Petition for Writ of Certiorari — Sheppard v. United States

&

PETITION FOR A WRIT OF CERTIORARI TO THE

IN THE

Supreme Court of the. United States . ar oe

‘ ‘eo 1966, No. 4 04. : E

JOSEPH B. SHEPPARD, SR., Administrator of the Estate

of JOSEPH B. SHEPPARD, JR., and,ANTHONY G.

MOCCIA, Administrator of the Estates of WILLIAM

BRADLEY BREON | and MICHAEL J. MONDO, JR... _ |»

1 eae : Petitioners, ee

| t vs. ,

UNITED STATES OF. AMERICA,

nanan.

—*

UNITED STATES COURT OF APPEALS. FOR THE

‘THIRD CIRCUIT. a

.

STEPHEN M.-FELDMAN:

JOSEPH G, FELDMAN,

*420 Six Penn Center Pfaza,

Philadelphia, Pennsylvania,

Attorneys for Petitioners.

Of Counsel: ©

' Hy MAYERSON.

' Huntzinger Printing Corp., Appellate Printers, Camden, N. J. nt

s

2 INDEX "

| r : PAGE

ME Se ae CEN ca va bedi’ 2

Jurisdiction ............6.. See peeie: Ress We NE 2

“ Question Presented ...... SE Cate ree rere e

* Statute Involved raven’ eee ta err guia hee e as kcal 3 2

| Statement. A eS ee ea errr or 3 vee

“Reasons for Granting the Writ | meee ete, a» .

Conclusion aaa cae casuaeves aa rere ae a

APPENDIX: . 2 . ,

A. Statute oe cesitandets chins dee ertas eee

B. Opinion and Judgment Below .....2.......++.+. 16

me Conflicting Ripicien pei do eis cen us photos Se: ine

TABLE OF CITATIONS

+ CASES: ; : Pie a

Blaber v. . United. States, 332 F.2d 98 (2d Cir. 19 i964) . a ie

Blumenthal v. United. States, 306 F.2d 16 (3d Cir.

Re ee re pe iM crac y yg Bel

Brooks v. United States, 337 iva 49 (1949). ....4,5,9,11.

Brown v. United States, 99 F. Supp. 685 (S.D.W. Va.

0 RIOT OR. ae ....7, 8,9, 10

“

INDEX ee

‘ ag tae ae PAGE

Calloway v. aa 289 F.2d, 171 (9th Cir. 1961), -

. cert. den. 308 U.S. 874 (1961) ...:...6.5...005. 9,12

Costley v. United States, “181 F. 2d 723 (5th C Cir. 1950) 8

_Dalehite v. United States, 346 U. s. TP RPE) cccsssee 6,.7

- Downes v. United States, 249 F. Supp. 626 (E.D.N.C.

"2 a — leer yer oes t Ruveertarenuenees rey: .9, 10, 12...

Fair Vv. United States, 234 F.2d:288 (5th Cir. 1956) : T

_ Feres v. get ee 340 U.S. 135 (1950) ..4, 5,6, 7,8,

5

n v. Lockheed Aircraft jain 138 F. Supp.

530 (E.D: N.Y. ae) ee, LEE LTTE 11

Georgetown College v. Hughes, 130 F.2d 810 (D. c.

Cir. 1942) ooo ees c seeks sees cepeesetewesetece abe

Grigalauskas v. United. States, 103 F. Supp. 543 (D.

Mass. 1951), aff'd 196 F.2d | 494 (ist Cir. 1952):.. 8

-Gursley v. United States, 232.F. Soy 614 (D. Colo.:

EN cocs ARATE Sh ON eS 9, 12

Herring v: United States, 98 F. Supp 69 (D.. Colo.

po Be a ences Noe eet eres ae

Indian sais v. United States, 350 U. s. 61 (1955) .

| Johnsori v. Peoples First National Bank & Trust Co.,

394 Pa, 116, 145 A.2d 716 (1958) ............... = 8

Lee v. United States, ——F. Supp. —— (C.D. Calif,

ee 4,12

: 1961) eet ata a 8

. e . a ° |

ee a SS ae di ik Rann dante! aims St —— wpm eter yee

: o

9,10, 13 .

- 67,8, 8

x R

J. eee

< INDEX .

* ,

:

BAG PAGE

Mertens v. Fiying Tiger Line, , Ine., 341,F.2d 851 Cn

Cir. 1965) . ESET COE. CORE POT Ter oer En 42

Messer v.-United States, 95 F. Sing | 512 (ND. So

+ DMD Se RA cdedvex viens Peer eter eect ewer ene, i

Muniz v. United Steve: 374 US. 150- (1963) cesve 4,5, 7,8 °

Nowotriy Vv. Turnet, , 203° F. ‘Supp. 802 oars N. C..

3 1962) ir A My Van Dio rel eae ua 9

- Orken v. United States, 239 F.2d 850 (6th Cir. 1956) . 97

_ Preferred Ins. Co. Vv. United States, 222 F.2d 942, (9th

” Cir, 1955), cert. denied, 350 ‘U.S. 837 (1955) . sn

Rayonier v. United States, 352 US. 315 (1957) . .4, 6, 7,8

Rogers v. ‘United States, 216 F. Supp. 1 (S.D. Ohio

os MEP CEE EEE y ory erry peg ential y hae 8

Sapp v. United States) 153 F. Supp: 496 (W.D. La...

1957)...... Gavaten tani. Kacve ta deere Ck ke sows 9

Schmidt v. pera Flyers Airline Corp., 9 CCH

* Avi. 18, 334 (S.D. N.Y. SE as cusve cs Sebo ees 12

. Sunde v. am States, 118 F. Supp. 585° (D. Md.

