Woodside v. U.S.
| Decision Date | 20 September 1979 |
| Docket Number | No. 77-3276,77-3276 |
| Parties | Donna J. WOODSIDE, Administratrix of the Estate of Henry William Schroeder, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Harry L. Riggs, Jr., H. Lawson Walker, II, Riggs & Riggs, Erlanger, Ky., for plaintiff-appellant.
Griffin Bell, Atty. Gen. of the U. S., Leonard Schaitman, John M. Rogers, Eloise E. Davies, Dept. of Justice, Washington, D. C., Gerald F. Kaminski, Asst. U. S. Atty., Cincinnati, Ohio, for defendant-appellee.
Before CELEBREZZE and LIVELY, Circuit Judges and PHILLIPS, Senior Circuit Judge.
Appellant Donna J. Woodside, administratrix of the estate of her husband, Captain Henry William Schroeder, appeals from the dismissal of her wrongful death action against the United States. Captain Schroeder, an active duty officer in the Air Force, was killed in an airplane crash while he was receiving flight instruction toward a commercial pilot's license. Appellant filed suit in the district court under the Federal Tort Claims Act (hereinafter the FTCA or the Act), 28 U.S.C. §§ 1346(b), 2671 Et seq., seeking damages for the alleged negligence of the United States. The district court concluded that, at the time of his death, Captain Schroeder was engaged in an "activity incident to (his military) service" within the meaning of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which precludes suits against the United States under the FTCA by service members or their estates. Accordingly, the district court dismissed appellant's complaint for failing to state a claim cognizable under the Act.
We affirm.
The facts are not in dispute. Schroeder, who held the rank of Captain in the Air Force at the time of his death, was a civil engineer by profession. He was attached to the 6003 Support Squadron (PACAF) stationed at Hickman Air Force Base, Hawaii.
Captain Schroeder was not a military pilot, nor did his military duties require that he have a pilot's license or fly as a member of a flight crew. However, Captain Schroeder did hold a private pilot's license, which he obtained in 1972. Captain Schroeder's interest in aviation was purely personal. He obtained his license for reasons wholly unrelated to his duties in the Air Force.
Captain Schroeder was a member of the Hickman-Wheeler Air Force Base Aero Club (the Club), a non-appropriated fund instrumentality of the United States Air Force. 1 The Club, located on Wheeler Air Force Base, was established and operates as an instrumentality of the United States under the auspices of the Air Force, pursuant to 32 C.F.R. §§ 984 Et seq. 2
Aero clubs are established "as recreational activities to promote morale" and are intended to provide their members with the opportunity to learn aviation skills under safe, low-cost conditions. 32 C.F.R. § 984.1(a). Moreover, the Hickman-Wheeler Aero Club By-Laws provide that "(t)he purpose of the Club is to stimulate an interest in aviation; to provide . . . opportunities to engage in flying as a recreational activity; and to encourage and develop skills in aeronautics . . . ."
Membership in an aero club is limited to two basic categories of individuals. 32 C.F.R. § 984.8. Only active duty military personal of the United States Armed Forces are eligible for "active membership." 32 C.F.R. § 984.8(a). "Associate" membership is available to a wide range of military-related personnel (including families of active duty service members, civilian Department of Defense employees and their families, and members of Congress) not pertinent to this appeal. 32 C.F.R. § 984.8(b). 3 Captain Schroeder was an "active member" of the Club by virtue of the fact he was an active duty member of the Air Force.
The Club operates a Federal Aviation Administration (FAA) approved (Certificate PC-02-15) flight school. The school prepares students for the various civilian pilot's licenses issued by the FAA. The Club employs FAA certificated civilian flight instructors and charges members for flight instruction. At the time of the accident involved in this case, the Club owned a Cessna 150 (License No. N1216Q) two-seat trainer aircraft, which was used to conduct in-flight training.
On April 16, 1973, Captain Schroeder went on a five day leave from the Air Force. Schroeder's "leave" was equivalent to civilian vacation time, and could be withdrawn only for a "military necessity." A.F.M. 177-373, vol. III(C)(2), para. 1-1-c (1 Oct. 1976). Captain Schroeder was not scheduled to return to duty until April 21, 1973.
