Thomason v. Sanchez, 75-2142 and 75-2143

• Decision Date: 22 July 1976
• Docket Number: Nos. 75-2142,No. 75-2142 and 75-2143,75-2142 and 75-2143,s. 75-2142
• Citation: 539 F.2d 955
• Parties: Jimmie Dale THOMASON, Appellant in, v. John H. SANCHEZ et al. Jimmie Dale THOMASON v. John H. SANCHEZ et al. Jimmie Dale THOMASON v. John H. SANCHEZ and United States of America. Jimmie Dale THOMASON v. John H. SANCHEZ and Dorothy E. Sanchez. to 75-2143.
• Court: U.S. Court of Appeals — Third Circuit

Page 955

539 F.2d 955

41 A.L.R.Fed. 279

Jimmie Dale THOMASON, Appellant in No. 75-2142 and 75-2143, v. John H. SANCHEZ et al.

Jimmie Dale THOMASON v. John H. SANCHEZ et al.

Jimmie Dale THOMASON v. John H. SANCHEZ and United States of America.

Jimmie Dale THOMASON v. John H. SANCHEZ and Dorothy E. Sanchez.

Nos. 75-2142 to 75-2143.

United States Court of Appeals,

Third Circuit.

Argued May 3, 1976.

Decided July 22, 1976.

Ira Rabkin, Molotsky, Rabkin & Gross, Haddonfield, N. J., for appellant.

C. Kennon Hendrix, Roy D. Cummins, Pennsauken, N. J., for appellees Sanchez and Government Employees Ins. Co.

Jonathan L. Goldstein, U. S. Atty., Maryanne T. Desmond, Asst. U. S. Atty., Newark, N. J., for appellee United States of America.

Before ALDISERT, GIBBONS and GARTH, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

These appeals from summary judgments in favor of defendants emanate from a vehicular collision involving two servicemen on active duty and require us to interpret provisions of the Federal Tort Claims Act and the Federal Drivers Act. We affirm.

Appellant Thomason, a member of the United States Army, was operating his motorcycle on the grounds of Fort Dix, New Jersey on November 30, 1972, when he was struck by an automobile owned and operated by defendant Sanchez, himself a serviceman. Subsequently, Thomason commenced a number of lawsuits seeking compensation for injuries incurred in the collision. The district court has detailed these various actions now consolidated and their procedural nuances. 398 F.Supp. 500, 501 (D.N.J.1975). In the interest of simplicity, the following recitation suffices for our purposes. A common law action, commenced in state court against Sanchez and his wife, was removed to federal court pursuant to 28 U.S.C. § 2679(d). ¹ Plaintiff filed federal complaints naming variously as defendants Sanchez, his insurer the Government Employees Insurance Company, and the United States. In these federal actions, Thomason sought money damages and other relief, essentially under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671 et seq.

Reluctantly, the district court granted summary judgment in favor of all three defendants. In its view, the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), barred the action against the United States, while the exclusivity provision of the Federal Drivers Act, 28 U.S.C. § 2679(b), ² defeated the claims against Sanchez and GEICO. Thomason now challenges, with varying ferocity, each of these conclusions.

I.

Feres v. United States held 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." 340 U.S. at 146, 71 S.Ct. at 159. ³ Injured servicemen were limited to seeking redress through "systems of simple, certain, and uniform compensation for injuries or death of those in armed services." Ibid. at 144, 71 S.Ct. at 158 (footnote omitted). In so ruling, the Court distinguished its then one-year-old precedent of Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949): "The injury to Brooks did not arise out of or in the course of military duty. Brooks was on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission." 340 U.S. at 146, 71 S.Ct. at 159. In the instant case, the district court found Feres, not Brooks, applicable:

The fact that Thomason was in a "present for duty" status and not on any type of leave or pass, as sworn to in an affidavit by Captain James A. Kerchman, Commander of the Medical Company at Fort Dix, brings plaintiff within the ambit of Feres, thereby negating the applicability of the FTCA.

398 F.Supp. at 504.

On appeal, Thomason does not urge that there is a genuine issue as to the material fact of his status at the time of the collision. See F.R.Civ.P. 56(c). Moreover, he concedes that "it seems that the Feres line of decisions is too firmly entrenched to be dislodged at this time." Appellant's Brief at 9. We previously expressed reservations about the continuing validity of the broad Feres doctrine. Peluso v. United States, 474 F.2d 605 (3d Cir.) (per curiam), cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973) (three Justices voting to grant certiorari). Upon reconsideration we reiterate that concern; as we noted there, however, we are powerless to jettison Feres or to dislodge it sufficiently to create an exception for vehicular collisions involving servicemen. See ibid. at 606.

