Estes v. Monroe

Decision Date28 July 2004
Docket NumberNo. C043878.,C043878.
Citation120 Cal.App.4th 1347,16 Cal.Rptr.3d 616
CourtCalifornia Court of Appeals Court of Appeals
PartiesJames ESTES, Plaintiff and Appellant, v. Paul D. MONROE et al., Defendants and Respondents.

Law Offices of Seth M. Goldberg and Seth M. Goldberg, Canyon Country, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Jacob Appelsmith, Senior Assistant Attorney General, Vincent J. Scally, Jr., Supervising Deputy Attorney General, Richard L. Manford, Deputy Attorney General, for Defendants and Respondents.

RAYE, Acting P.J.

The California National Guard terminated a state active duty guardsman after he was paralyzed in an automobile accident. The guardsman, plaintiff Major James Estes, brought a wrongful termination claim against defendant California Military Department, alleging his discharge violated the public policy of the state to provide reasonable accommodation to disabled workers. (Gov.Code, § 12960.) Concluding that the case was not justiciable, the trial court granted the military's demurrer without leave to amend. We affirm, based not on justiciability but on a deferential analysis of the pertinent statutes as required by the Feres doctrine. (Feres v. United States (1950) 340 U.S. 135 [71 S.Ct. 153, 95 L.Ed. 152] (Feres).)


We take the facts, as we must, from the allegations in plaintiff's complaint. The pertinent facts can be simply stated. Plaintiff joined the National Guard in 1988 and was commissioned as an officer in 1989. He held both a federal commission and a commission from the State of California. In 2000 plaintiff accepted a state active duty position with the California Army National Guard as the assistant commandant at Turning Point Academy, a military school for juvenile delinquents in San Luis Obispo. While on state active duty status, plaintiff was a full-time employee of the State of California.

Returning to the academy from Sacramento, plaintiff was involved in a single vehicle rollover accident. As a result, he was partially paralyzed and is confined to a wheelchair. His doctors released him to return to work in July 2001 with minimal accommodation. Believing the state would accommodate his disability, he began working from his home in Sacramento. He requested a transfer to the retired reserve to allow him to retain his state commission and to keep his state active duty status.

Defendant Major General Paul D. Monroe terminated plaintiff, however, from the state active duty program without attempting to provide any accommodation. Plaintiff alleges he was wrongfully terminated because he is disabled.

Plaintiff remains in hope of alleging many additional facts relevant to the structure of the National Guard and his individual duties. In essence, he claims he is no longer subject to service in the federal forces, the Military Department is organized under the State of California, his duties at the academy are not combat related nor are soldiers assigned to the academy qualified to be deployed, and he is entitled to many state benefits. Because he had requested a transfer to the State Military Reserve, plaintiff alleges that individuals assigned to the State Military Reserve are usually retired and are not deployable.

I Scope of Appeal

Plaintiff's complaint alleges causes of action for wrongful termination, intentional infliction of emotional distress, and breach of contract. His fourth cause of action, for "injunctive relief," vaguely asserts that defendants subject plaintiff and others on state active duty "to varying degrees of scrutiny and analysis dependant [sic] upon whether or not they are liked. . . ." We need not attempt to decipher the meaning of this cause of action or to consider whether plaintiff has stated a cause of action for emotional distress or breach of contract. As the Attorney General properly points out, plaintiff has waived his appeal as to the latter three causes of action by failing to brief, argue, or discuss the second, third, or fourth causes of action. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546, 35 Cal.Rptr.2d 574.)

In reply, plaintiff suggests that an appellate court has the discretion to reject a waiver claim. But again, he offers no argument as to the viability of the three causes of action. We therefore consider his appeal waived as to all but the first cause of action. Before us remains the viability of a sole tort claim for damages for wrongful termination. Plaintiff raises no constitutional challenge to the military decision to discharge him.

