a contract is essential to its formation and the

acts by which such assent is manifested must be

done with the intent to do those acts; but, gener-

ally, neither mental assent to the promises in the

contract nor real or apparent intent that the

promises shall be legally binding is essential.

Goltra v. United States, 119 Ct.Cl. 217, 251-52, 96 FSupp.

618, 623 (1951).

Thus, in analyzing Agent Hernandez’ statement to

Fox as well as the conduct of other INS and ECCH

personnel which was established at trial, the inquiry is

not what the various actors intended their conduct to

convey; instead, the question is whether-the parties’ con-

duct, viewed objectively, manifested and confirmed a

tacit understanding that the INS had assumed payment

responsibility for the aliens’ care.

As noted above, there was a conflict in the testimony

regarding precisely how Agent Hernandez responded to

Kaye Fox’s question about payinent. Nevertheless, the

meaning which Kaye Fox and Jay Comstock attached to

Agent Hernandez’ response was not a subject of dispute.

In a memorandum written within hours of her conversa-

tion with Agent Hernandez, Kaye Fox stated her under-

standing that the INS, through Agent Hernandez, had

assumed payment responsibility.? It is a well-established

principle of contract law that

9 The issue of Agent Hernandez’ authority to bind the

Government is addressed in Section 1 below.

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the manifestations of the parties are operative in

accordance with the meaning attached to them

by one of the parties if .. . that party has no

reason to know of any different meaning

attached by the other, and the other has reason

to know the meaning attached by the first party.

Restatement 2d of Contracts § 20(2)(b); Perez v. State of

Maine, 760 F.2d 11, 13 (1st Cir.1985).

Assuming that Agent Hernandez’ version of the con-

versation was accurate, it is not surprising that Fox

would have understood it as she did.'’° Indeed, defen-

dant’s counsel conceded in closing argument that “confu-

sion... may have been generated by Hernandez’ cryptic

remark” (transcript, p. 228) and added:

Mr. Comstock and Ms. Fox may well have

thought they heard Mr. Hernandez say more

than he did, more than his cryptic remark that

when asked who’s going to pay for it he

responded “me and you” or “you and me.” That

remark could well be interpreted in the context

as saying the Taxpayer and [as] implying that

the United States would be responsible for pay-

ment, and it would not surprise me in the chao-

tic situation of an emergency room where a

remark is made like that that it could be recalled

later as being an assertion that the Border Patrol

10 In response to Kaye Fox’s inquiry concerning payment,

Agent Hernandez (or his supervisor Douglas Roy upon being

informed of the exchange) could have said that he did not

know who would pay or he could have asserted that the INS

had no responsibility for payment. Instead, he gave an answer

that was reasonably understood in the circumstances of its

utterance to mean that the United States Government was

going to pay.

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and the Immigration Service of the United States

[were] responsible for the medical care.

(Transcript at 227). Defendant, in short, did have “reason

to know the meaning attached” to Hernandez’ remark by

ECCH. Restatement 2d of Contracts, § 20(2)(b).

But can it be concluded that Kaye Fox had “no reason

to know of any different meaning attached” by Agent

Hernandez to the “me and you” response? In light of the

circumstances, it would be difficult to find otherwise.

Agent ilernandez had just recounted to Fox the events

which culminated in the van accident. He was wearing

his Border Patrol uniform with badge displayed. if,

indeed, he answered “me and you” to the payment ques-

tion, the objectively reasonable interpretation would be

“me and you” as Federal taxpayers, i.e., the United States

Government.

While it could be asserted that Fox might reasonably

have interpreted Hernandez’ reply to mean “me and vou”

as state taxpayers, or “me and you” as consumers of loca!

medical services, such contentions lack appreciation of

the surrounding circumstances. There was no proof that

Fox and Agent Hernandez were previously acquainted.

As a Border Patrol Agent, Hernandez would not neces-

sarily share California taxpayer status with Fox; viewed

from her perspective, he could as well have been a tax-

payer from a distant state whom the Border Patrol had

temporarily assigned to duty in California. Nor, for like

reasons, would Hernandez necessarily share local con-

sumer status with Fox. Simply put, “me and you,” when

uttered in this context, connoted commonality of status

and interest; the only interest and status evidently shared

by Hernandez and Fox was that of Federal taxpayer.

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Accordingly, since the INS had reason to know the mean-

ing attached to Hernandez’ “cryptic remark” by ECCH,

and ECCH had no reasor. to know Hernandez’ different

meaning, ECCH’s understanding should prevail.

