Petition for Writ of Certiorari — Lewis v. United States Navy

Supreme Court, U.S.

92-992 FILED

| DEC 9 1992

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

NANCY JO LEWIS, Personal Representative of the Estate

of Richard J. Lewis, et al.,

Petitioners,

ve

UNITED STATES NAVY, an Agency of the United States

Federal Government,

Respondents.

On Petition of Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

LAWRENCE PATRICK NOLAN

NOLAN, REINCKE, THOMSEN &

VILLAS, P.C.

239 S. Main St.

Eaton Rapids, MI 48827

(517) 663-3306

Attorneys for Petitioner

QUESTIONS PRESENTED

1. Whether Petitioner, whose son whe was killed in an

explosion on April 19, 1989 aboard the U.S.S. Iowa in Gun

Turret II, should be allowed to recover pursuant to the

Federal Tort Claims Act and not be barred by the Feres

Doctrine as a member of the armed forces in bringing suit

against the United States for the negligent, gross negligent,

or intentional conduct of their superior officers?

A. Whether the Feres Doctrine should apply

because the unauthorized and illegal firing of the sixteen

inch guns aboard the U.S.S. Iowa is not activity incident to

military service?

B. Whether the Feres Doctrine should apply

when the harm complained of is the result of inadequate or

improper training?

c. Whether the Feres Doctrine should apply

when the harm complained of is based on a "products

liability" theory?

2. Whether Petitioner has claims deriving from the

events occurring after her son’s death on the U.S.S. Iowa

300 miles off the coast of Puerto Rico; such wrongfu! acts

are completely independent of the purported negligent

and/or intentional conduct that led to her son’s death?

3. Whether the Feres Doctrine should be overruled

because Congress never intended to exclude the recovery of

military servicemen for injury or death caused by the

negligent or wrongful act or omission of any employee of the

United States while acting within the scope of his office or

employment?

ii

a

TABLE OF CONTENTS

5) 7g 8 gg | >) i

pe ee ge i er ee ee ere iii

pe Re eye ee vi

PETITION FOR WRIT OF CERTIORARI ....... 1

EVE Eee sd OP PELERERQEMIOR 6k eee ewan es 1

PE 500d CATER RES RAS 3

STATUTES AND REGULATIONS ............. 3

PETES wc aha he ve ek ek CORN Saw Cee 3

rere a ye eee ere Tere aT 7

1. WHETHER PETITIONER, WHOSE

SON WHO WAS KILLED IN AN

EXPLOSION ON APRIL 19, 1989

ABOARD THE U.S.S. IOWA IN GUN

TURRET II, SHOULD BE ALLOWED TO

RECOVER PURSUANT TO THE

FEDERAL TORT CLAIMS ACT AND

NOT BE BARRED BY THE FERES

‘DOCTRINE AS A MEMBER OF THE

ARMED FORCES IN BRINGING SUIT

AGAINST THE UNITED STATES FOR

THE NEGLIGENT, GROSS NEGLIGENT,

iii

OR INTENTIONAL CONDUCT OF

THEIR SUPERIOR OFFICERS?

A. WHETHER THE FERES DOCTRINE

SHOULD APPLY BECAUSE THE

UNAUTHORIZED AND ILLEGAL FIRING OF

THE SIXTEEN INCH GUNS ABOARD THE

U.S.S. IOWA IS NOT ACTIVITY

INCIDENT TO MILITARY SERVICE? ... 7

B. WHETHER THE FERES DOCTRINE

SHOULD APPLY WHEN THE HARM

COMPLAINED OF IS THE RESULT OF

INADEQUATE OR IMPROPER

has ce ee ee are lee 11

C. WHETHER THE FERES DOCTRINE

SHOULD APPLY WHEN THE HARM

COMPLAINED OF IS BASED ON A"PRODUCTS

LAPEEEE © GOMER? 65:06 5555 oe ewe e ae 12

2. WHETHER PETITIONER’ HAS

CLAIMS DERIVING FROM THE EVENTS

OCCURRING AFTER HER SON’S

DEATH ON THE U.S.S. IOWA 300 MILES

OFF THE COAST OF PUERTO RICO;

SUCH WRONGFUL ACTS ARE

COMPLETELY INDEPENDENT OF THE

PURPORTED NEGLIGENT AND/OR

INTENTIONAL CONDUCT THAT LED

TO HER SON’S DEATH? ............. 12

iv

3. WHETHER THE FERES DOCTRINE

SHOULD BE OVERRULED BECAUSE

CONGRESS NEVER INTENDED TO

EXCLUDE THE RECOVERY OF

MILITARY SERVICEMEN FOR INJURY

OR DEATH CAUSED BY THE

NEGLIGENT OR WRONGFUL ACT OR

OMISSION OF ANY EMPLOYEE OF THE

UNITED STATES WHILE ACTING

WITHIN THE SCOPE OF HIS OFFICE OR

ES Seek a cose edn dean evans 16

QUESTIONS ANSWERED 2.0.0 cise cee cevens 19

es eee er ere ree er ee ore 19

TABLE OF AUTHORITIES

STATUTES

WU, Bie TAPE) «ss 5 ooo ask cncascsdeee 3

ek ns 2, 3, 16

ME CEI, Wk. BONO. 5 oo 5 5 nso nna vn snvdccsees 16

28 U.S.C. Sec. 2671 2.0... cece cece cee neces 2,3

TUBE: Gen MOD wooo. c ds ohn ccecektin ds 16

CASES

Chambers v. United States, 352 F2d 224 (8th Cir. 1966) . 8

Atkinson v. United States, 804 F.2d 561 (1986) ....... 17

Atkinson v. United States, 825 F.2d 202, 206 (1987) ... 17

Block v. Neal, 460 U.S. 289, 298, (1983) ........... 15

Broudy v. United States, 661 F.2d 125, 128 (9th Cir. 1981). 13

Dorothy M. Vogelaar v. United States of America, 665 F.Supp.

Beet GE SU BUND hws cee sdceecennsseceses 14

Downs v. United States, 249 F. Supp. 626 (E.D.N.C. 1965). 8

vi

TABLE OF AUTHORITIES (cont.)

Feres v. United States, 340 U.S. #45 (lee). ss.s bee

Henninger v. United States, 473, F2d 814 (9th Cir. 1973) . 8

Jayson v. United States, 340 U.S. 135, 139, (1950) ..... 15

Kielwien v. United States, 540 F.2d 676, 681 (4t!: Cir.) . 15

Kohn vy. United States of America, Department of the Army of

the United States of America, 680 F2d 922 (2nd Cir. 1982) .12

LaBash v. United States Department of Army, 668 F.2d at

SE ee ee 13

Lee v. United States, 261 F. Supp. 252 (C.D. Cal. 1966) . 8

Millang v. United States, 817 F.2d 533, 535 (9th Cir. 1987). 17

Monaco v. United States, 661 F.2d 129, 132 (9th Cir. 1981).17

Sheridan v. The United States, 823 F.2d 820, 827, (4th Cir.

ees 6 bac aw SNA ees vd ve kes 15

Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1153-54

CE ee ee ee 13

Stencel Aero Engineering Corp. v. United States, 431 U.S. 666

CLC nGes Shane EeS ANOKA KS DOO ON OER 11

vii

TABLE OF AUTHORITIES (cont.)

