942 F.2d 1473 (9th Cir. 1991), 90-35184, Estate of McAllister v. United States

Docket Nº:90-35184.
Citation:942 F.2d 1473
Party Name:ESTATE OF William F. McALLISTER, Deceased; Sharon McAllister; Sean McAllister; and Lori McAllister, individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Case Date:August 28, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1473

942 F.2d 1473 (9th Cir. 1991)

ESTATE OF William F. McALLISTER, Deceased; Sharon

McAllister; Sean McAllister; and Lori

McAllister, individually, Plaintiffs-Appellants,

v.

UNITED STATES of America, Defendant-Appellee.

No. 90-35184.

United States Court of Appeals, Ninth Circuit

August 28, 1991

Argued and Submitted March 12, 1991.

Page 1474

L.E. Ashcroft, Rhoten, Speerstra, Rinehart & Ashcroft, Salem, Or., for plaintiffs-appellants.

Steven Bransdorfer, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN, THOMPSON and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

The estate and heirs of William McAllister appeal from the district court's dismissal of their wrongful-death action under the Feres doctrine. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We must affirm.

I

On New Year's Eve five years ago, Private Leon Tarver attacked, stabbed, and killed Lieutenant Colonel William McAllister near the Post Exchange ("PX") on the premises of the Presidio in San Francisco, California. 1 "It is undisputed that [Lieutenant Colonel] McAllister was off duty and not under [the] compulsion of [military] orders at the time of his death. He was not performing any military duties, was on personal business, and [was] in the process of leaving the base." Estate of McAllister v. United States, No. 89-6150 at 3 (D.Or. Dec. 6, 1989) (magistrate's findings and recommendation), adopted by No. 89-6150 (D.Or. Dec. 28, 1989) (order of dismissal).

At the time of the killing, Private Tarver, on the other hand, was under the government's care and supervision as a patient of the Letterman Army Hospital on the Presidio grounds. Tarver, who had been diagnosed while serving in Germany as a paranoid schizophrenic with potentially dangerous tendencies, had been assigned to the Letterman Hospital for treatment and evaluation in March 1986. Three months later, the Army reassigned Tarver to active duty in South Korea, but he was again diagnosed as schizophrenic and potentially dangerous and was transferred back to the Letterman Hospital in October 1986, where he remained through the date of the murder.

Charging the Army with medical malpractice in its supervision of Private Tarver, the estate and heirs of Lt. Col. McAllister filed suit under the Federal Tort Claims Act ("FTCA") on April 25, 1989. The

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government subsequently filed a motion to dismiss for lack of subject matter jurisdiction pursuant to the Feres doctrine, and the district court granted that motion upon the recommendation of a federal magistrate on December 28, 1989. The estate and heirs then filed this timely appeal.

II

The presence or absence of subject matter jurisdiction under the FTCA, 28 U.S.C. §§ 1346(b), 2671-80, is a question of law reviewable de novo. See Atkinson v. United States, 825 F.2d 202, 204 (9th Cir.1987), cert. denied, 485 U.S. 987, 108 S.Ct. 1288, 99 L.Ed.2d 499 (1988). In the process of reviewing that question, the court must "review independently the question whether the Feres doctrine is applicable to the facts reflected in the record." McGowan v. Scoggins, 890 F.2d 128, 129 (9th Cir.1989); see also Persons v. United States, 925 F.2d 292, 294 (9th Cir.1991) (quoting same).

III

A

The FTCA provides in relevant part that:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances....

28 U.S.C. § 2674 (1988). As a specific exception to this general waiver of sovereign immunity, the Act provides that the government shall not be liable for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Id. § 2680(j) (emphasis added). Notwithstanding the explicit terms of this latter provision, the Supreme Court has determined that the military exception to the Act's waiver of immunity is considerably broader than this provision suggests. Upholding decisions to dismiss an action by the heirs of a soldier who had perished by fire in the barracks of an Army camp "while on active duty in service of the United States," the Court unanimously held in 1950 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." Feres, 340 U.S. at 137, 146, 71 S.Ct. at 155, 159 (emphasis added).

The Court reached the same conclusion in two other cases that were consolidated and decided along with Feres: Jefferson v. United States and United States v. Griggs. Like the present case, both of these cases involved allegations of medical malpractice by Army doctors. In Jefferson, a soldier who had received an abdominal operation in an Army hospital brought suit on his own behalf when, "eight months later, in the course of another operation after [he had been] discharged, a towel 30 inches long by 18 inches wide, marked 'Medical Department U.S. Army' was discovered and removed from his stomach." Id. at 137, 71 S.Ct. at 155. In Griggs, the executrix of a soldier's estate alleged that "while on active duty [the soldier had] met death because of negligent and unskillful medical treatment by army surgeons." Id. In the Court's view, "[t]he common fact underlying the three cases [was] that each claimant, while on active duty and not on furlough, [had] sustained injury due to negligence of others in the armed forces." Id. at 138, 71 S.Ct. at 156. Under such circumstances and in light of the fact that Congress created separate statutory schemes to compensate for the deaths and injuries of armed services personnel, the Court concluded that there could be no government liability under the FTCA. See id. at 144, 71 S.Ct. at 158.

The Feres doctrine, as the rule of these three cases has come to be known, is highly controversial. It has been criticized "by countless courts and commentators," including this court. Persons, 925 F.2d at 295. Some have found fault with the Court's creation of a judicial exception to a clear statutory pronouncement and the unfairness that the rule has often produced. See, e.g., United States v. Johnson, 481 U.S. 681, 700, 107 S.Ct. 2063, 2074, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting and joined by Brennan, Marshall, and Stevens,

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JJ.) ("Feres was wrongly decided and heartily deserves the 'widespread, almost universal criticism' it has received.") (citation omitted); id. at 703, 107 S.Ct. at 2075 (urging Court to "limit our clearly wrong...

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