Petition for Writ of Certiorari — Chamberlin v. United States

89-1266. Sigene oe 8

FILED

DEC 26 1988

JOSEPH & SPANIOXL, UR.

No CLERK

ne —_—-

In The

Supreme Court of the United States

October Term, 1989

CHARLES CHAMBERLIN

Petitioner,

VS.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

THOMAS M. TYACK & ASSOCIATES CoO., L.P.A.

THOMAS M. TYACK

Counsel of Record

536 South High Street

Columbus, Ohio 43215

(614) 221-1341

Counsel for Petitioner

STATEMENT OF QUESTIONS PRESENTED FOR

REVIEW

1. Whether a member of the military who suffers

injury in a medical facility as the result of the negligence of the

physicians treating him should be barred from maintaining his

cause of action for negligent medical treatment under the

Federal Tort Claims Act, 28 U.S.C. §1346(b) and §2671, et

seq., under the doctrine of Feres v, United States, 340 U.S. 135

(1950), when the facility and treatment are not directly related

to combat or military actions.

ll

TABLE OF CONTENTS

Page

STATEMENT OF QUESTIONS

PRESENTED FOR REVIEW. .............................000000 ee

pe, Rene ill

REFERENCE TO THE CASE

Se Ee OED a cccscsscccconssonseesvesonssncscnseses iv

gg yy) ) rr l

REFERENCE TO PERTINENT STATUTORY-

AND CONSTITUTIONAL PROVISIONS .................. ]

STATEMENT OF THE FACTS AND OF THE CASE .......... 1-4

ARGUMENT IN SUPPORT OF PETITION .................0.00045 5-14

CONCLUSION AND REQUEST FOR RELIEF ............00....... 14

IY SO nese cmtnsnrnenatehonpinadonsesamesnonsensons 15

APPENDICES

l. Order of the United States Court of Appeals for the

Sixth Circuit in Charles Chamberlin v

ES SS SAX: ]

2. Memorandum and Order of December 20, 1988 of the

United States District Court for the Southern District of Ohio,

Eastern Division in Charl hamberlin

States of America,

Case No.: EN RE a Se eR 2-5

3. Memorandum and Order of June 9, 1987 of the United

States District Court for the Souther District of Ohio, Eastern

Division in Charl hamberlin l.. Vv. United States of

America,

I, svc assicnancdscnessavcoavavensven 6-16

4. EE ee 17

S. RS ak en, a 18

ill

TABLE OF AUTHORITIES

Page

CASES

Chappel v, Wallace, 462 U.S. 296 (1983) ...........sseccssccerereersnees 13

Feres v. Uni 5 SOB TES. LSD CID cic ctatieisisecscniicnntninit 45,6

Parker v, United States, 611 F. 2d 1007 (5th Cir. 1980)............... 1]

Sidley v, United States, 861 F. 2d 988 (6th Cir. 1988) ..........--000 12

ncel Aero Engineenn vy. Uni ,

R30 UB. GB CGFA) ovisiccnsiensinsnsintnntntinrnnntnnntanimaiiasiiimatonninniansiisalsitie 6

United States v. Brown, 348 U.S. 110 (1954)... ccceseeseeeeneeeeeeeenees 7

United States v. Johnson, +81 U.S. 681 (1987) sicalntinaisipatielachdauanieaae 8

United States v. Shearer, 473 U.S. 52 (1985) ............ssesssesseeeses 6,7,8

Federal Tort Claims Act (FTCA), ........ccsercseosesceccecsenssnosenssess mere 3.

28 U.S.C. §1346(b) and §2671, Cb SEQ, ..........eeerereercsrsecesserseeeess 1,5

No.

In The

Supreme Court of the United States

October Term, 1989

CHARLES CHAMBERLIN

Petitioner,

_ VS.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIQTH CIRCUIT

REFERENCE TO THE CASE

IN THE COURTS BELOW

‘. Trial,Court: Charles Chamberlin and Romonia Cham-

berlin v. United States of America (December 20, 1988),

United States District Court for the Southern District of Ohio,

Eastern Division, Case No.: C-2-86-0869, unreported.

2. + Court of Appeals: Charles Chamberlin v. United

States of America (September 27, 1989), Sixth Circuit Court

of Appeals, Case No.: 89-3126, unreported.

l

JURISDICTIONAL STATEMENT

By Order and Entry of September 27, 1989, the Sixth

-ircuit Court of Appeat affirmed the District Court’s December 20,

[988 dismissal of Petitioner’s claim under the Federal Tort Claims

Act (FTCA), 28 U.S.C. §1346 and §2671, et seq.

Petitioner invokes the jurisdiction of this Court pursuant to

8 U.S.C. §1254(1), and Rule 20 of the Rules of the Supreme Court

yf the United States. 28 U.S.C. §1254(1) verbatim provides:

Cases in the courts of appeal may be reviewed by

the Supreme Court by the following methods: (1)

By wni of certiorari granted upon the petition of

any party to any civil or criminal case, before or

after rendition of judgment or decree.

CONSTITUTIONAL PROVISIONS AND

STATUTORY AUTHORITY RELEVANT TO CASE

28 U.S.C. $1346

a 28 U.S.C. $2671, et seq

STATEMENT OF THE FACTS AND OF THE CASE

In August, 1983, Petitioner, Charles Chamberlin, was

erving as an Electrician’s Mate Firearm Apprentice with the

Jnited States Navy in South Carolina. On or about August 27,

983, while on weekend leave from the naval base, the Petitioner

vas thrown from a pick-up truck and sustained a head injury. At

i

5

the time of the injury, the Petitioner was with friends who reported

that the Petitioner was then taken to the emergency room at the

Naval Regional Medical Center in Charleston, South Carolina.

The emergency room records initially indicate that Petitioner was

Onented to person only and combative. The records further note a

2 '/, to 3 inch laceration of the scalp which required stitches. The

physicians at the hospital requested neither skull x-rays nor cervi-

cal spine x-rays. Approximately eight hours later, the Petitioner

was discharged from the hospital, although he required assistance

to be dressed and complained of a headache. A few days later, the

Petitioner was found unconscious in his barracks. He was then re-

hospitalized and remained comatose for approximately five days.

The Petitioner suffered from post traumatic amnesia for approxi-

mately two weeks. The latter set of hospital records indicate that

Petitioner sustained bifrontal contusions, left frontal-temporal cere-

bral hematoma and occipital skull fracture. The Petitioner was

hospitalized off and on until October, 1983. The Petitioner then

returned home to central Ohio, where he was seer al an outpatient

clinic. At that time, he was diagnosed as having Organic Person-

ality Syndrome. As 4 result, the Petitioner has suffered permanent

brain damage, resulting in personality change: auditory and visual

hallucinations; has become paranoid; irmtable with temper out-

bursts and shows signs of reduced dexterity as well as attentional

deficits.

The Petitioner, Charles Chamberlin, and his mother,

Romonia Chamberlin, filed a malpractice suit against the govern-

ment under the Federal Tort Claims Act (FTCA), 28 U.S.C. §1346

and 28 U.S.C. Chapter 17 alleging, in part, that he sustained serious

and permanent injuries as a result of the negligence of Respondent's

agents, servants and employees, i.e. the failure of the physicians in

the Naval Regional Medical Center to diagnose and treat Petitioner.