United States v. Brown, 348 U.S. 110, 112-113, 75 S.Ct. 141,

OO Res BOP CEMOD ch ees ke eee sack bina s cnebuee 13

United States v. Johnson, 481 U.S. 681 (1987, 11, 16, 17, 18

United States v. Stanley, 483 U.S. 683, 709 (1987) ..... 10

Zoula v. United States, 217 F2d 81 (Sth Cir. 1954) ..... 8

viii

No. 92-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

NANCY JO LEWIS, Personal Representative of the Estate

of Richard J. Lewis, et al.,

Petitioners,

v.

UNITED STATES NAVY, an Agency of the United States

Federal Government,

Respondents.

On Petition of Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

- INTEREST OF PETITIONER

This case arises out of the incident on April 19, 1989, when

three explosions in Turret II, on board the U.S.S. Iowa, a

1

United States Naval battleship, resulted in the deaths of

forty-seven sailors.

Petitioner NANCY JO LEWIS, Personal Representative of

the Estate of Richard J. Lewis, Deceased,’ filed a wrongful

death suit under the Federal Tort Claims Act 28 U.S.C. Sec.

1346 and 28 U.S.C. Sec. 2671 on or about April 19, 1991, in

the United States District Court for the Eastern District of

Virginia, Alexandria Division, seeking the recovery of

damages for the wrongful death of her son arising out of the

explosions in Turret II aboard the U.S.S. Iowa.

Petitioner’s complaint contained allegations that the death

of her son aboard the U.S.S. lowa was caused by the Navy’s

negligent design, testing, inspection, and maintenance of

Turret II; negligent failure to train, evaluate, and staff the

personnel for Turret II; the failure to warn of the hazards

associated with the operation of Turret II; and other acts

and failures to act that may be shown by discovery and

investigation of this matter.’

The United States brought a Motion for Dismissal, or in

the alternative, Summary Judgment, based on the argument

that the Petitioner’s claims were barred by the doctrine

enunciated in Feres v. United States, 340 U.S. 135 (1950).

Petitioner argues that the Feres Doctrine should be

overruled and that the United States Supreme Court should

adopt the dissenting opinion authored by Justice Antonin

' Petitioner NANCY JO LEWIS, Personal Representative of the

Estate of Richard J. Lewis, Deceased, filed her wrongful death

lawsuit with thirty-seven other plaintiffs. This Writ of Certiorari is

filed on the behalf NANCY JO LEWIS, Personal Representative of

the Estate of Richard J. Lewis, Deceased.

? See Plaintiff's Complaint, paragraph 22.

2

Scalia in the case of United States v. Johnson, 481 U.S. 681

(1987) and concurred in by Justices Stevens, Marshall and

Brennan. Petitioner also argues, as she did in the District

Court, that the Federal District Court should carve out an

exception to Feres when the conduct is egregious, when

training is insufficient, and or the claim is based on a theory

of products liability.

The United States District Court in a Memorandum

Opinion dated July 29, 1991, granted the Defendant United

States’ motion on the grounds that the Court lacked subject

matter jurisdiction over the Petitioner’s claim. An order

granting the Defendant’s Motion to Dismiss was entered by

United States District Judge Claude M. Hilton on July 29,

1991.

Petitioner appealed to the United States Court of Appeals

for the Fourth District. United States Court of Appeals in

an Opinion and Order dated on September 11, 1992,

affirmed the District Court’s ruling.

JURISDICTION

The judgment of the Court of Appeals was entered on

September 11, 1992. The jurisdiction of-this Court is

invoked under 28 U.S.C. Sec. 1254 (1).

STATUTES AND REGULATIONS

The Federal Tort Claims Act, 28 U.S.C. Sec. 1346 and 28

U.S.C. Sec. 2671 (see Appendix).

STATEMENT

On April 19, 1989 sixteen-inch guns of Turret II on the

U.S. Iowa experienced three explosions which resulted in the

deaths of forty-seven sailors. Among the dead was the

Petitioner’s son, Fire Controlman Seaman Apprentice

Richard J. Lewis. The loss of the Petitioner’s son has

inflicted deep emotional wounds and distress on the

Petitioner.

The force of the April 19, 1989 explosions ripped

throughout Turret II. Inside of the turret it became an

inferno, as bodies instantaneously were engulfed in the

flames of the heat and fire. The sailors who had not died

from the explosions quickly succumbed to the heat and the

enveloping smoke. Only twelve sailors in Turret II who

were encased behind the steel doors of the powder room

survived the blast.

Almost immediately after the explosion, the United States

Navy began an investigation into the accidental, intentional,

or unknown cause of the death of the forty-seven sailors.

Instead of instituting a Board of Inquiry, the Navy appointed

a single investigator, Rear Admiral Richard A. Milligan.

Unsupervised and admittedly totally inexperienced as having

never handled a criminal or civil investigation, Rear Admiral

Richard A. Milligan ordered the clean-up of Turret II, by

ordering sailors to throw overboard any and all physical

evidence destroying much of the vital information; rather

than attempting to preserve the scene. During the initial

stages of investigation, the scope was based on the

assumption that the cause was accidental. That was until six

weeks had passed when the Rear Admiral initiated a

criminal investigation. This investigation was prompted by

information that a sailor, Kendall Truitt, was the beneficiary

of fellow sailor and explosion victim Clayton Hartwig’s One

Hundred and One Thousand Dollars ($101,000.00) Navy

insurance policy. Over the subsequent weeks, the Naval

Intelligence Service (NIS) put together selective bits and

pieces of Clayton Hartwig’s life. With this information, and

an FBI-Navy Psychological Profile, the Navy concluded that

Hartwig was the probable cause of the deaths of the forty-

as

eee

seven sailors. This conclusion came only four months after

the incident. Concurrently, the Navy ran a series of tests on

the propellent, and the projectile to see if there was an

answer to the mystery of how the explosion actually

occurred. In July of 1989 the Navy issued their findings and

conclusions. The July report placed the blame on Clayton

Hartwig. In the report, the Navy speculated that he had

used a Radio Shack timer to detonate the propellant. David

Smith, a friend of Clayton Hartwig, revealed the existence of

the timer. Later David Smith recanted his story.

Coincidentally, it was not long before the Navy changed its

theory to a chemical detonation device. The Navy isolated

on the projectile’s rotating band, iron fibers, elements of

calcium and chlorinate, and chemical compounds of glycol

and polymers. The Navy concluded that the explosion was

caused by a chemical detonation device that was placed

between the No. 1 and No. 2 bags of propellent. Moreover,

that the detonation occurred by the over ramming of the

propellant thus causing the chemical to be released and

detonate.

The Navy’s desire to come to a quick resolution of the

incident and the existence of viable alternatives prompted

the Chairman, Senate Committee on Armed Services; the

Chair Subcommittee on Economic Stabilization, House

Committee on Banking, Finance and Urban Affairs; and the

Honorable Howard M. Metzenbaum, U.S. Senate; to ask the

General Accounting Office (GAO) to examine several issues

concerning the explosion and the overall battleship program.

