Petition for Writ of Certiorari — Richards v. United States

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(D Supreme Court, U.S.

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No. %9 7%8LOCT2 8 1999

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In the Supreme Court of the Gnited States

SHAMMARA RICHARDS, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF CHARLES A.

RICHARDS, JR., AND AS GUARDIAN AND NEXT OF KIN OF

SHANEE A. RICHARDS AND CHARLES RICHARDS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

LEE J. ROHN ALAN E. UNTEREINER

Law Offices of Lee J. Rohn ARNON D. SIEGEL

1101 King Street Counsel of Record

Suite 2 Mayer, Brown & Platt

Christiansted, St. Croix 1909 K Street, N.W.

U.S. Virgin Islands 00820 Washington, D.C. 20006

(340) 778-8855 (202) 263-3000

QUESTIONS PRESENTED

The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),

2671-2680, waives the federal government’s sovereign

immunity for certain tort actions but sets forth 13 enumerated

exceptions, including exceptions for all claims arising out of

the exercise of a discretionary function, all claims “arising

in a foreign country,” and all claims “arising out of the

combatant activities of the military * * * during time of

war.” Jd. § 2680(a), (j), (k). In Feres v. United States, 340

U.S. 135, 138 (1950), this Court recognized a non-

enumerated exception for all claims based on injuries to

members of the United States armed forces that “arise out of

or are in the course of activity incident to service.”

The questions presented in this case are:

1. Whether the Third Circuit, in conflict with decisions

of the Second, Fifth, Sixth, Ninth, and Eleventh Circuits,

correctly ruled that the Feres doctrine bars suit by a soldier’s

widow and children for injuries that arose out of an ordinary

automobile accident occurring on a public road running

through an Army post, where the decedent’s supposed

“activity incident to service” at the time of the fatal accident

was driving home in his personal vehicle after completing his

military job.

2. Whether, in view of the widespread condemnation

of Feres, including by several current Members of this Court

(see United States v. Johnson, 481 U.S. 681, 692-703 (1987)

(Scalia, J., joined by Brennan, Marshall, and Stevens, JJ.,

dissenting); Lombard v. United States, 690 F.2d 215, 228-

30, 233 (D.C. Cir. 1982) (Ginsburg, J., concurring and

dissenting in part), cert. denied, 462 U.S. 1118 (1983)), and

given what four judges of the Third Circuit in this case

called “the compelling argument for the abandonment of

Feres,” this Court should, as the Third Circuit judges urged,

“grant certiorari to revisit” Feres and overrule it.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................. i

Meee SOW PARP RERUPE BEES 2 ww te Vv

re a eee eee l

SES Te l

STATUTORY PROVISIONS INVOLVED ........ l

ho cal 4h 9 aw 64 oie Woes wae ew es l

A. The Federal Tort Claims Act And The Judicial

Creation Of The Feres Doctrine ......... 2

m. sme wemcwegms BOW oj. ww te ee 4

REASONS FOR GRANTING THE PETITION ..... 9

I. THE THIRD CIRCUIT’S TEST FOR DETER-

MINING WHAT CONSTITUTES “ACTIVITY

INCIDENT TO SERVICE” AND ITS HOLDING

THAT FERES BARS PETITIONER’S CLAIMS

CONFLICT WITH THE DECISIONS OF OTHER

a ne aa el a cave Yin a a oleae 11

A. The Circuits Have Adopted Vastly Different

Approaches To Applying The Feres Doctrine 11

B. In Other Circuits, Feres Would Not Have

Barred Petitioner’s Claims. ........... 14

C. The Circuits Have Reached Conflicting Results

In Cases Factually Similar To This One ... 17

D. The Decision Below Was Wrong ........ 18

TABLE OF CONTENTS — Continued

Page

Il. IN LIGHT OF THE WIDESPREAD CRITICISM

OF THE FERES DOCTRINE AND WHAT FOUR

THIRD CIRCUIT JUDGES CALLED “COMPEL-

LING ARGUMENT[S]” FOR ITS “ABANDON-

MENT,” THIS COURT SHOULD CONSIDER

Pr ea a a ew ee 20

A. Feres Has Been The Subject Of Withering

ET I Sign ee ee ae ee 20

B. The Feres Doctrine Has Proved To Be Unwork-

ee ee Ski an es ae ete Sa 24

C. Feres Was Wromely Decided .... 2.0.5. 24

D. Stare Decisis Provides No Good Reasons To

SR UNE kg oso hd 4 wan eS ee af

CE ck 5s 5 nse 6 8 Ne ek 29

TABLE OF AUTHORITIES

Page(s)

Cases:

Bowers v. United States, 904 F.2d 450

Ek a. eran ire rerene ay a 21

Bozeman v. United States, /80 F.2d 198

‘tLe a res re wr re en 21

Bradshaw v. United States, 443 F.2d 759

2.0. Ce. WORE. 66s oie eee ease 13

Briggs v. United States, 617 F. Supp. 1399

(D.R.I. 1985), aff'd mem.,

767 F.26 S78 (ime Ce. TORR) kc ew ess 20

Brooks v. United States,

937 US: Se es oe eee eee ees passim

Brown v. United States, 151 F.3d 800

es CH. SH ea es FO eee ke eR eG 14

C.R.S. v. United States, 761 F. Supp. 665

(E>. Wii. TOPE nk ie ee ee ee 22

Cutshall v. United States, 75 F.3d 426

Ce Ge TS Me ee ees 10, 21

Day v. Massachusetts Air Nat’l Guard,

167 F.36 G78 Clim Ce. TPR ok vs ees 12, 20

Dreier v. United States, 106 F.3d 844

Pe Ee Te 6 eS eee ee OS eee 14, 16

TABLE OF AUTHORITIES — Continued

Page(s)

Elliott v. United States, 13 F.3d 1555

(11th Cir.), vacated, 28 F.3d 1076

(11th Cir.), judgment aff'd by

equally divided court, 37 F.3d 617

Clie CH. Se ke eo eee 17, 22

Estate of McAllister v. United States,

942 F.2d 1473 (9th Cir. 1991),

cert. denied, 502 U.S. 1092 (1992) ....... 14, 22

Feres v. United States,

SOD U.S. Tae Ee hg ean chee passim

Fleming v. U.S. Postal Service,

186 F.3d 697 (6th Cir. 1999) ....... iz, i3, 87

Flowers v. United States, 764 F.2d 759

C100 CR: TR 6 vas ee eee 6,7

Graham v. United States, 753 F. Supp. 994

CD. Bie. TPO) von sé 4 Si ee eee eee 20

Green v. Hall, 8 F.3d 695 (9th Cir. 1993),

cert. denied, 513 U.S. 809 (1994) ......... 16

Hall v. United States, 528 F. Supp. 963

(D.N.J. 1981), aff'd mem.,

GGG F.20 Gen Gb ha. Bees 4s 8 se eee ee 21

Hinkie v. United States, 715 F.2d 96

(3d Cir. 1983), cert. denied,

465 US. See Clee + sk eee eee eee 21

Hohn v. United States, 524 U.S. 236 (1998) .... 28, 29

Vil

TABLE OF AUTHORITIES — Continued

Page(s)

Hunt v. United States, 636 F.2d 580

e-Sae a cauraeen yl cla eee 22

In re “Agent Orange” Prod. Liability Litig. ,

580 F. Supp. 1242 (E.D.N.Y.), appeal

dismissed, 745 F.2d 161 (2d Cir. 1984) ...... 21

Jones v. LaRiviera Club, Inc.,

655 F. Supp. 1032 (D.P.R. 1987) ......... 20

Kohn v. United States, 680 F.2d 922

Gens CE ie ee ee a ee ie es 21

LaBash v. U.S. Department of the Army,

668 F.2d 1153 (10th Cir.), cert. denied,

GO W.ce. DP CRED 6 nk cc che ewe wncen 22

Lauer v. United States, 968 F.2d 1428 (1st Cir.),

cert. denied, 506 U.S. 1033 (1992) ......... 18

Lombard v. United States, 690 F.2d 215

(D.C. Cir. 1982), cert. denied,

ee: Siome SAU RUOY: 6 c-6 S-5-a eh ow ws 23

Lutz v. Secretary of the Air Force,

944 F.2d 1477 (9th Cir. 1991) ........ 16-17, 22

Miller v. United States, 42 F.3d 297

ee ote Se oe ha htc eee Be 12

Mills v. Tucker, 499 F.2d 866 (9th Cir. 1974)... .. 16

Minns v. United States, 155 F.3d 445 (4th Cir.

1998), cert. denied, 119 S. Ct. 874 (1999) .... 10

Deceeeiesiateeaaeneienieere ence

Vill

TABLE OF AUTHORITIES — Continued

Page(s)

Monaco v. United States, 661 F.2d 129

(9th Cir. 1981), cert. denied,

Soe Se Se ce ee ww ee 22

Mondelli v. United States, 711 F.2d 567

(3d Cir. 1983), cert. denied,

ee ne ia we 21

Monell v. New York City Dep’t of Social Servs.,

eS OEE vos we kk so ee 28-29

O’Callahan v. Parker, 395 U.S. 258 (1969) ...... 24

Ocello v. United States, 685 F. Supp. 100

IER) ese a Ne ee a ae 21

Parker v. United States, 611 F.2d 1007

RN I a a res ek ane ae as 18, 21

Patterson v. McLean Credit Union,

ee ae ee ee Soca re oS a ie a 28, 29

Patterson v. McLean Credit Union,

ee ek cc ee os ee ae oe 29

Persons v. United States, 925 F.2d 292

Pe ee es a, ao a ina ey ta ake 22

Pierce v. United States, 813 F.2d 349

be a ie Ae aera Pee 17-18

Punnett v. United States, 602 F. Supp. 530

ee Ek hack ie Ca ee eS 21

GANGS PRR

TABLE OF AUTHORITIES — Continued

Page(s)

Sanchez v. United States, 813 F.2d 593

RE MI org ag tee Sue ha ge UE ele 21

Saudi Arabia v. Nelson,

re 18, 28

Scales v. United States, 685 F.2d 970

(Sth Cir. 1982), cert. denied,

ee ice, Oc ee ee 21

Schoemer v. United States, 59 F.3d 26

(Sth Cir.), cert. denied,

Be are, PE 6 ok hoo eee ee ek es 13

Selbe v. United States, 130 F.3d 1265

oe ae ENR rae eee 12

Shaw v. United States, 854 F.2d 360

a, EE soa eh ae es 8 Ka eS 12, 18

Skees v. United States, 107 F.3d 421

NY SE oe oe og se a a a ee a 14

Solorio v. United States,

ee Seca MU RE wk kee ee es 27

State Oil Co. v. Khan, 522 U.S. 3 (1997) ....... 29

Stephenson v. Stone, 21 F.3d 159

IC Sa ea ea eee We Ne 12

Stewart v. United States, 90 F.3d 102

Ye A ar ar ae 12, 18

TABLE OF AUTHORITIES — Continued

Page(s)

Taber v. Maine, 67 F.3d 1029

(oe Se Se eis oa eek ieee passim

Troglia v. United States, 602 F.2d 1334

Ge Ga, SOE Wa kes ek ee ee ee 6, 7, 16

United States v. Johnson,

oe Se. SOR ERE a ee eee eae passim

United States v. Shearer,

Gio Sime Ge Meee kb aK ee 8, 13-14

United States v. Stanley,

SES U.S. Bee CEO) oo 6 i eee es 18, 28

Veillette v. United States, 615 F.2d 505 —

ee a I ee pra ee ww 6 es 23-24

Veloz-Gertrudis v. United States,

768 F. Supp. 38 (E.D.N.Y.),

aff'd mem., 953 F.2d 636

(2d Cir. 1991), cert. denied,

re oe Ee Ce ek le eG 21

Verma v. United States, 19 F.3d 646

Sc NI eh -e ec ase waace 12

Wake v. United States, 89 F.3d 53

Se ae I ee tk Orn are a a ey a en 14

Whitley v. United States, 170 F.3d 1061

ee ee Eg oe a a oe ee es 12

TABLE OF AUTHORITIES — Continued

Page(s)

Statutes:

ee ND ee es bes ee 1

28 U.S.C. §§ 1346(b), 2671-2680 ............ 2-3

ok oe |) Ce a ae

Ck Se ee ere eee 2-3, 25

Pub. L. No. 79-601, title IV, § 424,

ee | a 26

Miscellaneous:

8 Am. Jur. 2d, Automobiles and

Highway Traffic § 771 (1997) ............ 15

Annotation, Employer’s Liability for

Negligence of Employee in Driving

His or Her Own Automobile,

27 A.L.R. 5th 174 (1995) ..........0... 15

Bennett, The Feres Doctrine, Discipline and the

Weapons of War, 29 St. Louis U. L.J. 383

Cs ee ae ee as ay ere ons t 23

Comment, The Feres Doctrine: Has It Created

Remediless Wrongs For Relatives of

Servicemen?, 44 U. Pitt. L. REV. 929 (1983) .. 23

Note, From Feres to Stencel: Should Military

Personnel Have Access to FTCA Recovery?,

77 MICH. L. REV. 1099 (1979) ........... 23

xii

TABLE OF AUTHORITIES — Continued

Page(s)

Note, Making Intramilitary Tort Law More Civil:

A Proposed Reform of the Feres Doctrine,

Pe TAR Ess. Poe Gee 6 6 hee eee 23

Note, Military Medical Malpractice and the Feres

Doctrine, 20 GA. L. REV. 497 (1986) ........ 23

Note, Servicemembers’ Rights Under the Feres

Doctrine: Rethinking “Incident To Service”

Analysis, 33 VILL. L. REV. 175 (1988)... .... 23

Note, United States v. Johnson: Feres Doctrine

Gets New Life and Continues To Grow,

38 AM. U. L. REV. 185 (1988) ........... 26

Rhodes, The Feres Doctrine After Twenty-Five

Years, 18 A.F. L. REV. 24 (1976) ......... 23

Seidelson, The Feres Exception to the Federal

Tort Claims Act: New Insight Into an Old

Problem, 11 HOFSTRA L. REV. 629 (1983) .... 23

Tomes, Feres to Chappell to Stanley: Three Strikes

and Servicemembers Are Out, 25 U. RICH.

bi: SY. a's oo ow tee ee oe 23

Seidelson, From Feres v. United States to Boyle v.