On October 9, 1986, the United States filed a motion to dismiss for

failure to state a claim upon which relief may be granted and for lack

of subject matter jurisdiction. On June 9, 1987, the District Court

for the Southem District of Ohio, Eastem Division, denied the

Respondent's motionto dismiss the Petitioner, Charles Chamberlin’s

claim. However, the court dismissed plaintiff, Romonia

Chamberlin’s claim because she failed to file a claim with the

appropnate federal agency within the period of time prescribed by

the FTCA. Her claim was not appealed. Thereafter, the govem-

ment filed a motion for reconsideration on March 3, 1988. The

Distnct Cour, in a memorandurn and order filed December 20.

1988, iound that it lacked subject matter jurisdiction to consider the

ments of Petitioner's claims and granted the Respondent’s motion

to dismiss. The predicate for the ruling was that immunity,

pursuant to Feres v. United States, 340 U.S. 135 (1950), barred the

claim. Petitioner, Charles Chamberlin, timely filed an appeal from

the 12/20/88 order to the Sixth Circuit Court of Appeals. Thereaf-

ter, by order and entry of September 27, 1989, the Sixth Circuit

Count affirmed the district court without comment. This Petition

was then timely perfected.

4

ARGUMENT IN SUPPORT OF PETITION

QUESTION PRESENTED FOR REVIEW

WHETHER THE TRIAL COURT ERRED IN GRANTING THE

RESPONDENT’S RENEWED MOTION TO DISMISS WHEN

THE PETITIONER’S COMPLAINT ESTABLISHES A VALID

CAUSE OF ACTION.

A. THE TRIAL COURT ERRED IN APPLYING THE

FERES DOCTRINE TO THIS CASE BECAUSE NONE OF THE

CONSIDERATIONS SUPPORTING THE FERES DOCTRINE

ARE PRESENT IN THIS CASE.

The Petitioner alleged in his complaint that he was filing

his claim pursuant to the Federal Tort Claims Act, 28 U.S.C.

§ 1346(b) and 2671. et. seg, (hereinafter FCTA). Congress provided

in the FTCA that the United States is liable for “injury...caused by

the negligent or wrongful act or omission of any employee of the

Government...under circumstances where the United States, if a

private person, would be liable to the claimant...” 28 U.S.C.

$1346(b). In passing the FTCA in 1946, Congress did not exclude

military personnel from the FTCA coverage. However, in Feres v.

United States, 340 U.S. 135 (1950), the Supreme Court created an

exception to the government’s liability in relations to members of

the Armed Forces. This exception, informally known as the Feres

doctrine, immunized the government from liability under FCTA

“for injuries to servicemen where the injuries arise out of or are in

the course of activity incident to service.” Id, at 146. Three factors

underlie this exception: (1) the distinctively federal nature of the

5

relationship between the government and the members of its

Armed Forces; (2) the availability of alternative compensation

Systems; and (3) the fearthat if such claims are generally permitted,

it would involve the judicial system in the military disciplinary

system. Siencel Aero Engineering Com. v. United States, 431 U.S.

666, 671-72 (1972).

In United States v. Shearer, 473 U.S. 52 (1985), the

Supreme Court found that the main concem of the Feres doctrine

is that of second guessing the military decisions of the impairment

of military discipline. Id, at'57. The Shearer case involved a mother

who brought suit under the FTCA for the death of her son, allegedly

caused by the Army’s failure to supervise its personnel. The

decedent, who was off duty and away from the base, was kidnapped

and murdered by another serviceman, who had previously been

convicted of manslaughter. The Supreme Court barred the mother’s

claim on the basis that the complaint “calls into question basic

choices about discipline, supervision and control of servicemen.”

Id, at 58. The court held that the important consideration is whether

Or not the claim requires the courts to second-guess militar,

decisions and whether the suit might impair essential military dis-

cipline. If this type of claim were allowed, officers in the military

would be required to justify the wisdom of their military decisions

to a civilian court. Id, at 57-58. The dangers inherent in this

possibility stem from the peculiar relationship of the servicemen

and his superior and the high degree of discipline involved in that

relationship. The Supreme Coun, in Shearer, also indicated that

courts must take a case-by-case approach to claims of immunity:

!_!_!_a <<

6

The Feres doctrine cannot be reduced to a few

bright line rules; each case must be examined in

light of the statute as it has been construed in Feres

and subsequent cases. Here, the Court of Appeals

placed great weight on the fact that Private Shearer

was off duty and away from the base when he was

murdered. But the situs of the murder is not nearly

as important as whether the suit might impair

essential military disciple. Id, at 57. (Citations

omitted) ;

The Supreme Court made clear in Shearer, that the para-

mount concem is that of military decisions or discipline. Thus, the

courts must first determine the effect of a particular serviceman’s

claim on a military decision or discipline. The fears expressed by

the Supreme Court in Shearer are not present in the Petitioner’s

claim because the court will not need to second-guess any military

decisions or military disciplines. The Petitioner’s claim is based

upon common law negligence of a doctor and is not based upon any

military relationship.

Other Supreme Court cases have offered some guidance in

determining whether or not a serviceman is injured incident to

service, and have allowed recovery under FTCA. In United States

v, Brown, 348 U.S. 110(1954), the Supreme Court helped to define

the line which necessarily must be drawn between what should be

considered “incident to service” and what should not be consid-

ered. In Brown, a doctor at a veteran’s hospital negligently per-

formed an operation to correct injuries resulting from an active duty

7

injury. In allowing the serviceman’s claim, the court utilized policy

reasons tO support their position. The court stated:

Certainly this claim is one which might be cogni-

zable under local law, if the defendant were a

private party. Responsibility of hospital to pa-

tients for negligence may not be as notorious as

liability of the owners of automobiles. Put the

doctrine is not novel or without support. Id, at 113.

The Respondent, in the instant case, should be held liable

to the same extent as private citizens. If a private citizen had

negligently treated the Petitioner, he would have been liable under

a common law action. Therefore, in order to uphold the Congres-

sional purpose of the FTCA, Petitioner submits that the Respondent

must be held accountable for its negligent act in treating the

Petiuioner.

One of the most recent Supreme Court decisions is that of

United States v. Johnson, 481 U.S. 681 (1987). In a strongly

divided opinion, the Johnson court held that the Feres doctrine bars

a FTCA action on behalf of a service member killed during an

activity incident to service, even if the alleged negligence is by

civilian employees of the federal government. Id, at 686-692. The

Supreme Court reiterated its position that suits brought by service-

men for injuries incurred incident to service are:

[Barred by the Feres doctrine because they are the

‘type(s] of claims that, if generally permitted,

would involve the judiciary in sensitive military

8

affairs at the expense of military discipline and

effectiveness. ’...a suit based upon service-related

activity necessarily implicates the military judg-

ments and decisions that are inextncably inter-

twined with the conduct of the military mission.

