Petition — Calhoun v. United States

9-947

FILED

DEC 18 1979

MICHABL RODAK, JR., CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1979

NO. 77-2963

BETTY CALHOUN, et al., Petitioner

Ve

UNITED STATES OF AMERICA, et al.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COHN AND PACELLI

Meredith Financial Center

Center Bldg., Suite 408

17822 Seventeenth Street

Tustin, Califgrnia 80

By:

ttorney for —

ha? J

DALE A. CASTLE

A member of the above-named

court, having been duly

admitted to the Supreme

Court of the United States

on October 16, 1978.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1979

NO. 77-2963

BETTY CALHOUN, et al., Petitioner

Vv.

UNITED STATES OF AMERICA, et al.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

COHN AND PACELLI

Meredith Financial Center

Center Bldg., Suite 408

17822 Seventeenth Street

Tustin, Califgrnia 680

OHN

Attorney for Petitioner

3 | A Saf

hhc J

DALE A. CASTLE

A member of the above-named

court, having been duly

admitted to the Supreme

Court of the United States

on October 16, 1978.

INDEX

CITATION TO THE OPINIONS BELOW........

JURISDICTION... ccccccccvcccccsevcccces

QUESTIONS PRESENTED... cccccccccccccces

STATEMENT... ccccccccccccesccevccvscese

REASONS FOR GRANTING THE WRIT...-.eee-

CONCLUSION. ,cccccccccccccsecveccsescese

APPENDIX -A- OPINIONS BELOW....-.eeee-

CITATIONS

IN RE GRIMLEY 137 U.S. 147 (1890).....

U.S. v. RUSSO 23 U.S.M.C.A. 511

Pare Ss 62.6 bee hs 6ONS 4 OOS O40 Oe EOS

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1979

NO. 77-2963

BETTY CALHOUN, et al., Petitioner

Vv.

UNITED STATES OF AMERICA, et al.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner prays that a writ of

certiorari issue to review the judgment

of the United States Court of Appeals for

the Ninth Circuit entered in the above-

entitled case on September 18, 1979.

CITATIONS TO THE OPINION BELOW

The opinion of Judge William B.

Enright granting the defendant's motion

for summary judgment appears in Appendix

A, and is unreported. The opinion of the

—

Circuit Court of Appeals is unreported

and appears in Appendix A.

JURISDICTION

The judgment of the Circuit Court of

Appeals was entered on September 8, 1979,

The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

STATUTES INVOLVED

Although plaintiffs filed their

action under the Federal Torts Claim Act,

the lower courts based their decisions on

the court created "Feres Doctrine."

QUESTIONS PRESENTED

1. Whether plaintiffs-appellants'

deceased son legally acquired the status

of a serviceman so as to allow the Feres

Doctrine to bar any recovery against the

United States of America. The trial

court found a change of status.

2. Whether a fraudulent enlistment

of a mentally incompetent person changes

the legal status of the mentally

incompetent person to that of a service-

man, sO as to apply the Feres Doctrine to

wile

Matec

bar any recovery against the United States

of America. The trial court found a

change of status.

3. Whether an enlistment contract

between the United States and a mentally

incompetent person is void or merely

voidable.

STATEMENT

This is a lawsuit by the heirs and

next friend of Lynn E. McClure, deceased,

who died as a direct result of a pugil

stick bout at the Marine Corps Recruit

Depot, in San Diego, California, on

December 6, 1975.

The plaintiffs sought recovery

against the United States and individual

officers and employees of the United

States pursuant to the provisions of the

Federal Tort Claims Act, 28 U.S.C. §§1346

(b), 2671-2680, and for constitutional

violations of the decedent's civil rights.

Plaintiffs alleged that the decedent

was mentally incompetent at the time of

his enlistment contract, and further,

that the Marine Corps recruiters

fraudulently recruited the decedent with

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knowledge of his disability and overall

lack of qualification to enlist.

The plaintiffs submitted affidavits

in opposition to the government's motion

for summary judgment, based on the Feres

Doctrine, showing that the decedent had

failed the 10th grade and dropped out of

school, had been incarcerated in Rusk

State Mental Hospital, had six misdemeanor

convictions within two years, four of

which involved alcohol abuse, and a

statement that decedent was retarded.

In addition, affidavits of a judge in

Texas who had handled the decedent's

sentencing was submitted, along with

the affidavit of the Chief of Police

of Lufkin, Texas, setting forth the

fact that no one from the Marine Corps

had contacted his office concerning the

criminal record of the decedent.