United Technologies Corp. : An Examination

of Supreme Court Jurisprudence and a Couple

of Suggestions, 32 Dug. L. REV. 219 (1994) ... 23

Wells, Providing Relief to the Victims of Military

Medicine, 32 Dug. L. REV. 109 (1994) ...... 23

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-10a)

is reported at 176 F.3d 652. The opinion of Judge Rendell,

joined by Chief Judge Becker and Judges Nygaard and

McKee, dissenting from the denial of rehearing en banc

(App., infra, 11a-12a) is reported at 180 F.3d 564. The

opinion of the district court (App., infra, 13a-23a) is re-

ported at 1 F. Supp. 2d 498.

JURISDICTION

The judgment of the court of appeals was entered on

May 5, 1999, and rehearing was denied on June 30, 1999

(App., infra, 10a, 11a). On September 17, 1999, Justice

Souter extended the time in which to file the petition for a

writ of certiorari to and including October 28, 1999. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Federal Tort Claims Act

are set forth at App., infra, 24a-27a.

STATEMENT

Private Charles A. Richards, Jr. was killed by an Army

truck while driving home from work at Fort Knox to care for

his pregnant wife. His widow brought a wrongful death

action, alleging both that the truck had been negligently

maintained, and that the driver of the truck had been negli-

gent in driving it. Recognizing a division in the circuits on

whether claims of this sort could proceed under Feres v.

United States, 340 U.S. 135 (1950), a panel of the Third

Circuit held that Feres barred the suit. At the same time,

however, the Third Circuit “express[ed] misgivings about”

its decision and acknowledged that the result was “counter-

intuitive and inequitable” as well as illustrative of “the

disconnect that has come to exist between the philosophy

behind Feres and its application.” App., infra, 8a, 10a.

Four judges of the Third Circuit dissented from the denial of

rehearing en banc. Calling Feres a “travesty,” they “urge[d]

the Supreme Court to grant certiorari” and overrule it. Jd.

at 12a.

A. The Federal Tort Claims Act And The Judicial

Creation Of The Feres Doctrine.

1. In 1946, Congress enacted the Federal Tort Claims

Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, which

waives federal sovereign immunity for certain tort actions

and vests the federal district courts with exclusive jurisdiction

over such actions. Specifically, the FTCA permits the

imposition of liability

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 claimant in accordance with the law of the

place where the act or omission occurred.

Id. § 1346(b). An “employee of the Government” is defined

as including “members of the military or naval forces of the

United States.” Jd. § 2671. The FTCA also specifies that

the phrase “acting within the scope of his office or employ-

ment” in Section 1346(b) “means acting in [the] line of duty”

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

the United States.” 28 U.S.C. § 2671.

The broad waiver of immunity contained in the FTCA,

however, is subject to no fewer than 13 enumerated excep-

tions. See 28 U.S.C. § 2680. For example, Congress

expressly exempted “[a]ny claim arising out of the combatant

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

during time of war.” Jd. § 2680(j). It also broadly ex-

empted “[a]ny claim arising in a foreign country.” Jd. §

2680(k). Except for certain intentional tort claims brought,

against federal investigative or law enforcement officers,

Congress exempted intentional torts, including all claims

“arising out of assault, battery, false imprisonment, false

arrest, malicious prosecution, abuse of process, libel,

slander, misrepresentation, deceit, or interference with

contract rights.” Jd. § 2680(h). And Congress exempted all

claims “based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty

on the part of * * * an employee of the Government.” Jd.

§ 2680(a).

2. Shortly after the FTCA was enacted, this Court

decided Brooks v. United States, 337 U.S. 49 (1949). In

Brooks, two soldiers and their father were driving on a

public highway when they were hit by an Army truck. The

government moved to dismiss for lack of jurisdiction,

arguing that because the brothers were in the Army, claims

arising from their injuries and death were excepted from the

FTCA. The Court rejected the argument. “The statute’s

terms are clear. They provide for District Court jurisdiction

over any claim founded on negligence brought against the

United States. We are not persuaded that ‘any claim’ means

‘any Claim but that of servicemen.’” Jd. at 51 (emphasis in

original). The accident, explained the Court, “had nothing

to do with the [brothers’] Army careers * * * except in the

sense that all human events depend on what has already

transpired.” Jd. at 52.

A year after Brooks, the Court decided Feres v. United

States, 340 U.S. 135 (1950). Two of the three consolidated

cases involved claims of medical malpractice; the third was

a wrongful death claim arising out of a soldier’s death in a

barracks fire. Deciding that none of the claims should have

been permitted to go forward, the Feres Court held that in

addition to the exceptions specified by Congress in the

FTCA, Congress intended to exempt all tort claims “for

injuries to servicemen where the injuries arise out of or are

in the course of activity incident to service.” 340 U.S. at

146. In United States v. Johnson, 481 U.S. 681 (1987), four

dissenting Justices criticized Feres as “wrongly decided and

heartily deserv[ing of] the widespread, almost universal

criticism it has received.” Jd. at 701 (Scalia, J., joined by

Brennan, Marshall, and Stevens, JJ.) (internal quotation

marks omitted).

B. The Proceedings Below.

1. On June 26, 1995, Private Charles A. Richards, Jr.

was killed by a five-ton Army truck. He was 21 years old.

The accident took place on Kentucky Highway 1638, a public

road crossing Fort Knox, in Muldraugh, Kentucky, near an

intersection with another public road. According to the

official accident report of the Kentucky State Police, the

Army truck ran a red light and broadsided Mr. Richards’s

car, shoving it into a ditch, and finally coming to rest on top

of the car, crushing Mr. Richards to death. C.A. Joint App.

187. At the time he was killed, Mr. Richards was off duty

for the day and was driving home in his personal car to care

for his wife, Shammara, who was three months pregnant

with their second child.

2. On March 26, 1997, Mrs. Richards initiated this

wrongful death suit in the United States District Court of the

Virgin Islands. Invoking the FTCA as the basis for jurisdic-

tion and naming the United States as defendant, Mrs.

Richards advanced claims for herself as well as on behalf of

her husband’s estate and her two minor children, Shanee and

Charles. App., infra, 28a-32a. As bases for liability, Mrs.

Richards alleged that the Army had been negligent in failing

to properly maintain the truck involved in the accident, in

allowing the truck to be operated in an unsafe condition

(including being equipped with defective front brakes,

damaged tail and rear turn lamps, contaminated brake fluid,

and an inoperable horn), and in allowing the driver of the

truck to drive it even though he was not licensed to operate

a vehicle of that class. Jd. at 30a-3la. Mrs. Richards also

alleged that the government was liable under a theory of

respondeat superior for the driver’s negligence in running a

red light and losing control. Jd. at 31a.

The government answered, admitting that the truck’s

driver “was acting within the course and scope of his federal

employment at the time of the accident.” App., infra, at

35a. The government denied, among other things, that Mr.

Richards was on personal business at the time of the acci-

dent. Ibid. The government also asserted various defenses,

including that the court lacked subject matter jurisdiction and

that Mrs. Richards’s claims were “barred by the Feres

Doctrine.” Ibid. Relying on Feres, the government then

moved to dismiss the complaint for lack of subject matter

jurisdiction.

3. Accepting the allegations in the complaint as true

(including the allegation that Mr. Richards was off duty and

headed home when he was killed), the U.S. District Court of

the Virgin Islands granted the government’s motion to

dismiss. App., infra, 13a-23a. The court described its

approach as follows. First, in deciding whether the injuries

in this case “arise out of or are in the course of activity

incident to [military] service,” the court had to consider “the

totality of the circumstances,” including “(1) the service

member’s duty status; (2) the situs of the injury; (3) and the

activity the service member was performing.” Jd. at 16a.

“When the totality of the circumstances show that the Feres

doctrine bars suit,” the court reasoned, it “may dismiss the

suit without considering the underlying Feres doctrine

rationales.” Jd. at 16a-17a. “On the other extreme,”

however, “even when the three-factor totality of the circum-

stances test strongly indicates that the Feres doctrine does not

bar suit, the Court must look to the Feres doctrine rationales

before permitting suit.” Jd. at 17a. The court described

those rationales: avoiding judicial involvement in military

affairs; preserving the “federal nature” of the relationship

between service members and the government; and prevent-

ing excess tort recovery by those eligible for benefits such as

the “death gratuity” and certain other benefits provided to

Mrs. Richards. Jd. at 16a.

The court first considered Mrs. Richards’s argument that

all three of the “factors generally considered in the totality

of the circumstances conclusively show that [Mr.] Richards’

death did not occur incident to service,” because “[Mr.]

Richards was in off-duty status, on a public road, and

performing an act not related to his military duties — going

home.” App., infra, 17a. The district court observed that

the Ninth Circuit, in a “factually similar case,” “held that

suit by an off-duty service member injured while possibly

returning to the base after enjoying a short period of liberty,

on a public road passing across an easement on military

property, may not be barred by the Feres doctrine.” Id. at

17a (citing Troglia v. United States, 602 F.2d 1334 (9th Cir.

1979)). In contrast, the court wrote, the Eleventh Circuit

had held that Feres barred suit when an off-duty service

member who was driving home from the grocery store was

injured on a public road running through an easement on

military property. Jd. at 17a-18a (citing Flowers v. United

States, 764 F.2d 759 (11th Cir. 1985)). Although the district

court suggested that consideration of “the three-factor test

points more strongly toward finding a Feres bar than toward

permitting suit,” it ultimately ruled that application of that

test was “inconclusive.” Jd. at 19a. It did so because “the

two circuits that have considered factually similar cases are

split and because the Third Circuit has not had occasion to

review a factually similar case.” Jbid.; see also id. at 23a

(again noting existence of “split” in the circuits).

Turning finally to Feres’s rationales, the district court

concluded that they “support a finding that the Plaintiffs’ suit

is barred by the Feres doctrine.” App., infra, at 19a-22a.

On that basis, it dismissed the lawsuit.

4. The Third Circuit affirmed. App., infra, 1a-10a.

At the outset, it noted that “[t]he Supreme Court has not

articulated a specific method for determining whether an

injury is ‘incident’ to military service,” but has instead

“instructed courts to examine each case in light of the statute

as it has been construed in Feres and subsequent cases.” Jd.

at 4a (internal quotation marks omitted). Echoing the district

court’s initial analysis, the Third Circuit explained that, “[t]o

assist in that inquiry,” the lower courts “consider a number

of factors including: (1) the service member’s duty status; (2)

the site of the accident: and (3) the nature of the service

member’s activity at the time of the injury.” Ibid.

Like the district court, the Third Circuit took note of the

fact that “the two United States Courts of Appeals that have

considered” the applicability of Feres to “similar facts differ

on whether Feres bars suit.” App., infra, at 5a (citing the

Eleventh Circuit’s decision in Flowers and the Ninth

Circuit’s decision in Troglia). Nevertheless, it concluded

that this case was more analogous to Flowers, where Feres

had been applied to bar suit. The panel emphasized that the

accident that took Mr. Richards’s life had occurred on a

public highway, but one that ran through a military installa-

tion. Jd. at 6a-7a. In addition, wrote the panel, “Private

Richards’s activity at the time of the accident supports the

application of Feres.” Id. at 7a. The panel thought it

significant that, at the time of the accident, Mr. Richards was

“driving home from his duty station” across military prop-

erty and not “simply driving on a public road as a member

of the public.” Jbid. The panel hinted that these facts might

have been, but were not necessarily, dispositive: “Had

Private Richards been struck by a military vehicle while

traveling home from a place unrelated to his military service,

or on a public road outside the Army base, we may have

reached a different conclusion.” Jbid. On the basis of this

analysis, the panel concluded that Feres barred suit under the

“totality of the circumstances.” Jd. at 8a.

Unlike the district court, which in a two-step process had

examined the result in light of Feres’s rationales, the Third

Circuit held that only one step was proper. Once a court

determines that activity was incident to service, on the basis

of “the totality of the circumstances in light of the evaluation

of the factors,” inquiry into Feres’s purposes is unnecessary.

At the same time, however, the Third Circuit went on to

examine Feres’s purposes in order to explain why the result

in this case — which it called “counter-intuitive and

inequitable” — “illustrates the disconnect that has come to

exist between the philosophy behind Feres and its applica-

tion.” App., infra, 8a, 10a.

Quoting United States v. Shearer, 473 U.S. 52, 57

(1985), the panel observed that Feres

seems best explained by the peculiar and special relation-

ship of the soldier to his superiors, the effects of the

maintenance of such suits on discipline, and the extreme

results that might obtain if suits under the Tort Claims

Act were allowed for negligent orders given or negligent

acts committed in the course of military duty.

App., infra, 8a. An action in which “a soldier attempted to

sue the commander of his platoon for injuries received during

battle” would obviously threaten the “special relationship

between soldier and superior,” and would be barred under

Feres. Id. at 9a. To the panel, however, this case was

vastly different. Mr. Richards had been killed on a public

highway, maintained and patrolled by the Commonwealth of

Kentucky, and used by anyone who chose to drive on it.

“[U]nlike the hypothetical * * * involving a soldier engaged

in combat, the accident that took Private Richards’s life was

not necessarily related to his military duty.” Jbid. Rather,

it was purely a matter of chance that Private Richards’s

automobile, rather than a civilian’s vehicle, was struck

by the military fuel truck, and that Private Richards,

rather than a civilian, was killed.

Ibid. The widow of a civilian would obviously be free to sue

the Army without fear of Feres; that lawsuit, in turn, would

be “no less or more intrusive” than Mrs. Richards’s. The

court wrote:

[W]hile it is true that but for Private Richards’ active

Status in the military, he would not have been “in the

Same place at the same time with the same purpose” at

the time of the accident, it is not at all clear that Mrs.

Richards’s suit implicates the “special relationship”

between her deceased husband and his superiors in the

manner contemplated [by the Supreme Court].

Id. at 9a-10a. “Thus,” the panel concluded, “we are left

with a counter-intuitive and inequitable result simply because

of Private Richards’s military status.” Jd. at 10a.

5. Four judges of the Third Circuit dissented from the

denial of rehearing en banc. App., infra, 11a-12a (Rendell,

J., joined by Becker, C.J., and Nygaard and McKee, JJ.,

dissenting). “This case,” they wrote, “presents yet another

compelling argument for the abandonment of the Feres

doctrine.” Jd. at 1la. The four judges criticized Feres

because it “represents * * * a ‘bad estimation[]’ of what

Congress intended to do (but did not do), in the Federal Tort

Claims Act.” Jd. at 1la-12a (quoting Justice Scalia’s dissent

in United States v. Johnson, 481 U.S. 681, 695 (1987)). No

less disturbing, they wrote, Feres is “being employed by

many Courts on a regular basis to deny a military employee’s

recovery and to prevent the government’s accountability for

injuries sustained in connection with essentially civilian

activities wholly unrelated to military service.” Jd. at 12a.