Id, at 690-691. (Citations omiited)

In applying this analysis to the instant case, there 1s nothing

in Petitioner’s case that could possibly undermine military decision

making or military discipline. Petitioner was treated negligently by

doctors in a non-field military hospital for a head injury sustained

off base while on furlough. At the time of his treatment, Petitioner

was not subject to any reai military order or the performance of

military duties. There was no command relationship between

Petitioner and his physician. Furthermore, there were no military

or discipline considerations goveming the treatment of Petitioner

by the doctor. The case at bar does not deal with this occurrence of

negligence by the goverment arising out of a decision requiring

military expertise or judgment, which Feres and its progeny sought

to protect. Thus, a court hearing Petitioner's claim will not have to

inquire into any military decisions or military discipline. The care

provided by a physician to Petitioner in the emergency room,

cannot be characterized as military in nature. Petitioner

Chamberlin’s injuries have nothing to do with his military service

since he wason furlough at the time of his injury.

Other federal court decisions have expounded on the Feres

test and developed standards for determining whether or not the

injury was incurred incident to service. In Parker v. United States,

9

611 F.2d 1007 (Sth Cir.), the Fifth Circuit Court of Appeals held

that when a serviceman is injured off duty, off base and not subject

to direct military control, he may recover under the FTCA. In the

Parker case, a serviceman, on his way home after work, was hit

head on by another serviceman. Parker died as a result of the

injuries sustained in the accident. The car accident occurred on an

Sey maintained road and Parker was wearing his military fa-

tigues. His family received veteran benefits. As usual, the court

discussed the possible inherent dangers of allowing recovery. The

court discussed the meaning of the phrase “incident to military

service.”” The Parker case reasoned that Parker’s four day pass was

a furlough and thus, not incident to service. The court went on to

State:

The discipline connection does not appear to exist

here. In the factual determination in any in case,

it may be possible that the service member was

performing duties of such character that tradi-

tional concepts of military discipline would be

undermined should an FTCA action be permitted.

Nevertheless. in thi tl Leaving 1

| 110 hi L affairs. whil )

no_mili " i —

military discipline, Id, at 1013 (Emphasis added.)

In applying the three point analysis of Parker, to the case at bar,

Petitioner was not injured incident to service. Petitioner had

authorized leave (liberty) from the base; the injury occurred off the

base. The malpractice occurred at a naval hospital that also

10

accepted civilian patients; and most importantly, Petitioner was not

directly under military control. Thus, this eliminates the problems

recognized in Parker and other cases. Therefore, applying the test

of Parker, the appellant has a valid claim under the FCTA.

In sustaining Respondent’s Motion for Reconsideration,

the District Court relied upon the Sixth Circuit’s recent decision of

Sidley v. United States, 861 F.2d 988 (6th Cir. 1988). The Sidley

case is distinguishable. All cases, including Feres, Shearer and

Sidley, recognize generally that “‘an off-duty serviceman not on the

military base and not engaged in military activity at the time of the

injury can recover under the FCTA”. See Sidley, 861 F.2d at 990.

The three factors justifying the Eeres doctrine, which bar

servicemen’s claims, are not applicable here.

First, the government is not liable for serviceman’s claims

if the “injuries arise out of a course of activity incident to military

service”. The reasoning of the court is that if suit is permitted for

activities incident to military service, the suit “might impair essen-

tial military discipline” and “require a civilian court to second

guess military decisions.” See United States v. Shearer, 473 US.

52 (1985) and Chappel v, Wallace, 462 U.S. 296, 300, 304 (1983).

In the case at bar, the claim does not arise out of any activity

incidental to military service. The Petitioner was off duty when he

was injured. The military hospital was utilized simply because it

was the closest medical facility. If Petitioner’s claim is allowed,

“military discipline would not be affected nor would the court be

second guessing any military decisions.” No military decisions

were involved in the negligent treatment of the Petitioner. The

ll

Feres doctrine applies to cases where the policy or military deci-

sions dictate that the military be allowed to operate free of the fear

of potenual lawsuits for military decisions. Here, the claim is tor

negligent medical treatment. Therefore, the Feres doctrine should

not apply to these facts.

Next, the Feres doctrine bars claims involving military per-

sonnel because if such claims are permitted, “the judiciary would

be involved in sensitive military affairs.” No sensitive military

affairs are in existence in the case at bar. The Petitioner was

negligently treated. Why should the Feres doctrine be used to

shield the negligent treatment of military personnel? A serviceman

should not forfeit his right to quality medical treatment simply

because he or she wears a military uniform. This is especially true

when the medical treatment has nothing to do with military effec-

tiveness, discipline or sensitive military policy decisions. There-

fore, the Feres doctrine should not bar the Petitioner’s claim.

12

CONCLUSION AND REQUEST FOR RELIEF

Itis clear, after reviewing all the pertinetit cases relevant to

the issue of whether or not an injury is incident to service, that the

Petitioner has a valid claim under FCTA. This court should grant

the Petition and upon consideration of the merits, limit Feres so that

military personnel receiving treatment at regional military medical

centers (if in non-combat situations) have a remedy when the treat-

ment failed to meet medically appropnate standards.

Respectfully submitted,

THOMAS M. TYACK & ASSOCIATES CO., L.P.A.

THOMAS M. TYACK

536 South High Street

Columbus, Ohio 43215

614-221-1341

Counsel of Record for Petitioner

13

CERTIFICATE OF SERVICE

Pursuant to Rule 28.5(b) of this Court, I, Thomas M. Tyack, a

member of the bar of this Court, hereby certify that on this 26th day

of December, 1989

three copies of the foregoing Petition for Writ of Certoran

of the Petitioner were mailed, first class postage paid, to Mr. Lowell

Sturgill and Mr. Robert S. Greenspan, Attomeys for Respondent,

United States of America, Department of Justice, 10th and Penn-

sylvania NW., Washington, D.C. 20530, and all parties required to

be served pursuant to Supreme Court Rule 28.5.

THOMAS M. TYACK & ASSOCIATES CO., L.P.A.

THOMAS M. TYACK

Counsel for the Petitioner

APPENDIX

Filed

Sept. 27, 1989

No. 89-3126

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHARLES CHAMBERLIN:

Plaintiff — Appellant

ROMONIA CHAMBERLIN

Plaintiff

Vv. ORDER

UNITED STATES OF AMERICA

Defendant — Appellee

BEFORE: KENNEDY and WELLFORD, Circuit Judges:

and LIVELY, Senior Circuit Judge.

This cause having come on to be heard upon the

record, the briefs and the oral argument of the parties, and

upon due consideration thereof,

[tis ORDERED that the judgment of the district

court be, and it hereby is, affirmed upon the opinion of the

district court.

l

ENTERED BY ORDER OF THE COURT

2 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

Leonard Green, Clerk

ISSUED AS MANDATE: _ October 18, 1989

COSTS: None

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHARLES CHAMBERLIN, ET AL.,

Plaintiffs,

VS. . Case C-2-86-0869

UNITED STATES OF AMERICA, :

Defendant.

MEMORANDUM AND ORDER

Plaintiffs bring this action alleging negligence on

the part of defendant through its employees at the N aval

Regional Medical Cenier. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C § 1346and 28 U.S.C.

