United States v. Lee

• Decision Date: 20 January 1969
• Docket Number: No. 21706.,21706.
• Citation: 400 F.2d 558
• Parties: UNITED STATES of America, Appellant, v. Ardell LEE et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

400 F.2d 558 (1968)

UNITED STATES of America, Appellant, v. Ardell LEE et al., Appellees.

No. 21706.

United States Court of Appeals Ninth Circuit.

August 30, 1968.

Certiorari Denied January 20, 1969.

Edwin L. Weisley, Jr., Asst. Atty. Gen., Morton Hollander, Leonard Schaitman, Washington, D. C., Wm. M. Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellant.

Lee S. Kreindler (argued) of Kreindler & Kreindler, New York City, Samuel M. Hecsh, San Diego, Cal., for appellees.

Before HAMLEY and CARTER, Circuit Judges, and SMITH, District Judge.^*

Certiorari Denied January 20, 1969. See 89 S.Ct. 691.

JAMES M. CARTER, Circuit Judge:

This is a Tort Claim case, where the personal representatives and dependents of two service men brought suit against the government, due to the death of the service men in a crash of a military aircraft. The government moved to dismiss the complaint on the basis of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The motion was denied; the trial court filed an opinion, Ardell Lee, etc. et al. v. United States, 261 F.Supp. 252. (Cen.Dist. of Calif.1966). The district court denied a timely motion for reconsideration, but certified that its denial involved a controlling question of law, and that an immediate appeal would materially advance the termination of the litigation. On March 23, 1967, this court, pursuant to 28 U.S.C. § 1292(b) and this court's Rule 38, granted the government's application for leave to take an interlocutory appeal.

The Question Presented

The sole question presented is whether Feres v. United States, supra, and its ultimate holding that servicemen on active duty, are not within the Act, is still good law, requiring the dismissal of the action for lack of jurisdiction and failure to state a claim, or whether, as the district court held, that decision has been so eroded by subsequent decisions of the Supreme Court, that it is no longer the controlling law.

The Complaint

The complaint is in two causes, one for each of the service men whose deaths are involved, and the same allegations hereafter referred to are common to each cause of action. The first cause alleges that on June 25, 1965, Sgt. James E. Lee, deceased, was on active duty in the Marine Corps; that he was a passenger aboard a transport being operated by Military Air Transport Service, United States Air Force; that the aircraft crashed in the vicinity of Santa Ana, California; that the United States, through its Federal Aviation Agency, a division of the government, separate and apart from either the United States Marine Corps in which the decedent was serving, or from the United States Air Force which was operating the aircraft, owned, operated and controlled certain radar and electronic and radio facilities used by the United States to control, advise, direct and inform aircraft operating from the Marine Corps Air Station at El Toro, Santa Ana, California,¹ that the United States, through its Federal Aviation Agency developed and approved Standard Instrument Departures (S.I. Ds.) and other navigational data which were used by aircraft departing the Marine Corps station; that prior to and at the time of the crash, the aircraft of the United States Air Force, in which Lee was a passenger, was departing the Marine Corps station at El Toro, Santa Ana, California, while receiving control, advice and direction from the defendant United States of America's Federal Aviation Agency employees acting in the scope of their employment, "and in accordance with the Standard Instrument Departure and other navigational data which had been prepared and approved by the defendant's Federal Aviation Agencies employees * * *; that the crash was caused by the negligence of defendant United States of America's Federal Aviation Agency in carelessly operating, maintaining and controlling the departure of the said aircraft from the Marine Corps Air Station * * * and in carelessly controlling, advising, directing and informing the aircraft of dangerous terrain in the vicinity of the airport, in providing a departure procedure which incorporated inadequate terrain clearance information, and in other aspects." Other allegations as to jurisdiction, death, the capacity of plaintiffs, and damages have been omitted.

The Motion to Dismiss

The government's motion to dismiss, under Rule 12(b) F.R.Civ.P., asserted lack of jurisdiction over the subject matter of the action, and that the complaint failed to state a claim upon which relief could be granted. The motion was supported by a memorandum based on Feres v. United States, supra, and subsequent circuit court cases following its holding.

