Petition for Writ of Certiorari — Anderson v. United States

FIL ED

92- 1 064 DEC 17 1990

*

OFALCE OF THE

—

CLERK

IN THE :

SUPREME COURT oF THE UNITED STATES

October Term, 1992

ROBERT E. ANDERSON and BONNIE DeLILLIE,

Petitioners,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Thomas W. Anderson

Counsel of Record for Petitioners

THe Brian E. Suit Law Firm

301 South 2nd Avenue

Yuma, Arizona 85364

(602)783-8811

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Feres doctrine should be overruled, to

allow a U.S. Marine to bring an action against the

government under the Federal Tort Claims Act, for

medical malpractice committed while the Marine was on

leave from active duty, and being treated in an Air Force

hospital for an ailment unrelated to military service?

2. Whether the Feres doctrine should be overruled, so

that the parent of a U.S. Marine may bring an action

against the government under the Federal Tort Claims

Act for the loss of the Marine’s society and services

resulting from medical malpractice as described above?

LIST OF PARTIES

The names of all parties to this proceeding

appear in the caption of the case.

TABLE OF CONTENTS

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Appendix A - Opinion of the Court of Appeals

Appendix B - Opinion of the District Court

ili

TABLE OF AUTHORITIES

CASES:

Ahrens v. Clark,

335 US. 188 (1948) 6

Andrews v. Louisville & N.R.R.,

406 U.S. 320 (1972) 6

Boys Markets, Inc. v. Retail Clerks Union Local 770,

398 U.S. 235 (1970) 6

Braden v. 30th Judicial Circuit Court of Ky.,

410 U.S. 484 (1973) 6

Continental T.V., Inc. v. GTE Sylvania, Inc.,

433 US. 36 (1977) 6

Feres v. United States,

340 U.S. 135 (1950) 23,46 7,8

Indian Towing Co. v. United States,

350 U.S. 61 (1955) 5

International Union v. Wisconsin Employment Rel. Bd.,

336 U.S. 245 (1949) 6

Johnson v. Transp. Agency, Santa Clara Cty., Cal.,

480 U.S. 616 (1987) 8

Lodge 76, Int’l Ass’n of Machinists v. Wisconsin

Employment Relations Comm’n,

427 US. 132 (1976) 6

Monell v. New York City Dept. of Social Services.,

436 U.S. 658 (1978) 6, 7

Monroe v. Pape,

365 U.S. 167 (1961) 6,7

iv

Moore v. Illinois Cent. R.R.,

312 U.S. 630 (1941)

Rayonier, Inc. v. United States,

352 U.S. 315 (1957)

Sinclair Refining Co. v. Atkinson,

370 U.S. 195 (1962)

United States v. Arnold, Schwinn & Co.,

388 U.S. 365 (1967)

United States v. Brown,

348 U.S. 110 (1954)

United States v. Johnson,

481 U.S. 681 (1987)

United States v. Muniz,

374 U.S. 150 (1963)

United States v. Shearer,

473 U.S. 52 (1985)

STATUTES:

28 U.S.C. § 125+

28 U.S.C. § 1346(b)

38 U.S.C. §§ 301, et seq.

OTHER AUTHORITIES:

Eskridge, Overruling Statutory Precedents,

76 Geo. L.J. 1361 (1988)

vii, 1, 3

REPORTS AND OPINIONS BELOW

Anderson v. United States, No. 91-16932, Memorandum

Decision, 9th Circuit Court of Appeals, September 18,

1992.

Anderson v. United States, No. CIV 90-1694-PHX-SMM,

Unpublished Order, District of Arizona, November 21,

1991.

vi

STATEMENT OF JURISDICTION ~~

The judgment of the United States Court of

Appeals for the Ninth Circuit was entered on September

18, 1992. This Court has jurisdiction to review this matter

pursuant to 28 U.S.C. § 1254.

Vii

STATUTES INVOLVED

28 U.S.C., Subsection 1346(b)

Subject to the provisions of chapter 171 of

this title (28 U.S.C., Subsection 2671, et

seq.), 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 to property, or personal injury

or death caused by the negligence 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, as a

private person, would be liable to the

claiv*ant in “cordance with the law of the

place »w“c.e the act or omission occurred.

Vili

STATEMENT OF THE CASE

I. Facts

Petitioner Robert Anderson will never eat a normal

meal again. In May, 1988, government health care

providers failed to timely diagnose that he had a bowel

obstruction, and as a result gangrene set in. His entire

small intestine had to be surgically removed. For the rest

of his life Robert will take his nutrition through a tube

inserted into a vein.