Calling the Feres doctrine a “travesty,” the judges “urge[d]

the Supreme Court to grant certiorari,” to “revisit” Feres,

and to overrule it. Jbid.

REASONS FOR GRANTING THE PETITION

This case presents a question over which the courts of

appeals are hopelessly divided: how to determine whether

injuries are suffered as a result of “activity incident to

service” within the meaning of Feres v. United States, 340

U.S. 135, 138 (1950). The question is of critical importance

to members of the American military and their families and

dependents, for the answer determines whether or not in a

particular case they will be afforded the remedies available

to all other Americans under the Federal Tort Claims Act.

As the Third Circuit stressed, Mrs. Richards’s lawsuit is

nothing like one in which “a soldier attempt[s] to sue the

commander of his platoon for injuries received during battle”

(App., infra, 9a), the paradigmatic example of “activity

incident to service.” Nor does this case involve a service

member’s challenge to any peculiarly military judgments,

which would also unquestionably be barred under Feres.

Cf., e.g., Minns v. United States, 155 F.3d 445 (4th Cir.

1998) (barring claims by children born of Gulf War veterans

for severe birth defects caused by pesticides administered in

anticipation of defending against biological and chemical

warfare), cert. denied, 119 S. Ct. 874 (1999). Nor is Mrs.

Richards’s action one for military medical malpractice, to

which all the circuits apply a rule that (unjust though it might

be) at least has the virtue of uniformity: the plaintiff always

loses. Cf., e.g., Cutshall v. United States, 75 F.3d 426 (8th

Cir. 1996) (barring claims by a Marine corporal who was

misdiagnosed as having an infection and repeatedly assured

she did not have cancer when in fact she did).

Mrs. Richards, instead, sued because her husband was

killed on his way home by a negligent truck driver driving a

negligently maintained truck, the type of routine though

tragic accident that happens every day, all over the country,

to people who have no connection to the American military.

In deciding whether suits such as this should be permitted to

go forward, the courts of appeals use varying approaches,

and, as the Third Circuit panel noted here (App., infra, 5a),

cases such as this have yielded sharply conflicting results.

The result has been what Judge Guido Calabresi has called,

with matchless understatement, “that singular tangle of

seemingly inconsistent rulings and rationales known as the

Feres doctrine.” Taber vy. Maine, 67 F.3d 1029, 1031 (2d

Cir. 1995). The Court should grant the petition in order to

resolve this conflict over Feres’s scope.

Conflict among the circuits aside, this case also presents

the question raised by the four dissenting judges of the Third

Circuit in urging the Court to grant certiorari: whether it is

time for the Court to “revisit what [it has] wrought.” App.,

infra, 12a. The Feres doctrine — an indeterminate and

unpredictable creature of federal common law — is not just

unfair and unworkable, it is illegitimate. The Court should

grant the petition and finally consign Feres to the jurispru-

dential graveyard, where it belongs.

I. THE THIRD CIRCUIT’S TEST FOR DETERMIN-

ING WHAT CONSTITUTES “ACTIVITY INCI-

DENT TO SERVICE” AND ITS HOLDING THAT

FERES BARS PETITIONER’S CLAIMS CONFLICT

WITH THE DECISIONS OF OTHER CIRCUITS

The different circuits’ approaches to Feres in cases such

as this one are in conflict, and the different approaches have

yielded irreconcilable results. Unlike the uniform, “plaintiff

always loses” rule applied in actions for military medical

practice, what constitutes injury arising out of other “activity

incident to service” varies from jurisdiction to jurisdiction —

resulting in precisely the chaotic welter of “laws which

fluctuate in existence and value” that Feres itself decried.

340 U.S. at 143. For members of the U.S. armed forces and

their families and dependents, the decisions of the courts of

appeals interpreting Feres have created a macabre and

perverse legal regime: their right to recovery under the

FTCA depends on the jurisdiction in which they are lucky

enough to live, or to die.

A. The Circuits Have Adopted Vastly Different

Approaches To Applying The Feres Doctrine.

Whether Feres bars a tort action based on injury to a

member of the armed forces hinges on whether the service

member was, when injured, engaged in “activity incident to

service.” In determining what constitutes “activity incident

to service” within the meaning of Feres, the courts of

appeals are using at least five different approaches.

1. The Third Circuit, along with the Seventh, Eleventh,

and D.C. Circuits, considers various “factors” “in light of

the totality of the circumstances,” among them “(1) the

service member’s duty status; (2) the site of the accident; and

(3) the nature of the service member’s activity at the time of

the injury.” App., infra, 4a; accord Stephenson v. Stone, 21

F.3d 159, 164 (7th Cir. 1994); Whitley v. United States, 170

F.3d 1061, 1070-75 (11th Cir. 1999); Verma v. United

States, 19 F.3d 646, 648 (D.C. Cir. 1994) (per curiam).

Once these courts determine that the plaintiff in a case

suffered injuries from an “activity incident to service,”

judicial inquiry ends: Feres bars the suit regardless of

“whether or not the circumstances of a case implicate the

rationales for the Feres doctrine.” Verma, 19 F.3d at 647;

accord Selbe v. United States, 130 F.3d 1265, 1268 (7th Cir.

1997); Whitley, 170 F.3d at 1075. As the Third Circuit held

here, even if allowing the suit would in no way undermine,

or even implicate, the rationales underlying Feres, applica-

tion of this multi-factor test is conclusive — even when this

analysis produces results that are “counterintuitive” and

“inequitable.” App., infra, 8a-10a.

2. The First, Fourth, Fifth, Sixth, and Tenth Circuits

also decide whether activity is incident to service by assess-

ing “the totality of the circumstances” as evidenced by

“certain factors” and “prongs,” but they consider these

factors in light of the Feres rationales. Miller v. United

States, 42 F.3d 297, 301-02 (Sth Cir. 1995); accord Day v.

Massachusetts Air Nat’l Guard, 167 F.3d 678, 682-83 (lst

Cir. 1999); Stewart v. United States, 90 F.3d 102, 104-05

(4th Cir. 1996); Fleming v. U.S. Postal Service, 186 F.3d

697, 699 (6th Cir. 1999); Shaw v. United States, 854 F.2d

360, 362 (10th Cir. 1988). All of these courts understand

bites 3 SM tk a i Bh a a a A .

Sa ASS al SR oi aati ia ‘ P

Feres as grounded in the three rationales articulated in

Johnson v. United States, 481 U.S. 681, 689-9] (1987): the

federal nature of the relationship between service members

and the government; the availability of certain disability and

death benefits; and the risk that tort Suits might entangle the

Judiciary in military affairs. Although the First, Fourth, and

Tenth Circuits give all three rationales equal weight, the

Fifth and Sixth do not. The Fifth Circuit concerns itself with

the relationship between the service member and the armed

services and thus “often treat[s] the serviceman’s duty status

as the most important factor,” Schoemer v. United States, 59

F.3d 26, 28 (5th Cir.), cert. denied, 516 U.S. 989 (1995):

the Sixth Circuit, in contrast, considers mainly whether

allowing an FTCA action would “impermissibly insinuate the

Civilian judiciary into military decisions,” Fleming, 186 F.3d

at 700 (internal quotation marks omitted).

3. The Second Circuit takes an entirely different

approach, based on its reasoning that Brooks and Feres are

best understood as part of a military analogue to workers’

compensation. See Taber vy. Maine, 67 F.3d 1029, 1037-45

(2d Cir. 1995) (Calabresi, J.); see also Bradshaw v. United

States, 443 F.2d 759, 762 (D.C. Cir. 1971) (“[T]he

Brooks/Feres distinction falls into the work related non-work

related dichotomy characteristic of workmen’s compensation

schemes generally.”). Thus, in determining whether activity

is “incident to service,” the Second Circuit applies the

familiar rule of workers’ compensation law: injury results

from activity incident to service only if the victim was acting

within the scope of his military employment at the time he

was injured; activity is not incident to service when the

victim was acting outside the scope of employment. Given

the military setting, this rule is subject to an exception “in

the extreme case”: recovery may be barred only if a lawsuit

might implicate considerations relating to the discipline of the

tortfeasor, as in United States v. Shearer, 473 U.S. 52

(1985) (claim that the Army had negligently failed to

maintain disciplinary control over a soldier who abducted and

murdered another soldier). See Taber, 67 F.3d at 1052; cf.

Wake v. United States, 89 F.3d 53, 58, 61 (2d Cir. 1996)

(holding that scope-of-employment considerations did “not

come into play”; recovery barred in part because of such

disciplinary considerations). The Sixth Circuit has expressly

rejected the approach taken by the Second Circuit in Taber.

Skees v. United States, 107 F.3d 421, 425 n.3 (6th Cir.

1997).

4. The Eighth Circuit eschews multi-pronged inquiries

into factors and looks instead to the three rationales underly-

ing Feres that were set out in Johnson. See, e.g., Brown v.

United States, 151 F.3d 800, 804-05 (8th Cir. 1998). If

allowing recovery would frustrate Feres’s purposes, an action

is barred.

5. The Ninth Circuit has “reluctantly recognized * * *

that [a] reconciliation of prior pronouncements on the [Feres]

doctrine is not possible.” Dreier v. United States, 106 F.3d

844, 848 (9th Cir. 1996) (citation and internal quotation

marks omitted); see also Estate of McAllister v. United

States, 942 F.2d 1473, 1476 (9th Cir. 1991) (“Precisely how

a court should apply the Feres doctrine to the facts of a given

case * * * remains unclear.”), cert. denied, 502 U.S. 1092

(1992). Thus, while that court has sometimes “looked to

four factors” when “the existence of a Feres bar is not clear”

— duty status, site of injury, nature of the activity, and the

availability of military benefits in a particular case — the

Ninth Circuit in effect applies no test at all. Dreier, 106

F.3d at 848. Instead, the Ninth Circuit resorts to “a compar-

ison of fact patterns” as “the most appropriate way to resolve

Feres doctrine cases.” /bid. (internal quotation marks

omitted).

B. In Other Circuits, Feres Would Not Have Barred

Petitioner’s Claims.

Under the approach to Feres used in other circuits, this

case would have come out the other way.

_— “a.

le lah A see ih ON et al ly al id

p PE aS et a win te

1. In the Second Circuit, Mrs. Richards’s suit would

have gone forward. Like Mrs. Richards, the plaintiff in

Taber v. Maine, 67 F.3d 1029 (2d Cir. 1995), sued the

government for injuries arising out of a vehicular accident,

alleging (as does Mrs. Richards) that the government was

liable under a theory of respondeat superior. See id. at

1052. The court held that Feres did not bar the Claim: the

plaintiff had not been acting in the scope of his employment

when he was hit, and “negligence alleged in the operation of

a vehicle” does not implicate the types of issues involving

tortfeasor military discipline that might require a bar in the

“extreme case.” Ibid.

The same is true here. Driving home from work in

one’s own car after being released from duty is not within

the scope of a person’s employment. See generally 8 AM.

JUR. 2D, Automobiles and Highway Traffic § 771 (1997):

Annotation, Employer’s Liability for Negligence of Em-

ployee in Driving His or Her Own Automobile, 27 A.L.R.

Sth 174, § 3 (1995). As in Taber, moreover, the fact that

the driver of the Army truck that killed Mr. Richards may

have been negligent does not touch on matters of military

discipline. Indeed, Shammara Richards is alleging that the

government is liable because its truck driver negligently ran

a red light — a distinctly non-military act, and one that has

no bearing on the chain of command or other military

relationships. Under Second Circuit law, therefore, Mr.

Richards plainly was not injured in the course of any

“activity incident to service,” and thus Feres would not have

barred Mrs. Richards’s suit.

2. Mrs. Richards would also have been allowed to

prosecute her case in those circuits that consider whether or

not a lawsuit would undermine Feres’s purposes. As the

Third Circuit itself acknowledged, Mrs. Richards’s action did

not implicate “the special relationship between her deceased

husband and his superiors,” and thus would not frustrate the

rationales underlying the Feres doctrine. App., infra, 9a.

Had the Third Circuit applied the test of the courts that

evaluate various factors in light of Feres’s underlying

reasons, Mrs. Richards likely would have won, given that in

those jurisdictions the factors are not by themselves disposi-

tive. And had the Third Circuit applied the Eighth Circuit’s

approach, which looks only to the Feres rationales, there can

be no doubt of the result. Again, the Third Circuit itself

stated that the purposes underlying Feres did not support the

use of the doctrine in this case. Because Mrs. Richards’s

suit would not undermine the purposes of Feres, Feres would

not pose a bar.

3. Under the Ninth Circuit’s “most similar case”

analysis, Mrs. Richards’s suit would have gone forward as

well. Both the Third Circuit and the district court readily

acknowledged that this case closely resembles Troglia v.

United States, 602 F.2d 1334 (9th Cir. 1979). App., infra,

5a (noting that Troglia involved “similar facts”); id. at 17a

(calling 7roglia “factually similar”). Troglia involved a

claim by a service member hit by a car on a federally owned

highway just outside an air base. The Ninth Circuit held that

if it was determined on remand that the service member was

traveling on personal business, Feres would not bar his suit.

Nor is Troglia an isolated case in the Ninth Circuit.

That court has rejected Feres bars in many other cases

involving very similar facts. See, e.g., Dreier v. United

States, 106 F.3d 844 (9th Cir. 1996) (action arising out of

the death of an off-duty sailor who drowned in a drainage

channel located on base); Green v. Hall, 8 F.3d 695 (9th

Cir. 1993) (claim by an off-duty soldier who was hit by a car

after leaving post to go out for breakfast), cert. denied, 513

U.S. 809 (1994); Mills v. Tucker, 499 F.2d 866 (9th Cir.

1974) (action arising out of the death of a sailor returning

from leave to his on-base home and killed in a car accident

inside the installation); see also Lutz v. Secretary of the Air

Force, 944 F.2d 1477 (9th Cir. 1991) (claim by an officer

who was harassed at work on base by her military subordi-

acne Be gm i a apa at

* a oe x ei

SiS telho O e aa. Me

PRTG en A oth

nates). There can be little question, then, that in the Ninth

Circuit, Mrs. Richards would have been allowed to proceed

with her claims, since the “most Similar cases” in that

jurisdiction would have required this result.

