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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 914

## Text

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

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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
JP ye Pee 0) ogo |. . * ' 6. ll-a

UNITED STATES COURT
oy SS 8 er er 16-a

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

1S-a

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.

16-a

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

17-a

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.

18-a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1776%3A1. Public record. Not legal advice.