They asked the GAO to:

1. Independently investigate the

Navy’s technical pare of the

likely causes of the explosion;

2. Examine the safety and

5

serviceability and the support

ability of ammunition "nd

=

3. mine issues relating to the

manning and training on the

battleship; and

4. Review the _ battleship’s

employment plans and mission.

The GAO and the Senate Arms Committee turned to

Sandia Labs, for the independent investigation. Over the

ensuing months, theory by theory, the Sandia Lab discounted

the Navy’s findings and conclusions. First, Sandia evaluated

the Navy’s theory of a chemical detonator. Tests done on

the No. I and No. III turrets showed the presence of iron

fibers. The Navy concluded that the presence of these fibers

in the No. II turret were part of a steel wool type detonation

device. Steel wool was commonly used in the cleaning of

the sixteen inch guns and the turrets. The presence of these

fibers in other turrets sheds some doubt as to why iron fibers .

were present in the gun. Sandia also concluded that the

chemicals chlorinate and chlorine were from the sea water

which was used to put out the fires burning after the

explosion. These chemicals were also present in other

turrets. Additionally, Sandia concluded that the presence of

_-glycol_and polymers were attributable to ‘break-free’, a

lubricant used to free the logged projectile, and some plastic

button, badge or pen. The overall conclusion was that in the

Navy’s haste it was blinded to possible reasons for the

presence of foreign chemical elements.

Sandia centered its investigation on the realistic reasons

the explosion occurred, the propellent. The propellant used

on the lowa was of World War II design and is considered

very unstable. In the summer of 1989, cans of the propellent

sat on the Navy docks under the Virginia sun. Sandia

questioned whether the chemical agents used to control the

stability had dropped to a dangerous level. Tests done by

both the Navy and Sandia were unable to show a significant

drop in stability of such chemicals. Next, Sandia began a

series of self-ignition tests, in an attempt to simulate

conditions inside turret No. II. After several attempts and

several test conditions, the propellant eventually self-ignited.

Sandia concluded that: an inexperienced rammer-man had

over-rammed the propellant twenty-six inches coupled with

a reduced number of trim layers, the ignition layers would

ignite the propellant. Sandia lab had proven that there was

an explanation more realistic than intentional acts of a

deceased sailor.

The GAO’s and Sandia lab’s conclusions, though not a

total contradiction to the Navy’s findings, shed new light on

once darkened theories. Enough so, that the Navy in May

of 1990, suspended all battleship firing. The investigation as

to the true causes is still officially open. However, the

answer lies in the negligence of the Navy and not any

intentional actions by a single sailor.

ARGUMENT

1. WHETHER PETITIONER, WHOSE SON WHO

WAS KILLED IN AN EXPLOSION ON APRIL 19,

1989 ABOARD THE U.S.S. IOWA IN GUN TURRET

Il, SHOULD BE ALLOWED TO RECOVER

PURSUANT TO THE FEDERAL TORT CLAIMS

ACT AND NOT BE BARRED BY THE FERES

DOCTRINE AS A MEMBER OF THE ARMED

FORCES IN BRINGING SUIT AGAINST THE

UNITED STATES FOR THE NEGLIGENT, GROSS

NEGLIGENT, OR INTENTIONAL CONDUCT OF

THEIR SUPERIOR OFFICERS?

A. WHETHER THE FERES DOCTRINE SHOULD

APPLY BECAUSE THE UNAUTHORIZED AND

ILLEGAL FIRING OF THE SIXTEEN INCH GUNS

ABOARD THE U.S.S. IOWA IS NOT ACTIVITY

INCIDENT TO MILITARY SERVICE?

In the case of Feres v. United States, 340 U.S. 135, 71 S. Ct.

153, 95 L. Ed. 152 (1950), the Supreme Court established

the doctrine that bars claims against the United States for

injuries to servicemen that were incident to military to

activity. Since Feres’ inception, the test to determine what

is military activity has taken several forms. Some courts

have applied an absolutist rule, whereby a claim is barred

where the serviceman would not have been injured but for

the fact that he was on active duty. Henninger v. United

States, 473, F2d 814 (9th Cir. 1973). While others have

"incident to service" as depending on whether the serviceman

was on or off the base at the time of injury, Zoula v. United

States, 217 F2d 81 (Sth Cir. 1954); Chambers v. United

States, 352 F2d 224 (8th Cir. 1966).

Few lower courts have attempted to redefine and narrow

the "incident to service" test by employing certain aspects of

the governmental-solider relationship to formulate new tests

for the allowability of an Federal Tort Claim Act claim. In

the case of Downs v. United States, 249 F. Supp. 626

(E.D.N.C. 1965), it was suggested that the real question in

applying Feres is "[w]as Plaintiff performing duties of such

a character as to undermine traditional concepts of military

discipline if he were permitted to maintain a civil suit for

injuries therefrom. Under this test, the claim was not

barred, because Plaintiff, a serviceman, was struck and

injured by a military vehicle while leaving his base on a pass,

“at his liberty to pursue his personal affairs, he saw fit at the

moment of collision." 249 F. Supp. et 628-29. Another

formulation was attempted in Lee v. United States, 261 F.

Supp. 252 (C.D. Cal. 1966), a wrongful death action brought

Sw

on behalf of two active duty servicemen who were

passengers on an air force transport plane which crashed

due to alleged negligence of the Federal Aviation Agency.

The court reasoned that the proper test given is not whether

the claimant was on or off duty but whether the injury

"stems from activities that involved an official military

relationship between the negligent person and the claimant."

Thus, although the deaths were actually “incident to service",

the policies underlining Feres did not require dismissal of the

claims. Such a test given would permit a broad range of

claims excluded under the strict "incident to service" rule

while protecting the authority of those in command or those

responsible for military decisions.

In the weeks preceding the April 19, 1989 accident aboard

the U.S.S. Iowa, numerous unauthorized and_ illegal

projectile and propellant firing tests were conducted. The

nature of these tests were to explore the accuracy of the

sixteen inch gun. Master Chief Gunner’s Mate James W.

Hickman and Master Chief Fire Controlman S.P. Skelley

knew of and approved these abnormal gun charges. Master

Chief Fire Controlman S.P. Skelley advocated and

coordinated the use of experimental load configurations.

The informational data was collected and forwarded to

Naval Surface Warfare Center, Dahlgren, Va. These tests,

which included mixtures of 1,900 and 2,700-pound projectiles

with five bags of D846 powder rather than the required six

bags, were in direct violation of Navy standard firing

configuration regulations.

On April 19, 1989, the U.S.S. Iowa Turret II sixteen inch

gun was loaded with a 2,700 pound projectile and five D846

propellant bags. This action was in direct contradiction to

the warning, "Do not Use with 2,700-pound projectiles",

written on D846 powder cans and on the literature within

the cans. This unauthorized action and the ones which

precede it, were in direct contradiction to the Navy’s own

policy. Captain Moosally testified that the firing of these

guns in this manner were unauthorized and were decided

upon solely by Controlman Skelley who was referred to as

"the loose cannon on board the ship." Policy requires every

type of naval gun to fire only ammunition assemblies

authorized for that particular type of gun. The loading and

firing of the sixteen inch guns in the manner in which they

were was against this policy. In recognition of this

unauthorized action the Navy punished those involved.