The Posture of the Case

At the argument on the appeal, government counsel would not concede that the case presented the issue of the United States as a defendant, solely because of the activities of a civilian agency, the Federal Aviation Agency. Because of the nature of the complaint, the government was not in a position to put the case in this posture. At argument the government called attention to the fact the crash was that of a military transport operated by the Air Force personnel on the Marine Corps base, or after taking off from a Marine Corps base, and that the employees of the Federal Aviation Agency were undoubtedly stationed on the base; that the proof would probably show that the Marine Commandant of the base was in overall charge of all activities, civilian or otherwise, on the Marine Corps base.

The Supreme Court Decisions

The problem of claims of dependents of servicemen under the Tort Claims Act, has been before the Supreme Court on three occasions. In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L. Ed. 1200 (1949) the court considered claims arising from death and personal injury sustained by two servicemen on furlough resulting from the collision of the vehicle in which they were riding with an Army truck. Recovery was allowed.

Feres v. United States, supra, involved three cases. In one a soldier (Feres), on duty quartered in unsafe barracks with a defective heating plant, died in a fire. In the second a soldier (Jefferson), on duty underwent an abdominal operation. Eight months later, during a subsequent operation after his discharge from the service, a towel was discovered and removed from his stomach. It was found to have been left through negligence by an army surgeon. In the third case, a soldier (Griggs), while on duty, met death because of negligence and unskillful treatment by army surgeons. In each case it was held no recovery could be had on the claims.

United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139, was decided by the court in 1954. There a veteran, after discharge from the service, was negligently treated in a Veterans Administration hospital for an injury occurring while in service. The Supreme Court upheld the claim under the Tort Claims Act.

Congress has not Amended the Act

Congress has not seen fit to amend the Tort Claims Act. In Feres, the Supreme Court said "If we misinterpret the Act * * * Congress possesses a ready remedy." (340 U.S. at 138, 71 S.Ct. at 155). Despite this statement in 1950, Congress has acquiesced in the holding of Feres, permitting the decision to remain undisturbed for eighteen years. The Supreme Court has twice stated:

"`When the questions are of statutory construction, not of constitutional import, Congress can rectify our mistake, if such it was, or change its policy at any time, and in these circumstances reversal is not readily to be made.\' United States v. South Buffalo R. Co., 333 U.S. 771, 774-775, 68 S. Ct. 868, 870, 92 L.Ed. 1077." Patterson v. United States, 359 U.S. 495, 496, 79 S.Ct. 936, 937, 3 L.Ed.2d 971 (1958).

This circuit in Preferred Insurance Co. v. United States, 222 F.2d 942; cert. denied 350 U.S. 837, 76 S.Ct. 74, 100 L. Ed. 747 (1955), stated at page 945, concerning the Feres case:

"The decision was unanimous and in the more than four years since it was rendered Congress has not amended the Tort Claims Act. Accordingly, the opinion must be accepted as dispelling any doubt as to the congressional intent in the adoption of the Act."

The Circuit Decisions

The circuit courts have consistently followed the rule stated in Feres "that the government is not liable under the Federal Tort Claims Act for injuries to servicemen when 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). The rule has been applied both when the tortious act was committed by service personnel and when it was committed by civilian personnel of the government.

(a) Case where the tortious act was committed by service personnel: Preferred Ins. Co. v. United States, 222 F. 2d 942 (9 Cir. 1955); cert. denied 350 U.S. 837, 76 S.Ct. 74, 100 L.Ed. 747 (Air Force plane crashes into trailers of enlisted men on base). Archer v. United States, 217 F.2d 548 (9 Cir. 1954). (Military academy cadet killed in crash of air force plane while on leave). Van Sickel v. United States, 285 F.2d 87 (9 Cir. 1960). (Death of serviceman in government hospital). Callaway v. Garber, 289 F.2d 171 (9 Cir. 1961). (Air Force sergeant killed in collision with car driven by Navy officer on government business). Knoch v. United States, 316 F.2d 532 (9 Cir. 1963). (Action by sailor for malpractice of Navy doctor). Bailey v. De Quevedo, 375 F.2d 72 (3 Cir. 1967). (Enlisted man's action for malpractice in Army hospital). Buckingham v. United States, 394 F.2d 483 (4 Cir. 4/29/68). (Air Force service man died because of alleged negligence of doctor and attendants at Air Force hospital). Zoula v. United States, 217 F.2d 81 (5 Cir. 1954). (Students on tour of military duty struck by army ambulance on military base). Orken v. United States, 239 F.2d 850 (6 Cir. 1956). (Air Force officer killed when government plane crashed into his house). O'Brien v. United States, 192 F.2d 948 (8 Cir. 1951). (Member of...