McGowan v. Scoggins, 88-15055

• Citation: 890 F.2d 128
• Decision Date: 17 November 1989
• Docket Number: No. 88-15055,88-15055
• Parties: Arthur J. McGOWAN, Plaintiff-Appellant, v. Gerald R. SCOGGINS; Richard B. Kloskinski; Harold V. Breiding; James A. Etheridge, Jr.; Ward R. Wilder; and Bruce Johnson, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 128

890 F.2d 128

Arthur J. McGOWAN, Plaintiff-Appellant, v. Gerald R. SCOGGINS; Richard B. Kloskinski; Harold V Breiding; James A. Etheridge, Jr.; Ward R Wilder; and Bruce Johnson, Defendants-Appellees.

No. 88-15055.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 5, 1989.

Decided July 26, 1989.

As Amended on Denial of Rehearing Nov. 17, 1989.

James W. Lewis, Sacramento, Cal., for plaintiff-appellant.

Mary L. Grad, Asst. U.S. Atty., Sacramento, Cal., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before SNEED, ALARCON and LEAVY, Circuit Judges.

ALARCON, Circuit Judge:

Professor Arthur J. McGowan, Jr., (Professor McGowan) appeals from the entry of a judgment dismissing his action against Sergeant Gerald R. Scoggins, Sergeant Richard B. Klosinski, Sergeant Harold V. Breiding, Captain James A. Etheridge, Jr., Lieutenant Colonel Ward R. Wilder, and Does I-X, inclusive, (hereinafter collectively the military officials). The complaint alleged states causes of action and a deprivation of rights protected from governmental interference by the Fourth, Fifth, Sixth, and Fourteenth Amendments.

The district court entered a judgment dismissing the action for lack of subject matter jurisdiction under the Feres doctrine. ¹ 1] Professor McGowan filed a timely appeal.

We have jurisdiction because the dismissal of the action for lack of subject matter jurisdiction was a final judgment. 28 U.S.C. Sec. 1291. We review independently the question whether the Feres doctrine is applicable to the facts reflected in the record. Atkinson v. United States, 825 F.2d 202, 204-05 (9th Cir.1987), cert. denied, 485 U.S. 987, 108 S.Ct. 1288, 99 L.Ed.2d 499 (1988).

We must decide whether a retired army captain, discharged as permanently disabled due to combat injuries, who receives disability retirement pay monthly, is precluded from filing an action against military officers for harm suffered while entering a United States Air Force base to conduct a personal errand. We conclude that the Feres doctrine is inapplicable to a claim filed by a person who is not a member of the armed forces of the United States for injuries that are not incident to current military service or who is not subject to the supervision of military personnel. Accordingly, we reverse.

I

The question presented in this matter is novel. To answer it, we must first examine the reach and purpose of the Feres doctrine as explained by the Supreme Court and interpreted by the Court of Appeals.

Prior to the enactment of the Federal Torts Claims Act (FTCA) in 1946, 28 U.S.C. Secs. 1346(b), 2671-2680, the United States, as a sovereign nation, was immune from civil liability for tortious acts committed by an employee of the government. Atkinson v. United States, 825 F.2d at 204. Under the FTCA, Congress waived immunity for the tortious conduct of employees of the Government including "a member of the military or naval forces of the United States" acting "in line of duty." 28 U.S.C. Sec. 2671.

A. SUPREME COURT RESTRICTIONS ON CIVIL ACTIONS BY SERVICEMEN BASED ON THE CONDUCT OF OTHER MILITARY PERSONNEL

In 1949, the Supreme Court interpreted the FTCA to provide jurisdiction over a claim filed against the United States by members of the armed forces of the United States for injuries "not caused by their service." Brooks v. United States, 337 U.S. 49, 52, 69 S.Ct. 918, 920, 93 L.Ed. 1200 (1949). In Brooks, two brothers were in the armed forces of the United States when their vehicle was struck by a United States Army truck driven by a civilian employee of the Army. One brother was injured and the other was killed. Id. at 50, 69 S.Ct. at 919. A claim was brought against the United States pursuant to the FTCA.