It is Petitioner’s contention that this Honorable Court

should hold that unauthorized or illegal military activity is

not military activity that the pillars of Feres were meant to

protect. One of the main goals oi the Feres Doctrine is to

ensure that the disciplinarian role of the military authority

is not diminished by way of legal lawsuits. It is

unacceptable for the Defendant to argue that Feres is a bar

to injuries incident to military activity when the military

activity is of a nature contrary to the fundamental structures

of this country’s military force and discipline. An

unauthorized and/or illegal activity should not bar a

serviceman’s claim of injury by the negligence of the United

States if performed during unauthorized or illegal activities

instituted by the military.

Injuries resulting from conduct beyond the bounds of

human decency should not be considered "incident to

service" because such conduct is not part of the military

mission. United States v. Stan'ey, 483 U.S. 683, 709 (1987)

(O’Connor, J., dissenting).

Because of the unauthorized and illegal nature of the firing

of the sixteen inch gun aboard the U.S.S. Iowa, Petitioners

NANCY JO LEWIS, as Personal Representative of the

Estate of Richard J. Lewis’ claims are not barred by the

10

Feres Doctrine.

B. WHETHER THE FERES DOCTRINE SHOULD

APPLY WHEN THE HARM COMPLAINED OF IS

THE RESULT OF INADEQUATE OR IMPROPER

TRAINING?

The most enduring rationale for the continued application

of Feres has been the need for unquestioned military

discipline as well as military autonomy. Stencel Aero

Engineering Corp. v. United States, 431 U.S. 666 (1977). The

same factors necessitating immediate and unquestioning

obedience do not operate in peacetime as they do in

wartime though. During peacetime, commanding officers

have greater opportunity for considered reflection in making

their decisions and thereby also have a greater opportunity

to prevent harm to their personnel.

The prospect of civil suits arising out of military decisions

does not effect discipline anymore than discipline is effected

by the possibility of court-martial proceedings. Clearly the

actions of a commanding officer can be subject to judicial

review through a court-martial proceeding. This would

seemingly implicate military discipline just as much as the

prospect of a subsequent civil action arising out of erroneous

command decisions. Therefore, the reasoning set forth in

Feres, that the possibility of civil lawsuits will interfere with

the ability of the military to conduct its business, is

fallacious.

As Justice Antonin Scalia wrote in United States v. Johnson,

481 U.S. 681, 699 (1987), "I cannot deny the possibility that

some suits brought by servicemen will adversely affect

military discipline, and if we were interpreting an ambiguous

statute perhaps we could take that into account. But I do

11

a

not think the effect upon military discipline is so certain, or

so certainly substantial, that we are justified in holding (if we

can ever be justified in holding) that Congress did not mean

what it plainly said before us."

C. WHETHER THE FERES DOCTRINE SHOULD

APPLY WHEN THE HARM COMPLAINED OF IS

BASED ON A "PRODUCTS LIABILITY" THEORY?

Issues of military discipline and autonomy are not

sufficiently implicated in products liability actions to justify

being barred by Feres either. None of the other factors

justifying Feres (distinctly federal nature of the relationship

between the government and members of the armed forces

and availability of existing alternative compensation

schemes) come into play either.

In a products liability case, the Petitioner argues that the

product involved was unreasonably dangerous, either by

design, manufacture, or use. In the instant case, the

Petitioner contends that the turret and its mechanisms and

in particular the ramming mechanism in Turret II on the

U.S.S. Iowa, was unreasonably dangerous and could have

been made reasonably safe by the use of technology

available prior to the time of the building of the Iowa.

There is no issue of military discipline involved in such a

claim. None of the reasoning set forth in Feres and the

cases which have followed it justify barring such an action.

Accordingly, Petitioner urges this Court to adopt a products

liability exception to Feres.

2. WHETHER PETITIONER HAS CLAIMS

DERIVING FROM THE EVENTS OCCURRING

AFTER HER SON’S DEATH ON THE U.S.S. IOWA

300 MILES OFF THE COAST OF PUERTO RICO;

SUCH WRONGFUL ACTS ARE COMPLETELY

12

INDEPENDENT OF THE PURPORTED

NEGLIGENT AND/OR INTENTIONAL CONDUCT

THAT LED TO HER SON’S DEATH?

The case of Kohn v. United States of America, Department

of the Army of the United States of America, 680 F2d 922

(2nd Cir. 1982) is on point with the present case at bar. In

Kohn parents of the serviceman who was shot to death by a

fellow officer brought a lawsuit for their son’s conscious pain

and suffering, loss of son’s society and services, and for

independent, post-service acts by the Army which allegedly

directly injured them. The trial court dismissed the

Plaintiff's complaint for lack of subject matter jurisdiction

pursuant to Defendant’s Motion to Dismiss under Fed. R.

Civ. P. 12. Plaintiffs appealed the trial court’s decision.

Plaintiffs challenged the District Court’s dismissal of their

complaint against the United States on the ground that the

Feres Doctrine barred their claim.

The United States Court of Appeals, Second Circuit

reversed the trial judge’s ruling and held that Feres does not

necessarily bar the claims raised by appellants in their own

right in their individual cause of action.

Courts have recognized that the Feres Doctrine does not

preclude recovery for independent, post-service negligent

acts by the military, whether the Plaintiff be a serviceman or

civilian. United States v. Brown, 348 U.S. 110, 112-113, 75

S.Ct. 141, 99 L.Ed. 139 (1954); LaBash v. United States

Department of Army, 668 F.2d at 1156-57 n.6; Broudy v.

United States, 661 F.2d 125, 128 (9th Cir. 1981); Stanley v.

Central Intelligence Agency, 639 F.2d 1146, 1153-54 (Sth Cir.

1981).

Petitioner in the present case at bar has claims which

derive from the events occurring after her son’s death

a2

occurring on the U.S.S. Iowa tragedy. Moreover, the

wrongful acts alleged are completely independent of the

purported negligent and intentional conduct that led to her

son’s death.

The result in Kohn, supra, has been followed in other

circuits. Dorothy M. Vogelaar v. United States of America,

665 F.Supp. 1295 (E.D. Mich. 1987). In Vogelaar, the

mother of the servicemember brought an action against the

United States based on the government’s alleged failure to

timely identify her son’s remains. On the United States

Motion to Dismiss and for Summary Judgment, the District

Court held that the claim was not barred to the extent

alleged acts or omissions occurred in the United States. In

Vogelaar, supra, Barton, the Plaintiff's son, died in Vietnam

on July 28, 1970, while serving in the United States Army.

At the time of his death, Barton was listed as a deserter

from his unit at Camp Radcliff, Republic of Vietnam.