Notwithstanding the conflicting

affidavits submitted concerning the

factual and legal status of the decedent,

the trial court ruled that a valid

enlistment contract had been entered into

and the decedent's status as a serviceman

barred plaintiffs' recovery under the

"Feres Doctrine."

a

REASONS FOR GRANTING THE WRIT

1.) The decision of the lower court

patently ignored the overwhelming evidence

that fraudulent enlistments were taking

place on a regular and continuous basis

during the period of decedent's enlistment

and that a fraudulent enlistment is

contrary to sound public policy and a

violation of law.

2.) The decision of the lower court

failed to resolve the factual question of

decedent's legal status at the time of

his injury. This court's decision in

In Re Grimley 137 U.S. 147 (1890) clearly

established that enlistment in the armed

services is governed by principles of

contract law, and that, under certain

circumstances, a contract entered into

with a mentally incompetent person is

void. This decision has been followed

consistently by the highest military

courts, who have always required a

factual investigation of the acts and

circumstances surrounding a recruit's

enlistment before they make a decision

that the military authorities have

jurisdiction over the person of an alleged

~

recruit. U.S. v. Russo 23 U.S.M.C.A. 511

(1975).

3.) The decision of the lower court

that the enlistment contract is merely

voidable is contrary to the specific

holdings of the highest military courts

that a fraudulent enlistment creates a

contract that is void ab initio. This

court should render a decision that will

harmonize the patent conflict between

Civilian and military bodies of juris-

prudence.

4.) Sound public policy requires

that a fraudulent enlistment have no

force or effect, and the government

should be held to answer for the

fraudulent acts of its employees as a

means of insuring that the government

itself will more closely supervise and

regulate the conduct of its employees

to prevent this conduct from occurring

again in the future.

CONCLUSION

This court should grant the petition

for certiorari and hear the issues raised

in this important area of civil rights.

DATED: December 13, 1979.

Attorney for Petitioner

COHN AND PACELLI

Meredith Financial Center

Center Bldg., Suite 408

17822 Seventeenth Street

Tustin, California 92680

i

men anita a Ce te

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

SEP 18 1979

EMIL E MELFI, JR CLERK

U.S. COURT OF APPEALS

BETTY CALHOUN, et al., )

Plaintiff, : NO. 77-2963

vs. ) OPINION

UNITED STATES OF AMERICA, }

et al., )

Defendants.

Appeal from the United States

District Court

of the Southern District of California

APPENDIX A

Before: BROWNING and TANG, Circuit Judges,

and MUECKE,* District Judge.

PER CURIAM:

The judgment below is affirmed. Judge

Enright's opinion, reported at F. Supp.

, is adopted as the opinion of this

court.

*Honorable C.A. Muecke, United States

District Judge of the District of Arizona,

sitting by designation.

APPENDIX A

FILED

ENTERED

LODGED

~___RECEIVED

MAY 26 1977

CLERK, U.S. DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

BY /S/ J. HATCH DEPUTY

| el

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

BETTY CALHOUN, et al.,

Plaintiffs, Civil No.

*. 70-0937-E

)

)

)

)

UNITED STATES OF AMERICA, } JUDGMENT

)

)

)

St @iss

Defendants.

For the reasons set forth in the

Memorandum Decision and Order dated

May 26, 1977, and for good cause shown,

it is hereby adjudged that the motion to

dismiss is granted as to all defendants.

DATED: May 26, 1977.

Ls/

WILLIAM B. ENRIGHT,

Judge

United States District

Court

Copies to:

Plaintiffs

Defendants

4

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En Re ete ead

_X FILED

~__ ENTERED

~__ LODGED

__RECEIVED

MAY 26 1977

CLERK, U.S. DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

BY /S/ J. HATCH DEPUTY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

BETTY CALHOUN, et al.,

Plaintiffs, Civil No.

“ 76-0937-E

MEMORANDUM

ag STATES OF AMERICA, DECISION AND

sins ORDER

Defendants.

ee eee ee ee ee ee

This case presents an important

application of a court-made exception

to the Federal Tort Claims Act for

injuries arising incident to military

service. Plaintiffs, the survivors of a

Marine Corps recruit, have brought this

action for wrongful death against the

United States and individuals in

decedent's chain of command. Defendants

have filed a motion to dismiss, or in the

alternative, for summary judgment. Upon

duly considering the oral argument of

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counsel on May 16, 1977, and all the

memoranda, affidavits and exhibits

submitted in support thereof, this court

does hereby grant defendants' motion to

dismiss this action.