_ 1954), aff'd sub. nom, United States v. Guyer, 218

Fd S06 (4th Cir, 1904)... oc iccc cece este 9

United Air Lines, Inc, v. Wiener, 335 F.2d 379 (9th |

Cir. 1964) (ue retiens cede eta eeek Pee Pear ll

United States v. Brown, 348 U.S. 110 fo re 4,5

United States v. Hunsucker, a F.2d 98 . (9th bia

sodas ean Peete PeOT CEES Poe re ero re ee oot.

1960) We eee Pioreaic ie Oe:

._ STATUTES:

. ‘ , PAGE

Warren Vy, Flying’ Tiger Line, Inc., 352 F 2d 494 ‘rae |

Cie. AODBY foo ee cnscsbs par ene enim ASD EE 12

Wildwood Mink Ranch,y. United States, 218 F. Supp.

‘Federgl Tort-Claims Act (28 USC sient etseq.)... 4

‘Uniform Code of Military Justice (190 USC. 9892) . i?

7

MiscELLANEOUs: : ls et

” Caruso; An elite of thie Evolution of the Supreme .

Court’s Concept of the Federal Tort Claims Act,

SQ,

26 Fed. Bar J. 35 (1966) .......... bene eeeeeee 4

- 32 Code Fed. Regs...» sas: Baas: oe ae

Manual for Courts Martial EER rg ray see Cae jo ee

‘Prosser, ‘The Law of Torts aa aa's | ome ae ae Sere Ste

ie

. mee

bacives ae ee

e?

* ee a

yaa

» -. INTHE |

"SUPREME COURT OF THE UNITED STATES

’ aay Wee

_ Ocroper Term, 1966, No: « .

°¢

© ee

§ OSEPH B. SHEPPARD,’ SR., | Administrator of the Estate of

*,

JOSEPH B. SHEPRARD, JR., and ANTHoNy G. Moccia, Ad-:

ministrator of the Bitates. of WILLIAM BRADLEY BREON .

and MicHAEL J. Mowpo, JR., .

Petitioners, .

Vs.

UniTep STATES. OF AMERICA, |

ee + 2 : " “Respondent.

hs a

a e «4

| ‘PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD ‘taste

TO THE HONORABLE, THE: JUDGES ‘OF THE “SAID. ‘,

COURT: | 4

Petitioners respectfully pray that a writ of certiorari issue

to review the judgment of the United States Court of Ap-

peals for the Third Circuit, entered in the shove-entitied

case on December 12, 1966.

5 . ¢ : i

e Ye ;

a ee ee scant *

: tig 5 ’

%

a T4 ‘ | | . 2

| CITATION TO OPINIONS BELOW.

The menue opinion of the District Court for the

“Eastern District of Pennsylvania i is unreported and is printed _

in Appendix B hereto, infra at page 16. The Opinion of ©

the Court of Appeals for the Third Circuit is reported at

° 369 F.2d 272, and is —? in | Appendix: B hereto, infra

at pages 16-17.

e ‘

Yo

_ JURISDICTION.

4 :

‘ The ‘tiie of the Court ‘of Appeals for the Third

_ Circuit was entered on December 12, 1966, Jurisdiction of

this. Court is inyoked under 28 U.S.C. §1254 (1).

oe

Views ’ )

QUESTION PRESENTED.

Whether Feres v. United States, 340 U.S. 135 (1950) ‘has

been modified by subsequent decisions of this Court so that — :

the. next of kin and estates of three marines killed in the

crash of an air force plane on which they,were passengers

_ may maintain an action against the United States under

- the Tort Claims Act based on the negligence of the-air force .

pilot who flew the aircraft, members of the ground crew

-who serviced the aircraft and.personnel in the control tower

who gave erroneous take-off instructions to the pilot, there

_ being no direct military relationship between decedents and

the alleged tortfeasors, and there being no threat to military

heer. war by the maintenance of this action.

_ ’ dent decedents were passengers on the aircraft, being trans-

»

_ STATUTE INVOLVED.

en ~

The statute involved is the Federal Tort Claims Act (28

U. S. C. §§2671 et seq.), the relevant portions of which are

printed in Appendix A hereto, infra at pages 14-15.

s ; id r . he

a@

STATEMENT T.

This action under the Federal Tort Claims Act (28 U. S.C.

§§2671-et seq.) seeks damages for the estates and next of:

kin of three marines who, together with 69 other marines

and an air force crew of 12, were killed in the crash of a

United States Air Force plane in California on June 25,

1965, as a result of the alleged negligence of the Air Force

and other government employees in the maintenance, oper-

ation and control of the aircraft. At ‘the time of the acci- .

- ported from one duty.station to another.

The motion of the United States to dismiss the complaint

- under Rule 12 (b) for lack of jurisdiction over the subject

‘matter and for failure to state a claim was granted by the

District Court in reliance on Feres v. United States, 340

_ULS. 135 (1950), since decedents were m mbers of the armed

- forces on active duty at the time of the accident.

The Court of Appeals for the Third Circuit affirmed the

order of the District Court*and likewise based its decision °

on the Feres case, ignoring the subsequent decisions of this

Court which have severely modified and limited t, e reason-

ing of Feres. .

o

_ REASONS FOR GRANTING THE WRIT.

- 1, The opinion of the Court of Appeals in the instant case,

while in harmony with the literal language of Keres v.

United States, 340. U.S. 135 (1950), is in conflict with thé

reasoning in United States v. Brown, 348 U.S.°110 (1954);

Indian Towing Co. 3. United States, 350°U.S. 61 (1955); Ray-

onier v. United States, 352 U.Si315 (1957); and Muniz v.