At the time in question, Robert was a lance

corporal in the United States Marine Corps. He was on

leave visiting Phoenix, Arizona, away from his active duty

station at Camp Pendleton, California. While in Arizona

he suffered abdominal pain, and presented himself to the

health care facility at Luke Air Force Base near Phoenix,

where the alleged medical malpractice occurred.

II]. HistoRY OF THE CASE

A. Jurisdiction of the District Court

Petitioners invoked the jurisdiction of the District

Court pursuant to 28 U.S.C. § 1346(b), claiming damages

against the United States as authorized by the Federal

Tort Claims Act.

B. In the District Court

Robert filed suit against the government in the

United States District Court for the District of Arizona on

October 31, 1990, for medical malpractice. The complaint

was later amended to add the derivative claim of his

mother, Petitioner DeLillie, for loss of the society and

services of her son. The government moved to dismiss the

1

claims of Petitioners for lack of subject matter jurisdiction,

based on the Feres doctrine’. On November 21, 1991, the

District Court granted the government’s motion and

entered an order dismissing the case.

C. In the Court of Appeals

On December 9, 1991, Petitioners filed a Notice of

Appeal to the United States Court of Appeal for the

Ninth Circuit. Following briefing, the Court of Appeals

affirmed the judgment of the District Court by a

memorandum opinion filed on September 18, 1992.

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

2

ARGUMENT FOR GRANTING THE WRIT

I. INTRODUCTION

In 1946 Congress substantially abrogated the

sovereign immunity of the United States by enacting the

Federal Tort Claims Act (FTCA)’, thereby opening the

courthouse door to those injured by the federal

government’s tortious conduct. Four years later this Court

shut the door to military personnel. In Feres v. United

States* the Court surmised, despite the apparent language

of the FTCA to the contrary, that Congress had not really

intended to allow damage claims by members of the

military for injuries suffered "incident to service."*

The Feres doctrine, the only judicially created

exception to the FTCA’s waiver of immunity, has been

widely criticized, nowhere more cogently than in the

dissent to United States v. Johnson*, the most recent case

in which the Court considered the extent of Feres’s re-

immunization of the government. The aggrieved parties

in Johnson did not ask the Court to overrule Feres.°

These Petitioners now ask the Court to do so.

Il. THe FERES DOCTRINE IS WRONG.

The plain language of the FTCA allows claims by

servicemembers. Nothing in the legislative history of the

Act shows that Congress intended to discriminate on the

2 28 U.S.C. § 1346(b).

3 340 U.S. 135 (1950).

4 Feres, 340 U.S. at 146.

5 481 U.S. 681, 692-703 (1987).

® Johnson, 481 U.S. at 692.

basis of uniform. Indeed, the Feres Court conceded that

Congress had considered earlier tort claims bills that

explicitly denied recovery to members of the armed forces,

but did not include such an exception in the FTCA.’

Nevertheless, the Court decided to read claims by

military members out of the FTCA, so that it would "fit"

with "the entire statutory system of remedies against the

government."® The Court offered the following

justifications for doing so:

1) Congress intended only to waive

immunity where an analogous private liability existed, and

the Court could find no private sector analog to a claim

by a soldier against the government;?

2) Congress could not have intended to

subject injured members of the military to the vagaries of

state tort laws, or to submit the "distinctively federal"

relationship between a soldier and the military to other

than federal authority;’° and

3) Congress had provided other benefits to

injured service personnel, yet the FTCA did not provide

for any adjustment for these other benefits, so Congress

could not have intended to allow FTCA claims in addition.

As is demonstrated in the Johnson dissent, none

of these justifications survives scrutiny. The Court later

explicitly abandoned the first, the "parallel private liability"

7 Feres, 340 U.S. at 139.

8 Feres, 340 U.S. at 139.

® Feres, 340 US at 141.

10 Feres, 340 U.S. at 143-144.

11 481 U.S. at 692-703.