I

Before attending to the merits of

this motion, a brief statement of facts

of this case is necessary to put this

court's decision in its proper

perspective.

The decedent, Lynn E. McClure, first

applied for enlistment into the United

States Marine Corps in Lufkin, Texas on

September 24, 1975. His vocational

aptitude (ASVAB) test score in the seventh

percentile caused a rejection of his

application. On November 12, 1975

decedent reapplied in Austin, Texas and

received a passing score in the fifty-

ninth percentile. In his second

application decedent made false statements

that he had not previously applied to

enlist in the Corps, that he had never

been confined in a mental institution,

and that he had never been arrested for

or convicted of an offense.

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Upon the false application, decedent

was accepted into the Corps. He signed

an enlistment contract for a four-year

term on November 14, 1975 and arrived at

the Marine Corps Recruit Depot in San

Diego the following day. Twice within the

next three weeks decedent went on

unauthorized leave and was confined to

correctional custody for a period of

seven days. After his release, on

December 6, 1976, decedent was assigned

to the "motivation platoon." It is not

disputed that on this date decedent was

compelled to engage in several pugil stick

training bouts at the direction of the

supervising officer. During one of these

bouts decedent fell unconscious. He was

transported to the Naval Hospital in

San Diego and later transferred to the

Veterans Administration Hospital in

Houston, where he died on March 13, 1976.

Plaintiffs filed administrative

claims with the Department of the Navy on

April 3, 1976, which were denied by lapse

of six months. The complaint in this

action was filed October 6, 1976,

17 28 U.S.C. § 2675(a).

: -3-

alleging wrongful death under the Federal

Tort Claims Act, 28 U.S.C. §§ 1346(b) and

2671 et seg, and deprivation of

constitutional rights contained in Article

I, Section 8 and the Fourth, Fifth, Eighth

and Thirteenth Amendments under 28 U.S.C.

§ 1331. Plaintiffs allege that the

enlistment contract entered by decedent

was voidable by reason of his

incompetency, and further that the

recruitment of decedent and his death

were caused by violations of the Marine

Corps’ own regulations.

II

A motion to dismiss an action for

failure to state a claim or for want of

subject matter jurisdiction may be

granted only if "it appears beyond doubt

that the plaintiff can prove no set of

facts in support of his claim which would

entitle him to relief." Conley v. Gibson,

355 U.S. 41, 45-46 (1957); Sherman v.

Yakahi, 549 F.2d 1287 (9th Circuit 1977).

It is apparent that defendants' motion to

dismiss is founded upon both lack of

subject matter jurisdiction and failure

to state a claim for which relief can be

granted. Federal Rule of Civil

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Procedure 12(b)(1) and (6). The above-

quoted standard is often cited in Rule

12(b) (6) motions, but is equally

applicable in motions challenging subject

matter jurisdiction when such

jurisdiction may be contingent upon

factual matters in dispute.

Initially, defendants move to dismiss

the cause of action for wrongful death

under the Federal Tort Claims Act upon

the ground that the court-made exception

to the Act pronounced in Feres v. United

States, 340 U.S. 135 (1950) bars such a

Claim. The Court held that the United

States is not liable under the Act "for

injuries to active duty servicemen where

the injuries arise out of or are in the

course of activity incident to service.”

Supra, at 146. The rationales for this

limitation on liability include the

maintenance of discipline in the relation-

ship between the serviceman and his or

her superiors, the orderly conduct of

military affairs by eliminating the duty

to defend lawsuits, and the uniform system

of compensation for injuries to servicemen

2/

established by Congress.— Supra, at 141,

144; Henninger v. United States, 473 F.2d

814, 815-816 (9th Cir. 1973). The Court

2/ The Feres decision outlined the uniform

compensation system then available to

injured servicemen. Supra, at 144, n.12.

Congress has sabaeqaetels enacted a

uniform system of death benefits for

Survivors of servicemen who die while on

active duty. 10 U.S.C. § 1475 et seg.

Such compensation includes the payment of

a death gratuity (§§ 1475-1480) and

expenses incident to death (§ 1482).

Although the benefits provided by Congress

do not approach the amounts prayed for in

the instant complaint, the disparity is

not persuasive to a court considering an

action to which the Feres Doctrine is

potentially applicable. Judge Chambers

stated in Bailey v. Van Buskirk, 345 F.2d

298 (9th Cir. 1965):

The military service does not leave

those permanently injured in the line

of duty uncompensated. Congress has

attended to such things in a

reasonably adequate way. All we deny

plaintiff-appellant is a remedy he

likes better.

