Miller v. U.S.

Citation643 F.2d 481
Decision Date18 March 1981
Docket NumberNo. 79-1964,79-1964
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
PartiesEdwin MILLER and Donna Miller, Executors for Douglas Miller, Deceased, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.

William O. Green (argued), Memphis, Mo., and Bruce Colyer, Bloomfield, Iowa, on brief, for plaintiffs-appellants.

Joseph B. Moore, Asst. U. S. Atty. (argued), and Robert D. Kingsland, U. S. Atty. St. Louis, Mo., on brief, for defendant-appellee.

Before HEANEY and ARNOLD, Circuit Judges, and WRIGHT, * District Judge.

SCOTT O. WRIGHT, District Judge.

This is an appeal from the final order of the district court, 478 F.Supp. 989, granting defendant's motion for summary judgment. Plaintiffs brought this action in the district court pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671 et seq., to recover damages caused by the alleged negligence of the defendant which resulted in the death of the plaintiffs' son, Douglas B. Miller.

Douglas Miller was a Private First Class on active duty in the United States Army, assigned to the 47th Engineer Company at Fort Wainwright, Alaska. On June 23, 1977, after completing his normal military duties and with the knowledge and permission of his superior officer, PFC Miller reported to a part-time job which he held in a civilian capacity. He was employed during his off-duty hours by George Rodman, a civilian subcontractor, to erect scaffolds on government-owned family quarters. While so employed, PFC Miller was electrocuted when an aluminum ladder he was holding came into contact with a main electrical power line.

The district court granted defendant's motion for summary judgment on the grounds that plaintiffs' claim was barred by the doctrine set forth in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The Feres doctrine bars suits against the government brought by members of the military for injuries which arose out of activities incident to military service. Plaintiffs contend, and this Court agrees, that PFC Miller's death arose out of activities that were not related to or dependent upon military service, and, therefore, Feres does not apply.

The Federal Tort Claims Act, passed in 1948, waived governmental tort immunity for injuries negligently caused by government employees acting within the scope of their employment where the United States, if a private person, would be liable under the law of the place where the act or omission occurred. Section 2671 provides that members of the military or naval forces are deemed to be employees of the government. Section 2680 lists twelve specific exceptions to the Federal Tort Claims Act. None completely bars the right of servicemen and women to sue the government. Only one of the twelve exceptions directly relate to the military. Section 2680(j) exempts the government from liability on any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. The government is also immune from liability under Section 2680(k) for any claim arising in a foreign country. Under general rules of statutory construction, the Federal Tort Claims Act could easily be interpreted to allow suits against the government by servicemen and women for all torts except those exempted under Section 2680. The Act does not provide for the exclusion of claims which arise out of activities "incident to military service." Nevertheless, the exclusion was judicially created and is strictly followed.

After passage of the Act in 1948, the government argued that all tort claims of military personnel should be barred under the Act. This argument was soundly rejected by the Supreme Court in Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949). Brooks involved two soldiers who were off the military base and on furlough when their civilian vehicle was struck by an Army truck. One soldier was killed and the other badly injured. After a judgment in favor of the plaintiffs was reversed by the Court of Appeals for the Fourth Circuit, the United States Supreme Court granted certiorari and reinstated the trial court's decision, holding that military personnel had the right to sue the United States for tortious acts under the Federal Tort Claims Act. But the Court qualified its holding by stating that if the accident were "incident to service" a different case would be presented. Id. at 52, 69 S.Ct. at 920.

One year later, this different case was presented in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and the Supreme Court created what is now widely known as the Feres doctrine. Feres was a consolidation of three claims, Feres v. United States, Jefferson v. United States, and United States v. Griggs. Feres involved a serviceman who died as a result of fire when his barracks burned while he was asleep. Jefferson and Griggs involved servicemen who were injured as a result of alleged negligence of Army doctors. The Supreme Court held in all three instances that the injury or death arose out of or were in the course of activity incident to military service, and all three claims were barred.

The Court reached this conclusion on the basis of several factors. 1 First, the relationship between the government and members of its military is "distinctively federal in character" and has traditionally been governed by federal law rather than local law. 340 U.S. at 143, 71 S.Ct. at 158, citing United States v. Standard Oil Company, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947). Because the FTCA relies upon the law of the place where the act or omission occurred, the Court felt that the fortuitous circumstances of where a serviceman was stationed should not control the government's liability. Second, Congress has established a comprehensive system of relief available to injured servicemen and women and their dependents under the Veterans' Benefits Act, which provides a statutory "no fault" compensation scheme. A third factor was clarified in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954). Interpreting the Feres rationale, the Brown court placed emphasis on

(t)he 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 . . . .

348 U.S. at 112, 75 S.Ct. at 143. Subsequent Supreme Court opinions have weakened the importance of the first two factors, 2 and it appears that the third factor is the most widely used basis for applying the Feres doctrine. 3 However, the rationale behind Feres only justifies applying Feres to service-connected injuries. As discussed below, the death of the plaintiffs' son in this instance was not service-connected, and, therefore, Feres does not apply.

Deciding whether to apply Feres or Brooks in any given situation is not an easy task. Defining "incident to service" is the key, but the Supreme Court has never fully defined the term. 4 As a result, the lower courts have developed guidelines for determining whether an activity is incident to service. Generally, the Feres doctrine applies if the incident occurs (1) on a military base, or (2) while the serviceman is on active duty status, 5 or (3) under compulsion of military orders or on a military mission or directly subject to military control, or (4) the activity is a privilege related to or dependent upon military status. 6 The Brooks doctrine is the converse of the Feres doctrine and applies if the accident occurs while the serviceman is (1) off the military base,and (2) on leave or furlough, and (3) not under compulsion of military orders or on a military mission or directly subject to military control, and (4) the activity is not a privilege dependent upon military status. 7

The use of the conjunctions "and" and "or" in the two tests is pertinent. Under the Feres rule, any one factor has been sufficient to bar the claim but under the Brooks rule, it has generally been necessary to find that all the factors are present before a serviceman can proceed with his claim. 8 This test is understandable for the third and fourth factors because if either factor is present, the activity is necessarily incident to military service. But, blind application of this test for the first two factors is of questionable validity and represents only the most superficial analysis. The facts of each case must be carefully analyzed, and the first two factors should be considerations only, not determinative factors.

Nevertheless, the majority of decided cases indicate that if he is either on active duty status or on base, Feres automatically applies, 9 and if he is not on active duty status and off base, Feres may or may not apply, depending upon what he is doing at the time of injury. 10 If either factor is present, an irrebuttable presumption is raised that the injury arose out of activities incident to military service. The rationale is that if he is on active duty status or on the base, he is presumably subject to military control. He can be recalled for duty at any time and is subject to the possibility of immediate orders. Chambers v. United States, 357 F.2d 224 (8th Cir. 1966); Zoula v. United States, 217 F.2d 81 (5th Cir. 1954); Mariano v. United States, 444 F.Supp. 316 (E.D.Va.1977), aff'd, 605 F.2d 721 (4th Cir. 1979). Theoretically, his off-duty time is not his own. But, this reasoning broadens the scope of the test needlessly, because almost all of the cases could have been decided on narrower grounds. 11

For example, a decision by this Court stressed the importance of the serviceman's active duty status and presence on base when the injury occurred, but this decision could have been...

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