Stubbs v. U.S., 84-1446
| Decision Date | 19 September 1984 |
| Docket Number | No. 84-1446,84-1446 |
| Parties | 35 Fair Empl.Prac.Cas. 1521, 35 Empl. Prac. Dec. P 34,759 Mary Jane STUBBS, as Administratrix of the Estate of Dawn Maxine Stubbs, Appellant, v. UNITED STATES of America and Drill Sgt. Sookdeo, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John Wesley Hall, Jr., Little Rock, Ark., Richard L. Peel, Russellville, Ark., for appellant.
Major Marshall M. Kaplan, Chief, Military Personnel Branch, Litigation Div., Dept. of the Army, Washington, D.C., George W. Proctor, U.S. Atty., Richard M. Pence, Jr., Asst. U.S. Atty., Little Rock, Ark., for appellees; Captain R. Craig Lawrence, Litigation Div., Dept. of the Army, Washington, D.C., of counsel.
Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.
The administratrix of the estate of Dawn Maxine Stubbs brought suit against the defendants under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671 et seq. The complaint also alleges causes of action based on state tort law and on 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). Appellant sought damages from the defendants, the United States and a drill sergeant in the United States Army, alleging wrongful death by sexual harassment and emotional distress. The sole issue on appeal is the propriety of the district court's 1 dismissal of the action pursuant to Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We affirm.
The facts were succinctly stated by the district court:
Plaintiff's version of the facts, accepted as true for purposes of deciding defendants' motion, follow. Decedent, Dawn Stubbs, was a private in the U.S. Army stationed at Fort Leonard Wood, Missouri. On December 21, 1982, Drill Sgt. Sookdeo ordered her to the latrine for what she thought was some last minute cleaning before she left for the holiday. In the latrine, Drill Sgt. Sookdeo accosted decedent and said that if she would have sex with him, he would make the rest of her six-week stay there easier but if she refused it would be rougher on her. He also touched her breasts and genital area against her will. Decedent refused his advances.
The next morning Dawn Stubbs left the base to spend the holidays with her sister, Mary Jane Stubbs in Yell County, Arkansas. Dawn had been raped in 1979 and this incident coupled with the potential of another forced sexual encounter caused her tremendous anxiety. Throughout the holidays she talked repeatedly to her sister about the incident stating that she was extremely upset. Explaining that she felt trapped, she told her sister that if she complained, the Army would turn on her as a troublemaker.
Dawn was supposed to drive back to Fort Leonard Wood on January 3, 1983. About 5:00 [a.m.] that day, Mary Jane Stubbs saw that her sister was in the car clutching a shotgun. When she asked her what she was doing, Dawn replied that she was not going back to the Army and subject herself to the sexual harassment. Mary Jane tried to dissuade her sister, but to no avail. Dawn Stubbs killed herself with a shotgun blast to the head on the morning she was to return to Fort Wood.
After considering relevant caselaw, the district court dismissed the action against the United States concluding that since the alleged tortious conduct was "incident to service," the suit was barred by the Feres doctrine. 2 Appellant contends that this was error.
In a recent decision we stated:
In a series of decisions now known as the Feres doctrine, the Supreme Court established a judicially created exception to the waiver of sovereign immunity in the FTCA, holding that the United States 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 military service.
Brown v. United States, 739 F.2d 362, 364-65 (8th Cir.1984).
We have examined the Feres decision and its doctrinal underpinnings in several prior opinions. See, e.g., Laswell v. Brown, 683 F.2d 261 (8th Cir.1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983); Miller v. United States, 643 F.2d 481 (8th Cir.1981) (en banc); Chambers v. United States, 357 F.2d 224 (8th Cir.1966). An extended discussion of the Feres doctrine, its various asserted rationales, and the wealth of decisions interpreting the doctrine will not be repeated here. Suffice it to say that, despite criticism, the doctrine retains its vitality, see Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), and has been given a "broad construction" by this circuit. Miller, 643 F.2d at 491.
In Brown, we refined the analytical framework to be used in determining whether or not Feres should bar a claim:
We believe that our analysis can be broken down into two parts: (1) whether there is a relevant relationship between the service member's activity and the military service, and (2) whether military discipline will be impeded if the challenged conduct is litigated in a civil action.
... To determine whether a relevant relationship exists between the service member's activity and the military...
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