Parker v. U.S.

Decision Date13 February 1980
Docket NumberNo. 77-3448,77-3448
Citation611 F.2d 1007
PartiesJanet Alene PARKER, Surviving Widow, Individually and in her representative capacity as next friend and natural guardian of her sons, Jack Lowe Parker, III, et al., Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

C. W. (Pete) Harland, Lubbock, Tex., for plaintiffs-appellants.

Roger L. McRoberts, Asst. U. S. Atty., Lubbock, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, FAY and ANDERSON, Circuit Judges.

FAY, Circuit Judge:

After exhausting her administrative remedies, Janet A. Parker filed this action individually and as representative for her children under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1976), claiming damages for the wrongful death of her husband, Jack Lowe Parker. We are asked to decide whether or not an off-duty serviceman on a four-day "furlough" proceeding on a roadway within a military reservation to his off-base home was acting incident to his military service. The trial court concluded that he was and granted the Government's motion for summary judgment. Disagreeing with this conclusion, we reverse.


Specialist Five Jack Lowe Parker lived off the Fort Hood military reservation in a private residence with his wife and two sons. Parker desired time off from work to move to a different home, also off the reservation. On Wednesday, August 28, 1974, Parker requested and received permission to be absent from the end of his normal duty hours that day until Monday, September 2, 1974. After work on the 28th while Parker was on his way home on this leave, a serviceman named Peters drove a military vehicle across the center line and collided head-on with Parker's vehicle in Parker's lane of traffic. Parker died a short time later from injuries he received. Parker was driving a car borrowed from a civilian. The collision occurred on West Range Road, an army maintained road within Fort Hood. The Government contends that Parker was wearing his military fatigues, while appellant states she cannot admit or deny that point. Parker's family is receiving veterans' benefits. 1


The Federal Tort Claims Act (FTCA) allows civil actions against the United States

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b) (1976). See also 28 U.S.C. § 2674 (1976) (Government liable as a private person under like circumstances). The twin aims of the FTCA were to provide remedies for wrongful government actions through a waiver of sovereign immunity and to relieve Congress of the burden and the public of the inequities of private bills for relief. Congress created several limitations to this right of action. Id. § 2680. One of these 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. § 2680(j). No section specifically excludes all actions by members of the military. Nevertheless, the courts rushed in where legislators feared to tread. In a series of decisions now referred to as the Feres doctrine, the United States Supreme Court implied an exception to the FTCA and held that no action lies for injury to a member of the armed forces whose activity at the time of injury is "incident to military service." United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950); Brooks v. United States, 337 U.S. 49, 51-54, 69 S.Ct. 918, 93 L.Ed. 1200 (1948). See Stencel Aero Engineering v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). While common sense and a functional approach to the problem might dictate that one driving towards his home after work in a private car is doing nothing "incident to military service," the glosses emanating from this judicial exception complicate the resolution of the issue. The question, therefore, is whether Parker was engaged in activities incident to his military service at the time of his fatal accident. If he was, his family is barred from suing under the FTCA.


The answer to the question whether activity is "incident to military service" determines whether a service member has an FTCA cause of action. One therefore might expect that the same considerations that originally influenced the Supreme Court to create this "incident to service" exception would also elucidate its features. The Supreme Court cases under the Feres doctrine, however, offer policy reasons for implying an exception, but do not provide many clear signposts to the parameters of "incident to service."

The first hint that an exception might be carved out of the FTCA for military personnel came in Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949). The Supreme Court held that the mere donning of military status does not deprive a claimant of an FTCA action. The Court was impressed that neither the statute's language nor the legislative history required barring all claims by service members. Id. at 51-53, 69 S.Ct. 918. 2 The Court observed that neither the FTCA nor the Veterans' Benefits Act contained a clause making it the exclusive remedy or requiring election of remedy. 3 The court reserved for another day the question whether a person injured while engaged in activity incident to military service could pursue an FTCA claim. Id. at 52-53, 69 S.Ct. 918.

That day dawned one and a half years later with Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Consolidating three appeals, the Feres Court held that injuries received by a member of the armed forces acting incident to military service are not compensable under the FTCA. Id. at 146, 71 S.Ct. 153. In Feres, the Court reasoned that no private person could conscript an army, and therefore the Government could not be liable "to the same extent as a private individual." See 28 U.S.C. § 2674 (1976). The Court felt that the lack of congressional debate on the point meant the legislative history was of little weight. The Court stated that because the FTCA would subject soldiers to the notorious divergencies in state laws, because it would interfere with the "distinctively federal character" of the relation between soldiers and superiors, and because Congress failed to provide for adjustment between the FTCA and veterans benefits acts, an implied exception to the FTCA for activities "incident to military service" was warranted.

With Brooks and Feres the Court began drawing the "incident to service" line which determines whether injuries are compensable under the FTCA. In United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), the Court confirmed that Feres has not overruled Brooks. In Brown, the Court allowed a veteran to pursue a medical malpractice claim under the FTCA. The Court supplied these rationales for the Feres doctrine:

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.

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

After these decisions, the Supreme Court delivered a series of opinions that caused speculation over the Feres doctrine's continued viability. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) (prisoners can recover under the FTCA); Rayonier v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (liability for negligent firefighting); Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (liability for negligent operation of lighthouse). Factors cited in Brooks, Feres, and Brown as either for or against allowing a cause of action were discredited in these later decisions. The test for whether an action existed was stated as "whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred." Rayonier v. United States, 352 U.S. at 319, 77 S.Ct. at 376 (1957). 4 In United States v. Muniz, the Court did not accept some of the factors found persuasive in Feres, 374 U.S. at 159-62, 83 S.Ct. 1850, and stated that Feres could be "best explained" by soldiers' relationships to their superiors, the effect of FTCA suits on discipline, and concern over the results if suits for negligent orders were allowed. Id. at 162, 83 S.Ct. 1850, citing United States v. Brown, 348 U.S. at 112, 75 S.Ct. 141. Although the Court was careful to distinguish Feres, some of its theoretical underpinnings had been weakened.

In the most recent Supreme Court statement of the Brooks-Feres-Brown line, however, the Court reaffirmed that the doctrine lives. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). In Stencel, a third party defendant sued the Government for indemnity in a tort suit brought by a serviceman against the third party and the Government. The serviceman's claim was dismissed under Feres. The Supreme Court held that the right to indemnity must be "limited by the rationale of Feres . . . ." Id. at 674, 97 S.Ct. at 2059. Some of the same factors that were dismissed in Rayonier and Muniz were dusted off and reasserted in Stencel.

First, the Court mentioned the "distinctively federal character" of the...

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