Johnson v. U.S., 83-5764

• Decision Date: 10 January 1985
• Docket Number: No. 83-5764,83-5764
• Citation: 749 F.2d 1530
• Parties: Frieda Joyce JOHNSON, personal representative of the Estate of Horton Winfield Johnson, for herself and for the Benefit of Kevin Lee Nix, Cynthia Anne Johnson and Tamara Joyce Nix, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1530

749 F.2d 1530

53 USLW 2370

Frieda Joyce JOHNSON, personal representative of the Estate

of Horton Winfield Johnson, for herself and for the Benefit

of Kevin Lee Nix, Cynthia Anne Johnson and Tamara Joyce Nix, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 83-5764.

United States Court of Appeals, Eleventh Circuit.

Jan. 10, 1985.

Rehearing and Rehearing En Banc Denied March 26, 1985.

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., for defendant-appellee.

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

Before FAY and VANCE, Circuit Judges, and MAC MAHON ^*, District Judge.

FAY, Circuit Judge:

Frieda Joyce Johnson, plaintiff, brought this wrongful death action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346, 2671-2680. She alleges that her husband died as a result of the negligence of air traffic controllers employed by the Federal Aviation Administration (FAA). 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. We reverse.

FACTUAL BACKGROUND ¹

Plaintiff's decedent, Horton Winfield Johnson, was a helicopter pilot for the United States Coast Guard, stationed in Hawaii. On January 7, 1982, Johnson and his aircraft were dispatched to search for a civilian boat in distress. Because inclement weather made visual navigation impossible, Johnson requested the civilian FAA controllers to assume positive radar control over the helicopter. The controllers did so and undertook guidance from the ground. Unfortunately, the helicopter was vectored into the side of a mountain on the island of Molokai. Johnson was killed in the crash.

After exhausting her administrative remedies, plaintiff brought this action on behalf of herself, her minor children, and her husband's estate, alleging negligence on the part of the civilian FAA air traffic controllers. The Government filed a motion to dismiss, arguing that since plaintiff's decedent was killed while acting within the course and scope of his military duties, the complaint failed to state a claim

upon which relief could be granted under the FTCA. The district court agreed, citing only Feres, and dismissed the action with prejudice. ²

THE FERES DOCTRINE

Under the common law, the United States was shielded from suit by the doctrine of sovereign immunity. See Feres, 340 U.S. at 139, 71 S.Ct. at 156. In 1946, however, Congress enacted the FTCA, thus marking "the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit." Id. The FTCA provides that the United States is liable in tort "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. Sec. 2674. It also vests in the district courts exclusive jurisdiction over civil actions against the United States based on the alleged negligence of government employees "where the United States, if a private person, would be liable to the claimant [under] the law of the place where the [negligence] occurred." Id. Sec. 1346(b). This consent to suit, however, was not unlimited. Congress listed exceptions to the applicability of the FTCA, see id. Sec. 2680, one of which excludes "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Id. Sec. 2680(j). The text of the act does not mention a blanket prohibition on actions brought by servicemen qua servicemen, yet "the courts rushed in where legislators feared to tread." Parker v. United States, 611 F.2d 1007, 1009 (5th Cir.1980).

Soon after the FTCA was enacted, the Supreme Court was called upon to determine the statute's impact upon suits brought by servicemen or their survivors against the United States. In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), a serviceman was injured when an army truck collided on a public highway with the civilian automobile in which he was a passenger. The court characterized the injury as one not incurred incident to service, and held that the clear language of the FTCA authorized the serviceman's negligence action against the United States. Id. at 51-52, 69 S.Ct. at 919-920.