In the years since Feres, the courts have

often commented upon the harsh results

generated by application of the doctrine.

However, despite invitations to correct

this interpretation of the Federal Tort

Claims Act in Feres, supra at 138, and

in later decisions, e.g., United States v.

Lee, 400 F.2d 558 (1 , cert. denied,

393 U.S. 1053 (1969), no amendments have

been enacted. The passage of twenty-seven

years since the Feres decision leaves

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of Appeals for the Ninth Circuit in

Henninger, supra, has strictly applied

the Feres doctrine by holding that it

"absolutely bars Federal Tort Claims

actions by servicemen." (emphasis added).

Plaintiffs contend that two factors

existing in the instant case should

preclude an application of the Feres

bar. First, they contend that decedent's

alleged mental incompetency at the time

of execution of the enlistment contract

creates a voidable obligation. They argue

that this voidability eliminates not only

the duty of service but other constraints,

such as the Feres limitation on tort

liability. Second, they contend ange

violation of Marine Corps regulations—

either precludes application of the Feres

Doctrine or creates a due process

violation for which plaintiffs should be

afforded recovery.

2/(cont.) little doubt as to

congressional intent in this area.

3/ Plaintiffs cite no specific

regulations that were violated. However,

they generally contend that Marine Corps

regulations pertaining to the recruitment,

detention and training of decedent were

infringed.

a i

For several reasons the court is not

persuaded that mental incompetency at the

time of execution of an enlistment

contract, if proven, would create an

exception to the Feres Doctrine. First,

the factual determination of competency

creates precisely the type of operation

which the Ninth Circuit in Henninger,

Supra, sought to avoid. There, plaintiff

adjured the court to make a determination

on the effect his suit would have on

military discipline. That court declined

to make any factual determinations which

would limit its "absolutist reading of

Feres" because "nearly every case would

have to be litigated and it is the suit,

not the recovery, that would be

disruptive of discipline and the orderly

conduct of military affairs." Henninger,

Supra at 815-16.

Second, while the court is conscious

of the trend of the law to apply modern

contract principles to military enlist-

ment contracts, Novak v. Rumsfeld, 423

F. Supp. 971, 972 (N.D. Cal. 1976), the

power to avoid a contract must accrue

equally to all parties. This court would

~~

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not formulate a rule of voidability for

an enlistee's misrepresentations that

would operate to deprive that serviceman

of statutory medical or death benefits for

injuries suffered incident to military

service. For example, if decedent had

not died but had suffered a permanent

disability, this court would not

authorize a withholding of medical

benefits on the ground that the enlist-

ment contract was voidable as a result

of decedent's enlistment

aiarepresantatione.

Third, the court finds that case

law would not support avoidance of the

Feres rule by assertion of incompetency

to contract for military service. In

Southard v. United States, 397 F. Supp.

409 (E.D. Pa. 1975), aff'd 535 F.2d 1247

(3rd Cir. 1976), plaintiff unsuccessfully

attempted to avoid the Feres rule by

contending that malpractice in his

4/ This court does not hold that an

enlistment contract is never voidable.

It merely holds that military benefits

cannot be obtained or withheld by claiming

voidability after the occurrence of an

injury for which those benefits are

sought.

preinduction physical created a void and Similarly, alleged violation of Marine

illegal induction. Also germane to Corps regulations cannot affect this

plaintiffs' contention of incompetency is impediment to recovery. The conduct of an

the case of Henninger, supra. There, the officer, albeit in violation of Marine

court found that the United States was not

Corps regulations, does not waive the

Government's immunity. Henninger, supra.

In McCord v. United States, 377 F. Supp.

indirectly caused that plaintiff's injury. 953 (M.D. Tenn. 1972), aff'd 477 F.2d 599

That court held that no representations (6th Cir. 1973), the court rejected an

argument that a violation of regulations

would preclude the application of Feres.

The result is not changed by

the fact that Sgt. Klay was

negligent in the conduct of

estopped from invoking the Feres Doctrine

because it made misrepresentations which

by Government agents could waive the

immunity granted by the Feres Doctrine.

Plaintiffs here contend that Government

agents were remiss in failing to detect |

decedent's incompetency prior to

4

4

induction. It is clear that neither cleaning his weapon, or even

malpractice, misrepresentation, nor

omission by a Government agent affect

the bar to suit established by Feren.>/

5/ This court need not decide whether

plaintiffs are estopped from asserting

incompetency. It was argued by defendants

that the misrepresentations of decedent

prevented discovery of his incompetency.

