* Pursuant to Local Rule 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-50258

Summary Calendar

_____________________

RICKY FARIAS,

Plaintiff-Appellant,

versus

DEPARTMENT OF THE UNITED STATES AIR FORCE,

Defendant-Appellee.

_______________________________________________________

Appeal from the United States District Court for

the Western District of Texas

(SA-96-CV-19)

_______________________________________________________

September 25, 1996

Before REAVLEY, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:*

Ricky Farias appeals the dismissal on grounds of

frivolousness of his lawsuit (28 U.S.C. 1915(d)) against the

Department of the Air Force for personal injuries allegedly

caused by defendants’ negligence and wrongful acts while

plaintiff was in training in the United States Air National

Guard. We affirm for the following reasons:
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1. Plaintiff Farias initially brought administrative

claims on this matter before the Air Force Legal Services Agency,

which denied relief on the grounds that Section 2733(b)(3) of the

Military Claims Act (MCA) (Title 10 U.S.C. Sections 2731-2737)

bars payment for an employee’s personal injuries which are

incident to the employee’s service. Additional investigation by

the Air Force revealed no negligent or wrongful acts which caused

injury to plaintiff.

2. Plaintiff’s federal court complaint was also brought

under the Military Claims Act, did not present any new facts nor

raise any constitutional issues. In its dismissal, the District

Court properly ruled that it lacked subject matter jurisdiction

to review a final decision of the Air Force Legal Services

Agency, when no constitutional claim was made. Under the

provisions of the MCA and Fifth Circuit decisions, the agency

ruling is therefore deemed a “settlement” of the claim which is

“final and conclusive,” Title 10 U.S.C. § 2753. Poindexter v.

United States, 777 F.2d 231, 232 (5th Cir. 1985).

3. Plaintiff was at first permitted to proceed in forma

pauperis pursuant to Title 28 U.S.C. Section 1915, for both his

District Court action and his appeal to the Fifth Circuit. 

Section 1915(d) authorizes the dismissal of frivolous claim when

it lacks an arguable basis in law or in fact. Neitzke v.

Williams, 490 U.S. at 325, 109 S.Ct. at 1831-32.
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4. On appeal, Plaintiff Farias states that he

misclassified his administrative claim under the Military Claims

Act, but should have submitted it under the Federal Tort Claims

Act. Farias apparently communicated this intention in a letter

sent to the District Court and received January 8, 1996, and now

argues that the District Court should have de novo review of his

claims. Even if the District Court did find that it had subjectmatter jurisdiction over the claims, the dismissal of Plaintiff’s

claim as frivolous under Section 1915(d) is proper. The Federal

Tort Claims Act has been construed to give district court

jurisdiction over claims brought against the government based on

negligence and for injury or death not incident to military

service. Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918. 

However, Farias’ claim does not present an arguable basis for

relief either in law or fact, and is therefore subject to

dismissal as frivolous. Title 28 U.S.C. Section 1915 (d), and

Neitzke v. Williams, 490 U.S. at 325, 109 S.Ct. at 1831-32.

AFFIRMED.