United States, 374 U.S. 150 (1963), which limited and al-

tered the rationale of the Feres case. In a recent action ~

based on the death ‘of: another marine killed in the same

crash involved here the government’s motion to dismiss was

,, denied by the District Court for the Central District of —

* California, which held that Feres had been modified and

limited by later decisions of this Court, thus reaching a

result in direct conflict with the present case. Lee v. United:

States, ——F. Supp. (C.D.* Calif. 1966). (Reprinted

in Appendix C’ hereto, at pages 18-25 infra). See also, ©

.Caruso, An Analysis of the Evolution of the Supreme

Court’s Concept of the Federal Tort Claims Act, 26 Fed.

~N Bar J. 35 (1966).

Feres v. United States, 340 US. 135 (1950),. held that a

'.’ serviceman on active duty could not recover under the Tort

. Claims Act for injuries incident to their service even though.

- the language and history of the Act was “persuasive of

liability. on ‘(340 U.S. at 138.) As later explained in Muniz

1 For example: The Tort Claims Act itself defines “employee of the

* government” for whose negligence the United Sates will be liable as.

including “members of the military or naval forces” (28 U.S.C. $2671.)

Although many of the tort claims bills which preceded the final Act

contained specific provisions excluding liability to servicemen in gen-

eral, and although the Act itself contains twelve specific exclusions

from liability, including an exclusion for “combatant activities of the

_ military or naval forces, or the Coast Guard, during time of war”

" (28 U.S.C. §2680 (j)), there is no general exclusion of liability to serv-

icemen in the: Act. See Brooks v. Urtited States, 337 U.S. 49, 51-52.

(1949).

* _ veteran’s benefits as he would-be if his injury had been in-

- 13.

5 a

v. United States: 374 U.S. 150, 159 (1963), the iis follow-

ing reasons were articulated in Feres for denying recovery:

“(1) the absence of an‘analogous or parallel liability,

on the part of either an individual or.a State; no in- -

dividual has power to mobilize a militia, no State has

been held liable to its militiamen; (2) the presence of a

comprehensive compensation system. for" service per- \

sonnel; (3) the dearth of private bills from the military;

(4) the distinctly federal relationship of the soldier to

his superiors and the Government, which should not be

disturbed by state laws; and (5) the variations in state

law to which soldiers:would be subjected, involuntarily,

since they have no choice in wheré they go.”

United States v. Brown, 328 U.S. 110 (1954), allowed re-

covery toa veteran for injuries received in a veteran’s hos-.

pital even though the plaintiff was entitled to the same

curred on active duty,* thus eliminating the existence of | .

veterans benefits as a ground for denying recovery. The -~

, Court explained Feres on the ground that recovery by mili-

tary personnel on active duty would “visit the Government

with novel and unprecedented anauarmee x 848 USS. at 112-

Indion Towing Co. v, United States, 350 U.S. 61 (1955),

held the United States liable under the Tort Claims Act

for the Coast Guard’s negligence in failing to keep a light- .

‘house light burning causing plaintiff’s tug to run aground,

thus eliminating the absence of analogous private liability .

as a ground for denying recovery. The majority dealt with

Feres by observing that Feres held only that “the Govern-

“ment is not liable under the Federal Tort Claims Act for

-2In Brooks v. United States, 337 U.S. 49, 53 (1949), the plaintiff was

not barred from recovery even though he was likewise erititled to the

same benefits as if he had. been injured while not on furlough.

6

injuries to servicemen where the injuries arise out of or

are in the course of activity incident to service.” 350 U.S. at

69. The inadequacy of the majority’s “distinction” of Feres,

- and the obvious conflict between Indian Towing and Feres

was stressed in the dissenting opinion of Justice Reed,

joined by Justices Burton;Clark and Minton, as follows:

_ . “In Feres we talked of private liability and came to

a conclusion which is contrary to that reached by the

Court today.” (350 U.S. at 75.)

_ Rayonier v. United States, 352 U.S. 312 (1957), held the

United States liable for the negligence of government em-

ployees in allowing a forest fire to start and in failing to ex-

tinguish the fire, thus further emphasizing that thé absence

_ of parallel private liability was not a basis for denying re-

covery. Although the majority opinion avoided mention of .

Feres, the language and spirit of Rayonier is in direct op-

position to Feres. Whereas in Feres, 340 US. at 142, the

Court had held: © | : .

“We find no parallel liability before, and we think _

~ no new one had been created by this Act. Its effect is

‘ to waive immunity from recognized causes of action

and was not to visit the Government with novel and

,. © unprecedented liabilities.” .

in Rayonier, 352 U.S. at 319, the Court held: .

“Tt may be that it is ‘novel and unprecedented’ ‘to hold _

the United States accountable for the negligence of its

firefighters, but the very purpose of-the Tort Claims Act ©

was to-waive the Govefnment’s tkaditional all-encom-

passing immunity from tort ‘actions and to establish

* novel and unprecedented governmental liability.”

Moreover, the specific holding of liability for the negli-

gence of public fire fighters in Rayonier is in direct opposi-

- tion to Dalehite v.- United States, 346 U. S. 15 (1953),

.7 St ok ae

— and in. Rayonier (352 U. S. at 319) this Court held that ie |

reasoning of the Dalehite case had been “necessarily re- ©

jected by Indian Towing.’* It necessarily follows that Feres ;

had to fall with Dalehite. In Dalehite ( 346 US. at 43-4) the

Court had held:

“Our analysis of the question is determined by what .

was said in the Feres case. See 28 USC §§1346 and

2674. The Act, as was there stated, limited United

- States liability to ‘the same manner ana to the same —

extent as a private individual under like circum- ~

“ stances.’ “28 USC §2674. Here,-as there, there is no

analogous liability; in fact, if anything is doctrinally

sanctified.in the law of torts it is the immunity of com-

munities and other public bodies; for injuries due to

fighting fire. This case, then, is much stronger than

Feres.”. ( ane added.)

