Major v. U.S., 86-6226

• Decision Date: 16 December 1987
• Docket Number: No. 86-6226,86-6226
• Citation: 835 F.2d 641
• Parties: Don H. MAJOR, administrator of the estate of Debra Lynn Spradlin, deceased, and Charles L. Mauk, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 641

835 F.2d 641

Don H. MAJOR, administrator of the estate of Debra Lynn Spradlin, deceased, and Charles L. Mauk Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 86-6226.

United States Court of Appeals Sixth Circuit.

Argued Oct. 16, 1987.

Decided Dec. 16, 1987.

William T. Warner, argued, Conliffe, Sandmann, Gorman, Sullivan, William L. Hoge, III, Louisville, Ky., for plaintiffs-appellants.

Joseph M. Whittle, U.S. Atty., Louisville, Ky., James H. Barr, Mel Olmscheid, Army Judge Advocate Gen., Melvin G. Olmscheid, argued, Dept. of the Army, Washington, D.C., for defendant-appellee.

Before WELLFORD and GUY, Circuit Judges; and HIGGINS, District Judge. ^*

PER CURIAM.

Plaintiffs, Don Major, as administrator of the estate of Debra Spradlin, and Charles Mauk, appeal from the district court's order dismissing their consolidated complaints for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Both Spradlin and Mauk were enlisted members of the United States Army and had brought suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b) and 2671, et seq., for the death of Spradlin and injuries suffered by Mauk when they were involved in an accident on their military base in Fort Campbell, Kentucky. The trial court's dismissal was predicated on its conclusion that such suits are barred by the Feres doctrine, Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which precludes recovery under the FTCA for injuries sustained by military personnel that arise from activity "incident to service." Id. at 146, 71 S.Ct. at 159. We agree and affirm.

I.

The facts relative to this appeal are simple and uncontested. At approximately 10:30 p.m. on the evening of March 17, 1983, Spradlin and Mauk were sitting on Mauk's motorcycle, which was stopped well off one of the roads within the Fort Campbell Military Reservation. An Army noncommissioned officer, William Lane, ran his vehicle off the road and struck the motorcycle, killing Spradlin and severely injuring Mauk. Lane had become intoxicated and his driving impaired at an on-base party held in his company barracks and attended by several others, including some of his superiors. While not actually on duty at the time of the accident, both Spradlin and Mauk were on active duty status and neither were on a pass or furlough.

II.

Our result in this case is reached by an analysis of a series of Supreme Court precedents both leading up to the adoption of the Feres doctrine and subsequently giving that doctrine form and substance. In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), the Court was faced with a claim brought pursuant to the FTCA by members of the armed forces who were injured while on furlough in a collision with an Army truck. The Court held their claim to be within the ambit of the FTCA's conferral of jurisdiction over "any claim founded on negligence brought against the United States," stating "[w]e are not persuaded that 'any claim' means 'any claim but that of servicemen.' " Id. at 51, 69 S.Ct. at 919. The Court gave short shrift to the government's protestations of "dire consequences" for the military which would allegedly result from a finding that plaintiffs' injuries were incident to their military service. In reaching this conclusion, the Court reasoned that "we are dealing with an accident which had nothing to do with the Brooks' army careers, injuries not caused by their service except in the sense that all human events depend upon what has already transpired." Id. at 52, 69 S.Ct. at 920. However, the Court also observed that "[w]ere the accident incident to the Brooks' service, a wholly different case would be presented." Id.

One year later, that "wholly different case" arrived in Feres. Although Feres was comprised of three consolidated cases, the facts in the Feres case itself are most illustrative of the Court's new position on the availability of relief for military personnel under the FTCA. Feres was killed by fire in his barracks while on active duty status. His executor alleged negligence in quartering him in barracks which were known, or should have been known, to be unsafe. The Court in Feres gave a much narrower construction to the FTCA's waiver of sovereign immunity with respect to the military in general and, significantly, it also eschewed any attempt to engage in an individualized interpretation of what constituted an "injury incident to service." Rather, the Court automatically equated events occurring while an employee was on "active duty" with those "incident to the service," thereby effectively barring all claims for injuries taking place while one is on active duty. 340 U.S. at 138, 71 S.Ct. at 155.

In the past five years, the Supreme Court has decided four cases under the Feres doctrine and in each case it reversed a finding of federal jurisdiction by the court of appeals. Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), and United States v. Stanley, --- U.S. ----, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987), both involved attempts to bring direct claims for violation of constitutional rights pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Chappell, a class of black enlistees sued their military superiors for racial discrimination in making duty assignments, giving performance evaluations, and imposing penalties. In barring damage suits by military personnel for constitutional violations, the Court emphasized that "[t]he special nature of military life--the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel--would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command." 462 U.S. at 304, 103 S.Ct. at 2367. The Court also relied on Congress' constitutionally created authority over the military in concluding that special factors existed which counselled against the implication of a judicially imposed Bivens-type remedy for military personnel. Id.

In Stanley, plaintiff sued the government after he learned that, while in the Army in the 1950's, he was secretly administered LSD as part of a program to test the effects of the drug on human subjects. 107 S.Ct. at 3057. He alleged that the drug had caused personality changes which resulted in his discharge and the dissolution of his marriage. Plaintiff's FTCA claim had previously been dismissed by the court of appeals, and he was barred by the Supreme Court from renewing that claim in the current proceeding. In addition, the court held that since plaintiff's Bivens claim was subject to the constraints of Feres, as established by the Court's decision in Chappell, it was also barred provided his injury was incurred "incident to service." The Court ruled that Stanley was precluded from contesting the relationship between his injury and his military status because the court of appeals had already decided this issue by virtue of its earlier dismissal of his FTCA cause of action. In opting for the relatively bright-line "incident to service" test of Feres for use in Bivens actions as well, Justice Scalia, writing for the majority, pointed out that:

[a] test for liability that depends on the extent to which particular suits would call into question military discipline and decision-making would itself require judicial inquiry into, and hence intrusion upon, military matters. Whether a case implicates those concerns would often be problematic, raising the prospect of compelled depositions and trial testimony by military officers concerning the details of their military commands. Even putting aside the risk of erroneous judicial conclusions ... the mere process of arriving at correct conclusions would disrupt the military regime.

107 S.Ct. at 3063.

United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), and United States v. Johnson, --- U.S. ----, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), both involved attempted suits under the FTCA by military personnel. In Shearer, plaintiff's decedent was an Army private who was kidnapped and murdered by another serviceman while off duty and away from the base. Plaintiff alleged that Army negligence had caused her son's death. In reversing the court of appeals' conclusion that "an off-duty serviceman not on the military base and not engaged in military activity at the time of injury, can recover under FTCA," Shearer v. U.S., 723 F.2d 1102, 1106 (3d Cir.1983), the Court found the relevant inquiry to be not the situs of the act or incident but "whether the suit requires the civilian court to second-guess military decisions, and whether the suit might impair essential military discipline." 473 U.S. at 57, 105 S.Ct. at 3043. (citations omitted). The Court concluded that an impermissible level of civilian judicial involvement would result if this type of case were permitted, since commanding officers would likely have to testify about their practices and policies in disciplining subordinates and dictating their off-base conduct. Id. at 58, 105 S.Ct. at 3044.

In Johnson, plaintiff's husband was killed in a helicopter crash during a rescue mission due to the alleged negligence of an air traffic controller employed by the Federal Aviation Administration (FAA). The Court once again reversed the court of appeals by applying the Feres doctrine, even though the alleged negligence did not involve any military personnel. In the same way it had held that the situs of the incident was not determinative in Shea...