Estate of McAllister v. U.S., No. 90-35184

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore GOODWIN, THOMPSON and O'SCANNLAIN; O'SCANNLAIN
Citation942 F.2d 1473
PartiesESTATE OF William F. McALLISTER, Deceased; Sharon McAllister; Sean McAllister; and Lori McAllister, individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Docket NumberNo. 90-35184
Decision Date28 August 1991

Page 1473

942 F.2d 1473
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.
Argued and Submitted March 12, 1991.
Decided Aug. 28, 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

Page 1475

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,

Page 1476

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 decision in Feres and confine the unfairness and irrationality that decision has bred"); Atkinson, 825 F.2d at 206; id. at 206-07 (Noonan, J., concurring); Atkinson, 804 F.2d 561 (9th Cir.1986), withdrawn by, 825 F.2d 202. Others have found fault with the essential vagueness and ambiguity of the doctrine itself. See, e.g., Millang v. United States, 817 F.2d 533, 535 (9th Cir.1987) (per curiam) (noting the "somewhat elusive 'incident to service' standard"), cert. denied, 485 U.S. 987, 108 S.Ct. 1290, 99 L.Ed.2d 500 (1988); Monaco v. United States, 661 F.2d 129, 132 (9th Cir.1981) (noting that "the basis for the exception has recently become the subject of some confusion"), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982); Persons, 925 F.2d at 295 (citing Millang and Monaco and noting that "it is entirely unclear which of the doctrine's original justifications survive"). A comparison of reasoning with outcomes in cases that have applied the doctrine validates these concerns: the results have not flowed easily from the doctrine's purported rationales.

Nonetheless, the Feres doctrine remains the law of the land, and we must undertake to apply it.

B

In the Feres case itself, the Supreme Court enunciated two rationales for the "intramilitary immunity" exception to the FTCA's waiver. Twenty-seven years later, the Court enunciated a third. See Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977). As we recently explained in Persons, these three rationales are:

"(1) the distinctively federal nature of the relationship between the government and members of its armed forces, which argues against subjecting the government to liability based on the fortuity of the situs of the injury; (2) the availability of alternative compensation systems [for military personnel and their families]; and (3) the fear of damaging the military disciplinary structure."

925 F.2d at 294-95 (quoting Atkinson, 825 F.2d at 204).

In United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), however, the Supreme Court stated that "[t]he Feres doctrine cannot be reduced to a few bright-line rules," thereby eviscerating any hope that a simple application of these three rationales to the facts at hand might produce the proper result. Id. 473 U.S. at 57, 105 S.Ct. at 3042. The Shearer Court explained that:

Although the Court in Feres based its decision on several grounds, "[i]n the last analysis, Feres seems best explained by the 'peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in...

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21 practice notes
  • Costo v. USA., No. 99-36101
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 20, 2001
    ...and the doctrine itself have been heavily criticized by commentators and by this Court. See, e.g., Estate of McAllister v. United States, 942 F.2d 1473, 1480 (9th Cir. 1991) ("In [affirming the district court], we follow a long tradition of reluctantly acknowledging the enormous breadth of ......
  • Estate of Himsel v. State, No. S-8640.
    • United States
    • Supreme Court of Alaska (US)
    • November 30, 2001
    ...and constitutes "a judicial re-writing of an unambiguous and constitutional statute"). see also Estate of McAllister v. United States, 942 F.2d 1473, 1480 (9th Cir.1991) ("In [affirming the district court], we follow a long tradition of reluctantly acknowledging the enormous breadth of a tr......
  • Polich v. Burlington Northern, Inc., No. CV-86-044-BU-PGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • November 15, 1995
    ...doing, the appellate court held the claims Page 1250 of the employee-plaintiffs under the Montana statute were not preempted by the RLA. 942 F.2d at 1473. Because of its holding that the employee-plaintiffs' state statutory claim was not preempted by the RLA, the court proceeded to address ......
  • Skees v. U.S. By and Through Dept. of Army, No. 96-5115
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 21, 1997
    ...military status." Id. at 763-64. See also Sidley v. United States, 861 F.2d 988 (6th Cir.1988); Estate of McAllister v. United States, 942 F.2d 1473, 1479 (9th Presuming that Skees was off-duty at the time of his suicide, the alleged medical mistreatment and negligent supervision, we Page 4......
  • Request a trial to view additional results
21 cases
  • Costo v. USA., No. 99-36101
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 20, 2001
    ...and the doctrine itself have been heavily criticized by commentators and by this Court. See, e.g., Estate of McAllister v. United States, 942 F.2d 1473, 1480 (9th Cir. 1991) ("In [affirming the district court], we follow a long tradition of reluctantly acknowledging the enormous breadth of ......
  • Estate of Himsel v. State, No. S-8640.
    • United States
    • Supreme Court of Alaska (US)
    • November 30, 2001
    ...and constitutes "a judicial re-writing of an unambiguous and constitutional statute"). see also Estate of McAllister v. United States, 942 F.2d 1473, 1480 (9th Cir.1991) ("In [affirming the district court], we follow a long tradition of reluctantly acknowledging the enormous breadth of a tr......
  • Polich v. Burlington Northern, Inc., No. CV-86-044-BU-PGH.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • November 15, 1995
    ...doing, the appellate court held the claims Page 1250 of the employee-plaintiffs under the Montana statute were not preempted by the RLA. 942 F.2d at 1473. Because of its holding that the employee-plaintiffs' state statutory claim was not preempted by the RLA, the court proceeded to address ......
  • Skees v. U.S. By and Through Dept. of Army, No. 96-5115
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 21, 1997
    ...military status." Id. at 763-64. See also Sidley v. United States, 861 F.2d 988 (6th Cir.1988); Estate of McAllister v. United States, 942 F.2d 1473, 1479 (9th Presuming that Skees was off-duty at the time of his suicide, the alleged medical mistreatment and negligent supervision, we Page 4......
  • Request a trial to view additional results

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