Recently in Muniz v. United States; 374 US. 150 (1963),

_ where it was held that federal prisoners could sué underthe*——— 7}

Tort Claims Act for injuries sustained during their im-

prisonment, the Court dealt at length, with the various , -

rationales, articulated by Feres, holding that each of the

rationales had been overruled by Brown, Indian Towing, or

Rayonier.

. The Court concluded its analysis of Ferés by holding:

“In the last analysis, Feres seems best explained by

the ‘peculiar and special relationship of .the soldier to |

‘his superiors, the effects of 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

' 8The lower courts have generally recognized that Dalehite is no

longer valid since the Indian Towing and Rayonier cases. See United

-_ States v. Hunsucker, 314 F.2d 98, 104.(9th Cir. 1962); Blaber v. United

States, 332 F.2d 629, 631 (2d Cir. 1964); Fair v. United States, 234 F.2d

288, 292 (5th Cir. 1956)...

‘

8°

the course of military duty.’ {Citing United States v.

‘Brown].” 374 US. at 162.

Feres had made“no mention of the possible effect on mili-

tary discipline of ‘recovery: by a serviceman. When this

Court, in Muniz (373 USS. at. 159), enumerated the five ra-

tionales articulated in Feres the effect'on discipline was not.

among them. Thus, the line of cases culminating with

Muniz marked a departure by this Court from the rationale

‘of which the denial of recovery to servicemen isgbased, a

departure which the Court of Appeals has totally — in

the instant case.

2. The ‘elie of the extent to which Feres hasbeen |

modified with regard to servicemen by Brown, Indian Tow-

ing, Rayonier, and Muniz has -not been but should be set-

tled by this Court: This Court has not’ decided a single case

- involving a serviceman as a plaintiff under the Tort: Claims

Act since Feres, and the absence of a specific explanation by

this Court has obscured the rationale behind denying re-

covery to servicemen and has caused the lower courts to

reach results inconsistent with that rationale.

For example, it has been uniformly held that servicemen

may recover for injury or death to their dependents ‘as a

result of maltreatment in military hospitals; while the de-

_ pendents of a serviceman cannot recover for the service-

' man’s wrongful death in a military hospital resulting from

‘the same type of negligente.” *- Tf an action for malpractice

ina military hospital could interfere with discipline, it

seems clear that the serviceman’s recovery for the death of

oo

rs v. United States, 216 F. Supp. 1 (S.D. Ohio 1963); nhowe v.

esi States, 195 F. Supp. 557 (S.D. Fla. 1961); Grigalauskas v. United

States, 103 F. Supp. 543 (D. Mass. 1951), aff'd 195 F.2d 494 (1st Cir.

. . 1952); Herring v. United States, 98 F. Supp. 69 (D. Colo. 1951); Messer

‘v. United States, 95 F. Supp. 512 (N.D. Fla. 1951); Costley v.. United

States, 181 F.2d 723 (5th Cir. 1950).

5 Van Sickel v. United States, 285 F.2d 87 (9th Cir. 1960).

~

o

Sa

his dependent’ would pose more of a threat than the de-

_ pendent’s recovery for the death of a:serviceman. ‘This re-

“sult appears even more incongruous when it is remembered

that the wife’s right of action for the death of her husband::

is an action belonging to her because of the damage she has.

suffered and not an action bélonging to her serviceman hus-

band, and in any event, in an action involving the death of

a serviceman, there is not the remotest chance of interfer: _

ing with his military discipline and, Cuaretare, there is no _

_. justification for barring the claim.® ee

In another | group of cases, liability-has t Grned ete on -

the question of whether the accident occurred .on or off the

military reservation. Thus, where a military aircraft has

- erashed into the quarters of a serviceman recovery has been

allowed where. the quarters were nearby, but off, the base,’

but, on the other hand, recovery has been denied where the’

aircratt crashed into quarters on the post.° This artificial

line of distinction is not consonant with the rationale.

- See Gursley v. United States, 232 F. Supp. 614, 615 (D. |

Colo. 1964) where the District Court complains of the “con-_

fusion” engendered by Brooks and Feres. _

In Callaway v. Garber, 289 F.2d 171 (9th. Cir. 1961), cert.

denied 308 U.S. 874 (1961), the Ninth Circuit denied re-

covery ‘to the estate of an air force sergeant in a case in-

'6Cf. Johnson v. Peoples First National Bank & Trust Co.; 394 Pa.

116, 120, 145 A.2d 716 (1958), where the Pennsylvania Supreme Court

held that interspousal immunity from suit, the purpose of which is to.

preserve domestic felicity, is terminated by the death of one of the .

spouses since there is no longer any domestic felicity to preserve.

7 Snyder v. United States, 118 F. Supp. 585 (D: Md. 1954), affirmed

sub nom. United States v. Guyer, 218 F.2d 266 (4th Cir. 1954); Sapp v. 5

United States, 153 F. Supp. 496 (W.D. La. 1957).

8 Orken v. United States, 239 F.2d 850 (6th Cir. 1956); Preferred Ins.

Co. v. United States, 222 F.2d 942 (9th Cir. 1955), cert. denied, 350 U.S.

837 (1955). Cf. Downes v. United States, 249 F.. Supp. 626 (E.D.N.C.

1965); Nowotny v. Turner, 203 F. Supp. 802 (M.D.N.C. 1962); and

Brown v. United States, 99 FF. Supp. 685 (S.D.W. Va. 1951), where

recovery was allowed for injuries received on a military post.