Barton’s unit departed its location at Camp Radcliff without

him on October 20, 1979. On March 28, 1972, as a result of

observations by the Vietnamese National Police, a squad of

American soldiers was led to the site of a previously

undiscovered skeleton at Camp Radcliff, which was later

determined to be that of Private Barton on January 21, 1983.

The Army thereafter retracted its classification of Barton as

a deserter, and his recovered remains were buried with full

military honors on February 12, 1986. Plaintiff brought suit

alleging that following her son’s death, Defendant

employees, acting within the scope of their employment,

failed to properly investigate the circumstances of his

disappearance and improperly identify him as a deserter. In

addition, that the Defendant employees failed to properly

care for the remains and failed to timely identify and deliver

them to her. The Court denied the Defendants’ Motion for

Summary Disposition and held that the Plaintiff Dorothy M.

Vogelaar could maintain a claim against the United States

14

for the Defendants’ negligent actions. Although the claim

was based upon her son’s involvement in the military, her

claim was solely separate and based upon subsequent

negligent actions or omissions of the Defendant.

In 1946, the Federal Tort Claims Act (FTCA) stripped

away the sovereign immunity of the United States

Government. Shortly thereafter in the case of Feres v.

United States, the Supreme Court held that the United States

could not be sued on tort claims growing out of the military

service.

The Supreme Court, sensitive to Congress’ desire to use

the FTCA to "mitigate the unjust consequences of sovereign

immunity", explicitly rejected, in the FTCA context, the

traditional approach of strictly construing waivers of

immunity. Jayson v. United States, 340 U.S. 135, 139, (1950),

(quoting the Feres case). Accord Block v. Neal, 460 U‘S.

289, 298, (1983), ("the exemption of the sovereign from suit

involves hardship enough where consent has been withheld.

We are not to add to its rigor by refinement of construction

where consent has been announced. See also Kielwien v.

United States, 540 F.2d 676, 681 (4th Cir.), ("The [FTCA] is

remedial and should be liberally construed to grant the relief

contemplated by Congress.)

Although there are some Fourth Circuit opinions that have

adhered to the stricter traditional approach, these cases rely

primarily on decisions that either preceded the recent

liberalization, or that are outside the unique FTCA context.

Quoting Sheridan v. The United States, 823 F.2d 820, 827,

(4th Cir. 1987) dissenting opinion of Chief Judge Harrison

L. Winter.

3. WHETHER THE FERES DOCTRINE SHOULD

BE OVERRULED BECAUSE CONGRESS NEVER

15

le

INTENDED TO EXCLUDE THE RECOVERY OF

MILITARY SERVICEMEN FOR INJURY OR

DEATH CAUSED BY THE NEGLIGENT OR

WRONGFUL ACT OR OMISSION OF ANY

EMPLOYEE OF THE UNITED STATES WHILE

ACTING WITHIN THE SCOPE OF HIS OFFICE

OR EMPLOYMENT.

Congress never intended to exclude the recovery of military

servicemen for injury or death caused by the negligent or

wrongful act or omission of any employee of the United

States while acting within the scope of his office or

employment. Eighteen Tort claim bills were introduced in

Congress between 1925 and 1935 and all but two expressly

denied recovery to members of the armed forces. The

Federal Tort Claims Act, 28 U.S.C. Sec. 1346, as passed

made no exception to members of the armed forces.

As dissenting Justice Antonin Scalia noted in Johnson, p.

692, "[T]he Court today provides several reasons why

Congress might have been wise to exempt from the Federal

Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b), 2671-2680,

certain claims brought by servicemen. The problem now, as

then, is that Congress not only failed to provide such an

exemption, but quite plainly excluded it."

In fact, when Congress enacted the Federal Tort Claims

Act, it contained a specific exception, including one for

"[A]ny claim arising out of the combatant activities of

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

war." 28 U.S.C. Sec. 2680(j). See Petitioner’s Appendix.

Nowhere on the face of the Federal Tort Claims Act is there

an exemption prohibiting claims brought by servicemen

against the United States during peacetime which did not

involve combatant activities.

16

The United States Supreme Court in 1950 created a

judicial exception of the Federal Tort Claims Act known as.

the Feres Doctrine. The United States Supreme Court

' advances three rationals in its justification of the Feres

Doctrine. These rationals are:

1. The distinctly federal nature of the relationship

between the government and members of the Armed

Forces;

yA The availability of existing alternative

compensation schemes in the military; and,

3. The fear of damaging military structure and

discipline.

These rationales, at best, were ill-reasoned and may have

been appropriate when Feres was decided over four decades

ago. "[T]he Feres rule is now sustained only by three

disembodied estimations of what Congress must (despite

what it enacted) have intended. They are bad estimations at

that. The first of them, Feres’ second rationale, has barely

escaped the fate of the "parallel private liability" argument,

for though we have not yet acknowledged that it is

erroneous we have described it as "no longer controlling."

Dissent in U.S. v. Johnson, p. 695 (citations excluded).

Other courts have also criticized the Feres Doctrine.

"(Urging the United States Supreme Court to] limit our .

clearly wrong decision in Feres and confine the unfairness

and irrationality that decision has breed"; Atkinson v. United

States, 825 F.2d 202, 206 (1987); Atkinson v. United States,

804 F.2d 561 (1986). Others have found fault with the

essential vagueness and ambiguity of the doctrine itself. See

e.g., Millang v. United States, 817 F.2d 533, 535 (9th Cir.

1987) (per curiam) (noting the “somewhat elusive ’incident

17

een

to service’ standard"), cert. denied. 485 U.S. 987, 108 S.Ct.

1290, 99 L.Ed.2d 500 (1988); Monaco v. United States, 661

F.2d 129, 132 (9th Cir. 1981) (noting that "the basis for the

exception has recently become the subject of some

confusion"), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73

L.Ed.2d 1284 (1982); Persons, 925 F.2d at 295 (citing Millang

and Monaco and noting that "it is entirely unclear which of

the doctrine’s original justifications survive"). A comparison

of reasoning with outcomes in cases that have applied the

doctrine validates these concerns: the results have not flowed

easily from the doctrine’s purported rationales."

Accordingly the Petitioner respectfully requests the United

States Supreme Court to adopt the dissent in Johnson, p.

703, which argue that "I confess that the line between FTCA

suits alleging military negligence and those alleging civilian

negligence has nothing to recommend it except that it would

limit our clearly wrong decision in Feres. . ."

18

QUESTIONS ANSWERED

1. Petitioner, whose son was killed in an explosion on

April 19, 1989, aboard the U.S.S. Iowa should be allowed to

recover under the Federal Tort Claims Act.

2. Petitioner’s claims occurring after her son’s death on

the U.S.S. Iowa are completely independent of the

purported negligent and/or intentional conduct that led to

her son’s death.

3. The Feres doctrine should be overruled.

CONCLUSION

On April 19, 1989, forty-seven sailors, citizens of the

United States, dedicating their lives to the service of their

country, were killed in an explosion aboard the U.S.S. Iowa.