12

rationale.“ The Court now considers the second - the

"distinctively federal relationship" rationale - "no longer

controlling.""> And the Court ignored the third - the

exclusive remedy rationale - when it allowed military

personnel to recover under both the Veterans’ Benefits

Act'* and the FTCA, without any offset.’°

Later, the Court adopted an additional justification:

suits by military personnel would interfere with military

discipline.’© This gives rise to the irony that if Corporal

Anderson had been a prisoner in a federal penitentiary

instead of a Marine on active duty in service to his

country, and had been injured by the malpractice of a

prison doctor, he would be free to pursue a claim under

the FTCA. In United States v. Muniz, despite the

government’s contention that prison discipline would be

disrupted, the Court refused to bar federal prisoners’

malpractice claims because Congress had not explicitly

precluded them in the FTCA.'’ What rational policy

requires the Court to read the FTCA any differently when

considering Corporal Anderson’s claim? His case raises

no issue that would involve the courts in second-guessing

military judgment or tampering with the disciplinary

structure of the armed forces.

Unfortunately, this case is not unique. The federal

12 Rayonier, Inc. v. United States, 352 U.S. 315 (1957); Indian

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

13 United States v. Shearer, 473 U.S. 52, at 58, note 4 (1985).

14 38 U.S.C. §§ 301 et seq.

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

16 United States v. Brown, 348 U.S. at 112.

17 374 U.S. 150 (1963).

reporters are replete with Feres horror stories, and the

lower courts continually complain of the unjust results that

Feres forces them to impose on servicemembers and their

families. In deciding this case the Ninth Circuit judges

observed, "we follow a long tradition of reluctantly

aceROWINC INS the enormous breadth of a troubled

doctrine."!

The Feres doctrine, without any visible means of

support in principle, nevertheless remains suspended in

place by stare decisis.

Il]. STARE DECISIS CONSIDERATIONS SHOULD NOT

PREVENT CORRECTION OF THE FERES ERROR.

Petitioners understand that, for sound reasons, the

Court is generally reluctant to overrule its earlier statutory

interpretations. Yet there is ample precedent for

overruling statutory precedent.'? According to one

commentator, as of 1988, the Court "has overruled or

18 Appendix A-3, quoting Persons v. United States, 925 F.2d at 295

(9th Cir. 1991).

19 See, e.g., Monell v. New York City Dept. of Social Services., 436

U.S. 658 (1978) [overruling Monroe v. Pape, 365 U.S. 167 (1961)};

Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36 (1977)

{overruling United States v. Arnold, Schwinn & Co., 388 U.S. 365

(1967)]; Lodge 76, Int'l Ass'n of Machinists v. Wisconsin Employment

Relations Comm'n, 427 U.S. 132 (1976) [overruling International

Union v. Wisconsin Employment Relations Bd., 336 U.S. 245 (1949)};

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973)

[overruling Ahrens v. Clark, 335 U.S. 188 (1948)]; Andrews v.

Louisville & N.R.R., 406 U.S. 320 (1972) [overruling Moore v. Illinois

Cent. R.R., 312 U.S. 630 (1941)]; Boys Markets, Inc. v. Retail Clerks

Union Local 770, 398 U.S. 235 (1970) [overruling Sinclair Refining Co.

v. Atkinson, 370 U.S. 195 (1962)].

6

materially modified statutory precedents more than eighty

times since 1961."

There are a number of compelling reasons for

taking a fresh look at the Feres doctrine. First, a return to

the plain meaning of the text of the FTCA will better

foster those principles crucial to a constitutional system of

government based on the rule of law: objectivity,

predictability, certainty, coherence. It is not unfair, after

viewing the profusion of cases interpreting, construing,

criticizing, modifying, and extending Feres, to observe that

the doctrine raised more questions than it has answered.

Second, as argued above, the Feres doctrine is

clearly erroneous, and qualifies for overturning “even

under the most stringent test for the propriety of

overruling a statutory decision, "... ‘that it appear beyond

doubt ... that [the decision] misapprehended the meaning

of the controlling provision.”" Longevity alone should

not preserve a precedent that is fundamentally flawed.

Third, Feres and its progeny represent a method of

statutory interpretation that should be repudiated. The

Feres Court itself was evidently uncertain of its decision,

remarking that "if we misinterpret the Act, at least

Congress possesses a ready remedy." The majority in

United States v. Johnson, supra, noted this remark and

viewed the fact that Congress had not acted to amend the

FTCA during the intervening four decades as a sign of

20 Eskridge, Overnuling Statutory Precedents, 76 Geo. L.J. 1361

(1988).

21 Monell v. New York City Dept. of Social Services, supra, 436 U.S.

at 700, quoting Monroe v. Pape, supra, 365 U.S. at 192 (Harlan, J.,

concurring).