C. The Circuits Have Reached Conflicting Results In

Cases Factually Similar To This One.

Given the overall indeterminacy of the multi-factor

analyses employed in whole or part outside the Second,

Eighth, and Ninth Circuits, it is hardly surprising that

virtually identical cases have yielded irreconcilable results in

those jurisdictions.

In one case, in fact, the en banc Eleventh Circuit divided

evenly over the application of its multi-factor test to facts

almost exactly like those in Feres itself. In Feres, this Court

held that a soldier’s widow could not recover for her

husband’s death in a barracks fire on an Army post. In

Elliott v. United States, 13 F.3d 1555 (11th Cir. 1994), in

contrast, a panel affirmed a multi-million dollar judgment

against the government for severe injuries to a service

member and his wife who suffered carbon monoxide poison-

ing at their on-post apartment, holding that Feres posed no

bar. Although the panel decision was vacated, 28 F.3d 1076

(11th Cir. 1994), the full Eleventh Circuit affirmed the

judgment against the government by an equally divided court,

37 F.3d 617 (11th Cir. 1994). (Curiously, the Solicitor

General’s office apparently chose not to petition for a writ of

certiorari in Elliott, electing to let a $9 million judgment

stand rather than ask this Court to reverse summarily in a

case factually indistinguishable from Feres.)

Moreover, in many cases involving facts that are

virtually indistinguishable from those present here, courts

have held, in contrast to the Third Circuit, that Feres does

not bar recovery. See, e.g., Fleming v. U.S. Postal Service,

186 F.3d 697 (6th Cir. 1999) (claim by an off-duty soldier

who was hit by a truck on his way to work); Pierce vy.

United States, 813 F.2d 349 (11th Cir. 1987) (per curiam)

(claim by an off-duty soldier who was hit by a car while

running errands); Parker v. United States, 611 F.2d 1007

(Sth Cir. 1980) (claim by the widow of a soldier killed in an

accident on post while driving home to take leave). In other

cases with virtually indistinguishable facts, however, courts

have held that Feres does bar recovery. See, e.g., Stewart

v. United States, 90 F.3d 102 (4th Cir. 1998) (claim by an

off-duty soldier who was hit by a car while driving home to

shower and change after physical training session); Lauer v.

United States, 968 F.2d 1428 (1st Cir.) (claim by an off-duty

sailor who was hit by a car while walking on a highway off

post), cert. denied, 506 U.S. 1033 (1992); Shaw v. United

States, 854 F.2d 360 (10th Cir. 1988) (claim by an off-duty

soldier who was hit by a truck on post while driving to

work). That Mrs. Richards would or would not have been

barred under these cases is no argument against review — it

is, rather, a compelling reason why guidance from this Court

is needed. Feres itself was predicated on the desirability of

uniformity in the law that governs members of the armed

forces. See 340 U.S. at 142-43. In the course of trying to

apply Feres’s rule, however, courts have created a body of

law that is, at its core, indeterminate and incoherent.

D. The Decision Below Was Wrong.

As the preceding discussion suggests, the Third Circuit’s

decision was flawed at every turn. Given that Feres is in

effect a “judicially crafted rule,” United States v. Stanley,

483 U.S. 669, 709 (1987) (O’Connor, J., concurring and

dissenting), and a “creature of federal common law,” Saudi

Arabia v. Nelson, 507 U.S. 349, 374 (1993) (Kennedy, J.,

concurring and dissenting), it is a bizarre legal regime that

would have courts determine if activity is “incident to

service” within the meaning of the Feres doctrine without

any reference to the principles on which that doctrine rests.

Moreover, even the multi-factor, totality-of-the-circumstances

approaches that do look to Feres’s purposes are so indetermi-

nate as to be meaningless, yielding a body of case law that

in essence amounts to no more than results in search of

rationales.

The Third Circuit’s decision was also incorrect on its

own terms. The court applied its test mechanically, checking

each “factor” off its list regardless of whether the factors

were truly relevant. Whether someone is “off duty” as

opposed to “on leave” often makes no difference, for

example; in either status a service member is subject to recall

by his commanders, and in both Statuses he is perfectly free

to go about his personal business. Whether an accident

occurs within the literal confines of a military installation is

also irrelevant in many Cases, as it was here: Mr. Richards

was driving on a public highway, and it was merely happen-

stance that he was driving on that road within Fort Knox, as

opposed to driving on the same road but outside Fort Knox,

when he was killed. The nature of the activity at issue (that

Mr. Richards was driving home from work, as opposed to

driving home from doing errands) was also of marginal

relevance here. Driving one’s own car to one’s home at the

end of the work day is no more “military” than any other

routine, daily activity engaged in by anyone, military or not.

At bottom, the Third Circuit’s holding that Charles

Richards — off duty and finished with work, on a public

highway, driving his own car home — was nonetheless acting

“incident to service” comes down to this: he was acting

incident to service because he was in the service. That,

however, is not the law. Mr. Richards’s death “had nothing

to do with * * * [his] Army career[] * * * except in the

sense that all human events depend on what has already

transpired.” Brooks v. United States, 337 U.S. 49, 52

(1949). In holding that Feres barred the lawsuit that Mrs.

Richards brought after her husband’s death, the Third Circuit

was wrong.

II. IN LIGHT OF THE WIDESPREAD CRITICISM OF

THE FERES DOCTRINE AND WHAT FOUR

THIRD CIRCUIT JUDGES CALLED “COMPEL-

LING ARGUMENT[S]” FOR ITS “ABANDON-

MENT,” THIS COURT SHOULD CONSIDER

OVERRULING IT

A. Feres Has Been The Subject Of Withering Judicial

Criticism.

Dissenting from the denial of rehearing en banc in this

case, four judges of the Third Circuit took the remarkable

step of excoriating the Feres doctrine as a “travesty” and

“urg[ing]” this Court “to grant certiorari” and “revisit what

we have wrought.” App., infra, 12a. Yet in expressing

doubts about the validity or fairness of the Feres doctrine,

Chief Judge Becker and Judges Nygaard, McKee, and

Rendell have merely joined a chorus of other federal judges,

including members of this Court.

The judges who have criticized Feres over the years have

sat on the appellate and trial benches in nearly every juris-

diction:

e From the First Circuit: Circuit Judges Boudin, Lynch,

Lipez, and Selya, and District Judges Carter and Acosta.

See Day v. Massachusetts Air Nat’! Guard, 167 F.3d

678, 681-85 (1st Cir. 1999); id. at 683 (writing that

“[plossibly Feres itself deserves reexamination by the

Supreme Court”); Briggs v. United States, 617 F. Supp.

1399, 1402 (D.R.I. 1985), aff'd mem., 787 F.2d 578

(1st Cir. 1986); Graham v. United States, 753 F. Supp.

994, 995 & n.1 (D. Me. 1991); Jones v. LaRiviera Club,

Inc., 655 F. Supp. 1032, 1033 n.6 (D.P.R. 1987).

e From the Second Circuit: Circuit Judges Leval, Cala-

bresi, Pierce, Mahoney, Feinberg, Van Graafeiland,

Meskill, Kaufman, and Mansfield, and District Judges

Raggi and Weinstein. See Taber v. Maine, 67 F.3d

1029, 1038-1049 (2d Cir. 1995); id. at 1038 (calling

Soa alah ace A nhc ar

Feres “extremely confused and confusing”); Sanchez v.

United States, 813 F.2d 593, 595 (2d Cir. 1987):

Bozeman v. United States, 780 F.2d 198, 200 (2d Cir.

1985); Kohn v. United States, 680 F.2d 922, 925 (2d

Cir. 1982); Veloz-Gertrudis v. United States, 768 F.

Supp. 38, 41 (E.D.N.Y.), aff'd mem., 953 F.2d 636 (2d

Cir. 1991), cert. denied, 504 U.S. 911 (1992); In re

“Agent Orange” Prod. Liability Litig., 580 F. Supp.

1242, 1246 (E.D.N.Y.), appeal dismissed, 745 F.2d 161

(2d Cir. 1984).

From the Third Circuit: In addition to Chief Judge

Becker and Circuit Judges Nygaard, McKee, and Rendell

in this case, Circuit Judges Hunter, Higginbotham,

Adams, Stapleton, and Sarokin, and District Judges

Ditter and Gerry. See Hinkie v. United States, 715 F.2d

96, 97 (3d Cir. 1983), cert. denied, 465 U.S. 1023

(1984); Mondelli v. United States, 711 F.2d 567, 569

(3d Cir. 1983), cert. denied, 465 U.S. 1021 (1984);

Ocello v. United States, 685 F. Supp. 100, 103 (D.N.J.

1988); Punnett v. United States, 602 F. Supp. 530, 531

(E.D. Pa. 1984); Hall v. United States, 528 F. Supp.

963, 967 (D.N.J. 1981), aff'd mem., 668 F.2d 821 (3d

Cir. 1982).

From the Fifth Circuit: Circuit Judges Thornberry,

Johnson, Garwood, Goldberg, Fay, and Anderson. See

Scales v. United States, 685 F.2d 970, 974 (5th Cir.

1982), cert. denied, 460 U.S. 1082 (1983); Parker v.

United States, 611 F.2d 1007, 1011 (Sth Cir. 1980).

From the Eighth Circuit: Circuit Judges Magill, Bright,

Murphy, Richard Arnold, Bowman, and Heany, and

District Judge Doty. See Cutshall v. United States, 75

F.3d 426, 429 (8th Cir. 1995) (“We note * * * that the

Feres doctrine has been roundly criticized as unjust and

unwarranted.”); Bowers v. United States, 904 F.2d 450,

452 (8th Cir. 1990) (applying Feres bar because “we are

obligated” but “with a pronounced lack of enthusiasm”);

C.R.S. v. United States, 761 F. Supp. 665, 669 & n.1

(D. Minn. 1991).

e From the Ninth Circuit: Circuit Judges Betty Fletcher,

Norris, Trott, Goodwin, Thompson, O’Scannlain,

Dorothy Nelson, Reinhardt, and Canby, and District

Judges Singleton and Battin. See Lutz v. Secretary of the

Air Force, 944 F.2d 1477, 1487 (9th Cir. 1991) (“[T]his

circuit has accepted Feres, albeit grudgingly, as an

ineradicable feature of our legal landscape, [but] even

Feres concatenations must come to an end.”) (internal

quotation marks omitted); Estate of McAllister v. United

States, 942 F.2d 1473, 1476-77 & n.2 (9th Cir. 1991)

(calling Feres “this troubled doctrine”), cert. denied, 502

U.S. 1092 (1992); Persons v. United States, 925 F.2d

292, 295, 299 (9th Cir. 1991) (referring to “the count-

less reasons for feeling discomfort with Feres”); Monaco

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

cert. denied, 456 U.S. 989 (1982).

e From the Tenth Circuit: Circuit Judges Doyle, Breiten-

stein, and McKay. See LaBash v. U.S. Department of

the Army, 668 F.2d 1153, 1156 (10th Cir.), cert. denied,

456 U.S. 1008 (1982).

e From the Eleventh Circuit: Circuit Judges Hatchett,

Godbold, and Fay. See Elliott v. United States, 13 F.3d

1555, 1559-61 (11th Cir.), vacated, 28 F.3d 1076 (11th

Cir.), judgment aff'd by equally divided court, 37 F.3d

617 (11th Cir. 1994).

e From the District of Columbia Circuit: Circuit Judges

Tamm and Wald, and District Judge Joyce Green. See

Hunt v. United States, 636 F.2d 580, 589 (D.C. Cir.

1980).

Numerous commentators have also criticized Feres,

arguing on the basis of detailed analyses of the text, struc-

tl bi Ran RAE s taht gt nlite elt an ate dbaker Spd Gi

Sah 5a tinhe! Sb AN See ENS ae

ARLE A eT 2 Stn LM Ser ad

MAN CALS Neen: ekay Nested ah €

ture, and legislative history of the FTCA that the decision

was incorrect. !

And Feres’s critics have included at least three current

Members of this Court. Justices Scalia and Stevens (joined

by Justices Brennan and Marshall) argued in their dissent in

United States v. Johnson, 481 U.S. 681, 692-703 (1987),

that Feres was wrong when decided. Justice Ginsburg

Criticized Feres in her concurring and dissenting opinion in

Lombard v. United States, 690 F.2d 215, 228-30, 233 (D.C.

Cir. 1982), cert. denied, 462 U.S. 1118 (1983), noting that

“the Feres Court’s interpretation of the FTCA continues to

be questioned” and calling Feres “a problematic court

precedent.” Id. at 229 n.7, 233: see also Veillette v. United

States, 615 F.2d 505, 506 (9th Cir. 1980) (per Fletcher, J.,

joined by Kennedy, J.) (stating that the court was applying

' See, e.g., Seidelson, From Feres v. United States to Boyle v.

United Technologies Corp.: An Examination of Supreme Court

Jurisprudence and a Couple of Suggestions, 32 Dug. L. REv. 219

(1994); Wells, Providing Relief to the Victims of Military Medicine,

32 Dug. L. REv. 109 (1994); Tomes, Feres to Chappell to

Stanley: Three Strikes and Servicemembers Are Out, 25 U. RICH.

L. REV. 93 (1990); Bennett, The Feres Doctrine, Discipline and

the Weapons of War, 29 St. Louts U. L.J. 383 ( 1984); Seidelson,

The Feres Exception to the Federal Ti ort Claims Act: New Insight

Into an Old Problem, 1} HOFSTRA L. REV. 629 (1983); Rhodes,

The Feres Doctrine After Twenty-Five Years, 18 A.F. L. REV. 24

(1976); Note, Servicemembers’ Rights Under the Feres Doctrine:

Rethinking "Incident To Service” Analysis, 33 VILL. L .REV. 175

(1988); Note, Military Medical Malpractice and the

Feres Doctrine, 20 GA. L. REV. 497 (1986); Note, Making

Intramilitary Tort Law More Civil: A Proposed Reform of the Feres

Doctrine, 95 YALE LJ. 992 (1986); Comment, Zhe Feres

Doctrine: Has It Created Remediless Wrongs For Relatives of

Servicemen?, 44 U. Pitt. L. REV. 929 (1983): Note, From Feres

to Stencel: Should Military Personnel Have Access to FTCA

Recovery?, 77 MICH. L. REV. 1099 (1979).

a Feres bar “[rjeluctantly”). The judicial and academic

criticism of Feres is “widespread, almost universal” (John-

son, 481 U.S. at 700 (internal quotation marks omitted)), and

uniform: aside from being unjust and unworkable, Feres is

illegitimate. It should be overruled.

