# Petition for Writ of Certiorari — City of El Centro v. United States, 111 S. Ct. 2851 (1991) (No. 90-1508) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1859%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 ## Text OO- Let >} Sa wd - x“ rN a. . a/ ‘ ~ ow © Sunrert ‘curt, us. | FILS D 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. a Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit La - PETITION FOR A WRIT OF CERTIORARI a 4 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 2 2S ae — 7 . ’ cies a Es i. a : — i. seri BS a 1 fl te 0 One . a f erly 5 mar = 2 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? ii 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 iv 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 Vv 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 vi 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. a —_ 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). 4 wv a 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). rN 4 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 (c) Persons whose care and treatment is 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. La -_— 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.) 10 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). » v- REASONS FOR GRANTING REVIEW I. 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 12 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 13 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). 14 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). 15 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 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. EE 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, v. 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. I 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. II 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 Register 26987-88 (July 1, 1985). The original FAR did not 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 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, v. 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 (c) Persons whose care and treatment is autho- 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, A-59 429 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. A-60 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. A-61 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. A-62 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 A-63 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. A-64 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 A-65 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 F.Supp. 898 (E.D. Wash.1954). The Halvorson case illus- trates the propriety of permitting an otherwise unauthorized person to obligate the government in an emergency. In Halvorson, a three-day Montana blizzard had caused the accumulation of some four feet of snow in the attics of buildings under construction for the U.S. Army Corps of Engineers. 126 F.Supp. at 900. If the snow, 12 See People’s Bank & Trust Co. v. United States, 11 Cl.Ct. 554, 565 (1987) (“Requiring citizens dealing with the Govern- ment to determine the absence of authority from a confusing, technical and hard-to-find regulation, following a representa- tion from the Government to the contrary, is bad enough when the prohibitory regulation has been printed. Expeciing a [citi- zen] in this situation to determine lack of authority when no regulation even exists is well-nigh intolerable”). A-66 which had blown in through ventilation slots, had not been removed immediately, great damage would have resulted to plastered ceilings and walls below. Id. The district court held that Corps of Engineers officials on the scene had “authority to direct the contractors to proceed at once to minimize the damage by immediate remedial action,” and awarded contractual recovery to plaintiff for the cost of the snow removal. 126 F.Supp. at 901. Thus, it is concluded that the question of authority in this case simply does not admit of an easy answer. How- ever, even assuming that Agent Hernandez lacked authority to bind the government, his conduct was nev- ertheless ratified by INS. 2. Ratification Ratification, to be effective, requires knowledge ot the facts. United Staies v. Beebe, 180 U.S. 343, 354, 21 S.Ct. 371, 375, 45 L.Ed. 563 (1901); Williams v. United States, 130 Ct.Cl. 435, 447, 127 F.Supp. 617, 623 cert. denied, 349 U.S. 938, 75 S.Ct. 783, 99 L.Ed. 1266 (1955); Timberland Paving & Construction Co. v. United States, 8 Cl.Ct. 653, 661 n. 22 (1985). Knowledge “must be shown or such facts proved that its existence is a necessary inference from them.” United States v. Beebe, 180 U.S. at 354, 21 S.Ct. at 375. Here, there can be no dispute that INS had knowledge of all the conduct pertinent to this court’s finding of an implied-in- fact contract. Indeed, even in the face of the knowledge defendant possessed, especially its knowledge of Agent Hernandez’ payment discussion with Kaye Fox and his alleged “cryptic reply,” INS took no action to assert its non-liability for the aliens’ care until its letter dated A-67 March 7, 1985. By that time, all but one of the aliens had already been discharged from the hospital and taken into custody by INS. See Plaintiff's Exhibits 21 and 41 and note 6, supra. Instead, as detailed above, there were numerous instances of confirming conduct. Such behav- ior can spell only acquiescence and ratification by silence and inaction'’ as well as by conduct. See Williams v. United States, 130 Ct.Cl. at 447, 127 FSupp. at 623; Centre Mfg. Co. v. United States, 183 Ct.Cl. 115, 128, 392 F.2d 229, 236 (1968). Ill. THE SLIPPERY SLOPE During oral argument, defendant’s counsel expressed concern that a decision for plaintiff might “turn the Immigration and Naturalization Service and Border Patrol into a general health insurer for people illegally in the United States” (transcript at 221). The discussion set forth above should lay to rest the government's anxiety regarding the sweep of this decision. The presence in this case of peculiar facts renders defendant's floodgate argu- ment unpersuasive. '3 Indeed, INS had ample opportunity to deny its liability while most of the aliens were still hospitalized. Kaye Fox undertook to confirm INS’ obligation of payment over the course of several weeks in early February 1985, but she “couldn't get anyone to call [her] back” (trial tr. at 47). Finally, late in February, Fox and a Dr. Kurland of ECCH spoke with iNS’ James O'Keefe in Los Angeles (trial tr. at 48). O'Keefe was ‘the official in charge of all management functions at INS’ Western Regional Office (trial tr. at 116). Instead of denying INS liability, O’Keefe merely promised to “check into” the matter (trial tr. at 48). A-68 IV. CONCLUSION Based on the findings of fact, conclusions of law and related reasoning announced in open court and set forth in this opinion and, further, based on the parties’ stipula- tion of quantum, it is ORDERED that judgment be entered in favor of plaintiff in the principal sum of $183,263.64, together with interest thereon from May 13, 1985 as provided by 41 U.S.C. § 611. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1859%3A1. Public record. Not legal advice.