10

volving a collision on a adil highway between a private

automobile being operated’ by a navy recruiting officer in

the line of duty and a private automobile in which plain-

tiff’s decedent was travelling to,a temporary duty station

from his permanent post. After noting the basic principle

underlying Feres as modified by Brown to be “the peculiar

_ and special relationship of the 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 the course of. seal? duty,”

the Court then observed:

“The instant case can find no aie within those

reasons, since the negligent and injured parties were

_ members of different branches of the service and were

engaged in entirely different) and unconnected activi-

ties at the time of the accident.” (289 F.2d at 173-4.)

“However, in the absence of a definite explanation by this -

- Court, the Ninth Circuit felt compelled to follow the literal

holding of Feres.

On the other hand, in Downes v. United States, 2497F.

Supp. 626, 628 (E. D. N..C. 1965), the court held:

“The real question then is a factual one: Was plain-

tiff performing duties of such.a character ‘as to under- ~

mine traditional concepts of military discipline if he.

were permitted to maintain a civil suit for injuries re-

err. |

3, In the present case, . the: relationship of ‘the decedeate |

to the Government, insofar as is relevant to the happening

of the accident, was not the “peculiar and special relation-

ship of the soldier to his superiors,” but rather the common

relationship of airplane passengers to airplane operator.

Their status as marines was merely a passive background

or circumstance to the accident and was not the legal °

cause of the accident, “@xcept in the sense that all human -

11

events depend upon what has already transpirec ” See

Brooks v. United States, 337 U.S. 49, 52 (1949), releer

* decedents were no doubt subject to military orders from

the créw of the aircraft, such orders would be no different

; from the normal orders a commercial airline crew would

give to its passengers such as “fasten seat belts” and. “no,

,smoking.” - And the ground crews and control tower per-

sonnel whose negligence in maintaining ‘and controlling the

aircraft.is 4 partial basis for the present action would have ©

had no contact with decedents at all. The instant case is not

based on negligent orders given to the decedents by their

military superiors. - Moreover, the deaths of the decedents

would eliminate any possibility of interference with mili-

tary discipline. ..

It is inconceivable that knowledge by the decedents that

they or their estates would have a right of actién against

the Government in the event of a plane crash would lead

to breaches of discipline. And it ‘is equally inconceivable

that knowledge by the flight crew or ground crews that'the.

military passengers on the plane could sue in the event that

they negligently caused a crash would in any way interfere -

‘with the performance of their duties. If anything, the

opposite is true. It is generally recognized that immunity

from liability tends to breed’ neglect: Georgetown College _

v. Huyhes, 130 F.2d 810; 824 (D.C. Cir. 1942); Prosser, The .

Law of Torts 23 (3d Ed. 1964). _And in any event, the neg-

ligence of Air Force flight and ground crews can create

liability in favor of civilians,® and can subject. the —s

serviceman to criminal responsibility.”

The fact that decedents relationship to the Gicesain :

was not peculiarly military is well illustrated by ‘the fact

® See e.g., United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir.

1964); Blumenthal v. United States, 306 F.2d 16 (3d Cir. 1962); Wild-

wood Mink Ranch v. United States, 218 F. Supp. 67 (D. Minn. 1963);

Friedman v. Lockhead Aircraft Corp., 138 ¥. Supp. 530 (E.D.N.Y. 1956).

10 For example, Article 93 (3) of the Uniform Code of Military Jus-

tice (10 U.S.C.A. §892) which makes dereliction of duty a crime. The

ais

- fr

4

12

that: the Military Air Transport Service, the branch of the

Air Force involved here, frequently due private air- |

line planes’ and crews -to transport \service personnel. See °

32 Cope Fep. Recs. §§171.1-171.3 (1960). In cases where.

chartered -Military Air Transport Service. flights have

crashed, death actions have been successfully brought

against the airline operating the flight."" -See Indian Tow-

ing Co. v. United States, 350 US. 61, 66- 67 Ras where

this Court held:

“Moreover, if.the United States were to permit —

operation of private lighthouses—not all inconceivable

—the Government’s basis of differentiation would be

gone and the negligence charged in this case would be

actionable. Yet there would be no charge in the char-

acter of the Government’s activity in the places where

it operated a lighthouse, and we would be attributing

‘bizarre motives to Congress were we to hold that it was

‘predicating liability on such a completely fortuitous cir-

~ cumstance—the presence of identical private activity.”

' - 4, The present. question is of obvious importance as is

evidenced by the number of tases" in which injured

Manual for Courts Martial at page 476 gives the following‘ sample

‘charge of a violation of Article 92 (3):

“30. In that... at...., on or about... .,/19........, was derelict

in the performance of his duties in that he negligently. failed to in-.

- spect properly the engine on Aircraft No...... thereby clearing

it for flight with a loose spark plug.”

11 See for example: Warren v. Flying Tiger Line, Inc.,.352 F.2d 494

(9th Cir. 1965); Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2d

Cir. 1965); Schmidt v. American Flyers Airline Corp., 9 CCH Avi. |

18,334 (S.D.N.Y. .1966).

12 See e.g. Calloway v. Garber, 289 F.2d 171 (9th Cir. 1961, cert. den.

308 U.S. 874 (1961); Van Sickel v. United States, 285 F.2d 87 (9th Cir.

1960); Lee v. United States, —— F. Supp. —— (C.D. Calif. 1966) —

(Apperidix C at 18 infra); Downes v. United States, 249 F. Supp. 626

(E.D.N.C. 1965); Gursley v. United States, 232 F. Supp. 614 (D. Colo.

1964). -

| —-~-

—_—-r

13.

servicemen or ‘their estates seek. recovery. under the Tort -

Claims Act contending: that this Court has by implication _-

limited the broad angtenine of Feres. oy aes

CONCLUSION.

_ For the foregoing reasons, this petition for a writ OF cer-

tiorari should be e granted.

° ae.

Respectfully submitted, 4

| a

_ STEPHEN M. FELDMAN,

JOSEPH G.,FELDMAN, ©

Counsel for Petitioners.