B. The Feres Doctrine Has Proved To Be Unworkable In

Practice.

Experience has shown that the rule that Feres estab-

lished, that service members have no recourse under the

FTCA when they suffer injuries resulting from “activity

incident to service,” has proved to be completely unwork-

able. That much is clear from the conflicting decisions that

have attempted — unsuccessfully — to make sense of the test

and to apply it. And that alone would be reason enough to

overrule the Feres doctrine, as this Court has not hesitated to

overrule judge-made tests that were similarly unmanageable.

In Solorio v. United States, 483 U.S. 435 (1987), for

instance, the Court rejected a rule that was virtually Feres’s

twin. O’Callahan v. Parker, 395 U.S. 258 (1969), had held

that court-martial jurisdiction under the Uniform Code of

Military Justice depended on the “service connection” of the

offense that was charged. In part because the “service

connection” test “proved confusing and difficult” to apply,

Solorio, 483 U.S. at 448, the Court in Solorio overruled

O’Callahan and abolished that test, thus reversing a 20-year-

old precedent. In his dissent in O’Callahan, Justice Harlan

had predicted that the “service connection” test would spawn

“infinite permutations of possibly relevant factors,” as well

as “create confusion and proliferate litigation.” 395 U.S. at

284 (Harlan, J., dissenting). The same is true of Feres.

C. Feres Was Wrongly Decided.

Ordinarily, a case that has been the subject of such

universal criticism and has proved to be so difficult to

interpret and apply would be a prime candidate for the

Court’s attention, regardless of whether it was correct in the

first instance. But the Feres doctrine Should be revisited for

an even more fundamental reason: Feres was wrongly

decided.

The suggestion that Feres correctly construed the FTCA

is indefensible. In devising an exception to the FTCA for all

Claims based on “injuries to servicemen [that] arise out of or

are in the course of activity incident to service” (340 U.S. at

146), and in doing so notwithstanding Congress’s inclusion

of 13 specific Statutory exceptions in the FTCA, the Feres

Court did more than merely ignore the fundamental principle

of expressio unius est exclusio alterius. It failed to give

proper weight to reams of evidence in the text, structure, and

legislative history Showing that Congress never intended to

create such an exception to FTCA liability.

Among that evidence was: Congress’s express inclusion,

in the definition of those “employee[s] of the Government”

whose acts may give rise to liability, of “members of the

military or naval forces of the United States” (28 U.S.C. §

2671); its further specification that “acting within the scope

of employment” under the FTCA means, for members of the

military, “acting in [the] line of duty” (ibid.); and Con-

gress’s inclusion of several other exceptions that clearly

contemplated tort claims by military personnel, including the

discretionary function exception, the exception for claims

arising in a foreign country, and, perhaps most importantly,

the exception for all “claim[s] arising out of the combatant

activities of the military or naval forces * * * during time of

war” (id. § 2680(a), Qj), (k)). As these provisions show,

Congress plainly anticipated that the FTCA would not waive

immunity for certain — but not all — claims arising out of

military activities.

But in creating an exception to the FTCA for all claims

arising out of activity incident to service, the Feres Court

turned the process of Statutory construction on its head:

deriving its rule from a statute — the Military Personnel

Claims Act — that had been repealed by the FTCA. See

Feres, 340 U.S. at 144 (relying on that Act’s exclusion of

“claims of military personnel ‘incident to their service’”);

compare Pub. L. No. 79-601, title IV, § 424, 60 Stat. 842

(1946) (repealing 31 U.S.C. § 223b). See generally Note,

United States v. Johnson: Feres Doctrine Gets New Life and

Continues To Grow, 38 AM. U. L. REV. 185, 202 n.121

(1988) (“The [Feres] Court noted that the Military Personnel

Claims Act, a federal law, allowed servicemen to recovery

for injuries incurred not incident to service; however, the

FTCA repealed this law.”).

Nor is this all. There is ample evidence in the legislative

history of the FTCA to show that Congress never intended

to create an exception along the lines recognized in Feres.

As one commentator has explained, the bill that became the

FTCA originally included an exception for all military suits,

but that exception was dropped during the legislative process,

perhaps “because of adverse criticism expressed in an earlier

hearing on earlier bills.” Note, 38 AM. U. L. REV. at 195

& n.66. Moreover, Congress’s last-minute clarification of

the exception for combat activities undercuts the rule of

Feres:

Originally, the Act excluded claims arising out of

military activities. During debate on the bill, the House

adopted an amendment adding the word “combatant” to

the exception. By emphasizing that only claims arising

out of combat activities were excluded from FTCA

coverage, Congress presumably intended military

personnel claims arising from non-combat activities to be

protected.

Id. at 196 (footnotes omitted).

Feres thus has no real basis in the text, structure, or

history of the FTCA. In fact, the Court no longer pretends

that it does. See Johnson, 481 U.S. at 694-95 (Scalia, J.,

dissenting). Instead of being grounded in the FTCA itself,

the Feres doctrine purports to represent “three disembodied

estimations of what Congress must (despite what it enacted)

have intended” in the FTCA. Jd. at 695 (dissent) (emphasis

in original). And “[t]hey are bad estimations at that.” Ibid.

Thus, the Court has identified one reason underlying

Feres as the need for a uniform law governing a service

member’s recovery in tort. See Johnson, 481 U.S. at 689.

But in fact Feres’s “incident to service” test has had the

opposite effect, allowing or barring recovery in different

jurisdictions in cases with virtually indistinguishable facts.

While service members are afforded government benefits

when injured — another reason supposedly justifying Feres,

see Johnson, 481 U.S. at 689-90 — those benefits today

(unlike, perhaps, in 1950) are not nearly the equivalent in

value to tort judgments, and the discrepancy keeps getting

worse. See Taber v. Maine, 67 F.3d 1029, 1045 (2d Cir.

1995). Moreover, the availability of military benefits has

never by itself barred tort recovery, since certain members

of the military — those who, as in Brooks, are held not to

have been hurt in “activity incident to service” — can

receive benefits as well as damages in tort, with the benefits

setting off the tort damages to prevent any double recovery.

And while Feres purportedly protects the integrity of military

discipline and decision making, see Johnson, 481 U.S. at

690-91, that integrity is equally threatened by lawsuits

brought for injuries to civilians, which the Feres doctrine has

never precluded. In sum, “neither the three original Feres

reasons nor the post hoc rationalization of ‘military disci-

pline’ justifies [the Court’s] failure to apply the FTCA as

written.” Johnson, 481 U.S. at 700 (Scalia, J., dissenting).

“Feres was wrongly decided” (ibid.), and it should be

overruled.

D. Stare Decisis Provides No Good Reasons To Deny

Review.

The government will no doubt urge the Court to deny

review on grounds of stare decisis. For at least four reasons,

however, considerations of stare decisis are not controlling.

lille

First. The doctrine of stare decisis does not bear at all

on the first question presented in this petition, which asks

only that Feres be clarified.

Second. “It is surely no affront to settled jurisprudence

to request argument on whether a particular precedent should

be modified or overruled.” Patterson v. McLean Credit

Union, 485 U.S. 617, 617 (1988) (per curiam). We ask for

no more than that here. And in the end, an argument about

stare decisis is really an argument about the merits. Espe-

cially in a case such as this, which presents a separate and

distinct question that is independently worthy of the Court’s

review, it would make no sense to foreclose any recon-

sideration of one of the Court’s prior decisions by denying

the second question presented. Stare decisis, after all, “is a

principle of policy rather than an inexorable command.”

Hohn v. United States, 524 U.S. 236, 251 (1998) (internal

quotation marks omitted).

Third. Stare decisis does not provide a persuasive reason

to deny review of the second question, because the doctrine

does not militate strongly against overruling Feres. Although

stare decisis does have considerable force in the area of

Statutory construction, only one of the rationales originally

offered in support of Feres (that there was no “parallel

private liability” for suits by service members against the

government) even “purport[ed] to be textually based”

(Johnson, 481 U.S. at 694 (Scalia, J., dissenting)) — and

that rationale is no longer deemed valid. See Johnson, 481

U.S. at 688-90. In reality, the Feres doctrine is a “judicially

crafted rule,” United States v. Stanley, 483 U.S. 669, 709

(1987) (O’Connor, J., concurring and dissenting), a “crea-

ture of federal common law,” Saudi Arabia v. Nelson, 507

U.S. 349, 374 (1993) (Kennedy, J., concurring and dissent-

ing), aS opposed to an interpretation of the FTCA. Stare

decisis is therefore of less concern.

Fourth. Even if Feres were grounded in a construction

of the FTCA, this Court has “never applied stare decisis

mechanically to prohibit overruling * * * earlier decisions

determining the meaning of statutes.” Monell vy. New York

City Dep’t of Social Servs., 436 U.S. 658, 695 (1978).

Rather, the Court has overruled cases involving statutory

construction where appropriate. See generally Patterson, 485

U.S. at 618 (citing a “host of cases” in which the Court

“explicitly overruled Statutory precedents”); see also, e. 2.

State Oil Co. v. Khan, 522 U.S. 3 (1997) (overruling a 29-

year old decision that was based on the construction of a

Statute). Two points are particularly important here. The

Court has overruled prior cases involving the construction of ©

Statutes when “a precedent may be a positive detriment to

coherence and consistency in the law * * * because of

inherent confusion created by an unworkable decision.”

Patterson v. McLean Credit Union, 491 U.S. 164, 173

(1989). And last Term, the Court overruled a 53-year old

decision interpreting a statute, holding that “it should not be

followed” in part because the earlier case’s “conclusion was

erroneous.” Hohn, 524 U.S. at 251. Those describe Feres

precisely.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

LEE J. ROHN ALAN E. UNTEREINER

Law Offices of Lee J. Rohn ARNON D. SIEGEL

1101 King Street Counsel of Record

Suite 2 Mayer, Brown & Platt

Christiansted, St. Croix 1909 K Street, N. W.

U.S. Virgin Islands 00820 Washington, D.C. 20006

(340) 778-8855 (202) 263-3000

OCTOBER 1999

APPENDICES

APPENDIX A

SHAMMARA RICHARDS, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF CHARLES A.

RICHARDS, JR., AND AS GUARDIAN AND NEXT OF KIN OF

SHANEE A. RICHARDS AND CHARLES RICHARDS,

APPELLANT,

¥.

UNITED STATES OF AMERICA.

No. 98-7235.

United States Court of Appeals,

Third Circuit.

Argued Dec. 11, 1998.

Filed May 5, 1999.

Maurice J. Cusick (Argued), Rohn & Cusick, Christian-

sted, St. Croix, USVI, for Appellant.

Michael A. Humphreys, Office of United States Attorney,

Christiansted, St. Croix, USVI, Curtis V. Gomez, Office of

United States Attorney, Charlotte Amalie, St. Thomas, USVI,

Lowell V. Sturgill, Jr. (Argued), United States Department

of Justice, Civil Division, Washington, DC, for Appellee.

Before: ROTH, LEWIS, and GARTH, Circuit Judges.

OPINION OF THE COURT

LEWIS, Circuit Judge.

Appellant Shammara Richards is the wife and personal

representative of the estate of Charles A. Richards, Jr. She

appeals from the District Court’s order dismissing her com-

plaint for lack of subject-matter jurisdiction under Fed. R.

Civ. P. 12(b)(1). In particular, Mrs. Richards asks that we

allow her negligence claims against the United States under

the Federal Tort Claims Act (“FTCA”) to go forward so that

she can attempt to recover for her husband’s tragic death.

Regrettably, the Supreme Court’s decision in Feres v. United

States, 340 U.S. 135 (1950), and the cases stemming from it

prevent us from granting Mrs. Richards’s request. Thus, we

will affirm the District Court’s judgment.

Charles Richards was a private in the United States Armed

Forces, stationed in Fort Knox, Kentucky. On June 26,

1995, Private Richards left work early to go home and attend

to his pregnant wife.’ Although Private Richards received

permission to leave early, the Army did not issue him a pass

or furlough. While driving home in his personal vehicle,

Private Richards was broadsided by a five-ton military fuel

truck, killing him instantly. The accident took place within

the confines of the Fort Knox Army Base, at the intersection

of Kentucky Highway 1638 and U.S. Highway 31 W. Ken-

tucky Highway 1638 is a public highway that runs through an

easement of land granted by the Army to the State of Ken-

tucky, and is patrolled and maintained by the State.

Mrs. Richards filed suit under the FTCA, alleging that her

husband died “as a direct and proximate result of a vehicular

accident due to the negligence of the United States Army and

its employees.” Complaint at 3. Specifically, she alleged

' The United States disputes the alleged purpose for Private

Richards’s early departure. It argues that Private Richards left his

duty station early to go to the Fort Knox Education Center to

execute forms that would have entitled him to receive tuition

assistance from the Army. For purposes of ruling on the govern-

ment’s motion to dismiss, the District Court accepted, without

deciding, that Private Richards was on his way home when he

died. See Richards v. United States, 1 F. Supp. 2d 498, 500

(D.V.1. 1998). Similarly, we will accept appellant’s contention

that Private Richards was homeward bound at the time of the

accident.

that the United States was responsible for her husband’s

death because it failed to properly maintain the Army vehicle

which caused the collision and negligently supervised the

solider who drove the vehicle. Complaint at ¥| 12- 13,

15-17. The District Court dismissed the suit for lack of

subject matter jurisdiction, concluding that Private Richards’s

death was incident to his military service and thus barred by

the Feres doctrine. This appeal followed.

We exercise jurisdiction over this appeal pursuant to 28

U.S.C. § 1291. We review de novo whether the Feres

doctrine applies to the facts in the record. Estate of Marti-

nelli v. United States, 812 F.2d 872, 873 (3d Cir. 1987).

II.

As a sovereign, the United States may not be sued without

its consent. See United States vy. Mitchell, 463 U.S. 206,

212 (1983). Sovereign immunity not only protects the United

States from liability, it deprives a court of subject matter

jurisdiction over claims against the United States. See id.