Shortly after Brooks was decided, the Supreme Court had occasion to address the applicability of the FTCA to a factual situation not before the Court in Brooks, to wit, a suit against the United States when "each claimant, while on active duty and not on furlough, sustained injury due to the negligence of others in the armed forces." Feres, 340 U.S. at 138, 71 S.Ct. at 155. ³ The court in Feres held that the FTCA did not waive the Government's sovereign immunity for injuries to members of the armed services where the injuries arose out of or were in the course of activity incident to service. Id. at 146, 71 S.Ct. at 159. The court offered the following bases for its holding: (1) the absence of parallel private liability; (2) the belief that since state law must be consulted under the FTCA, it would be irrational to leave servicemen injured by others in the military dependent upon geographic considerations Four years after Feres, the Supreme Court decided United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954). In that case Veterans Administration doctors operated on the knee of a veteran; the knee had been injured while he was on active duty. The veteran brought suit, alleging negligent medical treatment. Despite the fact that the veteran received enhanced disability benefits as a result of the surgery, the court held that his FTCA claim was not barred since the injury sued on occurred after he was discharged from service. Id. at 111-112, 75 S.Ct. at 142-143. The most significant aspect of the Brown case is not its holding; rather, it is the following statement which has come to be regarded as the single most important, and defensible, rationale for the Feres doctrine which has emerged as Brown's most significant contribution:

                over which they have no control;  (3) the "distinctively federal character" of the relationship between the United States and those in the military;  and (4) the availability of a no-fault compensation system.   Id. at 141-46, 71 S.Ct. at 156-59
                

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 the course of military duty, led the [Feres ] Court to read that Act as excluding claims of that character.

Brown, 348 U.S. at 112, 75 S.Ct. at 143.

Some of the theoretical underpinnings of the Feres decision fell on hard times after Brown. For example, the view that the FTCA did not contemplate the creation of a "novel and unprecedented," Feres, 340 U.S. at 141, 71 S.Ct. at 157, cause of action against the United States was undermined in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), and Rayonier Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). In Indian Towing, the Supreme Court refused to bar an FTCA claim based on the alleged negligence of the Coast Guard in operating a lighthouse beacon. Over a vigorous dissent arguing the applicability of Feres, see Indian Towing, 350 U.S. at 70, 76 S.Ct. at 127 (Reed, J., dissenting, joined by Burton, Clark, & Minton, J.J.), the court expressly rejected the Government's contention that the FTCA excluded claims based on the negligent performance of an activity unique to the government. Id. at 66-69, 76 S.Ct. at 125-127. The court reasoned that to premise FTCA liability on the "completely fortuitous circumstance" of "the presence or absence of identical private activity" would be to "attribut[e] bizarre motives to Congress." Id. at 67, 76 S.Ct. at 125. Similarly, in Rayonier, where the court held that an FTCA action could be maintained for the alleged negligence of federal firefighters, the court stated:

It may be that it is "novel and unprecedented" to hold the United States accountable for the negligence of its firefighters, but the very purpose of the Tort Claims Act was to waive the Government's traditional all-encompassing immunity from tort actions and to establish novel and unprecedented governmental liability.

Rayonier, 352 U.S. at 319, 77 S.Ct. at 377 (emphasis added).

The continued viability of the Feres doctrine was again questioned, albeit implicitly, in United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963), where the Supreme Court was asked to decide whether a federal prison inmate could sue under the FTCA for personal injuries sustained while incarcerated. The Government argued that both Feres and the potential adverse effect liability would have on prison discipline warranted implying an exception to the FTCA so as to bar prisoner claims. Although it was careful not to question the Feres doctrine in the military context, see id. at 159, 83 S.Ct. at 1856, the court's reasoning can arguably be seen as further erosion of the doctrine's supporting rationales. The court echoed the Rayonier conclusion that the absence of analogous private liability was no impediment to FTCA liability, id. (citing Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139), and also noted that "the presence of a compensation Despite the apparent inroads on the theoretical predicates of the Feres doctrine, Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), made it abundantly clear that the doctrine "refused to die the quiet death that some had anticipated." Hunt v. United States, 636 F.2d 580, 588 (D.C.Cir.19...