-

: Hy MAYERson,

Of Counsel.

So”

~™

.

_ — s, - a = _«@

BRA Ne aren Sa a Ne ee a ee ee tT ee Le ee ee ee ee a ee ee ee

® _

14

APPENDIX A.

“9

STATUTE INVOLVED.

‘THE FEDERAL.TORT CLAIMS ACT.

28 USC. §2671 DEFINITIONS

As used i in this chapter and sections 1346(b) and 2401 (b)

of this title, the term ——

xe * ;

' “Employee of the government” includes officers or em-

ployees of any federal agency, members of the military or

- naval-forces of the United States; and persons acting on be-

half of a federal agency in an official capacity, temporarily |

or permanently in the service of the United States, whether -

with or without compensation. .

“Acting within: the scope. of his office or etiployrient”

in the case of a member of the military or naval forces of |

the United States, means ane in line of duty.

28 USC; $2674 Lrapmrry OF UNITED States

‘The United States shall be liable, respecting the pro-

isiotis of this title relating to tort claims, in the same man- |

ner and to the same extent as a private individual under

. like circumstances, but shall not be ee for interest prior

to judgment of for punitive damages. _

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

law of the place Where the act or omission complainedéof

occurred provides, or- has been construed to provide, for

damages only punitive in nature, the United States shall be

liable for actual or compenfatory damages, measured by the

ae 15

pecuniary injuries resulting from such death to the persons

_ respectively, for ‘whose benefit the action was brought, in

lieu thereof. — : ae

28 U'S.C. §2680 Exteetiows :

The provisions’ of this chapter and section _ (b). of

we title shall not apply to ——

* (a) ‘Awy-claim based upon an act or omission of an em-.

ployee of the Government, exercising due care, in the ex-

ecution 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 exercisé or perform a dis-

cretionary function or duty on the part of a federal agency

or an employee of the Government, whether or not the dis-

cretion involved be abused.

os * *

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

prisonment, false arrest, malicious prosecution, abuse of '

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

ference with contract Tights.

*** .,

* ~

(j) Any claim arising 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

x * *

16

* APPENDIX B.

OPINIONS AND JUDGMENTS BELOW.

¢

IN THE

- UNITED STATES DISTRICT COURT

For THE EASTERN DISTRICT OF PENNSYLVANIA,

_ ORDER.

AND NOW, this 27th day of J - 1966, it appearing that

the plaintiffs’ claims for relief are governed by Feres v.

United States, 840 U.S. 135 (1950), it is hereby Ordered

that the defendant’s motion to dismiss the complaint be and .

the same is Granted: | z%

BY THE COURT:

| | "..J, M. DAVIS,

J.

‘ IN THE

UNITED STATES COURT OF APPEALS

For THE THIRD Cincurr. .

Argued November 17, 1966

4

Before: McLAUGHLIN,.KALODNER and HASTIE,

. - Circuit J Leica

/

17

OPINION OF THE COURT.

_ (Filed December 12, 1966.)

PER CURIAM,

: Plaintiffs are the administrators of the estates of three

. United States marines who were killed in the crash of a

United States Air Force aeroplane while they were on ac-

tive duty, in the course of activity incident .to that duty.

The suit was under the Torts Claims: Act, 28 U.S.C. / 2671

et seq. It was dismissed by the District Court under Rule

12b, F.R. Civ. P. for lack of ——e over the subject |

matter. :

We hold that the ruling of the District Court was right

and proper. Feres v. United States, 340 U.S. 135 (1950).

The flat statement is made on behalf of appellants in their

brief that “* * * subsequent decisions of the Supreme Court

‘destroyed the validity of that case.” Nothing could be fur-

ther from the: true fact. Appellants argue from decisions

having ho real bearing onthe tight, clear problem presented.

In the only other case since Feres involving the right of a

service man to sue the United ‘States in tort, United States

v. Brown, 348 U.S. 110, 113 (1954), Mr. Justice Douglas

for the Court states,““We adhere also to the line drawn in

the Feres casé between injuries that did and injuries, that

‘did‘not arise out of or in the course of military duty.”

The judgment of the District Court will be affirmed.

18

APPENDIX C. .

CONFLICTING OPINION.

UNITED STATES DISTRICT COURT

CENTRAL DistTRICT oF CALIFORNIA.

“ARDELL LEE, et al., ‘

ies Plaintiffs, }] Civil No. 66-1052-WPG.

VS. . ; Memorandum of Decision

UNITED STATES OF AMERICA, and Order.

| Defendant. |

Two enlistéd men of the United States a Corps, on

- active duty, were in process of being transferred. to Viet .

Nam, and for that purpose they were placed on board an

"airplane operated by the Military Air Transport Service,

United States Air Force. In the course of taking off from

the El Toro Marine Corps Air Station, California, to begin

the overseas flight, the airplane crashed, and the two serv-

\ icemen, along with.many other people, were killed. Their

personal representatives bring this action under the Fed-

eral Tort Claims Act, 28 U.S.C. sections 1346(b) and 2671

et seq. The complaint makes no charge against the Marine

’ Corps or against MATS; it alleges, instead, that the crash -

was caused by the negligence of the Federal Aviation

Agency in operating, maintaining and controlling the de-

* parture of the aircraft from the ground and in giving in-

adequate terrain clearance information. —

_ service with the Marine Corps.

19 —-

The ve has moved to dismiss the action on the’

ground th a matter of law, the facts here concerned

preclude recovery under the Tort Claims Act. The issue

thus raised has. been briefed by both sides, argued orally. —

and submitted to the Court for decision.

The position of the Government. is well summarized by

the following sentence from Justice Jackson’s opinion in

Feres v. United States, 340 U.S. 135, 146 (1950): -.