In 1946, Congress passed the Federal Tort Claims Act

(“FTCA”), which waived the sovereign immunity of the

United States for certain torts committed by federal employ-

ees. See 28 U.S.C. § 1346(b). Under the FTCA, civil

actions are permitted against the United States for:

injury or loss of property . . . caused by the negligent or

wrongful act or omission of any employee of the Govern-

ment while acting within the scope of his [or her] office

Or employment, under circumstances where the United

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

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

Omission occurred.

28 U.S.C. § 1346(b).

In Feres, the Supreme Court limited the applicability of

the FTCA as it pertains to military personnel. There, the

Court held that “the Government is not liable under the

[FTCA] for injuries to [service members] where the injuries

arise out of or are in the course of activity incident to

service.” 340 U.S. at 146. Although Feres offered several

rationales for its holding,

[in] the last analysis, Feres seems best explained by the

peculiar and special relationship of the soldier to his supe-

riors, the effects of the maintenance of such suits on

discipline, and the extreme results that might obtain if

suits under the Tort Claims Act were allowed for negli-

gent orders given or negligent acts committed in the

course of military duty.

United States v. Shearer, 473 U.S. 52, 57 (1985) (quoting

United States v. Muniz, 374 U.S. 150, 162 (1963)) (internal

quotations omitted).?

The Supreme Court has not articulated a specific method

for determining whether an injury is “incident” to military

service. Rather, it has instructed courts to examine each case

“in light of the statute as it has been construed in Feres and

subsequent cases.” Shearer, 473 U.S. at 57. To assist with

this inquiry, courts consider a number of factors including:

(1) the service member’s duty status; (2) the site of the

accident; and (3) the nature of the service member’s activity

at the time of injury. See, e.g., Dreier v. United States, 106

F.3d 844, 848 (9th Cir. 1997); Schoemer v. United States,

59 F.3d 26, 28 (Sth Cir. 1995). A court must consider each

of these factors in light of the totality of the circumstances;

> The other Feres rationales are: (1) the “distinctively federal”

nature of the relationship between the government and the armed

forces; and (2) the ability of service members to receive no-fault

statutory disability and death benefits through the Veterans’ Ad-

ministration. See United States v. Johnson, 481 U.S. 681, 689-90

(1987); Stencel Aero Engineering Corp. v. United States, 431 U.S.

666, 672-73 (1977).

thus, the fact that any one factor weighs in favor of applying

the Feres doctrine is not necessarily dispositive.

At first glance, our decision in Thomason v. Sanchez, 539

F.2d 955 (3d Cir. 1976), appears to settle the issue raised in

this appeal. In Thomason, an active member of the United

States Army was struck by an automobile owned and oper-

ated by another service member while operating his motorcy-

cle on the grounds of the Army base. See id. at 956. The

motorcyclist filed suit against the United States under the

FTCA. We held that Feres barred the service member’s suit

because he sustained his injuries while on active duty and on

the military base. See id. at 957. In so holding, we did not

examine the service member’s purpose for riding the motor-

cycle. As in Thomason, Private Richards’s accident took

place within the confines of the Army base and while he was

on active duty. Thus, Thomason seemingly mandates our

application of the Feres doctrine.

Mrs. Richards contends that Thomason is distinguishable.

Specifically, she argues that, unlike in Thomason, Private

Richards’s accident occurred while he was traveling on a

public highway, maintained and patrolled by the State of

Kentucky, with no military base in sight. In addition, she

argues that Thomason incorrectly focused on the “status” of

the service member, whereas subsequent Supreme Court

decisions have instructed courts to examine whether the

activity was “incident to military service.” We have not

previously considered the application of the Feres doctrine to

these specific facts. Moreover, the two United States Courts

of Appeals that have considered similar facts differ on

whether Feres bars suit. See Flowers vy. United States, 764

F.2d 759 (11th Cir. 1985); Troglia v. United States, 602

F.2d 1334 (9th Cir. 1979). Still, an examination of these

decisions is instructive.

In Flowers, an active duty service member collided with

a United States Air Force bus while “driving his civilian

automobile home from a personal errand to the grocery store

during his off-duty hours.” 764 F.2d at 760. The accident

occurred on a public highway maintained and policed by the

State of Florida, but running across an easement of land

granted by the Air Force. The court rejected the argument

that the public accessibility of the road somehow distin-

guished it from the other roads running across military reser-

vation property. See id. at 761. Instead, the court held that

Feres applied because “Flowers’ activity at the time of his

accident, although personal, arose out of his life on the

military reservation...” Jd.

In Troglia, an active member of the Air Force brought

suit under the FTCA for personal injuries suffered in an

automobile accident with another motorist who had been

served intoxicating beverages at the Air Force Base Non-

commissioned Officers Club. See 602 F.2d at 1335. The

accident took place about one-half mile outside the gate

guarding access to the Air Force base, but on property

owned by the United States and adjacent to the confines of

the Air Force Base. The local government maintained and

patrolled the road due to an easement granted by the United

States. See id. In reversing the District Court’s grant of

summary judgment based on Feres, the court stated that “the

connection between mere Government ownership of land near

a base and Troglia’s military service is so weak, that the

accident’s location should not be a controlling factor.” Id. at

1339. The court noted, however, that “had the accident

occurred inside the base itself, this might be a different

case.” Id.

We find that Flowers is more analogous to this case. As

in Flowers, Private Richards was driving his civilian automo-

bile home for a nonmilitary purpose at the time of the acci-

dent. Moreover, in both cases the accident occurred on

military base premises, whereas in 7roglia, the accident took

place one-half mile outside the base. Indeed, the court in

Troglia noted the importance of this distinction when it stated

that had the accident occurred inside the base itself — rather

than simply on government owned property — it might have

decided the case differently.

Moreover, we believe that Private Richards’s activity at

the time of the accident supports the application of Feres.

Private Richards died on the grounds of the Army base while

driving home from his duty station. He was not simply

driving on a public road as a member of the general public.

Cf. Brooks v. United States, 337 U.S. 49 (1949) (two service

members on furlough injured in an off-base accident on a

public highway could bring suit under the FTCA — service

members were on personal business and the accident was

totally unrelated to their military service). Rather, Private

Richards’s relationship with the military — i.e., the fact that

he worked on the Army base and was leaving his duty station

— is the reason he was traveling on Kentucky Highway 1638

at the time of the accident. See, e.g., Stewart v. United

States, 90 F.3d 102, 104-05 (4th Cir. 1996) (service member

injured in on-base accident while driving from his duty

Station to his home to shower and change clothes before

reporting to his next duty assignment was “engaged in activ-

ity directly related to the performance of [his] military

obligations”); Lauer v. United States, 968 F.2d 1428, 1430

(1st Cir. 1992) (noting that departing for nonmilitary activity

from duty station or returning therefrom generally are activi-

ties incident to military service). Had Private Richards been

struck by a military vehicle while traveling home from a

place unrelated to his military service, or on a public road

outside the Army base, we may have reached a different

conclusion. However, as the District Court stated, “the

totality of the circumstances shows that Richards . . . “would

not, except in the event of the rarest coincidence, have been

in the same place at the same time with the same purpose,

had it not been incident to his active status in the military.’”

Richards, | F. Supp. 2d at 502 (quoting Shaw v. United

States, 854 F.2d 360, 363 (10th Cir. 1988)). Thus, given

the factual circumstances surrounding Private Richards’s

accident, we cannot escape the conclusion that his death was

incident to his military service. Accordingly, we will affirm

the District Court’s judgment.

Although Feres and its progeny, most notably Thomason,

mandate that we affirm the District Court’s dismissal of Mrs.

Richards’s complaint, we believe this result illustrates the

disconnect that has come to exist between the philosophy

behind Feres and its application. As evidence, one need only

consider the fit between the facts of this case and the ratio-

nales traditionally offered to justify Feres.

As stated previously, the Supreme Court has explained

that the Feres doctrine

seems best explained by the peculiar and special relation-

ship of the soldier to his superiors, the effects of the

maintenance of such suits on discipline, and the extreme

results that might obtain if suits under the Tort Claims Act

were allowed for negligent orders given or negligent acts

committed in the course of military duty.

United States v. Shearer, 473 U.S. 52, 57 (1985) (quoting

United States v. Muniz, 374 U.S. 150, 162 (1963)) (internal

quotations omitted). Thus, when evaluating whether certain

facts weigh in favor or against applying Feres to bar a ser-

vice member’s suit, a court should consider how these facts

relate to the relationship between the soldier and his or her

relevant superiors. More precisely, the court should consider

whether or to what extent the accident in question relates to

the service member’s “military duty.”

One can imagine a hypothetical scenario in which the

conduct or decisions of a service member’s superiors neces-

sarily would come under scrutiny during the course of a

putative lawsuit. Imagine, for instance, a case in which a

soldier attempted to sue the commander of his platoon for

injuries received during battle. Such a suit Clearly would

involve injuries that “ar[o]se out of or in the course of activ-

ity incident to [military] service.” Feres, 340 U-S. at 146.

Therefore, this suit would implicate the “special relationship”

between the soldier and his superior that is contemplated in

Shearer, 473 U.S. at 57, and Muniz, 374 U.S. at 162. No

court would have difficulty in finding that Feres barred such

a suit because the fit between the facts of the Case and the

rationales justifying Feres would be close.

The factual circumstances that gave rise to Mrs. Rich-

ards’s suit are quite different from the service-related injuries

imagined in this hypothetical. This is so because Kentucky

Highway 1638, the site of the accident that took Private

Richards’s life, is traveled by both civilians and military

personnel. Thus, it was purely a matter of chance that Pri-

vate Richards’s automobile, rather than a civilian’s vehicle,

was struck by the military fuel truck, and that Private Rich-

ards, rather than a civilian, was killed. Therefore, unlike the

hypothetical above involving a soldier engaged in combat, the

accident that took Private Richards’s life was not necessarily

related to his military duty.

Nevertheless, unlike the position in which Mrs. Richards

finds herself, the spouse of a civilian who was killed in the

kind of accident that caused Private Richards’s death could

bring suit against the Army by virtue of the Federal Tort

Claims Act. Moreover, if the spouse of this civilian brought

such a suit, she would be able to raise questions about

whether negligence by the Army caused or contributed to the

accident. And, most important for our analysis, the ques-

tions raised by the civilian’s spouse might implicate the

decision making of military personnel: yet, they presumably

would be no less or more intrusive than if these questions

were posed by Mrs. Richards. Thus, while it is true that but

for Private Richards’ active status in the military, he would

10a

not have been “in the same place at the same time with the

same purpose” at the time of the accident, it is not at all

clear that Mrs. Richards’s suit implicates the “special rela-

tionship” between her deceased husband and his superiors in

the manner contemplated in Shearer and Muniz.

Thus, we are left with a counter-intuitive and inequitable

result simply because of Private Richards’s military status.

It is because Feres too often produces such curious results

that members of this court repeatedly have expressed misgiv-

ings about it. See O'Neill v. United States, 140 F.3d 564,

565-66 (3d Cir. 1998) (Becker, C.J., statement sur denial of

the petition for rehearing); Loughney v. United States, 839

F.2d 186, 187- 88 (3d Cir. 1988); Hinkie v. United States,

715 F.2d 96, 97 (3d Cir. 1983); Thomason, 539 F.2d at 957;

Peluso v. United States, 474 F.2d 605, 606 (3d Cir. 1973).

Again, we express this concern and note that the result we

reach does not actually advance the philosophy behind Feres.

Ill.

For the foregoing reasons, we will affirm the judgment

of the District Court.

lla

APPENDIX B

SHAMMARA RICHARDS, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF CHARLES A.

RICHARDS, JR., AND AS GUARDIAN AND NEXT OF KIN OF

SHANEE A. RICHARDS AND CHARLES RICHARDS,

APPELLANT,

UNITED STATES OF AMERICA

No. 98-7235.

United States Court of Appeals,

Third Circuit.

June 30, 1999.

Present: BECKER, Chief Judge, SLOVITER, MANS-

MANN, GREENBERG, SCIRICA, NYGAARD, ALITO,

ROTH, LEWIS, McKEE, RENDELL, and GARTH,” Circuit

Judges.

SUR PETITION FOR REHEARING

The petition for rehearing filed by the appellant in the

above- entitled case having been submitted to the judges who

participated in the decision of this court and to all other

available circuit judges in regular active service, and no

judge who concurred in the decision having asked for rehear-

ing, and a majority of the circuit judges in regular active

service not having voted for rehearing by the court en banc,

the petition for rehearing is denied.

RENDELL, Circuit Judge, dissenting:

This case presents yet another compelling argument for

the abandonment of the Feres doctrine. Feres represents

more than a “bad estimation[ ]” of what Congress intended to

Judge Garth’s vote is limited to panel rehearing only.

12a

do (but did not do), in the Federal Tort Claims Act. See

United States v. Johnson, 481 U.S. 681, 695 (1987) (Scalia,

J., dissenting), for it is also being employed by many courts

on a regular basis to deny a military employee’s recovery,

and to prevent the government’s accountability, for injuries

sustained in connection with essentially civilian activities

wholly unrelated to military service. See, e.g., Flowers v.

United States, 764 F.2d 759, 760 (11th Cir. 1985); Warner

v. United States, 720 F.2d 837 (Sth Cir. 1983); Mason v.

United States, 568 F.2d 1135 (Sth Cir. 1978).

We have participated in this travesty, not only in this

case, but also in another recent case in which we applied

Feres, O'Neill v. United States, 140 F.3d 564, 565 (3d Cir.

1998) (Becker, C.J., dissenting from denial of petition for

rehearing) (“it is difficult for me to imagine anything less

incident to service than being attacked by an ex-lover while

sitting at home watching a movie with a friend.”)

I agree with Chief Judge Becker’s dissent in that case, and

also with Justice Scalia’s words in dissenting from the major-

ity opinion in United States v. Johnson:

The Feres Court claimed its decision was necessary to

make “the entire statutory system of remedies against the

Government . . . a workable, consistent and equitable

whole.” 340 U.S. at 139. I am unable to find such

beauty in what we have wrought.

107 S. Ct. at 2074.

I urge the Supreme Court to grant certiorari and revisit

what we have wrought during the nearly fifty years since the

Court’s pronouncement in Feres v. U.S., 340 U.S. 135.

Chief Judge Becker and Judges Nygaard and McKee join

in this dissent.

13a

APPENDIX C

SHAMMARA RICHARDS, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF CHARLES A.