The Federal Torts Claim Act put into place by Congress in

1946 had been proposed to Congress to deal with situations

wherein the United States government would be responsible

for certain tortious conduct. Sixteen of eighteen of the

twenty bills between 1925 and 1935 that were proposed to

Congress contained military exceptions. Two did not a

military exception. Congress specifically chose to adopt a

bill that would uniformly handle claims against the United

States government as opposed to handling piece-meal bills

proposed to Congress on an ad hoc basis each time a claim

arose.

The Feres Doctrine was a judicial interpretation by the

Supreme Court in 1950 that the military members of the

armed services who were injured incident to service would

be precluded from having the same rights that any other

citizen of the United States would have against the

19

government.

This 1950 judicial interpretation by the Supreme Court

called the Feres Doctrine excepting military members and

their families from suit under the Federal Torts Claim Act

should no longer stand. A 1950 judicial interpretation of an

exception to a law in the United States is not an adequate

law in 1992. Tort law has evolved since 1950 much like civil

rights law has evolved. To continue to apply 1950 civil rights

laws to 1992 cases involving minorities, religious sects, and

senior citizens would never be tolerated. Claims of sexual

discrimination, religious discrimination, and age and race

discrimination simply are no longer tolerated through

judicial interpretations of the congressional enactments by

the highest court in this land.

Petitioner has not had her day in court and only requests

that this Honorable Court, the highest Court in the land,

review the 1950 Feres decision and overturn that exception

to the Federal Torts Claim Act and allow members of the

military the same rights as every other citizen of the United

States.

Petitioner requests that the United States Supreme Court

review the intellectual wisdom and philosophies and theory

behind the Federal Torts Claim Act and revisit those issues

allowing the Petitioner to be heard before making any final

decision.

How can we as a Society be harmed by having this United

States Supreme Court revisit the issues presented herein by

the death of forty-seven United States sailors and their

families or loved ones?

These families’ cries for help and Justice have thus far

gone unanswered. All they ask is that this Court, the

highest Court in the land, listen to their arguments, be

20

allowed an opportunity to present their claims, and know

that they can accept the fact that at least a decision was

made only after a thorough review and revisit by the Court

of all the issues before them.

I respectfully request this Honorable Court to grant the

Petition for Writ of Certiorari.

Respectfully submitted,

Lawrence Patrick Nolan

NOLAN, REINCKE,

THOMSEN & VILLAS, P.C.

239 South Main Street

Eaton Rapids, MI 48827-1291

Telephone: (517) 663-3306

21

APPENDIX

92-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

NANCY JO LEWIS, Personal Representative of the Estate

of Richard J. Lewis, et al.,

Petitioners,

V.

UNITED STATES NAVY, an Agency of the United States

Federal Government,

Respondents.

On Petition of Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITIONER’S APPENDIX

FOR WRIT OF CERTIORARI

LAWRENCE PATRICK NOLAN

NOLAN, REINCKE, THOMSEN &

VILLAS, P.C.

239 S. Main St.

Eaton Rapids, MI 48827

(517) 663-3306

Attorneys for Petitioner

TABLE OF CONTENTS

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U. S. DISTRICT COURT

MEMORANDUM OPINION .................. 7-a

U. S. DISTRICT

So 8 ge ea eae 10-a

OPINION OF THE UNITED

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UNITED STATES COURT

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28 U.S.C. Sec. 1346

(a) The district courts shall have original jurisdiction,

concurrent with the United States Claims Court, of:

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

recovery of any internal-revenue tax alleged to have been

erroneously or illegally assessed or collected, or any penalty

claimed to have been collected without authority or any sum

alleged to have been excessive or in any manner wrongfully

collected under the internal-revenue laws;

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

States, not exceeding $10,000 in amount, founded cither

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 jurisdiction 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 damages 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

Acronautics and Space Administration shall be considered

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 against the United States, for

money damages, accruing on and after January 1, 1945, for

injury or loss of property, or personal injury or death caused

by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope

of his office or employment, under circumstances where the

United States, if a private person, would be liable to the

l-a

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 plaintiff commencing an action under this section.

(d) The district court 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 the case of the United

States district court for the District 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. Sec. 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 judicial and legislative branches, the

military departments, independent 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, members of the National

Guard while engaged in training or duty under section 316,

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

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 employment", in the

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

United States or a member of the National Guard as

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

duty.

3-a

28 U.S.C. Sec. 1254

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after

rendition of judgment or decree;

(2) By certification at any time by a court of appeals of

any question of law in any civil or criminal case as to which

instructions are desired, and upon such certification the

Supreme Court may give binding instructions or require the

entire record to be sent up for decision of the entire matter

in controversy.

4-a

28 U.S.C. Sec. 2680

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

discretionary function or duty on the part of a federal

agency or an employee of the Government, whether or not

the discretion involved be abused.

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

negligent transmission of letters or postal 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.

(g) Repealed. Sept. 26, 1950, c. 1049, s 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

interference with contract rights: Provided, That, with

regard to acts or omissions of investigative or law

enforcement officers of the United States Government, the

provisions of this 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

imprisonment, false arrest, abuse of process, or malicious

prosecution. For the purpose of this _ subsection,

"investigative or law enforcement officer" means any officer

S-a

of the United States who is empowered by law to execute

searches, to seize evidence, or to make arrests for violations

of Federal law.

(i) Any claim for damages caused by the fiscal operations

of the Treasury or by the regulation of the monetary system.

(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.

(1) Any claim arising from the activities of the Tennessee

Valley Authority.

(m) Any claim arising from the activities of the Panama

Canal Company.

(n) Any claim arising from the activities of a Federal land

bank, a Federal intermediate credit bank, or a bank for

cooperatives.

6-a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA -

ALEXANDRIA DIVISION

NANCY JO LEWIS,

Personal Representative of

the Estate of

RICHARD J. LEWIS,

deceased, et al.,

Plaintiffs,

v. CIVIL ACTION

NO. 91-0547-A

UNITED STATES NAVY, an Agency

of the United States,

Defendant.

MEMORANDUM OPINION

This matter came before the court on defendant’s

motion to dismiss, or in the alternative, for summary

judgment. Defendant argues that the court lacks jurisdiction

over the subject matter of this case because the deaths of

the sailors on the USS Iowa arose during the course of

activity incident to their military service. Plaintiffs argue

that this court should create an exception to the Feres

doctrine and permit this suit to go forward. They further

argue that even if the court does not make an exception

under Feres for their negligence claims, the claim brought

pursuant to the Suits in Admiralty Act (SAA), 46 U.S. C. §§

741-752, is not barred by Feres.

On April 19, 1989, 47 United States’ sailors, all of whom

were on active duty at the time, died when Turret II of their

battleship, the USS Iowa, exploded. The explosion occurred

7-a

while the battleship and its crew were engaged in training

exercises approximately 300 miles off the coast of Puerto

Rico. Plaintiffs named the United States Navy as the

defendant in this case and asserted claims for the Navy’s

negligent design, testing, inspection and maintenance of

Turret II, negligent failure to train, evaluate and staff the

personnel for the Turret II, and failure to warn of the

hazards associated with the operation of Turret II. In

addition, the plaintiffs have brought claims pursuant to the

Death on the High Seas Act, 46 U.S.C. § 761 et seq., the

Suits in Admiralty Act (SAA), 46 U.S.C. § 741 et seq., and

the Public Vessels Act (PVA), 46 U.S.C. § 781 et seq.