II.

Appellant challenges the judgments as to Sanchez and GEICO on several grounds.

First, he asserts that the Federal Drivers Act, 28 U.S.C. § 2679(b)-(e), "operates only to deny plaintiff a choice of remedies where there is a remedy against the United States." Appellant's Brief at 11. Where, as here, there is no remedy against the United States, the actions against Sanchez and GEICO should be allowed to proceed. This argument has a first-blush appeal. Indeed, the second sentence of 28 U.S.C. § 2679(d), see note 1 supra, provides that, if a district court determines that a removed case such as this "is one in which a remedy by suit within the meaning of (28 U.S.C. § 2679(b) ⁴) is not available against the United States, the case shall be remanded to the State court." (Emphasis added.)

The contention, however, is not of first impression. Rather, it has been presented to and rejected by at least three other circuits. Carr v. United States, 422 F.2d 1007, 1011 (4th Cir. 1970); Van Houten v. Ralls, 411 F.2d 940, 942 (9th Cir.), cert. denied, 396 U.S. 962, 90 S.Ct. 436, 24 L.Ed.2d 426 (1969); Vantrease v. United States, 400 F.2d 853, 855 (6th Cir. 1968). These courts are unanimous in holding "that within the meaning of the Drivers Act the Tort Claims Act remedy is 'not available' only where the government driver was not acting within the scope of his employment. When the Tort Claims Act remedy is not available for any other reason, the remand provision does not apply." ⁵ Carr v. United States, supra, 422 F.2d at 1011. The reason for this rule lies in the exclusivity provision of 28 U.S.C. § 2679(b), the basic purpose of which was to immunize individual government drivers from the heavy financial burdens and personal liabilities associated with operating motor vehicles. A contrary interpretation of the "not available" language in the removal section "would revitalize the common law action. (T)his result would directly contradict the Act's immunizing purpose . . . ." Ibid. Moreover, Congress itself has indicated approval of this judicial construction of the exclusivity provision of the Federal Drivers Act. ⁶ Accordingly, we confidently join ranks with the Fourth, Sixth and Ninth Circuits.

In this case, the district court was fully cognizant of its duty to make "an independent determination . . . as to whether Sanchez was acting within the scope of his employment." 398 F.Supp. at 504. The court concluded:

The facts reveal that at the time of the collision Sanchez was operating his own vehicle, returning from procuring change for the use of Annex # 1 of the Non-Commissioned Officers' Club at Fort Dix, N.J., of which he was in charge. This finding is substantiated by affidavit of Sanchez of April 3, 1975 indicating that he was within the scope of his employment.

A verified petition for removal has been executed by Maryanne T. Desmond, Assistant United States Attorney, which certifies that defendant John Sanchez was acting within the scope of his employment at the time of the incident out of which the within suit arose. The concomitant result of this petition is to provide an exclusive remedy against the United States for personal injuries "resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment." 28 U.S.C.A. § 2679(b).

Ibid. at 504-05. Defendant's status, therefore, had the effect of limiting anyone injured by Sanchez in his official capacity to a lawsuit under the Federal Tort Claims Act. There could be no separate action against Sanchez individually or against his insurer. Plaintiff's status as a serviceman which status eliminated the Tort Claims Act remedy is simply irrelevant to the foregoing.

Moreover, even were we to adopt a different construction of 28 U.S.C. § 2679(d) and order a remand to the state court, we doubt whether the New Jersey courts would be empowered to afford appellant a remedy. "Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law." Feres v. United States, supra, 340 U.S. at 146, 71 S.Ct. at 159. We gather, then, that under the Supremacy Clause New Jersey courts would be bound to apply federal law including both the Feres doctrine and 28 U.S.C. § 2679(b).

Appellant's second challenge to the judgments in favor of Sanchez and GEICO asserts that "under the Federal Drivers Act, there should be allowed recovery which is actually against a federal employee's personal automobile liability insurance carrier for coverage of his privately-owned vehicle." Appellant's Brief at 11. We reject this contention. The reality is that any judgment against GEICO would affect Sanchez, if only in the form of an increased premium. Moreover, we question the desirability and the practicality of formulating a rule of law dependent upon a factual determination whether or not insurance is involved in the case which generally is improper for jury consideration.

Appellant's final argument is that the Federal Drivers Act, as applied to him to deprive him of all lawsuit remedies, ⁷ constitutes a denial of due process. The Fourth Circuit discussed a kindred due process argument at length in Carr v. United States, supra:

Carr next contends that the Drivers Act violates the fifth amendment's due process clause by denying him equal protection. Bolling v. Sharpe, ...