RICHARDS, JR. AND AS GUARDIAN AND NEXT OF KIN OF

SHANEE A. RICHARDS AND CHARLES RICHARDS,

PLAINTIFFS,

UNITED STATES OF AMERICA, DEFENDANT.

No. 1997-0034F.

District Court, Virgin Islands, D. St. Croix.

March 27, 1998.

Lee J. Rohn, Christiansted, VI, Jeffrey Moorhead,

Christiansted, VI, for Plaintiff.

Michael A. Humphreys, Asst. U.S. Atty. Christiansted,

VI, Corey L. Bradley, Major, U.S. Army U.S. Legal

Services Agency Arlington, VA, for Defendant.

MEMORANDUM OPINION

FINCH, District Judge.

The Plaintiff sues for damages arising from the death of

Private Charles A. Richards, Jr. contending that this Court

has jurisdiction under the Federal Tort Claims Act

(“FTCA”).' 28 U.S.C.A. § 1346(b). The Defendant,

' The Federal Tort Claims Act permits civil actions against the

United. States:

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 Uni-

ted States, if a private person, would be liable to the claimant

l4a

United States of America, moves to dismiss for lack of

subject matter jurisdiction, citing the Feres doctrine.2 The

Feres doctrine, which derives its name from the Supreme

Court opinion Feres v. United States, is an exception to the

waiver of immunity granted in the FTCA when a plaintiff’s

alleged injuries or death “arise out of or are in the course of

activity incident to service.” 340 U.S. 135, 146 (1950).

I. Background

Richards, a private in the United States Armed Forces,

stationed in Fort Knox, Kentucky, died in uniform on June

26, 1995 when his privately owned vehicle was struck by an

Army five-ton truck operated by a member of the United

States Army on Kentucky Highway 1638. Although Ken-

tucky Highway 1638 is a public road, it runs through an

easement of land granted by the Department of Army to the

State of Kentucky.

According to the Plaintiff's statement of facts, Richards

had been allowed to leave his duty station early that day to

in accordance with the law of the place where the act or omis-

sion occurred.

28 U.S.C.A. § 1346(b).

The United States also filed motions for judgment on the plead-

ings pursuant to Fed. R. Civ. P. 12(c) and for summary judgment

pursuant to Fed. R. Civ. P. 56 premised on the Feres doctrine.

Rules |2(c) and 56 are not applicable to claims of immunity under

the Feres doctrine. In cases in which the United States is immune

from suit under the FTCA, and the FTCA is the only basis for

federal jurisdiction, the courts lack subject matter jurisdiction.

Such suits should be dismissed for lack of subject matter jurisdic-

tion under 12(b)(1). Dreier v. United States, 106 F.3d 844, 847

(9th Cir. 1996); Loughney v. United States, 839 F.2d 186, 188 n.3

(3d Cir. 1988). Thus, the United States’ motions for judgment on

the pleadings and summary judgment are not considered.

rere

1Sa

attend to his pregnant wife. The United States agrees that

Richards was allowed to leave his duty station early but

asserts that Richards was given such permission to permit

him to go to the Education Center in Fort Knox to execute

forms that would have entitled him to receive tuition assis-

tance from the United States Army. Although Richards was

allowed to leave early he was issued no pass or furlough.

Thus, the parties dispute Richards’ travel intentions.

Although the Court may weigh the evidence to determine

whether Richards’ was heading home or to the Education

Center, see /nternational Ass’n of Machinists & Aerospace

Workers v. Northwest Airlines, Inc., 673 F.2d 700, 711 (3d

Cir. 1982), such an exercise would be unnecessary if even

given the Plaintiff's view that Richards was homeward

bound, jurisdiction were to fail. Therefore, the Court begins

its jurisdictional analysis by taking the Plaintiff's allegations

as true. The Court considers that Richards was indeed en

route home to tend to his pregnant wife at the time he was

killed.

II. The Law

1. Feres Doctrine Jurisprudence

The United States, as a sovereign, is immune from suit

except as it consents to be sued. United States v. Mitchell,

463 U.S. 206, 212 (1983). Sovereign immunity not only

protects the United States from liability, it deprives the Court

of subject matter jurisdiction over the claims against the

United States. Id. In 1946, Congress enacted the FTCA

which, with certain exceptions, waived sovereign immunity

for common law torts committed by federal employees acting

within the scope of their employment. 28 U.S.C.A. §

1346(b). However, in its seminal decision Feres v. United

States, the Supreme Court held that military personnel are

barred from suing the United States for injuries that “arise

out of or are in the course of activity incident to service.”

340 U.S. at 146.

l6a

The Feres doctrine has three rationales: First, the Su-

preme Court is cautious of “involv[ing] the judiciary in

sensitive military affairs at the expense of military discipline

and effectiveness.” Jd. (quoting United States v. Shearer,

473 U.S. 52, 59 (1985)); see Loughney v. United States, 839

F.2d 186, 187 (3d Cir. 1988). Second, applying state tort

law which varies depending on the situs of the incident con-

flicts with the uniform federal nature of the relationship

between the service member and the Government. United

States v. Johnson, 481 U.S. 681, 689 (1987); Loughney, 839

F.2d at 187. Finally, because service members are eligible

for statutory disability and death benefits, Congress’ purpose

in enacting the FTCA of providing remedies is not served by

extending the FTCA to service members. Johnson, 481 U.S.

at 690.

2. Feres Doctrine Practice

To assist in determining whether the injuries occurred

incident to service, courts consider the totality of the circum-

stances including: (1) the service member’s duty status; (2)

the situs of the injury; (3) and the activity the service mem-

ber was performing. Sec, e.g., Schoemer v. United States,

59 F.3d 26, 28 (Sth Cir. 1995); Flowers v. United States,

764 F.2d 759, 760-61 (11th Cir. 1985). A particular factor

or combination of factors may be dispositive. For example,

if a service member is injured on a military base, the Feres

doctrine generally bars suit. Coffey v. United States, 324 F.

Supp. 1087, 1088 (S.D. Cal. 1971) (finding that although

service member held liberty card and was exiting base to

off-post liberty, because accident occurred on base, situs of

accident barred FTCA suit), aff'd, 455 F.2d 1380 (9th Cir.

1972). When the totality of the circumstances show that the

Feres doctrine bars suit, the Court may dismiss the suit

without considering the underlying Feres doctrine rationales.

Loughney, 839 F.2d at 188 (holding that when military status

of the service member was dispositive, no case-by-case

inquiry into whether claim would involve judicial intrusion

17a

into military affairs was warranted). On the other extreme,

even when the three-factor totality of the circumstances test

strongly indicates thet the Feres doctrine does not bar suit,

the Court must look to the Feres doctrine rationales before

permitting suit. See Shearer, 473 U.S. at 54, 57. For

example, in United States v. Shearer, although a service

member was killed while off-duty, off-base, and while not

performing any military related activity, because the military

Status of the tortfeasor could “require{] the civilian court to

second-guess military decisions,” the Feres doctrine rationale

barred suit. Jd.

III. Case Analysis

A. Totality of the Circumstances

The Plaintiff argues that the three factors generally consid-

ered in determining the totality of the circumstances cenclu-

Sively show that Richards’ death did not occur incident to

service. According to the Plaintiff, Richards was in off-duty

status, on a public road, and performing an act not related to

his military duties — going home. Although little Third

Circuit guidance is available, the Ninth Circuit in the factu-

ally similar case, Troglia v. United States, held that suit by

an off-duty service member injured while possibly “returning

to the base after enjoying a short period of liberty,” on a

public road passing across an easement on military property,

may not be barred by the Feres doctrine. 602 F.2d 1334,

1339-40 (9th Cir. 1979) (remanding to district court to deter-

mine service member’s status and activity at time of injury).

In contrast, the Eleventh Circuit found a Feres bar in Flowers

v. United States, when an off-duty service member, headed

home from the grocery store was injured on a public road

running through an easement on military property. 764 F.2d

at 761. The lack of Third Circuit precedent together with

these conflicting rulings make the law as applied to these

facts unclear. Thus, the Plaintiff's argument that the

18a

three-factor incident to service test conclusively permits suit

in this case is without merit.

If each of the three factors is individually analyzed, the

three- factor test points more strongly toward finding a Feres

bar than toward permitting suit. For the purposes of the

Feres doctrine, whether an active duty service member is

off-duty or on-duty generally is immaterial. E.g., Skees v.

United States, 107 F.3d 421, 425 (6th Cir. 1997) (holding

that “status as an active duty service person, not whether he

was on or off-duty at the time of his death, is controlling”);

Bozeman v. United States, 780 F.2d 198, 200 (2d Cir. 1985)

(noting active duty status continues when service member on

liberty or leave); Warner v. United States, 720 F.2d 837, 839

(Sth Cir. 1983) (holding that “[o]ne with only an unexercised

right to a pass or who is only off duty for the day usually is

held to be acting ‘incident to service.’ ”); Mason v. United

States, 568 F.2d 1135, 1136 (Sth Cir. 1978) (holding that

although service member was off-duty and on his way home,

because he was on active duty and on base, he was “still

subject to all military regulations and discipline and was

readily available for emergency service or temporary du-

ties”). But cf. Parker v. United States, 611 F.2d 1007, 1014

(Sth Cir. 1980) (holding that right to be off-duty for four

days more like furlough than mere release from day’s duties).

Furthermore, when an active status service member is injured

in a vehicular accident on a military reservation, courts

generally find a Feres bar.’ See, e.g., Shaw v. United

States, 854 F.2d 360, 363 (10th Cir. 1988); Warner, 720

Whether an incident involving an active duty service member

occurring on a public road, such as Kentucky Highway 1638,

running on an easement across a military reservation, arises out of

or is in the course of military activity for the purpose of a Feres

analysis, has not been decided by the Third Circuit and the Ninth

Circuit and Eleventh Circuit are split on this question. Compare

Troglia, 602 F.2d at 1339, with Flowers, 764 F.2d at 761.

19a

F.2d at 839; Coffey, 324 F. Supp. at 1088. Finally, the

activity of leaving the duty station after work and returning

to the duty station for work is generally considered an activ-

ity incident to military service. Lauer v. United States, 968

F.2d 1428, 1430 (1st Cir. 1992) (holding that leaving base

for non- military activity and returning therefrom is usually

incident to service); Shaw, 854 F.2d at 363 (holding that fact

that service member was on post and on his way to work was

directly connected to military service). As in Shaw v. United

States, in which a service member was struck by an Army

cargo truck on base on his way to work, the totality of the

circumstances shows that Richards, like Shaw, “would not,

except in the event of the rarest coincidence, have been in the

Same place at the same time with the same purpose, had it

not been incident to his active status in the military.” 854

F.2d at 363.

The application of each of the three factors to the instant

case strongly indicates that the Feres doctrine bars suit.

However, because the two circuits that have considered

factually similar cases are split and because the Third Circuit

has not had occasion to review a factually similar case, the

Court, in an abundance of caution, finds the three factor

analysis inconclusive.

B. Consideration of the Feres Doctrine Rationales

Because the three factor incident to service test generally

applied in evaluating the totality of the circumstances does

not conclusively bar suit, the Court considers the Feres

doctrine rationales. As discussed, the Feres doctrine is

designed to prevent unnecessary judicial intrusion into mili-

tary affairs and to protect the Government from responding

to tort actions under varying state laws. Further justification

for the Feres bar is the uniform compensation provided to

service members under federal law. These rationales, con-

sidered in turn, show that the Feres doctrine bars this suit.

20a

1. Judicial Intrusion into Military Affairs

What constitutes judicial intrusion into military affairs has

been broadly construed. Some courts have held that a colli-

sion that merely involves military eyewitnesses and military

physicians, without any further questioning of military deci-

sion-making, sufficiently involves the judiciary intruding on

military affairs to warrant barring suit under the Feres doc-

trine. For example, in Shaw, despite acknowledging that

“the present case may not involve a ‘decision of command,’

” the court held that concern for judicial intrusion into mili-

tary affairs supported barring suit because “this case may

require military personnel, . . . military eyewitnesses to the

accident, and military medical personnel who treated Mr.

Shaw and diagnosed the extent of his injuries ‘to testify in

court as to each other’s decisions and actions.’ ” 854 F.2d

at 365 (quoting Shearer, 473 U.S. at 58); see also Stewart v.

United States, 90 F.3d 102, 106 (4th Cir. 1996) (holding that

Feres doctrine rationale supported barring suit involving

collision because military personnel could be required to

testify).

Other courts have applied the Feres doctrine more nar-

rowly, considering whether the claims were of the type that

would involve the courts in questioning a traditional military

function. For example, in Jaber v. Maine, because the

plaintiff only alleged the negligence of the drunk driver and

no claims of negligent supervision by military personnel were

made, the Second Circuit held that military discipline was not

implicated. 67 F.3d 1029, 1052 (2d Cir. 1995). Similarly in

Dreier, the Ninth Circuit found no Feres doctrine bar because

the case did not involve potential interference with

decision-making of a traditional military nature:

This case makes no allegations of inadequate military

supervision or training, but rather alleges the same type of

negligence that could be alleged against a completely

private [facility]. . . . This circuit has not been so con-

2la

cerned in questioning aspects of the operation of a military

base that are not related to traditional military functions.

106 F.3d at 854 & n.9.

The case at bar involves intrusion of the judiciary into

military discipline even if this second more stringent test is

applied. In her complaint, the Plaintiff claims inter alia:

Defendant United States through its negligence failed to

properly maintain its vehicle, United States Army Truck

. . Involved in the vehicular accident which gives rise to

this Complaint

Defendant United States negligently allowed [service

member] to operate a five-ton truck knowing that he was

not licensed to drive [such] truck. . . . Defendant negli-

gently ordered [service member] to drive the truck know-

ing that he did not possess the requisite skill or experience

to safely operate the vehicle.

Some of the allegations in this case are similar to those in

Sanchez v. United States, 878 F.2d 633 (2d Cir. 1989). In

Sanchez, the plaintiff alleged that his injuries were caused by

the negligent servicing of a car by a service station owned

and operated by the government. Sanchez, 878 F.2d at 634.

Even though the injuries occurred while Sanchez was

off-duty and off base, the Feres doctrine was found to apply

because “establishment of Sanchez’s claim would require

Marine Corps officers to testify about their policies in hiring

employees for the repair station and in running the station.”

Id. at 688.