The defendant’s argue that all claims which the plaintiffs

have asserted are barred under the doctrine enunciated in

Feres v. United States, 349 U.S. 135 (1950). Under the Feres

doctrine, servicemen are barred from suing the United

States for injuries occurring in the course of activity incident

to service. Feres at 146. In this case, the plaintiffs’

decedents were on active military duty in the United States

Navy and engaged in military operations and duties on the

date of their deaths. Their deaths were sustained in the

course of activity incident to service.

Plaintiffs do not argue that the deaths were not sustained

in the course of activity incident to service but, instead, they

argue that there is no necessity for the Feres doctrine: 1)

the distinctly federal nature of the relationship between the

government and members of the Armed Forces; 2) the

availability of existing alternative compensation schemes in

the military, and; 3) the fear of damaging military structure

and discipline. Plaintiffs contend that the rationale of the

Feres doctrine does not come into play when there is

egregious behavior on the part of the military personnel,

when training is insufficient, and when the action is a

products liability action. However, there is no authority for

any such exceptions to the rule in Feres. Other courts have

considered such exceptions and have also rejected them.

Laswell v. Brown, 683 F.2d 261 (8th Cir. 1982) (no egregious

behavior exception); Sigler v. Le Van, 485 F. Supp 185 (D.

Md. 1980) (the factual situation of injury to military

personnel incident to service triggers the application of the

8-a

i A a

Feres doctrine and not the underlying legal theory of

plaintiffs’ claims); Kitowski v. United States, 931 F.2d 1526

(11th Cir. 1991) (no training exercise exception). :

The bar of Feres applies whether jurisdiction is founded

under the Federal Tort Claims Act, the Public Vessels Act,

or the Suits in Admiralty Act. "The rationals supporting the

ruling in Feres limiting the waiver of sovereign immunity

applies with equal force in the context of governmental

immunity in admiralty." Charland v. United States, 615 F.2d

508, 509 (9th Cir. 1980). See also Potts v. United States, 723

F.2d 20 (6th Cir. 1983) and Beaucoudray v. United States, 490

F.2d 86 (Sth Cir. 1974). Finally, the claims by these

plaintiffs, as family members, also fail under the Feres

doctrine as they are derivative to the servicemen’s action for

his own injury incident to military service. Lombard v.

United States, 690 F.2d 215, 223 (D.C. Cir. 1982), cert.

denied, 462 U.S. 1118 (1983).

An appropriate order shall issue.

/s/Claude M. Hilton

United States District

Judge

Alexandria, Virginia

July 29, 1991

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

NANCY JO LEWIS,

Persorial Representative of

the Estate of

RICHARD J. LEWIS,

deceased, et al.,

Plaintiffs,

v. CIVIL ACTION

NO. 91-0547-A

UNITED STATES NAVY, an Agency

of the United States,

Defendant.

CRDER

This matter came before the court on defendant’s

motion to dismiss, or in the alternative, for summary

judgment. For the reasons stated in the accompanying

memorandum opinion, it is hereby

ORDERED that defendant’s motion to dismiss is

GRANTED.

/s/Claude M. Hilton

United States District

Judge

Alexandria, Virginia

July 29, 1991

10-a

UNPUBLISHED

UNITED STATES COURT OF APPEALS —

FOR THE FOURTH CIRCUIT

NANCY JO LEWIS, Personal

Representative of the Estate of

Richard J. Lewis, Deceased; LISA J.

EVERHART, Administrator for suit

purposes of the Estate of Leslie Allen

Everhart, Jr.; ADELAIDA

MARTINEZ, Administrator of the

Estate of Jose Luis Martinez, Jr.,

SHARON A. ZIEGLER,

Administrator of the Estate of

Reginald Owen Ziegler; EVAN B.

BATTLE, Administrator of the

Estate of Dwayne Collier Battle;

JOYCE C. TATHAM, Administrator

of the Estate of Todd Thomas

Tatham; RHONDA JOHNSON,

Personal Representative of the Estate

of Ramon Jerel Bradshaw; ROBERT

J. GEDEON, JR., Administrator of

the Estate of Robert J. Gedeon, III;

REGINALD JOHNSON, JR.,

Administrator of the Estate of

Reginald Johnson, Jr.; APRIL E.

HANYECZ, Administrator of the

Estate of Ernest E. Hanyecz, LILLIE

DENISE JUSTICE, Administratrix of

the Personal Estate of Michael

Shannon Justice; PEGGY JEAN

PRICE, Administratrix of the Estate

of Matthew Ray Price; DAVID A.

WILLIAMS, Independent

Administrator of the Estate of

Michael Robert Williams; LUCILLE

ll-a

No. 91-1793

S. YOUNG, Personal Representative

of the Estate of John Rodney Young;

SUSAN MARIE BACKHERMS,

Administratrix of the Estate of Robert

Wallace Backherms; MARILYN M.

HANSON, Special Administrator of

the Estate of David L. Hanson;

SHIRLEY DeVAUL, Administrator

of the Estate of Milton Francis

DeVaul, Jr. GLADYS ELAINE

CARNS STILLWAGON,

Administratrix of the Estate of Heath

Eugene Stillwagon; RICHARD T.

LAWRENCE, Administrator of the

Estate of Richard E. Lawrence;

CARNELL J. WHITE, Administrator

of the Estate of Rodney Maurice

White; NATHANIEL C. GOINS, SR..,

Administrator of the Estate of John

Leonard Goins;s MARY CLARE

WELDEN, Personal Representative of

the Estate of Stephen Joseph Welden;

DALE I. SCHELIN, Special

Administrator of the Estate of

Geoffrey Scott Schelin; ALAN LEE

HOLT, Administrator of the Estate of

Scott Alan Holt; PATSY

McMULLEN, Administratrix of the

Estate of Todd Christopher

McMullen; RONALD LEROY

PETERSON, Administrator of the

Estate of Ricky Ronald Peterson;

PAUL BOPP, Representative of the

Estate of Peter Edward Bopp;

MELVIN C. FOLEY, Representative

of the Estate of Tyrone Dwayne

Foley; LINDA GENDRON,

Representative of the Estate of Brian

Wayne Gendron; PERI HELTON,

Representative of the Estate of

12-a

Michael William Helton; PATRICIA

KIRKPATRICK, Representative of

the Estate of Eric Ellis Casey;

CAROL NICHELSON, Repre-

sentative of the Estate of Ryan Robert

Jones; MARY E. OGDEN,

Representative of the Estate of Darin

Ogden; LEASA S. THOMPSON,

Representative of the Estate of Jack

Ernest Thompson, Jr.; SHELLY

WHITE, Representative of the Estate

of James Darrell White; EARL V.

HARTWIG, Executor of the Estate of

Clayton Hartwig; ROBERT L.

MORRISON, Administrator of the

Estate of Robert Kenneth Morrison;

and all those similarly situated,

Plaintiffs/Appellants,

and

JOE BUCH, Representative of the

Estate of Philip Edward Buch,

Plaintiff,

V.