“We conclude that the Government is not liable

under the Federal Tort Claims Act for injuries to

servicemen where the injuries arise out of or are in ©

the course of activity incident to service.”

If this is a correct statement of the law, the case at hand

must be dismissed, because the deaths of the two service-'

men clearly were in the course of activity incident to their

However, for reason’ hereinafter set forth, it is my con-

clusion that the above quoted sentence is no longer author-

itative,-that under present ‘law these plaintiffs are not pre-

cluded from seeking relief under the Federal Tort Claims

‘ Act, and that the motion to dismiss must therefore be denied.

The terms of the statute, itself, give no indication that

_ servicemen injured under the circumstances here concerned

are to be deprived of the benefits of the Act. On the con-

trary, the fact that section 2680 specifically excludes “Any

_ claim arising out of the combatant activities of the military

or naval forces . . . during time of war” and “Any claim

arising in a foreign country,” would seem to indicate an

. intention to permit servicemen to assert claims arising in .

‘this country and not related to combatant activities. In this

respect, the same conclusion was asserted by Justice

Murphy, in speaking for the Court in Brooks v. United

States, 337 U:S. 49 (1949). .He pointed out that the. Tort

‘Claims Act; with the exceptions therein specified, provides —

for District Court jurisdiction over any claim for personal

injury or death founded upon negligence, and he expressed

al le ae

20

. disbelief that ‘“‘any claim’ means ‘any claim but that. of

servicemen’”’.- He also said that “It would be absurd to».

believe that Congress did not have the servicemen in mind

in 1946, when this statute was passed. The overseas and | = ae

_ combatant activities exceptions make this plain” (page 51). .

In Brooks, two servicemen were riding in their automobile

_ with their father along a public highway in North Carolina.

They were doing so for their own purposes and presumably

were on pass or furlough. One was injured and the other |

was killed when their car was struck by a United States

Army truck. The Supreme Court held that the plaintiffs’

action under the Tort Claims Act had been well faunded.

In the course of his opinion in Brooks, Justice Murphy .

| acknowledged that to adhere to the literal language of the

statute and allow recovery to servicemen irrespective of

how their injuries related to military service, might bring

about outlandish results that Congress clearly would not

-have intended. “A battle commander’s poor judgment, an

army surgeon’s slip of hand, a defective jeep which causes

injury, .. .” occurred to the Court as examples in which

the allowance of recovery would-be incongruous. However,

--the opinion, emphasized that the accident to the Brooks

brothers’had nothing to-do with their military careers, and

it asserted that the Court withheld comment as to a case

'. involving an accident incident to such service.

Feres v. United ‘States, 340 U.S. 135 (1950), was just such

as case; actually there were three combined cases. In one,

a soldier was quartered in barracks that should have been

_known to be unsafe because of a defective jheating plant,

and he died in the ensuing fire. The other two cases-in- |

volved negligence by army surgeons in the course of medical.

operations upon servicemen. In each of the three instances

recovery was sought under the Federal Tort Claims Act and

the Supreme Court denied relief.

- Justice Jackson wrote the.opinion of the Court. He noted

at the outset that the three cases had in common the fact

rere a emeteret. Secret get ad

gh Ni a aie li sie meer

21

that “. each claimant, while on active duty and not on

furlough, sustained injury due to Steels of others in

the armed forces” (page 138).

It is to: be noted that the first'of these quoted circum-

~-~~-stances. distinguishes the Feres case from Brooks, and the

second distinguishes Feres from the éase at hand. However,

throughout the balance .of ‘his opinion, J ustice Jackson

ignored the latter aspect of the factual proposition that he

‘had expressed, and he considered the only question to be

whether the Tort Claims Act extends its remedy to any

‘serviceman who receives injury incident to his military |

service. He answered this question in the negative, and we

‘now consider the reasons given for such conclusion and how

they have survived subsequent examination by the Su-

preme Court. |

1, The opinion in Feres reasoned that the primary purpose

of the Tort Claims Act was to provide a remedy to those

who had been without, as reflected in the large number of

private bills that had stemmed from torts suffered at the

hands of Government employees; that there had been no.

-large number of private bills on behalf of military person-

nel, because they and their dependents had already been

_ given a comprehensive system of relief; and that it there- |

fore followed that Congress had not intended to. benefit

servicemen in the passage of the Tort Claims Act. Similarly,

_it was suggested that Congress presumably would not have .

intended to permit servicemen to have double recovery,

and that therefore the failure of the Tort Claims Act to pro-

vide for adjustment between the relief therein granted and ~

the military disability and death benefit system, indicated

that thé)latter is to be the exclusive remedy. % :

This argument was specifically rejected four years later

in United States v. Brown, 348 U.S. 110 (1954). There, a

veteran had received a service connected injury to his knee,

. for which he was receiving compensation. The need for a

22

coyery for damages resulting from the grounding of a tug

due to the negligence of the Coast Guard in the operation of

a lighthouse. Justice Reed dissented on the ground that >

further operation arose, and in the course of performing

such operation the doctor in the Veterans Administration

hospital negligently caused serious further and permanent

damage to the patient’s leg. The Supreme Court held that

recovery under the Tort Claims Act should be allowed. The

opinion referred -to-the decision in Brooks as having con-

cluded “. . . that Congress had given no indication that it

made the right to compensation the veteran’s exclusive

remedy, that the receipt of disability payments under the

Veterans Act. was not an election of remedies and did not

preclude recovery ‘under the Tort Claims Act but only re-

duced the amount of any. judgment under the latter Act.”