22 Feres, 340 U.S. at 155.

Congressional approval of Feres. This is fallacious. If the

Congress that passed the FTCA did indeed mean what it

said, it does not follow that any subsequent Congress

would necessarily be able or inclined to correct the

Court’s misinterpretation. As one member of the Court

has observed, "This assumption, which frequently haunts

our opinions, should be put to rest. ... I think we should

admit that vindication by congressional inaction is a

canard."~

IV. CONCLUSION

Despite Congressional inaction to correct Feres, the

Court has the ability, and in the interest of justice, the

obligation, to act. Petitioners request that their Petition

be granted, so the Court can restore to military personnel

the FTCA rights enjoyed by all others.

Respectfully submitted,

Thomas W. Anderson

Counsel of Record

THE Brian E. SmitH Law Firm

301 South 2nd Avenue

Yuma, Arizona 85364

(602)783-8811

Attorneys for Petitioners

23 Johnson v. Transp. Agency, Santa Clara Cty., Cal., 480 U.S. 616,

at 671-672 (1987) (Scalia, J., dissenting, joined by Rehnquist, C.J.).

8

APPENDIX A

FILED SEPTEMBER 18, 1992

Cathy A. Catterson, Clerk, U.S. Court of Appeals

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Robert E. Anderson,

a single man;

Bonnie DeLillie, 0. 91-16932

N

Plaintiffs-Appellants, D.C. No. CV-90-01694-SMM

v.

United States of America ) MEMORANDUM’

Defendant-Appellee.

ee ee ee ee ee ae ee a

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, District Judge, Presiding

” This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by 9th

Cir. R. 36-3.

A-1

Submitted September 15, 1992”°

Before GOODWIN, D.W. NELSON, and REINHARDT,

Circuit Judges.

Robert E. Anderson and Bonnie DeLillie appeal

the district court’s dismissal of their Federal Tort Claims

Act ("FTCA"), 28 U.S.C. 1346, 2671, et seq., action for

lack of subject matter jurisdiction. The district court

found that Anderson, an active duty Marine at the time

the cause of action allegedly arose, was barred from

bringing his medical malpractice claim against the United

States under the FTCA by the Feres doctrine. See Feres

v. United States, 340 U.S. 135 (1950). The Court also

found that DeLillie, Anderson’s mother, could not

maintain her action for the loss of the "society and service"

of her son due to the alleged negligence of the United

States because it was a derivative claim. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

On appeal, the appellants cite Persons v. United

States, 925 F. 2d 292 (9th Cir. 1991) and United States v.

Johnson, 481 U.S. 681 (1987), and "acknowledge that

under the current state of the law the Feres doctrine bars

their claims" because Anderson was in the military and the

alleged malpractice occurred in a military hospital.

Appellants, however, request that we overrule Feres, and

follow the dissent in Johnson. See 481 U.S. at 692-703.

While the doctrine "has been criticized ‘by

countless courts and commentators’ including this court,

... the Feres doctrine remains the law of the land, and

** The Panel unanimously finds this case suitable for decision

without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4.

A-2

we must undertake to apply it." Estate of McCallister v.

United States, 942 F.2d 1473, 1475-76 (9th Cir, 1991)

(quoting Persons, 925 F.2d at 295). Accordingly, we

affirm. "In doing so we follow a long tradition of

reluctantly acknowledging the enormous breadth of a

troubled doctrine." Id. at 1480

AFFIRMED.

A-3

APPENDIX B

FILED NOV 21 1991

RICHARD H. WEARE, CLERK

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Robert E. Anderson, )

)

Plaintiff, ) No. CIV 90-1694-PHX-SMM

)

vs. )

)

United States of America, ) ORDER

)

Defendant. )

)

Defendant, the United States of America, filed a

motion to dismiss for lack of subject matter jurisdiction,

pursuant to 12(b)(1) Federal Rules of Civil Procedure.

Oral argument was heard on September 16, 1991.

BACKGROUND

Plaintiff's complaint is brought under the Federal

Tort Claims Act for medical malpractice. In 1988 Plaintiff

was a United States Marine stationed at Camp Pendelton

(sic), California. On approximately, May 28, 1988 Plaintiff

was on leave visiting Arizona. While on leave, he suffered

stomach problems and presented himself to the health

care facility at Luke Air Force Base, Arizona for medical

B-1

treatment.

Plaintiff alleges that the medical staff who treated

him at Luke Air Force Base rendered him "substandard

medical care consisting of improper treatment, care

diagnoses (sic) along with delayed and/or improper

surgical intervention." Plaintiff also alleges that

subsequent care provided by the medical personnel at

Wilfred Hall, United States Air Force Medical Center,

Lackland, Texas was substandard.

