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FERES DOCTRINE: A CASE THAT WON'T GO AWAY --
Lt.
Rudolph Feres died in a barracks fire. His
widow sued the
government. She lost, 9-0, in the Supreme
Court. Now, nearly
60 years later, the case may be coming back to
life.
For more on the Feres Doctrine, use the VA
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Story here...
http://news.yahoo.com/s/
ucjk/20070808/cm_ucjk/acase
thatwontgoaway
Story below:
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A CASE THAT WON'T GO AWAY
opinion by James J. Kilpatrick
On the night of Dec. 10, 1947, Army Lt. Rudolph J. Feres died in a
barracks fire at Pine Camp, N.Y. His widow sued the government for its
negligence. She lost, 9-0, in the U.S. Supreme Court. Now, nearly 60
years later, the case may be coming back to life.
Yes, we are harking back to the "Feres Doctrine," the wrongheaded rule
of law laid down by a unanimous court so long ago. As many a judge has
said since then, the Feres rule is patently unfair. It makes
second-class citizens out of men and women in the armed services: Under
Feres, they are denied an opportunity for significant recovery for
injuries or death suffered in their civilian capacities through the
negligence of military personnel.
Two recent decisions in the federal courts have revived the Feres case.
In March the high court turned down the appeal of James Brown from a
judgment in Nashville, Tenn. On the West Coast, a panel of the 9th
Circuit ruled that Aaron Schoenfeld may pursue a damage suit against the
Army.
Bad cases, they say, make bad law, and James Brown had a bad case. As a
civilian technician at Berry Field in Nashville, he was required to
maintain membership in the Selected Reserve of the National Guard. Nine
years ago, a vacancy developed for a quality assurance specialist. He
applied. The job went to a man 20 years younger.
Brown sued the government under the Age Discrimination in Employment Act
(ADEA). An administrative law judge at first ruled in his favor, but
last November the U.S. Court of Appeals for the 6th Circuit ruled
against him. Judge Karen Nelson Moore, speaking for a three-judge panel,
ruled that this essentially civilian technician was subject to the Feres
doctrine. He was paid by the Army. His technician's job was "irreducibly
military in nature." Feres ruled! Case dismissed.
The second case, involving Lance Cpl. Aaron Schoenfeld, offers a better
set of facts.
On a summer morning six years ago, Schoenfeld and his Marine Corps
roommate were on weekend liberty from their usual duties at Camp
Pendleton, Calif. They headed into town to run errands. They were still
on base when the roommate lost control of the car and crashed into a
guardrail that had been badly damaged and never fully repaired. The
collision severed the corporal's leg below the knee. He sued under the
Federal Tort Claims Act. The Corps moved to dismiss under the Feres
rule. Last month a panel of the 9th Circuit gave the plaintiff a green
light. Unless the Supreme Court intervenes, the case will go to trial.
These are essential points: Schoenfeld was on liberty, in a private car,
engaged in wholly private activity. He was free to leave the base. He
had no Marine Corps duties to perform. The government emphasized at
trial that one of his errands was to leave his uniforms at the cleaners,
but otherwise there was nothing to distinguish his errands from anyone
else's. The 9th Circuit, on appeal, brushed that justification aside.
Judge Kim McLane Wardlaw, speaking for a unanimous panel, acknowledged
some points in the government's favor. The Marine Corps had paid "a
significant portion" of Schoenfeld's medical expenses. He was offered a
specially equipped automobile. Until he was placed on disability
retirement he received full pay. He continues to receive "other military
benefits."
Even so, at the time of the accident, Schoenfeld was essentially a
civilian riding on a road made dangerous by the government. He was not
then subject to military discipline; he was not performing any military
duty; his mission was "purely personal." Indeed, "He was doing what any
member of the public could have done on a Saturday morning -- riding on
a road available to the public."
The two plaintiffs, Brown in Tennessee and Schoenfeld in California, are
only the two most recent litigants in a 60-year string of plaintiffs
denied a hearing because of the Feres rule. Rudolph Feres himself had
two fellow petitioners in the Supreme Court, Arthur Jefferson and Dudley
Griggs, both victims of the Army's medical malpractice. They have been
followed by a small battalion of unsuccessful plaintiffs.
Ten years ago, dissenting with Brennan, Marshall and Stevens in U.S. v.
Johnson , Justice Antonin Scalia delivered a blistering criticism of the
Feres rule. The case was "wrongly decided and heartily deserves the
widespread and almost universal criticism it has received." When will
the court undo the mess it has made?
(Letters to Mr. Kilpatrick should be sent in care of this newspaper, or
by e-mail to kilpatjj@aol.com.)
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Larry Scott --