II The Feres Doctrine

In Feres, supra, 340 U.S. 135, 71 S.Ct. 153, the Supreme Court held that members of the armed forces may not bring tort lawsuits under the Federal Tort Claims Act (Tort Claims Act; 28 U.S.C. § 2671 et seq.) for physical injuries that "arise out of or are in the course of activity incident to service." (Feres, supra, 340 U.S. at p. 146, 71 S.Ct. 153.) The rationale of Feres has been used to construe a wide variety of statutory and constitutional claims, and as the Attorney General observes, it has been referred to as the "Feres doctrine." But the Attorney General equates the Feres doctrine with a wholesale grant of intramilitary immunity to the armed services and a corollary principle that claims by military personnel are nonjusticiable. Feres, however, does not rest on principles of justiciability or immunity. We reject the Attorney General's broad characterization of the Feres doctrine and the analytic framework he proposes to evaluate the viability of plaintiff's tort claim.

Feres has been expanded, distinguished, explained, rationalized, and criticized for over 50 years. We see no reason to reiterate once again the scathing criticism lodged by state and federal courts throughout the country and by members of the Supreme Court itself. (See, e.g., United States v. Johnson (1987) 481 U.S. 681, 694-698 [107 S.Ct. 2063, 95 L.Ed.2d 648] (dis. opn. of Scalia, J.); Day v. Massachusetts Air Nat. Guard (1st Cir.1999) 167 F.3d 678; Taber v. Maine (2d Cir.1995) 67 F.3d 1029; Miller v. United States (5th Cir.1995) 42 F.3d 297; Nyberg v. State Military Dept. (2003) 2003 Wy. 43 ; Estate of Himsel v. State (Alaska 2001) 36 P.3d 35.) Despite the ongoing and acrimonious debate over the validity of the justifications proferred by the court a half century ago, Feres survives. (Costo v. United States (9th Cir.2001) 248 F.3d 863.) Although we will not add our voices to the cacophony, we will apply Feres, as we must, to the statute before us.

Indeed, Feres involves statutory construction. "The only issue of law raised is whether the Tort Claims Act extends its remedy to one sustaining `incident to the service' what under other circumstances would be an actionable wrong." (Feres, supra, 340 U.S. at p. 138, 71 S.Ct. 153.) The court acknowledged that there were "few guiding materials for our task of statutory construction." (Ibid.) Turning first to the language of the Tort Claims Act, the court found persuasive evidence to sustain a finding of liability. "The Act does confer district court jurisdiction generally over claims for money damages against the United States founded on negligence. 28 USCA § 1346(2)(b), FCA title 28, § 1346(2)(b). It does contemplate that the Government will sometimes respond for negligence of military personnel, for it defines `employee of the Government' to include `members of the military or naval forces of the United States,' and provides that `"acting within the scope of his office or employment," in the case of a member of the military or naval forces of the United States, means acting in line of duty.' 28 USCA § 2671, FCA title 28, § 2671." (Feres, supra, 340 U.S. at p. 138, 71 S.Ct. 153.)

The court also pointed out that the express exceptions to the Tort Claims Act suggest that military claims are included within the act's ambit. "28 USCA § 2680(j), FCA title 28, § 2680(j) excepts `any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war' (emphasis supplied [by Feres court]), from which it is said we should infer allowance of claims arising from noncombat activities in peace. Section 2680(k) excludes `any claim arising in a foreign country.'" (Feres, supra, 340 U.S. at p. 138, 71 S.Ct. 153.) In an argument that resonates with the arguments raised by plaintiff here, the court stated: "These considerations, it is said, should persuade us to cast upon Congress, as author of the confusion, the task of qualifying and clarifying its language if the liability here asserted should prove so depleting of the public treasury as the Government fears." (Id. at p. 139, 71 S.Ct. 153.)

Although the language of the Tort Claims Act would suggest, both expressly and impliedly, that tort claims by members of the armed forces against the government would be cognizable, the court construed the language to fit "into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole." (Feres, supra, 340 U.S. at p. 139, 71 S.Ct. 153.) The Tort Claims Act, the court explained, marked "the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit" (ibid.) and "to extend a remedy to those who had been without" (id. at p. 140, 71 S.Ct. 153).

In this context, the Tort Claims Act prescribes the test of allowable claims, which is, "The United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances . . . ." (28 U.S.C. § 2674; Feres, supra, 340 U.S. at p. 141, 71 S.Ct. 153.) The court concluded that there was no liability of a "private individual" even remotely analogous or any "like circumstances" in that no law had ever permitted a soldier to recover for negligence. Hence, the court rejected the notion that Congress intended to extend the remedies of the Tort Claims Act to servicemen "where the injuries arise out of or are in the...

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