3 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

Chapter 171, the Federal Torts Claims Act (FTCA). The

Court previously granted in part and denied in part

defendant's motion to dismiss for lack of subject matter

jurisdiction and failure to state a claim upon which relief

can be granted. As a result of this ruling, the claim of

plaintiff. Romonia Chamberlin, has been dismissed.

Memorandum and Order filed June 9, 1987. The matter 1s

presently before the Court on defendant’s motion for

reconsideration of that portion of the prior order denying

defendant’s motion to dismiss plaintiff Charles

Chamberlin’s claim (Count One) for lack of subject matter

jurisdiction. The facts leading to this action were previ-

ously set out in the memorandum and order filed herein on

June 9, 1987.

Plaintiffs’ complaint and attached exhibits allege the fol-

lowing facts. On August 27, 1983, plaintiff Charles Cham-

berlin. an enlisted member of the United States Navy,

sustained a head injury when he fell out of a truck while on

weekend leave from a United States naval base in South

Carolina. This head injury was not sustained while en-

gaged in any military related activity. He was admitted to

the emergency ward of the Naval Regional Medical Center

and released eight hours later. On August 29, 1983, he was

returned to the emergency ward and then transferred to the

University of South Carolina Hospital for neurological

evaluation. That evaluation determined that plaintiff had

4 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

suffered bifrontal contusions, a left fronto-temporai cere-

bral hematoma, and an occipital skull fracture.

Plainuff claims to have permanent brain damage

with resultant reduced dexterity and psychomotor coordina-

tion which has required and will continue to require medi-

cal treatment. He states that this damage occurred because

defendant negligently failed to properly treat and test

plaintiff when he was first admitted to the emergency w sd

on August 27, 1983.

On November 22, 1988 the United States Court of

Appeals for the Sixth Circuit issued its decision in Sidley v,

United States of America, No. 87-4162. In that case

Sidley, a Navy serviceman, sustained injuries in an off base

motorcycle accident which occurred while he was off duty.

He filed a complaint alleging that the doctors at the Naval

Hospital where he was stationed negligently treated his

fractured leg.

In Sidley, the Sixth Circuit considered and rejected

precisely the same arguments plaintiff advances in the

present case:

Sidley argues that the Feres doctrine should

not bar his cause of action since he was

injured in a motorcycle accident when he

5

CHAMBERLIN v. UNITED STATES No. C-2-86-0869

was off duty and while he was off base. We

note that Sidley’s injuries, for which he is

seeking damages under the FTCA, were the

result of the Navy doctors’ alleged failure to

properly treat his fractured tibia and fibula

of the left leg while he was being cared for

at Navy hospital on the base where he was

stanoned. As regards the Feres doctrine, the

term “incident to military service” is not a

narrow term restricted to military training,

field maneuvers, or combat situations.

Rather, the Feres doctrine extends beyond

situations where the soldier is acting pursu-

ant to orders or while subject to direct

military command or discipline. While

generally an off-duty serviceman not on the

military base and not engaged in military

activity at the time of injury can recover

under the FTCA, United States V. Shearer,

473 U.S. 52, 54 (1985), courts consistently

have applied the Feres doctrine in barring

servicemen’s suits under the FTCA for

alleged negligent medical treatment at a

military hospital or medical facility. Jones

v. United States, 729 F.2d 326 (Sth Cir.

1984); Veilette v. United States, 615 F.2d

505 (9th Cir. 1980); Vallance v. United

6 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

States, 574 F.2d 1282 (Sth Cir.), cert. de-

nied, 439 U.S. 965 (1978); Peluso v. United

States, 474 F.2d 605 (3rd Cir.). cert, denied,

414 U.S. 879 (1973); Henninger v. United

States, +73 F.2d 814 (9th Cir.), cert, denied,

414 U.S. 819 (1973); Lowe v, United States,

440 F.2d 452 (Sth Cir.), cert, denied, 404

U.S. 833 (1971). Sidley’s treatment at the

Naval hospital clearly was incident to his

military service.Slip op. at 4-5 (footnote

omitted).

In both the Sidley case and the present case, the

serviceman was off duty and was off his military base at

the ume of the accident in question, but was treated for his

injuries at a military medical facility. In light of the Sidley

decision which this Court, of course, must follow, the Court

concludes that the defendant’s motion for reconsideration 1s

well taken and it is hereby granted. Because this Court

lacks jurisdiction to consider the merits of plainuff’s

claims, this action is hereby DISMISSED.

IT IS SO ORDERED.

John D. Holschuh, Judge

United States District Court

7 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHARLES CHAMBERLIN, ET AL.,

Plaintiffs,

VS. Case C-2-86-0869

UNITED STATES OF AMERICA, :

Defendant.

MEMORANDUM AND ORDER

Plaintiffs bring this action alleging negligence on the part

of defendant through its employees and the Naval Regional

Medical Center. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1346 and 28 U.S.C. Ch. 171, the

Federal Tort Claims Act (FTCA). This case is presently

before the Court on defendant's motion to dismiss for lack

of subject matter jurisdiction and for failure to state a claim

upon which relief may be granted.

8 CHAMBERLIN vy. UNITED STATES No. C-2-86-0869

I. STANDARD OF REVIEW

The purpose of a motion under Fed. R. Civ. P. 12(b)

(6) is to test the sufficiency of the pleading. This purpose

fits within the broader purpose of Fed. R. Civ. p. 12 gener-

: ally, which is to provide the defendant with a simple

method for the defendant’s use of the Fed. R. Civ. P. 12(b)

defenses for the purpose of unwarranted delay.

When considering a motion to dismiss pursuant to

Fed. R. Civ. P. 12(b) (6), a court must construe the com-

plaint in the light most favorable to the plaintiff and accept

all well-pleaded material allegations in the complaint as

true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cali-

404 U.S. 508, 515 (1972); Roth Steel Products v. Sharon

Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983); Dunn v.

State of Tennessee, 697 F.2d 121, 125 (6th Cir. 1982);

Smart v. Ellis Trucking Co., 580 F.2d 215, 218 n.3 (6th Cir.

1978); Westlake v, Lucas, 537 F.2d 857, 858 (6th Cir.

1976). Although the court must apply a liberal- construction

‘of the complaint in favor of the party opposing the motion

‘to dismiss, Kugler v. Helfant, 421 U.S. 117, 125-26 n. 5

(1975); Smart v. Ellis Trucking Co., 580 F.2d at 218 n. 3;

Davis H. Elliot Co..] Caribt Utilities Co.. Lid

513 F.2d 1176, 1182 (6th Cir. 1975), Ott v. Midland-Ross

Corp., 523 F.2d 1367, 1369 (6th Cir. 1975), a court will not

0

9 CHAMBERLIN vy. UNITED STATES No. C-2-86-0869

accept conclusions of law or unwarranted inferences of fact

cast in the form of factual allegations. Blackburn v. Fisk

University, 443 F.2d 121, 124 (6th Cir. 1971); Sexton v.

Barry, 233 F.2d 220, 223 (6th Cir. 1956). However. a court

will indulge all reasonable inferences that might be drawn

from the pleading. Fitzke v. Shappell, 468 F.2d 1072.