See United States v. Georgia-Pacific Co.,

421 F.2d 92, 96 (9th Cir. 1970). The

court's resolution above makes

determination of this issue

unnecessary.

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that it was a needless act

which was unauthorized at this

particular station. The crucial

element is that the accident

resulted from activities engaged

in by active duty personnel in

the course of military duty.

(emphasis supplied).

Supra, at 954.

Thus, the United States may not be

sued for injuries incurred incident to

military service. Once this immunity is

~i~«

established it is certain that the

individual defendants are also immune from

suit. It is clearly the law in this

circuit that one soldier may not sue

another for injuries suffered attendant

to military service. Bailey, supra;

Mattos v. United States, 412 F.2d 793

(9th Cir. 1969). This rule must

certainly apply to all individual

defendants who were joined merely because

they were superiors in decedent's chain of

command.

III

Plaintiffs additionally seek recovery

for alleged infringement of constitutional

rights. The court finds that the theory

of constitutional deprivation is

essentially a restatement of the cause of

action in tort. In a similar case

presenting a dual theoretical basis, Rotko

v. Abrams, 338 F. Supp. 46 (D. Conn. 1971)

aftt*’d 455 7.24 992 (24 Cir. 1972),

decedent's survivors sought recovery for

the death of decedent in Vietnam under the

Federal Tort Claims Act and for alleged

violation of constitutional rights.

Citing the broad Ninth Circuit holding in

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6h eienieathm iis inate LE

United States v. Lee, 400 F.2d 558 (1968),

cert. denied, 393 U.S. 1053 (1969), that

court held that the action was barred

under the Feres rule because "it is the

status of the claimant as a serviceman

rather than the legal theory of his claim

which governs in such cases." Rotko,

Supra, at 47.

Moreover, there is some authority to

limit recovery for alleged constitutional

deprivations when the claim is customarily

recognized under existing bodies of state

tort law or the Federal Tort Claims Act,

which incorporates state tort law.” [In

Paul v. Davis, U.S. _, 96 S. Ct.

1155 (1976), plaintiff brought an action

in federal court under the Fourteenth

Amendment and civil rights statutes to

redress an allegedly libelous statement

by a local police officer. The Court

found that the Fourteenth Amendment's

Due Process Clause should not be extended

6/ Whether the United States is liable

under the Act depends upon whether a

private individual under similar cir-

cumstances would be liable under state

law. United States v. Muniz, 374 U.S.

150 (1963)

«at Se

and superimposed upon pre-existing systems

of state tort law. The decision is

germane to the instant case. Absent the

deprivation of a recognized

constitutional right, it would subvert the

application of the Federal Tort Claims Act

and its defined exceptions to allow a

litigant to superimpose over that body

of law extensions of constitutional rights

which were never intended to apply in

this context.

This court does not hold that a

constitutional provision will never

Override the Act or doctrines adopted

thereunder. Indeed, the Constitution

remains the "supreme Law of the Land."

Article VI. The court holds only that

the instant case presents issues to be

resolved under the Federal Tort Claims

Act and does not raise any recognized

7/

constitutional deprivation.—

7/ For example, despite decedent's

Status as an enlistee, it is clear

that even conscripted service does not

violate the Thirteenth Amendment.

United States v. Gidmark, 440 F.2d 773

(9th Cir.), cert. denied 404 U.S. 868

(1971). Historically, the prohibition

against "cruel and unusual punishments"

under the Eighth Amendment has been

«Lae

Accordingly, the court does hereby

find that the motion to dismiss is granted

as to all defendants. Judgment shall be

entered accordingly.

DATED: May 26, 1977.

/s/ William B. Enright

WILLIAM B. ENRIGHT,

Judge

United States District

Court

Copies to:

Plaintiffs

Defendants

7/(cont.) limited to criminal punishment.

Ingraham v. Wright, U.S. _, 45 L.W.

4364 (April 19, 1977). There is no

support for the proposition that

recovery may be obtained against those

other than law enforcement officers for

violation of the Fourth Amendment. See,

28 U.S.C. § 2680(h); Bivens v. Six Unknown

Federal Narcotics Agents, 403 U.S. 388

. Nor is there support for

extending the rule of Bivens, supra, to

Fifth Amendment due process violations.

Archuleta v. Callaway, 385 F. Supp. 384,

388 (D. Colo. 1974). No comment need

be made upon plaintiffs’ allegation of

Article I violations.

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