Anderson v. U.S.

• Decision Date: 13 October 1983
• Docket Number: No. 82-2266,82-2266
• Citation: 724 F.2d 608
• Parties: Theodore J. ANDERSON, Appellant, v. UNITED STATES of America, and its Department of Army, National Guard of Minnesota, Commander of Fort Carson, Colorado, Commander of Fort Sheridan, Illinois, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 608

724 F.2d 608

Theodore J. ANDERSON, Appellant, v. UNITED STATES of America, and its Department of Army National Guard of Minnesota, Commander of Fort Carson, Colorado, Commander of Fort Sheridan, Illinois, Appellees.

No. 82-2266.

United States Court of Appeals Eighth Circuit.

Submitted May 19, 1983.

Decided Oct. 13, 1983.

Isaacs & Jorgenson, Ltd. by Donald R. Jorgenson, and Clark F. Isaacs, St. Paul, Minn., for appellant.

James M. Rosenbaum, U.S. Atty. by Mary E. Carlson, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before BRIGHT and McMILLIAN, Circuit Judges, and NICHOL, ^* Senior District Judge.

McMILLIAN, Circuit Judge.

Theodore J. Anderson appeals from an order of the District Court ¹ for the District of Minnesota dismissing his action under the Federal Torts Claims Act (FTCA), 28 U.S.C. Sec. 2674, against the United States. ² The district court held that the action was barred by Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). For the reasons discussed below, we affirm.

On December 13, 1969, appellant enlisted in the Army National Guard of the State of Minnesota and in the Army Reserve with membership in the Army National Guard of the United States for a period of six years. Appellant's enlistment agreement provided that if he failed to attend the prescribed number of state national guard training sessions, the Army could order him to involuntary active duty. In March 1973, September 1974 and November 1974, appellant did not attend required training sessions. Each time he was warned in writing that further absences could result in involuntary active duty. In June 1975 appellant again did not attend an annual training session. By letter dated July 1, 1975, appellant was notified that he had been "certified for order to involuntary active duty with the U.S. Army by reason of unsatisfactory participation with the Minnesota Army National Guard [for being] AWOL [Absent Without Leave] from annual training, 1975." The letter was sent by certified mail, restricted delivery to named addressee, to appellant's last known address and forwarded to his current address. After the post office issued two notices of the attempted delivery, the letter was returned as unclaimed. By order dated November 10, 1975, appellant was ordered to active duty as of January 8, 1976. The order was also sent by certified mail, restricted delivery, and again returned as unclaimed after two notices of attempted delivery.

On January 7, 1976, appellant was discharged from the Minnesota National Guard and received a certificate of discharge. In boldface print the certificate stated that the discharge "shall not be construed as relieving the individual named herein from his enlistment as a Reserve of the Army or from any reserve or service obligation to which he may be subject under the provisions of the Universal Military Training and Service Act as amended." (Emphasis supplied).

By letter dated January 20, 1976, appellant's wife was informed that appellant had been reported as AWOL and by letter dated February 16, 1976, was informed that he had been declared a deserter. Both letters requested her cooperation in "persuading [appellant] to return to military control."

On October 15, 1976, appellant was arrested by military police for being AWOL and detained in a county jail. He was later transferred to federal military facilities.

Thereafter appellant filed this FTCA action alleging that the United States government unlawfully caused his arrest and detention. The government moved to dismiss the complaint on the ground that the action was barred by the Feres doctrine. In Feres the Supreme Court held "that the Government is not liable under the Federal Torts Claims Act for injuries to servicemen where the injuries arise out of or in the course of activity incident to service." 340 U.S. at 146. The Feres doctrine is also applicable to members of the National Guard and the reserves. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); United States v. Carroll, 369 F.2d 618 (8th Cir.1966).

Appellant argued to the district court that Feres was inapplicable because the January 6, 1976, discharge from the Minnesota National Guard terminated his military obligations. The court disagreed, holding that the discharge certificate made clear that appellant's discharge from the state national guard did not terminate his federal military obligations under 10 U.S.C. Sec. 673(a) and Army Regulation No. 135-91. The court held that at the time of appellant's AWOL arrest he was subject to military service and therefore the Feres doctrine barred the action. We agree. Compare Valn v. United States, 708 F.2d 116 (3d Cir.1983) (Feres doctrine does not bar FTCA action where plaintiff was ordered to involuntary active duty after he received a medical discharge from the Army).