1076, 1076 n. 6 (6th Cir. 1972).

When determining the sufficiency of a complaint in

the face of a motion to dismiss pursuant to Fed. R. Civ. P.

12 (b)(6), a court will apply the principle that “‘a complaint

should not be dismissed for failure to state a claim unless it

appears beyond a 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). See

also McClain v. Real Estate Bd. of New Orleans, Inc., 444

U.S. 232 (1980); Windsor v. the Tennesean, 719 F.2d 155,

158 (6th Cir. 1983); Neil v. Bergland, 646 F.2d 1178, 1184

(6th Cir. 1981); Parker v. Turner, 626 F.2d 1, 7 (6th Cir.

1980). Because the motion under Rule 12(b)(6) is directed

solely to the complaint itself, Roth Steel Products v. Sharon

Steel Corp., 705 F.2d at 155 and Sims v. Mercy Hospital of

Monroe, 451 F.2d 171, 173 (6th Cir. 1983), the Court must

focus on whether the claimant is entitled to offer evidence

to support the claims, rather than whether the plainuff will

ultimately prevail. Scheuer v. Rhodes, 416 U.S. at 236;

McDaniel v. Rhodes, 512 F. Supp. 117, 120 (S.D. Ohio

10 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

1981). A federal court cannot consider extrinsic evidence

in determining whether a complaint states a claim upon

which relief can be granted. Roth Steel Products v. Sharon

Steel Corp., 705 F.2d at 155; Sims v. Mercy Hospital of

Monroe, 451 F.2d at 173.

A complaint need not set down in detail all the

particularities of a plainuff’s claim against a defendant.

United States v. School District of Ferndale, 577 F.2d

1339, 1345 (6th Cir. 1978); Westlake v. Lucas, 537 F.2d at

858: Dunn v, State of Tennessee, 697 F.2d at 125. Rule

8(a)(2) simply requires a “short and plain statement of the

claim showing that the pleader is entitled to relief.” The

function of the complaint is to afford the defendant fair

notice of what the plainnff’s claim 1s and the grounds upon

which it rests. See Dunn v. State of Tennessee, 697 F.2d at

125; Westlake v. Lucas, 537 F.2d at 858.

However, the court will grant a defendant’s motion

for dismissal under Fed. R. Civ. P. 12(b)(6) if the complaint

is without any merit due to an absence of law to support a

‘claim of the iype made or of facts sufficient to make a valid

claim or if on the face of the complaint there is an insur-

mountable bar to relief indicating that the plainuff does not

have aclaim. See generally, Rauch v. Day & Night Manu-

facturing Corp,, 576 F.2d 697, 702 (6th Cir. 1978); Oitv.

Midland-Ross Corp., 523 F.2d at 1369; Brennan v. Rhodes,

11

CHAMBERLIN vy. UNITED STATES No. C-2-86-0869

423 F.2d 706 (6th Cir. 1970).

II. STATEMENTS OF FACTS

Plainuff’s complaint and attached exhibits

allege the following facts. On August 27, 1983, plain-

uff Charles Chamberlin, an enlisted member of the

United States Navy, sustained a head injury when he

fell out of a truck while on weekend leave from a

United States naval base in South Carolina. This head

injury was not sustained while engaged in any military

related activity. He was admitted to the emergency

ward of the Naval Regional Medical Center and re-

leased eight hours later. On August 29, 1983. he was

returned to the emergency ward and then transferred to

the University of South Carolina Hospital for a neuro-

logical evaluation. That evaluation determined that

plainuff had suffered bifrontal contusions, a left fronto-

temporal cerebral hematoma, and an occipital skull

fracture.

Plainuff claims to have permanent brain damage

with resultant reduced dexterity and psychomotor

coordination which has required and will continue to

require medical treatment. He states that this damage

12 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

occurred because defendant negligently failed to prop-

erly treat and test plaintiff when he was first admitted to

the emergency ward on August 27, 1983. Plainnff,

Romonia Chamberlin, plaintiff’s mother, has made a

loss otf consortium claim.

Plainuff, Charles Chamberlin, submitted an

administrative claim dated August 27, 1985 to the

Naval Legal Service Office for his injuries. On Apml

14, 1986, the claim was denied on the basis of Feres v.

United States, 340 U.S. 135 (1950). This action was

filed on July 18, 1986.

I. LEGAL ANALYSIS

Defendant advances two arguments in support

of its claim that this lawsuit must be dismissed. First,

defendant argues that it cannot be held liable under the

FTCA because plaintiff’s injuries arose out of or were

-in the course of activity incident to his military service.

Second, defendant claims this action is barred because

plaintiff failed to timely file his administrative claim as

required by 28 U.S.C. § 2401(b).

A. FEDERAL TORT CLAIMS ACT

13 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

The FTCA provides that the United States shall be

liable for “injury...caused by the negligent or wrongful act

or omission of any employee of the Government...under

circumstances where the United States, if a private person.

would be liable to the claimant...” 28 U.S.C. § 1346(b). In

Feres v. United States, 340 U.S. 135 (1950), the Supreme

Court recognized an exception to the government $s liability

in relation to members of the Armed Forces. The Court

held that “the Government is not liable under the Federal

Tort Claims Act for injuries to servicemen where the

injuries arse out of or are in the course of activity incident

to service.” Id. at 146. Three factors underlie this excep-

tion: (1) the distinctly federal character of the relationship

between the government and members of its Armed Forces:

(2) the existence of statutory disability and death benefits:

and (3) the fact that these claims, if generally permitted.

would involve the judiciary in sensitive military affairs at

the expense of military discipline and effectiveness.

Stencel Aeor Engineering Corp. v. United States, 431 U.S.

666, 671-72 (1977); accord, United States v. Johnson, 55

U.S.L.W. 4647, 4648-49 (May 18, 1967). Although all

three factors play a part in the decision-making process, the

Supreme Court made clear in Uni v. Sh r, 473

U.S. 52, 57 (1985), that it is the third factor which best

explains the Feres decision.

Although the Court in EFeres based its decision on several

14 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

grounds, “‘[i]n the last analysis, Feres seems best explained

by the peculiar and special relationship of tne soldier to his

superiors, the effects of the maintenance of such suits on

discipline, and the extreme results that might obtain if suits

under the Tort Claims Act were allowed for negligent

orders given or negligent acts committed in course of

military duty.” United States v. Muniz, 374 U.S. 150, 162

(1963), quoting United States v. Brown, 348 U.S. 110, i12

(1954).

The standard focuses solely upon the injured per-

son; the military status of the alleged tortfeasor is not

crucial to the application of the doctrine. Johnson, 55

U.S.L.W. at 4648. “Instead, the Feres doctrine has been

applied consistently to bar all suits on behalf of service

members against the Government based upon service-

related injuries.” Id. at 4648-49.

The focus in the present case is upon whether

plaintiff’s injuries were “incident to service.”” The term is

not an easy one to define or to apply. Woodside v. United

States, 606 F.2d 134, 141 (6th Cir. 1979), cert. denied, 445

U.S. 904 (1980). It is not limited to actual military activi-

ties; rather, it extends beyond situations where a soldier is

acting pursuant to orders or subject to direct military

control. Id. Conversely, the test is not a purely causal one.

