Mattes v. Chairman Vietnamese

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 98-5797 04/22/99
THOMAS K. KAHN
CLERK
D. C. Docket No. 98-1907-CV-SH
JOHN C. MATTES, individually, and as trustee
and personal representative of the Lost Army
Commandos,
Plaintiff-Appellee,
versus
CHAIRMAN VIETNAMESE COMMANDOS COMPENSATION
COMMISSION, Carl F. Witschonke, ACTING ASSISTANT
SECRETARY OF DEFENSE, Francis M. Rush, Jr.,
UNITED STATES OF AMERICA,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Florida
(April 22, 1999)
Before MARCUS, Circuit Judge, HILL, Senior Circuit Judge, and ADAMS*, District Judge.
_______________
*Honorable Henry Lee Adams, Jr., U.S. District Judge for the Middle District of Florida, sitting by
designation.
PER CURIAM:
The Commandos Compensation Act (Act), Pub. L. No. 104-201 § 657, 110
Stat. 2422, 2584 (1996)1, was enacted by Congress as a special compensation
program for certain Vietnamese nationals (commandos) and their survivors.2
Although § 657 (I)3 of the Act limits attorneys’ fees to ten percent (10%), and §
657 (f)4 of the Act directs that the government5 disburse compensation payments
directly to the commando, appellee John C. Mattes brought this action for
1
The Commandos Compensation Act titled “Payments to Certain Persons Captured or
Interned by North Vietnam” was included as part of the National Defense Authorization Act for
Fiscal Year 1997, Pub.L. No. 104-201 § 657, 110 Stat. 2422, 2584 (1996). Twenty million
dollars ($20,000,000) was appropriated for funding. Section 657(g). Depending upon the length
of confinement or incarceration served by a commando [under operations conducted under
military projects OPLAN 34A (or its predecessor) and OPLAN 35], section 657(c) authorized
payments of $40,000 to $50,000. If a commando was deceased, the Act authorized payments to
the surviving spouse or children. Section 657(b). The Act delegated the responsibility of
establishing a claims protocol to the Secretary of Defense. Section 657(e). Thereafter, the
Department of Defense (DOD) published the claims processing procedures, 32 C.F.R. § 270.1.
et. seq., and established the Vietnamese Commando Compensation Commission (VCCC) to
process claims and handle payments to approved individuals. Id.2
Commandos were hired by the United States between 1959 to 1968 to conduct covert
operations deep inside North Vietnam. Until the Act was passed, the United States had refused
to acknowledge the role that the commandos played in the Vietnam War.
3
Section 657(I) of the Act titled “ATTORNEY FEES,” reads in full: “Notwithstanding
any contract, the representative of a person may not receive, for services rendered in connection
with the claim of, or with respect to, a person under this section, more than 10 percent of a
payment made under this section on that claim.” Pub.L. No. 104-201 § 657(I).
4
Section 657 (f), as amended, of the Act titled: “LIMITATION ON DISBURSEMENT,”
reads: “Notwithstanding any agreement (including a power of attorney) to the contrary, the
actual disbursement of a payment under this section may be made only to the person who is
eligible for the payment . . . .” Pub.L. No. 104-201 § 657(f)(as amended in 1998).
5
The complaint styled defendants as Carl F. Witschonke, Chairman of the Vietnamese
Commandos Compensation Commission or VCCC; Francis M. Rush, Jr., Acting Assistant
Secretary of Defense; and the United States of America.
2
declaratory judgment and writ of mandamus to recover a twenty-three percent
(23%) attorneys’ fee, to be paid directly to him and not to his clients.6 The district
court granted the relief sought by Mattes.
Asserting that the district court erred by failing to disabuse itself of subject
matter jurisdiction under § 657(j), the government appeals. Section 657(j) of the
Act reads:
(j) NO RIGHT TO JUDICIAL REVIEW. - - All determinations
by the Secretary of Defense pursuant to this section are final and
conclusive, notwithstanding any other provision of law. Claimants
under this section have no right to judicial review, and such review is
specifically precluded.
Pub.L. No. 104-201§ 657(j) (emphasis added). The government contends that the
statute expressly provides that there will be no judicial review of any Department
of Defense (DOD) determination under the Act and that § 657(j) plainly bars
judicial review in this case. Arguing that he is not a “claimant” under the statute,
Mattes contends that § 657(j) applies only to a DOD substantive determination
relating to a commando’s eligibility for compensation and not to administrative
details such as where the checks are to be mailed, etc.
6
The DOD suspended payments under the Act after it began receiving complaints, in
early 1998, that Mattes was collecting attorney fees in excess of the statutory ceiling.
3
Any statutory interpretation of the Commandos Compensation Act is a question
of law that we review de novo. Ala. v. Dep’t of the Interior, 84 F.3d 410, 412 n.2
(11th Cir. 1996). “Congress may be free to establish a compensation scheme that
operates without court participation.” Gutierrez v. Lamagno, 515 U.S. 417, 430
(1995)(citing 21 U.S.C. § 904 which authorizes executive settlement of tort claims
that arise in a foreign country in connection with DEA operations abroad). This
includes administrative decisions in implementing the compensation scheme. See,
e.g., Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 307
(1985)(statute precludes judicial review of Veterans’ Administration administrative
decisions as to service-connected death or disability benefits to veterans); Rhodes
v. United States, 760 F.2d 1180 (11th Cir. 1985)(no judicial review of
administrative decisions by the Secretary of the Army under the National Guard
Claims Act); Hamby v. Janer, 808 F.2d 1433, 1434 (11th Cir. 1987)(judicial
review of the Secretary of Labor’s decision regarding attorneys’ fees under the
Federal Employees’ Compensation Act is precluded in clear and unmistakable
terms).
First, we find no merit to Mattes’ contention that he is not a “claimant” for
purposes of the Commandos Compensation Act. He claims to have a legal right to
receive directly the commandos’ checks; to extract his fee in a manner that the
4
Secretary of Defense has determined would frustrate the Congressional limitation
on attorneys’ fees; and to account to the commandos for the net proceeds. One
claiming such a right to participate in the distribution of funds under the Act can be
described only as a “claimant” under § 657(j) of the Act. Second, the clear import
of the Act mandates our conclusion that the federal courts have no jurisdiction to
review the Secretary of Defense’s decisions. See Hamby, 808 F.2d at 1434.
Under a de novo review, we conclude that we have no subject matter
jurisdiction of this appeal and that the district court erred in exercising jurisdiction,
as § 657(j) clearly and specifically proscribes judicial review. This appeal is
DISMISSED and the case is REMANDED to the district court with
INSTRUCTIONS TO DISMISS the entire case and all orders entered in it.
DISMISSED and REMANDED with INSTRUCTIONS.
5