In this case, military officials would be questioned not

only with respect to their maintenance policies, but also with

respect to decisions regarding personnel supervision and

discipline as in Shearer. Thus, this suit is barred under the

FTCA because the Plaintiff's allegations are “the type of

22a

claims that, if generally permitted, would involve the judi-

Ciary in sensitive military affairs at the expense of military

discipline and effectiveness.” See Shearer, 473 U.S. at 59

(emphasis in original).

2. Federal Relationship and Uniform Compensation

The remaining Feres doctrine rationales also favor a Feres

bar. Richards had a distinctively federal relationship to the

government and the service member allegedly responsible for

his death; his active duty status in the armed forces and the

fact that the incident occurred while he was on his way home

from his work on base suggest this federal relationship. In

light of this federal relationship, the Feres doctrine prevents

the United States from having to respond to a tort action

based fortuitously on the tort law of Kentucky, the state in

which Richards was killed.

Instead, the United States has provided “simple, certain,

and uniform compensation” to Richards’ family in the form

of extensive benefits. Feres, 340 U.S. at 144. Richards’

widow received $150,000 from Servicemen’s Group Life

Insurance and $6,000 in a death gratuity from the United

States. She and her children receive over $1,200 per month

in dependency and indemnity compensation. In addition

Richards’ family is entitle to numerous other survivor bene-

fits, including education stipends, medical care, federal civil

service hiring preferences, and home loan guarantees.

Thus, all three Feres doctrine rationales support a finding

that the Plaintiff’s suit is barred by the Feres doctrine.

IV. Conclusion

Courts have recognized that

in recent years the [Supreme] Court has embarked on a

course dedicated to broadening the Feres doctrine to en-

compass, at a minimum, all injuries suffered by military

personnel that are even remotely related to the individual’s

23a

status as a member of the military, without regard to the

location of the event, the status (military or civilian) of

the tortfeasor, or any nexus between the injury-producing

even and the essential defense/combat purpose of the

military activity from which it arose.

Major v. United States, 835 F.2d 641, 644 (6th Cir. 1987)

(emphasis in original); see Stewart, 90 F.3d at 105; Shaw,

854 F.2d at 364. The Feres doctrine has been expanded such

that “practically any suit that implicates the military judg-

ments and decisions runs the risk of colliding with Feres.”

Jackson, 110 F.3d at 1487 (citations omitted).

In this case, ‘he service member’s status, the location of

the cause of the 1. jury and the military nature of the service

member’s activity at the time of the incident, strongly indi-

cate that the Feres doctrine bars suit. However, because other

circuits examining similar facts are split and the Third Circuit

has not yet reviewed such a case, these facts are found

non-dispositive. Therefore, the Feres doctrine rationales are

considered. Because the Plaintiff’s allegations would require

the judiciary to involve itself in questions of military disci-

pline and decision-making, and the other Feres doctrine

rationales also support a finding of immunity, this suit is

barred under the Feres doctrine. Since the underlying cause

of action is barred by the Feres doctrine, the Plaintiff's

derivative actions are similarly barred. Mondelli v. United

States, 711 F.2d 567, 569 (3d Cir. 1983).

24a

APPENDIX D

28 U.S.C. § 1346:

*** *

(b)(1) 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 claimant in accordance with the law of the place where

the act Or Omission occurred.

28 U.S.C. § 2671:

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

of this title, the term “Federal agency” includes the executive

departments, the judicial and legislative branches, the mili-

tary 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 em-

ployees 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

25a

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.

28 U.S.C. § 2674:

The United States shall be liable, respecting the provisions

of this title relating to tort claims, in the same manner and to

the same extent as a private individual under like circum-

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

or for punitive damages.

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

law of the place where the act or omission complained of

occurred provides, or has been construed to provide, for

damages only punitive in nature, the United States shall be

liable for actual or compensatory damages, measured by the

pecuniary injuries resulting from such death to the persons

respectively, for whose benefit the action was brought, in

lieu thereof.

With respect to any claim under this chapter, the United

States shall be entitled to assert any defense based upon

judicial or legislative immunity which otherwise would have

been available to the employee of the United States whose act

Or Omission gave rise to the claim, as well as any other

defenses to which the United States is entitled.

* * * *

28 U.S.C. § 2680:

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

title shall not apply to--

a a a

26a

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

employee of the Government, exercising due care, in the

execution of a statute or regulation, whether or not such

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

performance or the failure to exercise or perform a discre-

tionary function or duty on the part of 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.

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, § 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 interfer-

ence 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

27a

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

purpose of this subsection, “investigative or law enforcement

officer” means any officer of the United States who is em-

make arrests for violations of Federal law.

(i) Any claim for damages caused by the fiscal opera-

tions 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 Ten-

nessee 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.

28a

APPENDIX E

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX

SHAMMARA RICHARDS, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF CHARLES A.

RICHARDS, JR., AND AS GUARDIAN AND NEXT OF KIN OF

SHANEE A. RICHARDS AND CHARLES RICHARDS,

PLAINTIFFS,

UNITED SATES OF AMERICA, DEFENDANT.

CiviL No. 1997/

ACTION FOR DAMAGES

JURY TRIAL DEMANDED

VERIFIED COMPLAINT

COME NOW Plaintiffs, by and through undersigned

counsel, and as and for Plaintiffs’ Complaint, allege and state

the following:

1. This Court has jurisdiction of this matter pursuant

to 28 U.S.C., Chapter 171, § 2401 and § 2674 et. seq. and

the Federal Tort Claims Act.

2. The amount in controversy exceeds the sum of

$50,000.00, exclusive of costs and fees.

>. Charles A. Richards, Jr., died on June 26, 1995,

as a direct and proximate result of a vehicular accident due to

the negligence of the United States Army and its employees;

and his wife, Shammara Richards, a resident of St. Croix,

Virgin Islands, has been appointed his personal representative

for the purpose of continuing this civil suit.

29a

4. Defendant United States Army is a body politic

which oversees the operation of all military bases, including

the U. S. Armor Center at Fort Knox, Kentucky.

» The beneficiaries of the Estate of Charles A. Rich-

ards, Jr., are as follows:

a. Shammara Richards, spouse;

b. Shanee A. Richards, daughter;

c. Charles Richards, son;

d. Cecile Richards, mother;

e. Charles Richards, father;

f. Alexander Richards, brother:

g. Basil Richards, brother;

h. Valencia Richards, sister;

i. McDonald Richards, brother;

j. Bernadette Bess, sister;

k. Charlese Duparl, sister; and

1. Allen Duparl, brother.

6. On or about June 26, 1995, Charles A. Richards,

Jr., was driving near the intersection of Kentucky Highway

1638 and US 31 W in Muldraugh, Kentucky.

B Decedent, who was on personal business, Charles

A. Richards, Jr.’s vehicle was impacted broadside and

crushed by a five-ton United States Army cargo truck.

8. As a direct and proximate result of the impact,

Charles A. Richards, Jr., died of his injuries and his heirs

have been deprived forever of his support and consortium.

9. Plaintiff, Shammara Richards, wife of Charles A.

Richards, Jr., who was pregnant at the time of the accident

30a

suffered extreme anguish and damages as a result of her

husband's untimely death.

10. Defendant United States Army oversees the opera-

tion of the Army base in Fort Knox, Kentucky; and employs

and pays the salaries of servicemen stationed there.

11. Defendant United States supplies, maintains and

services all vehicles utilized at its Fort Knox Armiy base.

12. Defendant United States through its negligence

failed to properly maintain its vehicle, United States Army

Truck Cargo 5 Ton 6x6 M813A1, VIN NLO8NZC32910291

involved in the vehicular accident which gives rise to this

Complaint.

13. Defendant United States allowed the above-de-

scribed vehicle to be operated on the public roadways in an

unsafe, defective condition, to include but not be limited to:

a. Defective front brakes;

b. Defective air gauge;

c. Damaged tail lamps;

d. Damaged rear turn lamps;

e. Inoperable horn;

f. Defective battery gauge;

Unable to be driven long distances;

h. Contaminated brake fluid; and

i. Defective master cylinder.

14. Defendant United States qualifies servicemen in

general to operate various classes and weights of vehicles.

15. Defendant United States negligently allowed SPC

Potts to operate a five-ton truck knowing that he was not

licensed to drive an 800 series five-ton truck of the type and

3la

description that he drove the day of the subject accident

without regard to the safety of other drivers on the public

roadways.

16. Defendant negligently ordered SPC Potts to drive

the truck knowing that he did not possess the requisite skill

or experience to safely operate the vehicle.

17. SPC Potts, while he was in the course and scope of

his employment with Defendant, negligently operated the

vehicle such that it collided with the vehicle being driven by

Mr. Richards.

18. As a direct and proximate result of the negligent

acts and omissions of Defendant, Decedent suffered pain and

suffering and then died and Plaintiffs suffered losses, mental

anguish, pain and suffering and loss of enjoyment of life,

loss of companionship and contribution of Decedent and all

other damages allowable under the wrongful death statute.

WHEREFORE, Plaintiffs pray for damages as they may

appear and for such other relief as this Court deems fair and

just.

JURY TRIAL DEMANDED AS TO ALL ISSUES.

LAW OFFICES OF ROHN & CUSICK

Attorneys for Plaintiffs

DATED: 3/26/97 = /s/ Lee J. Rohn

Lee J. Rohn, Esquire

1101 King Street - Suite 2

Christiansted, St. Croix

Virgin Islands 00820

- 32a

VERIFICATION

1, SHAMMARA RICHARDS, being duly sworn, hereby

verify that | am the Plaintiff in the above-captioned matter

and | have read the Verified Complaint filed herein and all

statements contained herein are true and correct.

/s/ Shammara Richards

SHAMMARA RICHARDS, Individually

and As Personal Representative of the ES-

TATE OF CHARLES A. RICHARDS,

JR., and as Guardian and Next of Kin of

SHANEE A. RICHARDS and CHARLES

RICHARDS

SUBSCRIBED and SWORN TO BEFORE

me this 25th day of March, 1997.

/s/

Notary Public

33a

APPENDIX F

IN THE DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISION OF ST, CROIX

SHAMMARA RICHARDS, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF CHARLES A. RICHARDS

JR., AND AS GUARDIAN AND NEXT OF KIN OF SHANEE A.

RICHARDS AND CHARLES RICHARDS, PLAINTIFFS,

UNITED STATES OF AMERICA, DEFENDANT.

CiviL No. 97-0034

FEDERAL TORT CLAIMS ACTION

ANSWER OF DEFENDANT, UNITED STATES OF

AMERICA

COMES NOW the United States of America, by and

through the United States Attorney for the District of the

Virgin Islands, and answers the Plaintiffs’ Complaint as

follows:

1. The allegations of paragraph No. 1 of the Com-

plaint state legal conclusions to which the Defendant is not

required to admit or deny. However, to the extent that

answer is, otherwise, required, the allegations of paragraph

No. 1 of the complaint are denied.

zi Defendant denies the allegations of paragraph No.

a Defendant admits that Charles A. Richards, Jr.,

died on June 26, 1995, but is without sufficient knowledge or

information to either admit or deny the remaining allegations

of paragraph 3. However, to the extent that an answer is,

otherwise, required, the allegations of paragraph No. 3 are

denied.

34a

4. Defendant admits it is an agency of the United

States that oversees the operation of the U.S. Army Armor

Center at Fort Knox, Kentucky, but denies the remaining

allegations in paragraph No. 4.

5. Defendant is without sufficient knowledge or

information to either admit or deny the allegations of para-

graph No. 5, but to the extent that an answer is required the

allegations are denied.

6. Defendant admits the statements contained in

paragraph No. 6.

: f Defendant admits that Charles A. Richards, Jr.’s

vehicle was involved in a collision with the United States

Army 5-ton cargo truck on June 26, 1995, but denies the

remaining allegations of paragraph No. 7.

8. Defendant denies the allegations of paragraph No.

9. Defendant is without sufficient knowledge or

information to either admit or deny the allegations of para-

graph No. 9, but to the extent that an answer is, otherwise,

required, the allegations are denied.

10. Defendant admits the statements contained in

naragraph No. 10.

11. Defendant denies the allegations of paragraph No.

11.

12. | Defendant denies the allegations of paragraph No.

12.

13. Defendant denies the allegations of paragraph No.

13.

14. Defendant admits the statements contained in

paragraph No. 14.

35a

15. | Defendant denies the allegations of paragraph No.

15.

16. Defendant denies the allegations of paragraph No.

16.

17. Defendant admits that SPC Potts was acting within

the course and scope of his federal employment at the time of

the accident that is the subject of this litigation, but denies

the remaining allegations of paragraph No. 17.

18. Defendant denies the allegations of paragraph No.

18.

19. __ Each and every allegation not previously admitted

or otherwise qualified is, hereby, expressly denied.

FIRST AFFIRMATIVE DEFENSE

20. ‘Plaintiffs’ complaint fails to state a claim from

which relief can be granted.

SECOND AFFIRMATIVE DEFENSE

21. This Court lacks subject matter jurisdiction over

the claims raised by the Plaintiffs’ complaint.

THIRD AFFIRMATIVE DEFENSES

22. ‘Plaintiffs’ cause of action under the Federal Tort

Claims Act (FTCA), 28 U.S.C. §§ 1346(B) and 2671-2680

is barred by the Feres Doctrine, Feres v. United States, 340

U.S. 135 (1950).

FOURTH AFFIRMATIVE DEFENSE

23. Any injuries which plaintiffs may have sustained

were caused by the contributory negligence of the decedent.

36a

WHEREFORE, having fully answered, defendant, United

States of America, prays as follows:

a) That the plaintiffs’ action be dismissed with prejudice;

b) That the defendant, United States of America, be

awarded the costs incurred in the defense of this action; and

c) That the Court enter such other relief as it deems just

and proper.

Respectfully submitted this Ist day of June 1997.

JAMES A. HURD, JR.

United States Attorney

/s/ Michael A. Humphreys

Michael A. Humphreys

Assistant U.S. Attorney

1108 King Street, Ste. 201

Christiansted, VI 00820

809 773-3920

Of Counsel:

CAPTAIN COREY L. BRADLEY

Department of the Army

Office of the Judge Advocate General

901 North Stuart Street

Arlington, Virginia 22203

(703) 696-1637

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing

Answer was served on Plaintiffs’ counsel, Lee J. Rohn, Esq.,

1101 King Street, Suite 2, Christiansted, by placing it in her

Box at the District Court’s Office this 2th day of June, 1997.

/s/

Legal Assistant

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.