“{O]ne cannot merely state that but for the individual’s

15 CHAMBERLIN vy. UNITED STATES No. C-2-86-0869

military service, the injury, would not have occurred.”

Parker v. United States, 611 F.2d 1007, 1011 (5th Cir.

1980). The test as set forth by the Sixth Circuit in

Woodside, 606 F.2d at 141, is as follows:

Whether a service member is engaged in an

activity incident to service 1s a question of

fact....to be determined from the circum-

stances of each case. It is not enough that

injury or death be service-connected in that

military service precede the injury-produc-

ing activity only in the sense that ‘‘all human

events depend upon what has already

transpired.” Brooks, 337 U.S. at 52, 69 S.

Ct. at 920. Rather, Feres requires that there

be some proximate relationship between the

service member's activity and the Armed

Forces. Where the two are closely associ-

ated or naturally related, the activity will be

deemed “‘incident to service” even though

not an essential or integral part of the mis-

sion of the Armed Forces and even though

not directly involving a command relation-

ship between the soldier and the military.

Conversely, when the soldier demonstrates

that the activity had no significant link to the

CHAMBERLIN v. UNITED STATES No. C-2-86-0869

Armed Forces and is remote to his military

service, suit under the Act has been allowed.

(citations omitted).

Applying this standard to the facts in Woodside, the

xth Circuit found that the plaintiff was an active duty

ficer who was on a five day leave from the Air Force.

ainuff had a personal interest in aviation, totally unre-

ied to his military duties, and was a member of the Air

ce Base Aero Club. While on leave, plaintiff was taking

ght instructions through the Club. The aircraft crashed

ling plaintiff and his instructor. Id. at 136-37. The

xth Circuit held that the lawsuit was barred because.

1ong other factors, it was only by virtue of plaintiff’s

litary service that he was able to be a member of the

TO Club which had a direct and substantial link with the

r Force. The Court stated:

We recognize that at the time of his death

Captain Schroeder was on leave and that he

was not subject to military discipline in the

sense that his movements were subject to

immediate control of military authorities.

Even in the absence of these factors, we find

the link between the Air Force and the Club

sufficient to bring Captain Schroeder’s flight

instructions within the realm of activities

17 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

incident to his military service. Id. at 142.

Another Sixth Circuit case involving a serviceman

on leave is Hale v. United States, 452 F.2d 668 (6th Cir.

1971). In Hale, the plaintiff was hitchhiking back to base.

Two privates in a military patrol car, who could have

arrested plaintiff for hitchhiking, offered him a mde back to

the base. While climbing into the truck, he was struck and

injured by a speeding car. The Sixth Circuit found the suit

barred becausewhen appellant started to enter the M.P.

truck, whether as a result of invitation or command, he re-

entered a direct disciplinary relationship with his army

command and as a consequence, there is no ground for

reversal of the District Judge's findings that his injunes

arose out of or in the course of military duty.Jd. at 609.

These cases establish that a crucial factor in the

Court's analysis is plaintiff’s status in relation to the Naval

Regional Medical Center and that Center’s status in relation

to the United States Navy. Plaintuff alleges that he was on

leave when the injury occurred and that the Center treated

civilians as well as military personnel. Whether or not

plainuff’s treatment in the emergency ward re-established

his link with the military sufficient to warrant a finding that

the Feres exception applies is a question of fact. The mere

fact that he is a serviceman who received emergency

treatment at the Naval Regional Medical Center is insuffi-

18 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

cient to find as a matter of law that he can set forth no set

of facts in support of his claim. “The Feres doctrine cannot

be reduced to a few bright-line rules; each case must be

examined in light of the statute as it has been constructed in

Feres and subsequent cases.” Shearer, 473 U.S. at 57.

B. STATUTE OF LIMITATIONS

28 U.S.C. § 2401(b) provides:

A tort claim against the United States shall

be forever barred unless it is presented in

writing to the appropriate Federal agency

within two years after after such claim

accrues or unless action is begun within six

months after the date of mailing by cernfied

or registered mail, or notice of final denial

of the claim by the agency to which it as

presented.

Defendant argues that although plaintff’s claim is

dated August 27, 1985, it was not received by the agency

until August 28, 1985. Because plaintiff’s injury occurred

on August 27, 1983, defendant argues that his claim was

filed beyond the two-year statutory deadline. Plainriff

argues that from the time he first received treatment until

he was discharged from the University of South Carolina

19 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

Hospital in September or Qctober of 1983, he was essen-

tially incoherent and it would have been impossible for him

to discover the negligent treatment prior to his discharge.

The general rule in tort actions under the FTCA is

that the two-year statute of limitations period begins to run

when the plaintiff is injured. United States v. Kubnck, 444

U.S. 111, 120 (1979). However, when the claim 1s one for

medical malpractice, the statue of limitations period is

tolled until the plaintiff possesses the critical facts ot his

injury and its cause, even though he does not know or has

no reason to know that the cause involved negligence. Id.

at 122. Courts interpreting Kubnck have held that the

statue begins to run when the plaintiff discovers. or in the

exercise of reasonable diligence should have discovered.

the existence of his injury and its connection with some act

of the defendant. See Niclolazzo v. United States, 786 F.2d

454, 455 (1st Cir. 1986); Price v. United States, 775 F.2d

1491, 1494 (11th Cir. 1985); Inre Swine Flu Products

Liability Litigation, 764 F.2d 637, 639 (9th Cir. 1985);

Drazan v. United States, 762 F.2d 56, 58-59 (7th Cir.

1985); Waits v. United States, 611 F.2d 550, 552 (Sth Cir.

1980).

In the present case, plaintiff Charles Chamberlin

was admitted to the emergency ward on August 27, 1983

and released eight hours later on the same date. At the very

eee

a on ee ee -

a

20 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

earliest, plaintiff could not have been expected to know the

critical facts of his injury and its cause until he was read-

mitted to the University of South Carolina Hospital two

days later on August 29, 1983 when additional tests were

run. Accordingly, taking the earliest date when plainuff

could possibly have been aware that his injury was in some

way connected with the treatment he received, his adminis-

trative claim was filed within the two year limitations

period.

In regard to plaintiff Romonia Chamberlin, how-

ever, there is no evidence or allegation that she ever filed a

claim with a federal agency for loss of her son’s services or

for providing nursing services to him. Pursuant to 28

U.S.C. § 2675(a), no action can be instituted against the

United States unless the ciaim is first presented to the

appropriate federal agency. As stated earlier. pursuant to

28 U.S.C. § 2401, the claim must be filed within two years

after the cause of action accrues.

The prerequisites necessary to file suit against the

government under the FTCA are strictly construed since the

conditions are considered to be jurisdictional. See Stewart

v. United States, 458 F. Supp. 871, 872 (S.D. Ohio 1978)

and cases cited therein. Although plaintiff Romonia _

Chamberlin’s claim is derivative in nature, it is an inde-

pendent action, separated and distinct from her son’s claim.