As a result, of the allegedly improper care and

treatment rendered by these military health care

professionals, Plaintiff's intestines were removed and he

can only be fed by a nutrient solution known as

hyperalimentation. Plaintiff also alleges that he suffers

from serious emotional injury.

After oral argument the Court permitted Plaintiff

to file an Amended Complaint adding Bonnie DeLillie,

the mother of Plaintiff Robert E. Anderson. Bonnie

DeLillie is claiming damages for the loss of the "society

and service" of her son due to the alleged negligence of

the Defendant. The additional briefing regarding Bonnie

DeLillie’s claims being completed, the Court is prepared

to enter the following order regarding Defendant’s motion

to dismiss.

DISCUSSION

Relying on the Feres doctrine, the United States

moves to dismiss Plaintiffs complaint for lack of subject

matter jurisdiction. While the Federal Tort Claims Act

"waives traditional sovereign immunity for the tortious

conduct of any government employee, the Supreme Court

has carved out an exception for injuries to servicemen

where the injuries arise out of or are in the course of

activity incident to service." Persons v. United States, 925

B-2

F.2d 292, 294 (9th Cir. 1991), quoting Feres, 340 U.S. 135,

146 (1950). This exception to the Federal Tort Claims

Act has become known as the Feres doctrine.

The rationale behind the Feres doctrine is

threefold: 1) The distinctly federal nature of the

relationship between the government and members of its

armed forces, which argues against subjecting the

government to liability based on the fortuity of the situs of

the injury; 2) the availability of alternative compensation

systems; and 3) the fear of damaging the military

disciplinary structure. Stencel Aero Eng’g. Corp. v.

United States, 431 U.S. 666, 671-2 (1977).

In Persons, an off-duty Navy petty officer, Persons,

presented himself to the Balboa Naval Hospital’s

emergency room. Persons had several deep slash marks

on each of his wrists. Despite Persons’ slash marks and

distressed emotional state, medical personnel at the

hospital failed to counsel him. Without ever being

admitted he was released from the hospital. Three

months later Persons committed suicide. The Ninth

Circuit held that even though Persons was off-duty, the

alleged malpractice occurred at a military facility and was

"incident to service." Id. at 296. Therefore, the Feres

doctrine barred his suit under the Federal Tort Claims

Act. Id.

Thus, the Ninth Circuit has found that off-duty

military personnel, using military services, do so as a result

of their military status. Therefore, any tortious conduct

related to use of such services is "incident to service" and

recovery under the Federal Tort Claims Act is barred.

See, Atkinson, 825 F. 2d 202 (barring suit by

servicewoman alleging that negligent medical treatment

caused her child to be stillborn); Veillete v. United States,

615 F.2d 505 (9th Cir. 1980)(wrongful death suit on behalf

B-3

of servicemen for alleged negligence by employees of

Naval hospital barred, even though deceased was off-duty

at the time of the accident). "This is especially true in

cases alleging medical malpractice in a military facility."

Persons, 925 F.2d at 296.

In the present case, it was Plaintiff's military status

that permitted him to be treated at Luke Air Force Base.

The Court finds no merit to Plaintiff's argument that he is

not bound by the Feres doctrine because he was treated

by an Air Force medical facility instead of a Marine

medical facility. The branch which treated him is not

critical to the Feres exception; rather, the critical fact is

that Plaintiff was a member of the military armed services,

which permitted him to be treated at a military facility.

Because Plaintiffs alleged injuries arose out of activity

incident to service, his claims under the Federal Tort

Claims Act are barred and Defendant’s motion to dismiss

shall be granted.

Likewise, the mother’s cause of action shall be

dismissed. Her claims are derivative claims,’ having their

genesis in [Robert Anderson’s] service related injuries."

Persons, 925 F.2d at 292 (9th Cir. 1991) (dismissing claims

by widow and child of serviceman for loss of consortium

and failure to warn because such claims derived from a

service-related death); see, Gaspard v. United States, 713

F.2d 1097 (Sth Cir. 1983) (serviceman’s wife’s claim barred

by Feres; DeFont v. United States, 453 F.2d 1239 (lst

Cir.), cert. denied, 407 U.S. 910 (1972) (Feres doctrine

bars claims by wife and children of dead serviceman for

emotional distress).

IT IS THEREFORE ORDERED that Defendant’s

motion to dismiss is granted (DOC. #6)

B-4

DATED this 20th day of November, 1991.

/s/

Stephen M. McNamee

United States District Judge

Copies to all counsel

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