Johnson v. U.S.

• Citation: 779 F.2d 1492
• Decision Date: 13 January 1986
• Docket Number: N,No. 83-5764,83-5764
• Parties: Frieda Joyce JOHNSON, personal representative of the Estate of Horton Winfield Johnson, for herself and for the Benefit of Kevin Lee Nix, Cynthia Ann Johnson and Tamara Joyce Nix, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. on-Argument Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1492

779 F.2d 1492

Frieda Joyce JOHNSON, personal representative of the Estate of Horton Winfield Johnson, for herself and for the Benefit of Kevin Lee Nix, Cynthia Ann Johnson and Tamara Joyce Nix Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 83-5764, Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Jan. 13, 1986.

Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Joel D. Eaton, Miami, Fla., for plaintiffs-appellants.

Jeffrey D. Fisher, Sp. Asst. U.S. Atty., Linda Collins-Hertz, Jonathan Goodman, Asst. U.S. Attys., Miami, Fla., Robert S. Greenspan, Nicholas Stephen Zeppos, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges.

PER CURIAM:

Frieda Joyce Johnson, respondent, brought this wrongful death action against the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346, 2671-2680. She alleges that her husband, a helicopter pilot for the United States Coast Guard dispatched to search for a civilian boat, died as a result of the negligence of civilian Federal Aviation Administration air traffic controllers who had assumed control over the helicopter when inclement weather prevented visual navigation. The district court, relying on Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), granted the government's motion to dismiss. The court of appeals reversed. 749 F.2d 1530 (11th Cir.1985). On April 24, 1985, we granted the government's suggestion that this matter be reviewed by the en banc court. 760 F.2d 244 (11th Cir.1985). Such action vacated the panel opinion. Upon consideration by the full court, the panel opinion found at 749 F.2d 1530 (11th Cir.1985) is reinstated.

As noted in footnote 13 of the panel opinion, the Supreme Court granted certiorari in the case of Shearer v. United States, 723 F.2d 1102 (3rd Cir.1983), cert. granted, --- U.S. ----, 105 S.Ct. 321, 83 L.Ed.2d 259 (1984). On June 27, 1985, the Court announced its opinion in that case, --- U.S. ----, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). The opinion of the Supreme Court is most helpful to our decision herein and reinforces the analysis set forth in the panel opinion.

Shearer involved the death of an Army private, who, while off duty, was kidnapped and murdered by another serviceman who was also off duty and away from his base. The claim made under the Federal Tort Claims Act was that although the Army knew that the other serviceman was dangerous it negligently failed to control him or warn others about him. The government contended that the suit was barred by both 28 U.S.C. Sec. 2680(h) (waiver of sovereign immunity under the Federal Tort Claims Act not applicable to claims arising out of assault and battery) and the Feres doctrine. Only four members of the Court found Sec. 2680(h) applicable. Section II B of the opinion, which discussed the Feres doctrine, was joined in by eight members of the Court (Justice Powell did not participate in the case). ¹ Special emphasis is placed upon military discipline and whether or not the claim being considered would require civilian courts to second-guess military decisions. In Shearer, the Court concluded that the "[r]espondents complaint strikes at the core of these concerns" and held the claims barred by the Feres doctrine. --- U.S. at ----, 105 S.Ct. at 3043 (footnote omitted).

Writing for the majority, the Chief Justice noted,

"[t]he Feres doctrine cannot be reduced to a few bright-line rules; each case must be examined in light of the statute as it has been construed in Feres and subsequent cases."

Id. Following this command, we find that the panel opinion has given proper consideration to the Feres factors with particular attention to whether or not the claims asserted here will implicate civilian courts in conflicts involving the military structure or military decisions. The claims presented are based solely upon the conduct of civilian employees of the Federal Aviation Administration (a civilian administration within the Department of Transportation) who were not in any way involved in military activities. The fact that the decedent was a helicopter pilot for the United States Coast Guard is not sufficient, standing alone, to activate the Feres preclusion.

The judgment of the district court is REVERSED.

JOHNSON, Circuit Judge, dissenting in which RONEY, TJOFLAT and HILL, Circuit Judges, join.

I respectfully dissent from the decision of this Court.