At oral argument appellant's counsel did not challenge the district court's finding that the discharge did not terminate appellant's military obligation. Counsel conceded that Feres would bar the instant action but for the fact that the Army allegedly failed to follow its own procedures in notifying appellant of his activation orders. Counsel, however, did not cite to any regulations, but requested a remand to determine whether appellant received or had notice of the activation orders and whether the Army failed to follow its own procedure by sending the orders by certified mail, restricted delivery.

We first note our disagreement with appellant's assertion that a remand is necessary to determine whether he had notice of his activation orders. The letter of July 1, 1975, and the activation order of November 10, 1975, were both sent by certified mail to appellant's last known mailing address and forwarded to his current address. Each time the post office notified appellant twice of attempted delivery. At the hearing before the district court appellant acknowledged that his wife informed him of the post office notices of the attempt to deliver the July 1975 letter. Appellant stated that his work as an over-the-road truck driver prevented him from claiming the letter. Appellant also acknowledged that he read the January 1976 letter to his wife informing her that appellant was AWOL and asking her cooperation in returning him to military control. As was stated by district courts in cases involving similar facts and allegations, "[appellant] cannot be allowed to pick and choose what mail he accepts and refuses ..., and then claim no notice of mail he refused," Hoersch v. Froehlke, 382 F.Supp. 1235, 1240 (E.D.Pa.1974), and "the history of the relationship between the [appellant] and his Reserve Unit strongly suggests that he had systematically failed to claim any certified mail forwarded to him by military authorities.... In such an instance, [appellant] may not subsequently complain of absence of notice." United States ex rel. Niemann v. Greer, 394 F.Supp. 249, 252 (D.N.J.1975). As does appellant in this case, the servicemen in Hoersch and Greer alleged that because they never actually received their activation orders, they were not bound by the orders. ³

Appellant also asserts that a remand is necessary to determine whether the Army followed its procedures in the mailing of the activation order. The government counters that a remand is unnecessary because Army regulation provides for the mailing of activation orders by certified mail to the last mailing address furnished by a member and that "return as undeliverable of orders ... does not change the fact that the member has been properly ordered to report to active duty." Army Regulation No. 135-91, p 14(1). ⁴ The cited regulation certainly seems to support the Army's position. See United States ex rel. Niemann v. Greer, 394 F.Supp. at 251-52. We, however, do not need to decide this issue. In any event, a remand is unwarranted because we reject appellant's assertion that an alleged failure to follow Army regulations bars application of the Feres doctrine where it would otherwise be applicable. Calhoun v. United States, 475 F.Supp. 1, 4 (S.D.Cal.1977), aff'd, 604 F.2d 647 (9th Cir.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 761 (1980).

Therefore, the judgment of the district court is affirmed.

BRIGHT, Circuit Judge, dissenting.

I dissent from the application of the Feres doctrine to bar Anderson's action for unlawful arrest under the Federal Tort Claims Act (FTCA). The Feres doctrine is a judicially-created exception to the broad waiver of governmental immunity contained in the FTCA. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The Act, by its own terms, does not prohibit servicepersons from suing the government, except when the claims arise out of combatant activities during times of war. ¹ On the contrary, the Act's legislative history indicates that Congress did not intend to bar all tort claims by members of the armed services. ² The Feres doctrine, therefore, must be applied with care, for the extension of the doctrine beyond its proper scope allows the judicially-created exception to countermand the language of the FTCA and the intent of Congress.

The Feres doctrine bars Anderson's claim only if his alleged injury arose out of or was in the course of "activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159. The test is not purely causal. Parker v. United States, 611 F.2d 1007 (5th Cir.1980). Anderson's alleged injury, therefore, is not necessarily "incident to service" simply because, but for his outstanding military obligation, he would not have been arrested AWOL.

In this case, the facts that are usually considered indicative of "activity incident to service" are simply not present. See, e.g., Miller v. United States, 643 F.2d 481, 494 (8th Cir.1981) (in applying the Feres doctrine, the court considered the claimant's duty status, where the injury occurred, and what the...