21 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

In addition, neither plaintiff Charles Chamberlin’s adminis-

trative claim not the transmittal letter for the claim (at-

tached to plainuffs’ complaint) makes any mention of

plaintiff Romonia Chamberlin’s claim for services or loss

of services. Accord, Stewart, 458 F. Supp. at 872-73. As

such, her claym fails to meet the necessary statutory re-

quirements and must therefore be dismissed. Accord

Swizdor v. United States, 581 F. Supp. 10, 12 (S.D. lowa

1983).

IV. CONCLUSION

Based upon the above, the Court takes the following action:

l. Defendant's motion to dismiss plaintiff Charles

Chamberlin’s claim (Count | of the complaint) is DENIED:

y Defendant’s motion to dismiss plaintiff Romonia

Chamberlin’s claim (Count 2 of the complaint) is

GRANTED.

IT IS SO ORDERED.

John D. Holschuh, Judge

United States District Court

22 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

28 U.S.C. §1346

(a) The district courts shall have original jurisdiction,

concurrent with the United Claims Court of:

(1) Any civil action against the United States for the

fecovery of any internal-revenue tax alleged to have been

erroneously or illegally assessed or collected, or any sum

alleged to have bvcn excessive or in any manner wrong-

fully collected under the internal-revenue laws;

(2) Any other civil action or claim against the United

States, not exceeding $10,000.00 in amount, founded

either upon the Constitution, or any Act of Congress, or

any regulation of an executive department, or upon any

express or implied contract with the United States, or for

liquidated or unliquidated damages in cases not sounding

in tort, except that the district courts shall not have

junsdiction of any civil action or claim against the United

States founded upon any express or implied contract with

the United States or for liquidated or unliquidated dam-

ages in cases not sounding in tort which are subject to

sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act

of 1978. For the purpose of this paragraph, an express or

implied contract with the Army and Air Force Exchange

Service, Navy Exchanges, Marine Corps Exchanges, Coast

Guard Exchanges, or Exchange Councils of the National

Aeronautics and Space Administration shall be consid-

ered an express or implied contract with the United States.

(b) Subject to the provisions of chapter 171 of this

title, the district courts, together with the United States

District Court for the District of the Canal Zone and the

District Court of the Virgin Islands, shall have exclusive

jurisdiction of civil actions on claims azainst the United

States, for moneyAamages, accruing on and after January

1. 1945, for injyfry or loss of property, or personal injury

@ death cau by the negligent or wrongful act or

@mission of anye yee of the Government while acting

Within the scope of his or employment, under

Grcumstances where the United States, if a private person,

BEST AVAILABLE COPY

23 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

would be liable to the claimant in accordance with the law of

the place where the act or omission occurred.

(c) The jurisdiction conferred by this section includes

jurisdiction of any set-off, counterclaim, or other claim or

demand whatever on the part of the United States against any

plainuff commencing an action under this section.

(d) The district courts shall not have jurisdiction under

this section of any civil action or claim for a pension.

. (e) The district courts shall have original jurisdiction

of any civil action against the United States provided in

section 6226, 6228(a), 7426, or 7428 (in case of the United

States district court for the Distnict of Columbia) or section

7429 of the Internal Revenue Code of 1954.

(f) The district courts shall have exclusive original

jurisdiction of civil actions under section 2409a to quiet title

to an estate or interest in real property in which an interest is

claimed by the United States.

28 U.S.C. §2671

As used in this chapter and sections 1346(b) and

2401(b) of this title, the term “Federal agency” includes the

executive departments, the military departments, independ-

ent establishments of the United States, and corporations

primarily acting as instrumentalities or agencies of the United

States, but does not include any contractor with the United

States.

“Employee of the government” includes officers or

employees of any federal agency, members of the military or

naval forces of the United States, member of the National

Guard while engaged in training or duty under section 316,

502, 503, 504, or 505 of titie 32, and persons acting on behalf

of a federal agency in an official capacity, temporarily or

ee

py CHAMBERLIN v. UNITED STATES No. C-2-86-0869

permanently in the service of the United States, whether with

or without compensation. .

“Acting within the scope of his office or employ-

ment’, in the case of a member of the military or naval forces

# the United States or a member of the military or naval forces

xf the United States or a member of the National Guard as

fefined in section 101(3) of title 32, means acting in the line

wf duty.

§ 2672. Administrative adjustment of claims

The head of each Federal agency or his designee, in

accordance with regulations prescribed by the Attorney

General, may consider, ascertain, adjust, determine, compro-

mise, and settle any claim for money damages against the

United States for injury or loss of property or personal injury

wr death caused by the negligent or wrongful act or omission

of any employee of the agency while acting within the scope

of his office or employment, under circumstances where the

Jnited States, if a private person, would be liable to the claim-

wt in accordance with the law of the place where the act or

ymission occurred: Provided, That any award, compromise,

wt settlement in excess of $25,000 shall be effected only with

he prior written approval of the Attorney General or his

iesignee.

Subject to the provisions of this title relating to civil

tions on tort claims against the United States, any such

ward, compromise, settlement, or determination shall be

inal and conclusive on all officers of the Government, except

vhen procured by means of fraud.

Any award, compromise, or settlement in an amount

£ $2,500 or less made pursuant to this section shall be paid by

ie head of the Federal agency concerned out of appropria-

ions available to that agency. Payment of any award, com-

mise, or settlement in an amount in excess of $2,500 made

farsuant to this section or made by the Attorney General in

@y amount pursuant to section 2677 of this title shall be paid

®a manner similar to judgments and compromises in like

BEST AVAILABLE COPY

25 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

Causes and appropriations or funds available for the payment

of such judgements and compromises are hereby made avail-

able for the payment of awards, compromises, or settlements

under this chapter.

The acceptance by the claimant of any such award,

compromise, or settlement shall be final and conciusive on the

claimant, and shall constitute a complete release of any claim

against the United States and against the employee of the

government whose act or omission gave rise to the claim, by

reason of the same subject matter.

28 U.S.C. § 2673

The head of each federal agency shall report annually

to Congress all claims paid by it under section 2672 of this

title, stating the name of each claimant, the amount claimed,

the amount awarded, and a brief description of the claim. June

25, 1948, c. 646, 62 Stat. 983.

Repeal

Section 1(1) of Pub. L. 89-348, Nov. 8, 1965. 79 Stat.

1310, repealea the requirement that an annual report to Con-

gress be made of the administration adjustment of tort claims

of $2,500.00 or less, stating the name of each claimant, the

amount claimed, the amount awarded, and a brief description

of the claim.

28 U.S.C. §2674

The United States shall be liable, respecting the provi-

sions of this utle relating to tortclaims, in the same manner and

to the same extent as a private individual under like circum-

stances, but shall not be liable for interest prior to judgement

or for punitive damages.

If, however, in any case wherein death was caused, the

CHAMBERLIN v. UNITED STATES No. C-2-86-0869

w of the place where the act or omission complained of

curred provides, or has been construed to provide, for

mages only punitive in nature, the United States shall be

ble for actual or compensatory damages, measured by the

cuniary injuries resulting from such death to the persons

spectively, for whose benefit the action was brought, in lieu

sreof. June 25, 1948, c. 646, 62 Stat. 983.