But ECCH’s implied-in-fact contract claim does not

stand or fall solely on the legal significance of the Her-

nandez/Fox discussion. This case presents an abundance

of other conduct by the parties which tends to confirm

the requisite “tacit understanding.” Perhaps most signifi-

cant is the cooperation between ECCH and INS. ECCH’s

actions of (1) notifying INS prior to the release of each

alien, (2) sharing information with INS on the aliens’ vital

Statistics, medical condition and progress, (3) surren-

dering aliens’ property to INS and (4) notifying INS when

one alien surreptitiously departed were all acts of cooper-

ation requested and accepted by INS. Further, Investigator

Novak’s signing of consent forms as the alien patients’

“parent, conservator or guardian” unambiguously sug-

gested that INS’ relationship to the aliens was that of

responsible party. And Dr. Pavlik’s conduct in obtaining

medical records and monitoring progress and treatment

again demonstrated INS responsibility for the aliens.

Indeed, throughout late January and all of February 1985

(a period during which the hospital stay of all but one

alien patient was completed), various representatives of

the government came and went, and at no time did any of

them say or do anything inconsistent with the under-

standing that INS stood as responsible party for the

patients. Instead, an objective examination of the parties’

behavior cannot fail to yield the unmistakable conviction

that these parties had an unspoken understanding. The

understanding was that INS, as the party responsible for

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the aliens, possessed all the benefits and burdens that

such responsibility entails including, necessarily, liability

for cost of treatment.!!

To summarize, objective analysis of the parties’ con-

duct reveals that defendant (1) knew of plaintitf’s con-

cern about payment, (2) knew plaintiff could reasonably

have taken Agent Hernandez’ answer as an assumption

of payment responsibility, (3) did nothing to dispel that

notion, and (4) engaged instead in conduct which gave

every indication that INS was the party responsible for

the aliens. These circumstances illustrate that, between

these parties, the equivalent of mutual assent was pres-

ent. Collins v. United States, 209 Ct.Cl. at 424, 532 F.2d at

1351. Put another way, the parties’ conduct indicates that

plaintiff and defendant, in fact, took upon themselves

corresponding obligations and liabilities and, viewed

objectively, came to that meeting of the minds sufficient

to establish an implied-in-fact contract. Hirschmann v.

United States, 11 Cl.Ct. 338, 341-42 (1986).

1. Authority to Bind the Government

Defendant argues that even if the conduct of govern-

ment officials in this case were otherwise sufficient to

establish an implied-in-fact contract, none of those offi-

cials had authority to obligate the government. Unques-

tionably, just as with an express contract, officials whose

conduct is relied upon to establish an implied-in-fact

"The amount of this cost has been stipulated by the

parties at $183,263.64.

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contract must have actual authority to bind the govern-

ment. City of Alexandria v. United States, 737 F.2d 1022,

1027 (Fed. Cir.1984); ATL, Inc. v. United States, 4 Cl.Ct.

672, 675, affirmed in pertinent part, 736 F.2d 677

(Fed.Cir.1984). Further, “anyone entering into an arrange-

ment with the Government takes the risk of having accu-

rately ascertained that he who purports to act for the

Government stays within the bounds of his authority.”

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct.

1, 3, 92 L.Ed. 10 (1947).

The question whether a government actor has

authority is frequently purely legal in nature, e.g., where

a particular statute or regulation specifically enumerates

the powers of particular officials. In other instances, the

issue is a factual one. For example, where a statute per-

mits delegation to lower-ranking officials, there may be a

factual question whether the requisite delegation took

place. If a factual showing is necessary, the affirmative

burden of showing such facts rests with the plaintiff. See

Ysast v. Rivkind, 856 F.2d 1520, 1525 (Fed.Cir.1988); H.F.

Allen Orchards v. United States, 749 F.2d 1571, 1575 (Fed.

Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 64, 88

L.Ed.2d 52 (1985); Jascourt v. United States, 207 Ct.Cl. 955,

955-56, 521 F.2d 1406, cert. denied, 423 U.S. 1032, 96 S.Ct.

562, 46 L.Ed.2d 405 (1975); Housing Corp. of America v.

United States, 199 Ct.Cl. 705, 711, 468 F.2d 922, 925 (1972).

In this case, as defendant correctly observes, there

was no testimony concerning the authority of Agent Her-

nandez to obligate defendant to pay for medical care.

Accordingly, if plaintiff could prevail only through a

factual showing of Hernandez’ actual authority, its failure

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to carry this burden would compel a finding of no bind-

ing contract.

But where authority is in issue, analysis should begin

with the law. This court knows of no statute, regulation

or case which would preclude Agent Hernandez’ exercise

of government authority to obligate funds for emergency

medical treatment of detainees injured during the course

of apprehension.'? Instead, there exists at least one case

that indicates government actors may have enhanced

authority to obligate funds during emergencies.

This case arises from an emergency situation. Agent

Hernandez was the first Border Patrol officer at the hos-

pital. Government officials who might not otherwise have

authority to make arrangements and incur obligations on

behalf of the government may be able to exercise such

authority during an emergency so that immediate reme-

dial action can be taken. See Halvorson v. United States, 126

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