Present: Becker, Chief Judge, Sloviter, Stapleton, Mansmann, Greenberg, Scirica, Cowen, Nygaard, Alito, Roth, McKEE and Rendell, Circuit Judges, and POLLAK,*fn* District Judge
(D.C. Civ. No. 96-cv-00800)
SUR PETITION FOR REHEARING
The petition for rehearing filed by appellants in the above-entitled case having been submitted to the Judges who participated in the decision of this Court and to all the other available circuit Judges of the circuit in regular active service, and no Judge who concurred in the decision having asked for rehearing, and a majority of the circuit Judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court in banc, is denied. Chief Judge Becker would grant rehearing for the reasons set forth in the attached Statement.
STATEMENT SUR DENIAL OF THE PETITION FOR REHEARING
The panel has concluded that the O'Neill family's wrongful death claim is barred by the doctrine announced in Feres v. United States, 340 U.S. 135 (1950) and its progeny. I do not believe that it is.
The government relies heavily on the opinion in United States v. Shearer, 473 U.S. 52 (1985), where the Supreme Court held that the family of a service member could not recover under the Federal Tort Claims Act ("FTCA") for the death of their son who was murdered by a fellow service member. The facts of this case, however, are quite different from those in Shearer. So far as we can tell from the published opinions in Shearer, the men involved served together; their relationship was formed on this basis; and the court reasonably concluded that the injury occurred "incident to service." In contrast, the relationship between Kerryn O'Neill and her assailant was a purely personal one.*fn** Indeed, it is difficult for me to imagine anything less incident to service than being attacked by an ex-lover while Smith had been given a battery of psychological tests to determine his psychological fitness for submarine duty. On this "Subscreen" test he had scored four standard deviations above normal levels (in the 99.99 percentile) for aggressive/destructive behavior. He had also scored more than two standard deviations above normal levels in six other categories -- including impulsive and manipulative behavior. Under Naval procedures, these results should have been forwarded to the Department of Psychiatry at the Naval Hospital for a full psychological evaluation. O'Neill's family, with considerable force, urges that the Navy was negligent in failing to follow-up on these extreme test results. sitting at home watching a movie with a friend. Surely, Smith would have killed O'Neill even if she was a civilian at the time.
The government urges that the primary rationale for the Feres doctrine -- the desire to prevent the judiciary from second-guessing sensitive military decisions -- is implicated in this case. However, the gravamen of the Feres doctrine is that the government is immune from suit when injuries occur incident to service. If a civilian friend of O'Neill's had been murdered by Smith, the same concerns regarding second-guessing military judgments would be implicated, but I do not believe that we would dismiss the lawsuit. Similarly, where a plaintiff has engaged in an activity of a civilian nature, the "incident to service" test is not satisfied and the Feres bar has not been applied. See e.g., Johnson v. United States, 704 F.2d 1431, 1439 (9th Cir. 1983).
In Brooks v. United States, 337 U.S. 49 (1949), the government made an argument similar to that raised here, that because military decisions would be questioned suit should be barred under the FTCA. The Supreme Court ruled that the rationale was irrelevant if the incident to service test was not satisfied:
The Government envisages dire consequences should we reverse. . . [a] battle commander's poor judgment, an army surgeon's slip of hand, a defective jeep . .. all would ground tort actions against the United States. But we are dealing with an accident which had nothing to do with the [plaintiffs'] army careers, injuries not caused by their service except in the sense that all human events depend upon what has already ...