U.S.C. $2675

(a) An action shall not be instituted upon a claim

ainst the United States for money damages for injury or loss

property or personal injury or death caused by the negligent

wrongful act or omission of any employee fo the Govern-

ent while acting within the scope of his office or employ-

ent, unless the claimant shall have first presented the claim

the appropriate Federal agency and his claim shall have

en finally denied by the agency in wnmiting and sent by

rtified or registered mail. The failure of an agency to make

1al disposition of a claim within six months after is is filed

all, at the option of the claimant any time thereafter, be

emed a final denial of the claim for purposes of this section.

le provisions of this subsection shall not apply to such

ims as may be asserted under the Federa! Rules of Civil

ocedure by third party complaint, cross-claim, or counter-

um.

(b) Action under this section shall not be instituted for

y sum in excess of the amount of the claim presented to the

leral agency, except where the increased amount is based

on newly discovered evidence not reasonably discoverable

the time of presenting the claim to the federal agency or

on allegation and proof of intervening facts, relating to the

ount of the claim.

(c) Disposition of any claim by the Attorney General

other head of a federal agency shall not be competent

idence of liability or amount of damages.

27 CHAMBERLIN vy. UNITED STATES No. C-2-86-0869

(As amended July 18, 1966, Pub. L. 89-506, § 2, 80 Stat. 306.)

28 U.S.C. §2676

The judgment in an action under section 1346(b) of

this title shall constitute a complete bar to any action by the

claimant, by reason of the same subject matter, against the

employee of the government whose act or omission gave rise

to the claim. June 25, 1948, c. 646, 62 Stat. 984.

28 U.S.C. $2677

The Attorney General or his designee may arbitrate.

compromise, or settle any claim cognizable under section

1346(b) of this title, after the commencement of an action

thereon.

(As amended July 18, 1966, Pub.L. 89-506 § 3, 80 Stat. 307.)

28 U.S.C. §2677

No attorney shall charge, demand, receive, or collect

for services rendered, fees in-excess of 25 per centum of any

judgement rendered pursuant to section 1346(b) of this title or

any settlement made pursuant to section 2677 of this tide. or

in excess of 20 percertum of any award, compromise, or

settlement made pursuant to section 2672 of this title.

Any attorney who changes, demands, receives, or

collects for services rendered in connection with such claim

any amount in excess of that allowed under this section, if

recovery be had, shall be fined not more than $2,000.00 or

imprisoned not more than one year, or both.

EEE EE

28 U.S.C. $2677

(a) The authority of any federal agency to sue and be

sued in its own name shall not be construed to authorize suit

against such federal agency on claims which are cognizable

under section 1346(b) of this title, and the remedies provided

by this utle in such cases shall be exclusive.

(b) The remedy against the United States provided by

ee

; CHAMBERLIN v. UNITED STATES No. C-2-35-0869

tctions 1346(b) and 2672 of this title for injury or loss of

roperty of personal injury or death, resulting trom the opera-

pn by any employee of the Government of any motor vehicle

hile acting within the scope of his office of employment,

pall hereafter be exclusive of any other civil action or pro-

»eding by reason of the same subject matter against the

mpioyee or his estate whose act or omission gave nse to the

aim.

(c) The Attorney General shall defend any civil action

t proceeding brought in any such damage or injury. The

mployee against whom such civil action or proceeding is

fought shall deliver within such time after date of service or

nowledge of service as determined by the Attorney General,

] process served upon him or an attested true copy thereof to

is superior or to whomever was designated by the head of his

gpartment to receive such papers and such person shall

fomptly furnish copies of the district embracing the place

herein the proceeding is brought, to the Attorney General.

ad to the head of his employing Federal Agency.

(d) Upon a certification by the Attorney General that

l¢ defendant employee was acting within the scope ot his

mployment at the time of the incident out of which the suit

se, any civil action or proceeding commenced in a State

urt shall be removed without bond at any time before tal

y the Attorney General to the district court of the United

fates for the district and division embracing the place wherein

is pending and the proceedings deemed a tort action brought

‘ainst the United States under the provisions of this ttle and

| references thereto. Should a United States districs court

termine on a hearing on a motion to remand held before a

ia] on the merits that the case so removed is one in which a

Medy by suit within the meaning of subsection (b) of this

¢tion is notavailable against the United States, the case shall

‘remanded to the State court.

29 CHAMBERLIN vy. UNITED STATES No. C-2-86-0869

(e) The Attorney General may compromise or settle

any claim asserted in such civil action or proceeding in the

manner provided in section 2677, and with the same effect.

June 25, 1948,c. 646, 62 Stat. 984; Sept. 21, 1961, Pub.L.

87-258, § 1, 75Stat.539.

§ 2680. Exceptions

The provisions of this chapter and section 1346(b) of this

title shall not apply to-

(a) Any claim based upon an act or omission of an

employee of the Government, exercising due care, in the

execution of a statute or regulation, whether or not such

statute or regulation be valid, or based upon the exercise or

performance or the failure to exercise or perform a discre-

tionary function or duty on the part of federal agency or an

employee of the Government, whether or not the discretion

involved be abused.

(b) Any claim arising out of the loss, miscaimage, or

negligent transmission of letters or posial matter.

(c) Any claim arising in respect of the assessment or

collection of any tax or customs duty, or the detention of

any goods or merchandise by any officer of customs or

excise or any other law-enforcement officer.

(d) Any claim for which a remedy is provided by

sections 741-752, 781-790 of Title 46, relating to claims or

Suits in admiralty against the United States.

(e) Any claim arising out of an act or omission of

any employee of the Government in administering the

provisions of sections 1-31 of Title 50, Appendix

(f) Any claim for damages caused by the imposition

or establishment of a quarantine by the United States

™

30 CHAMBERLIN v. UNITED STATES No. C-2-86-0869

(g) Repealed. Sept. 26, 1950, c. 1049, § 13(5), 64

Stat. 1043.

(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of

process, libel, slander, misrepresentation, deceit, or inter-

ference-with contract nghts: Providzd, That, with regard to

acts of omissions of investigative or law enforcement

officers of the United States Government, the provisions ot

the chapter and section 1346(b) of this title shall apply to

any claim arising, on or after the date of the enactment of

this proviso, out of assault, battery, false impnsonment,

false arrest, abuse of process, or malicious prosecution. For

ihe purpose of this subsection. “investigative or law en-

forcement officer* means any officer of the United States

who is empowered by law to execute searches, to seize

evidence, or to make arrests for violations of Federal law.

(1) Any claim for damages caused by the fiscal

operations of the Treasury or by the regulation of the

monetary system.

(j) Any claim ansing out of the combatant activities

of the military or naval forces, or the Coast Guard, during

time of war.

(k) Any claim arising in a foreign country.

(1) Any claim arising from the activities of the

‘Tennessee Valley Authority.

(m) Any claim arising from the Panama Canal

Company.

(n) Any claim arising from the activities if a Federal

land bank, and Federal intermediate credit bank, or a bank

for cooperatives.