On April 19, 1973, at approximately 9:05 local time, Captain Schroeder and Gordon Hanna, a certified civilian flight instructor employed by the Club, departed from Wheeler Air Force Base in the Club's Cessna 150 for the purpose of flight instruction. Captain Schroeder had paid the Club for the instruction and was working toward a "commercial" pilot's license. During the course of the flight the aircraft crashed, fatally injuring both Schroeder and Hanna. The crash occurred on Oahu island, Hawaii, approximately five miles south of Wheeler Air Force Base.
After having exhausted her administrative remedies, appellant filed suit in the district court against the United States for the wrongful death of her husband, pursuant to the FTCA, 28 U.S.C. §§ 1346(b) 4 and 2674. 5 In substance, appellant alleged in her complaint that the cause of the accident that killed Captain Schroeder was the negligence, carelessness, and recklessness of Gordon Hanna, an employee of the United States, while acting as the pilot-in-command and flight instructor.
In response, the United States moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), on the ground that Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), precluded suit by a member of the Armed Forces against the United States. The government argued that Captain Schroeder was killed "in the course of activity incident to (military) service" within the meaning of Feres and was thus barred from suing under the FTCA.
Initially, the district court denied the motion to dismiss. Subsequently a hearing was ordered limited to the question of whether the facts of the present case supported application of the Feres doctrine. At that hearing, appellant testified that her husband's flying was not connected with his military duties, that his interest in aviation was recreational, and that she was receiving military compensation benefits as the result of Captain Schroeder's death. Captain Mark S. Anderson of the Judge Advocate General's office testified that, in his opinion, Captain Schroeder was subject to military control while on leave and was killed while engaging in an activity incident to service. Captain Anderson also testified that appellant was receiving military compensation benefits as the result of Captain Schroeder's death.
Following the hearing, the district court reconsidered its initial ruling and dismissed the action. Although holding that Captain Schroeder was not "subject to military discipline" at the time of his death, the district court nevertheless concluded that his activity was incident to his military service within the meaning of Feres. The court reached this conclusion on the basis of three factors: (1) that off-duty recreational activities provided by the Armed Forces or provided through a non-funded instrumentality of the Armed Forces are incident to military service; (2) that Captain Schroeder's flight originated and would have ended at the on-base aero club; and (3) although not dispositive, the government regulations required covenants not to sue to be executed by associate (but not active) club members, indicating an expectation that Feres would apply to active club members. This appeal followed.
The FTCA provides that the United States shall be liable for "injury or . . . death caused by the negligent or wrongful act or omission of any employee of the Government . . . under circumstances where the United States, if a private person, would be liable to the claimant . . . ." 28 U.S.C. § 1346(b). The Act "waives the Government's immunity from suit in sweeping language." United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95 L.Ed. 523 (1951). However, this broad waiver of immunity is not without its exceptions. See generally, Gottlieb, The Federal Tort Claims Act A Statutory Interpretation, 35 Geo.L.J. 1 (1946). The Act itself excludes certain types of government action from judicial review. 28 U.S.C. § 2680. Moreover, the Supreme Court has recognized that because Congress did not waive completely all government immunity, "it (the FTCA) does not say that all claims must be allowed." Feres v. United States, 340 U.S. 135, 141, 71 S.Ct. 153, 157, 95 L.Ed. 152 (1950). It therefore remains for the courts to determine whether any particular claim is cognizable under the Act. Id.
In Feres, the Supreme Court recognized an exception to the government's tort liability where military service members sue the United States for service-connected injuries. Known as the "Feres doctrine," this exception provides that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen Where the injuries arise out of or are in the course of activity incident to service." (Emphasis added). Id. at 146, 71 S.Ct. at 159. In Feres the executrix of the estate of a serviceman who was killed in a barracks fire attempted to recover damages from the United States on the theory that the military had negligently quartered the decedent in a dangerous facility. 6 A unanimous Court held that the FTCA did not apply to service members who sustain injuries "incident (to their military) service" despite the fact that those injuries may have been negligently inflicted.
The Supreme Court relied upon several factors in finding an...
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