UNITED STATES NAVY, an Agency

of the United States Federal

Government,

Defendant/Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-91-547-A)

13-a

Submitted: May 6, 1992

Decided: September 11, 1992

Before ERVIN, Chief Judge, MURNAGHAN, Circuit

Judge, and TILLEY, United States District Judge for the

Middle District of North Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

COUNSEL

John J. Lynch, Birmingham, Michigan; Kreig J. Brusnahan,

Cleveland, Ohio; William Hassan, Fairfax, Virginia, for

Appellants. Stuart M. Gerson, Assistant Attorney General,

Debra J. Kossow, Senior Admiralty Counsel, Civil Division,

UNITED STATES DEPARTMENT OF _ JUSTICE,

Washington, D.C.; Kenneth E. Melson, United States

Attorney, Alexandria, Virginia, for Appelices.

Unpublished opinions are not binding precedent in this

circuit. See I.O.P. 36.5 and 36.6.

OPINION

PER CURIAM:

The Appellants appeal from the district court’s order

dismissing their wrongful death actions against the United

States Navy arising out of an explosion aboard the USS Iowa

which killed forty-seven sailors. We affirm.

Servicemen are barred from suing the United States for

injuries occurring in the course of activity incident to service.

14-a

Dineen

Wiens 2

Feres v. United States, 340 U.S. 135 (1950). The Plaintiff's

concede that the decedents were on active military duty in

the United States Navy and that they were engaged in

military operations at the time of their deaths. Nevertheless,

they argue that there should be certain exceptions created

under the Feres doctrine: (1) where the harmful conduct on

the part of military officials is. egregious; (2) where the

injuries are sustained as a result of inadequate or improper

training; (3) where the action is based on theories of

products liability; and, (4) where the claim is brought

pursuant to the Suits in Admiralty Act (SAA), 46 U.S. C. §§

741-752.

In declining to create any such exceptions, we follow

every Circuit which has addressed this issue. See Laswell v

Brown, 683 F.2d 261, 265 (8th Cir. 1982) (no exception for

egregious conduct), cert. denied. 459 U.S. 1210 (1983);

Kitowski v. United States, 931 F.2d 1526 (11th Cir.) (Feres

doctrine applied to claims arising out of training exercises),

cent. denied, 60 U.S.L.W. 3342 (U.S. 1991); Potts v. United

States, 723 F.2d 20, 21-22 (6th Cir. 1983) (Feres doctrine

applics with equal force to bar suits brought pursuant to the

SAA), cert. denied, 466 U.S. 959 (1984); see also Stencel Aero

Eng Corp. v. United States, 431 U.S. 666 (1977) (Feres

doctrine applied in indemnity action raising products liability

claims against United States).

Because Plaintiffs’ injuries arose in the course of activity

incident to service and are not within any exception to Feres,

we affirm the decision of the district court dismissing the

complaint.

AFFIRMED

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FILE COPY

FILED: SEPTEMBER 11, 1992

JUDGMENT

UNITED STATES COURT OF APPEALS

for the

Fourth Circuit

No. 91-1793

CA-91-547-A

NANCY JO LEWIS, Personal

Representative of the Estate of

Richard J. Lewis, Deceased; LISA J.

EVERHART, Administrator for suit

purposes of the Estate of Leslie Allen

Everhart, Jr.; ADELAIDA

MARTINEZ, Administrator of the

Estate of Jose Luis Martinez, Jr.,

SHARON A. ZIEGLER,

Administrator of the Estate of

Reginald Owen Ziegler; EVAN B.

BATTLE, Administrator of the

Estate of Dwayne Collier Battle;

JOYCE C. TATHAM, Administrator

of the Estate of Todd Thomas

Tatham; RHONDA JOHNSON,

Personal Representative of the Estate

of Ramon Jerel Bradshaw; ROBERT

J. GEDEON, JR., Administrator of

the Estate of Robert J. Gedeon, III;

REGINALD JOHNSON, JR.,

Administrator of the Estate of

Reginald Johnson, Jr.; APRIL E.

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No. 91-1793

HANYECZ, Administrator of the

Estate of Ernest E. Hanyecz, LILLIE

DENISE JUSTICE, Administratrix of

the Personal Estate of Michael

Shannon Justice; PEGGY JEAN

PRICE, Administratrix of the Estate

of Matthew Ray Price; DAVID A.

WILLIAMS, Independent

Administrator of the Estate of

Michael Robert Williams; LUCILLE

S. YOUNG, Personal Representative

of the Estate of John Rodney Young;

SUSAN MARIE BACKHERMS,

Administratrix of the Estate of Robert

Wallace Backherms; MARILYN M.

HANSON, Special Administrator of

the Estate of David L. Hanson;

SHIRLEY DeVAUL, Administrator

of the Estate of Milton Francis

DeVaul, Jr... GLADYS ELAINE

CARNS STILLWAGON,

Administratrix of the Estate of Heath

Eugene Stillwagon; RICHARD T.

LAWRENCE, Administrator of the

Estate of Richard E. Lawrence;

CARNELL J. WHITE, Administrator

of the Estate of Rodney Maurice

White; NATHANIEL C. GOINS, SR..,

Administrator of the Estate of John

Leonard Goins; MARY CLARE

WELDEN, Personal Representative of

the Estate of Stephen Joseph Welden;

DALE I. SCHELIN, Special

Administrator of the Estate of

Geoffrey Scott Schelin; ALAN LEE

HOLT, Administrator of the Estate of

Scott Alan Holt; PATSY

McMULLEN, Administratrix of the

_Estate of Todd Christopher

McMullen; RONALD LEROY

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PETERSON, Administrator of the

Estate of Ricky Ronald Peterson;

PAUL BOPP, Representative of the

Estate of Peter Edward Bopp;

MELVIN C. FOLEY, Representative

of the Estate of Tyrone Dwayne

Foley; LINDA GENDRON,

Representative of the Estate of Brian

Wayne Gendron; PERI HELTON,

Representative of the Estate of

Michael William Helton; PATRICIA

KIRKPATRICK, Representative of

the Estate of Eric Ellis Casey;

CAROL NICHELSON, Repre-

sentative of the Estate of Ryan Robert

Jones; MARY E. OGDEN,

Representative of the Estate of Darin

Ogden; LEASA S. THOMPSON,

Representative of the Estate of Jack

Ernest Thompson, Jr.; SHELLY

WHITE, Representative of the Estate

of James Darrell White; EARL V.

HARTWIG, Executor of the Estate of

Clayton Hartwig; ROBERT L.

MORRISON, Administrator of the

Estate of Robert Kenneth Morrison;

and all those similarly situated,

Plaintiffs - Appellants

and

JOE BUCH, Representative of the

Estate of Philip Edward Buch

Plaintiff,

Vv.

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UNITED STATES NAVY, an Agency

of the

United States Federal

Government

Defendant - Appellee

Anne

a a

!

al

I

ORDER

from the United States District

istern District of Virginia at Ale:

1Y-a