This case concerns a Coast Guard helicopter pilot who was killed while on a military mission in a crash allegedly caused by civilian FAA air controller negligence. Since the suit brought by this serviceman's survivor is against the United States, we are bound by the dictates of the Feres doctrine, which exempts the government from suit where an injury to a serviceman is "incident to service." Here, Johnson's injury was undoubtedly sustained incident to service, so under current law our decision ought to be a relatively straightforward affirmance. However, the majority finds a novel way to evade the commands of the Supreme Court--and of Fifth Circuit precedent binding on this Court--in order to reverse and allow recovery.

In the panel opinion reinstated by the full court after en banc consideration, the majority determines that this Court henceforth will not make the standard Feres inquiry--whether or not the injury was incident to service--unless something that it calls "the Feres factual paradigm" is present. Johnson v. United States, 749 F.2d 1530, 1537 (11th Cir.1985). That paradigm is said to be "an FTCA suit for injuries or death allegedly caused by the negligence of a serviceman or an employee of the armed forces." Id. Where the paradigm does not appear, this Court must now undertake a case-by-case assessment of each rationale behind the Feres doctrine to determine whether the suit in question would undercut the purposes of the FTCA. Id.

The majority appears to find grounds for this extraordinary methodology in a handful of cases in which courts have returned to the Feres rationales to examine novel situations. See Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (black servicemen barred from suing military for damages for constitutional violations); Stencel Aero Engineering v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (no third party indemnification from United States where direct suit of injured party barred by Feres); United States v. Munitz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) (Feres does not bar prisoners' suits against United States for injuries sustained in federal prison); Hunt v. United States, 636 F.2d 580 (D.C.Cir.1980) (manufacturer sued by servicemen injured by defective swine flu vaccine not barred by Feres from bringing in United States as substitute defendant under unique liability scheme of Swine Flu Act). The majority's own opinion suggests that it is undesirable to apply these rationales case-by-case in any but extremely unusual situations. Johnson, 749 F.2d at 1537 ("the [Feres] rationales are more relevant to the wisdom of implying [sic] an exception to the FTCA in the first instance, than they are to determining whether, given a particular factual situation, a serviceman was injured 'incident to service' "). Compare Henninger v. United States, 473 F.2d 814 (9th Cir.1973) ("[t]o determine the effect that a particular type of suit might have upon military discipline would be an exceedingly complex task.... [N]early every case would have to be litigated, and it is the suit, not the recovery, that would be disruptive of discipline and the orderly conduct of military affairs"). ¹

However, cases in which a serviceman was injured incident to service by a civilian government employee are hardly novel. This fact pattern has appeared consistently over the years. And just as consistently, no court until now has allowed recovery against the government in this sort of suit. See Potts v. United States, 723 F.2d 20 (6th Cir.1983), cert. denied, 466 U.S. 959, 104 S.Ct. 2172, 80 L.Ed.2d 555 (1984) (Navy corpsman injured when struck by broken cable from hoist operated by civilians); Warner v. United States, 720 F.2d 837 (5th Cir.1983) (off-duty Army enlisted man injured on base when motorcycle collided with shuttle bus driven by civilian government employee); Jaffee v. United States, 663 F.2d 1226 (3d Cir.1981) (en banc), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982) (serviceman injured by radiation exposure allegedly due in part to intentional tort of civilian Department of Defense and Atomic Energy Commission employees); Lewis v. United States, 663 F.2d 889 (9th Cir.1981) (Marine Corps pilot killed in crash allegedly due to negligence of government maintenance employees); Carter v. Cheyenne, 649 F.2d 827 (10th Cir.1981) (Air Force captain killed in crash at city airport for which city brought third-party claim against FAA controllers); Woodside v. United States, 606 F.2d 134 (6th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980) (Air Force officer killed in crash of plane allegedly due to negligence of civilian flight instructor employed by military flight club); Uptegrove v. United States, 600 F.2d 1248 (9th Cir.1979), cert. denied, 444 U.S. 1044, 100 S.Ct. 732, 62 L.Ed.2d 730 (1980) (serviceman killed in crash of Air Force transport due to alleged negligence of FAA air traffic controllers); Watkins v. United States, 462 F.Supp. 980, aff'd on opinion below, 587 F.2d 279 (5th Cir.1979) (serviceman killed on base when motorcycle collided with shuttle bus driven by civilian government employee); Hass v. United States, 518 F.2d 1138 (4th Cir.1975) (Marine sued government,...