The next sentence stated: “We anmete to that result” (page

113). -

_ Likewise, in United States v. Muniz, 374 U.S. 150, 160

(1963), Chief Justice Warren, in speaking for the Court

said that “.’. . the presence of a compensation system, per-

suasive in Feres, does not of necessity preclude a suit for

negligence” under the Tort Claims Act. Cf. United States

. v. Demko, 35 U.S. L. Week 4028 (U.S. Dec. 5, 1966).

2. Another argument that was persuasive in Feres was.

that the Tort Claims Act (in section 2674) provides that

“The United States shall be liable . . . in the same manner

and to the same extent as a private individual under like

circumstances. ...” _The opinion reasoned that since private

individuals do not maintain military es blishments: and

therefore are not-subjected to. claims’ even remotely an-

alogous to those at issue, the statute precluded Fecovery for

the latter claims.

This argument was specifically eaten in Indian Towing

’ Co. v. United States, 350 U.S. 61 (1955), which allowed re-

Ae

~~

"93

the majority decision had rejected the doctrine of the Feres

case. Tey ep )

3. Justice Jackson, in Feres, also considered it significant

that the Tort Claims Act “... makes\‘. . . the law of the |

place where the act or omission occurred” govern any con-.

- sequent liability” (340 U.S. at '142). He then reasoned that

- it would not be rational to cause recovery by a serviceman

to be governed by the laws of the place ; where the injuries.

occurred, inasmuch as he has no control over where his

military duties might take him.

Inmates of federal penitentifries, likewise, have a con-

siderable lack of discretion with respect:to the states in

which they dwell. But this did not prevent the Court from

holding that two such prisoners might recover under the

Act for injuries that they sustained due to the negligence

of supervisory personnel. United States v. Muniz, 374 US.

150 (1969). In the course of his opinion for the Court,

Chief Justice Warren adverted to the Feres reasoning that

is summarized in the preceding paragraph. He thereupon

rejected it, concluding with the comment that. although the ©

nonuniform right to recover because of varying state laws

might possibly prejudice some prisoners, “. . . it nonetheless

seems clear that no recovery would prejudice them even

more” (page 162).

Although the opinion in Muniz expressly stated that the

Court found no occasion to question Feres, so far as military

claims were concerned, it proceeded to discredit or express .

" lack of enthusiasm for each of the reasons upon which the

doctrine of that case was founded. Chief J ustice Warren :

concluded his discussion of Feres as follows:

“In the last analysis, Feres seems best explained by

the ‘peculiar and special relationship of the 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

: 24

for negligent orders given or negligent acts committed

in the course of military duty... .’ United States v.

Brown, 348 U.S. 110, 112.” (374 US. at 162.) :

Thus, we have an explanation of Feres that provides the

only authoritative and satisfactory basis for the decision that.

I have been able to find. It wotild follow therefrom that the

exclusion of military personnel from recourse to the. Act

would not depend upon whether they were on active duty

or on leave at the time of their injuries. Instead, it would

depend upon whether or not the injuries stemmed from

activities that involved an official military relationship be-° °

tween the negligent person and the claimant. If so, the

claimant would be precluded; otherwise, he would not. That

relationship did exist in Feres, and recovery was not al-

~ lowed. The same was true in Archer v. United States, 217

F.2d 548 (9th Cir. 1954), cert. denied 348 U.S. 953 (1955),

in O’Brien v. United States, 192 F.2d 948 (8th Cir. 1951),

and in Van Sickel v. United States, 285 F.2d 87 (9th Cir.

1960). Such relationship was not present in Brooks or in

Brown, in which"the claimants prevailed. Thus, all of the’:

decided cases are in harmony with this test, with the fol-

lowing exceptiort. oa

Callaway v. Garber, 289 F.2d 171 (oth Cir. 1961), in

volved a situation in which three Air Force sergeants were

_ Under orders directing them to go from South, Dakota’ to

“Seattle, Washington to attend a special service school. ‘They

properly chose to make the trip together by private auto-

mobile, afid while doing so their car was struck by another.

automobile driven by a recruiting officer of the United States

Navy while on official business. One of the three sergeants

was killed, and his next of kin brought suit under the Tort

Claims Act. ‘The Court of Appeals affirmed the denial of.re-

covery. The opinion by Judge Orr, set out the hereinabove

quoted: “explariation” of the Feres decision and very aptly

‘observed that those reasons had. no relevance to the case

~o ’ a 25

at hand, since the official activities of the: negligent “party

and those of the injured “parties were entirely unrelated.

The opinion then concluded by stating:

* “However, the instant case does’ ‘fall within the rule

" of the Feres case as promulgated, and we must adhere,

to said rule since it was. in ng way negated or modified :

by the late? Brown case” (page 174).. ,

‘ It seems to me that the negation of the Feres rule, for which

Judge Orr somewhat wistfully was looking, has been pro-

provided by the later Muniz decision.’

In the present case the two servicemen were killed in the

course of their official relationships with the Marine Corps

and with MATS. But the Federal Aviation Agency, whose

alleged conduct is. the. only target of this action, is not a:

part of the military. It is an administrative agency created

by Congréss and given the responsibility of establishing and

operating air navigation. facilities and procedures for ef-

ficient air safety andatraffic control. 49 U.S.C. section 1341

et seq. Such responsibility extends to all airports, civil as |

well as military, As far as the FAA was concerned, the de-

_cedents simply were two passengers in an airplane, just as

in Brooks the two claimants,were in the same position’ as

any other motorist on the highway. Applying. the test that

I have derived from the hereinabove quoted “explanation”

of the Feres decision, it follows that recovery by the present

plaintiffs under the Tort Claims Act may not be foreclosed

to them if they can prove the negligence that they allege.

‘The defendant’s motion to dismiss the action is denied,

and the defendant is given twenty days within which to.

answer the complaint.

Dated: December 15, 1966.

WILLIAM P. GRAY,

United States District Judge.