The district court denied the Government's motion to dismiss. Id. The Government argued that members of the armed forces of the United States at the time of their injuries are barred from recovery under the FTCA. Id. The Fourth Circuit reversed in a divided decision. United States v. Brooks, 169 F.2d 840 (4th Cir.1948). The Supreme Court reversed the Court of Appeals and held that the FTCA did not exclude all claims brought by members of the armed forces of the United States. Brooks, 337 U.S. at 51, 69 S.Ct. at 919.

The Supreme Court answered the Government's concerns about the effect of permitting a member of the armed forces to bring an action against the United States in the following words:

The Government envisages dire consequences should we reverse the judgment. A battle commander's poor judgment, an army surgeon's slip of hand, a defective jeep which causes injury, all would ground tort actions against the United States. But 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. Were the accident incident to the Brooks' service, a wholly different case would be presented.

Id. at 52, 69 S.Ct. at 920 (footnote omitted).

In the year following its decision in Brooks, the Supreme Court was called upon to decide whether a member of the armed forces of the United States who received injuries while on active duty arising out of or in the course of such military duty may bring an action under the FTCA against the United States. Feres, 340 U.S. at 138, 71 S.Ct. at 155. In Feres, the Supreme Court reviewed three consolidated cases involving claims filed against the United States brought by or on behalf of persons who were members of the armed forces of the United States on active duty at the time they were injured. Id. at 136-37, 71 S.Ct. at 155. Two of the complaints involved claims of negligent medical treatment by army surgeons. Id. In the third matter, the complaint alleged that the decedent, while on active duty, died in a fire due to negligence in quartering him in unsafe army barracks without an adequate fire watch. Id. The Supreme Court noted that "[t]he common fact underlying the three cases is that each claimant, while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces." Id. at 138, 71 S.Ct. at 155 (emphasis added).

The Supreme Court distinguished Brooks as follows: "The injury to Brooks did not arise out of or in the course of military duty." Id. at 146, 71 S.Ct. at 159. The Supreme Court concluded in Feres 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." Id. (emphasis added). The Court in Feres upheld the dismissal of two of the consolidated cases and ordered reversal of the Tenth Circuit's judgment in the third matter which held that a cause of action had been stated. Id.

In United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), the Supreme Court was presented with the following question: Does Brooks or Feres apply to a claim against the United States by a veteran who was discharged because of an injury to his left knee for negligence in the subsequent treatment of the same knee by doctors in a Veteran's Administration hospital? Id. at 110-11, 75 S.Ct. at 142. The Supreme Court held that the claim was governed by Brooks and not Feres. Id. at 112, 75 S.Ct. at 143. The Court stated in support of its holding: "We adhere also to the line drawn in the Feres case between injuries that did and injuries that did not arise out of or in the course of military duty." Id. at 113, 75 S.Ct. at 143. The Court noted that "[t]he injury occurred after his discharge, while he enjoyed a civilian status." Id. at 112, 75 S.Ct. at 143.

The Court in Brown explicated the basis for its holding in Feres for barring claims by members of the armed forces of the United States as follows:

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 Court to read that Act as excluding claims of that character.

Id. (citation omitted).

In United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), the Supreme Court applied Feres to an FTCA action filed on behalf of the estate of an off-duty member of the United States Army against the United States for negligence in failing to exert control over another serviceman who murdered the decedent away from the base. Id. at 53-54, 105 S.Ct. at 3040-41. The district court granted the Government's motion for a summary judgment. Id. at 54, 105 S.Ct. at 3041. The Third Circuit reversed, holding that Feres did not apply to an action filed on behalf of an off-duty serviceman who was not on base or engaged in military activity at the time of injury. Shearer v. United States, 723 F.2d 1102, 1108 (3rd Cir.1983).

The Supreme Court concluded that Feres was applicable because civilian courts lacked the authority to "second-guess military decisions" or impair "military discipline." Shearer, 473 U.S. at 57, 105 S.Ct. at 3043. The Court held further that the allegation of the complaint concerning the alleged negligent control "goes directly to the 'management' of the military; it calls into question basic choices about the discipline, supervision, and control of a serviceman." Id. at 58, 105 S.Ct. at 3043 (footnote omitted) (emphasis added).

In United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), the Supreme Court applied Feres to an FTCA claim brought against the United States by the widow of a Coast Guard helicopter pilot who died in a crash during a rescue mission. Id. at 682-83, 107 S.Ct. at 2064-65. The complaint alleged that a civilian air traffic controller of the Federal Administration Agency negligently...