1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-1-1998

O'Neill v. United States

Precedential or Non-Precedential:

Docket 97-7030

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"O'Neill v. United States" (1998). 1998 Decisions. Paper 99.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/99
Filed May 1, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-7030 

BONNIE A. O'NEILL, on behalf of herself and the es tate of 

Kerryn L. O'Neill; EDMUND J. O'NEILL, 

 Appellants 

v. 

UNITED STATES OF AMERICA 

(D.C. Civ. No. 96-cv-00800) 

SUR PETITION FOR REHEARING 

Present: BECKER, Chief Judge, 

SLOVITER, STAPLETON, MANSMANN, GREENBERG, 

SCIRICA, COWEN, NYGAARD, ALITO, ROTH, McKEE and 

RENDELL, Circuit Judges, and POLLAK,* District Judge 

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 

_________________________________________________________________ 

*The Honorable Louis H. Pollak, United States District Judge for the 

Eastern District of Pennsylvania, who sat by designation, as to panel 

rehearing only. 
banc, is denied. Chief Judge Becker would grant rehearing 

for the reasons set forth in the attached Statement. 

 BY THE COURT, 

 /s/ Anthony J. Scirica 

 Circuit Judge 

Dated: May 1, 1998 

 2 
STATEMENT SUR DENIAL OF THE 

PETITION FOR REHEARING 

BECKER, Chief Judge. 

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.** Indeed, it is difficult for me to imagine anything less 

incident to service than being attacked by an ex-lover while 

_________________________________________________________________ 

**O'Neill, a Naval officer, was murdered by her former fiance, Ensign 

George Smith. O'Neill met Smith at the United States Naval Academy 

where they both attended school. After graduation O'Neill was assigned 

to a naval base in San Diego. Coincidentally, Smith was sent to the same 

base several months later in preparation for a tour of duty on a 

submarine. Shortly after Smith's arrival in San Diego, O'Neill broke off 

their engagement and he began to stalk her. One night while O'Neill was 

sitting in her on-base apartment watching a movie with a friend, Smith 

came to her building, shot and killed her and her companion and then 

killed himself. 

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. 

 3 
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 

 transpired. Were the accident incident to the 

 [plaintiffs'] service, a wholly different case would be 

 presented. 

Id. at 52. In Feres and Shearer, the court was presented 

with "wholly different cases," cases where the service 

members' injuries occurred incident to their service. 

However, here, where decedent's injuries were wholly 

unrelated to her military service, we should follow the 

Supreme Court's direction in Brooks and not be swayed by 

the military judgment rationale. Because I think that this 

 4 
case has been wrongly decided, and because of the 

importance of the issue, I vote for rehearing en banc (see 

Third Circuit I.O.P. 9.3.1). I acknowledge that under my 

view there will occasionally be cases in which so-called 

second guessing occurs, but the Supreme Court's 

jurisprudence does not extirpate every incarnation of that 

phenomenon, see Brooks, supra. 

In the decades following the decision in Feres, the case 

was subjected to considerable criticism from both the 

courts and the academy. In United States v. Johnson, 481 

U.S. 681, 700 (1987), Justice Scalia was joined by three 

other justices in a dissent in which he remarked that "Feres 

was wrongly decided and heartily deserves the `widespread, 

almost universal criticism' it has received." (citing Agent 

Orange Product Liability Litigation, 580 F. Supp. 1242, 1246 

(E.D.N.Y. 1984). In Peluso v. United States, 474 F.2d 605 

(3d Cir. 1973) (per curiam), we expressed the view that 

Feres was wrongly decided and the hope that the Supreme 

Court would reverse it, observing that the "facts pleaded 

here, if true, cry out for a remedy." Id. at 606. And in 

Hinkie v. United States, 715 F.2d 96, 97 (3d Cir. 1983), we 

dismissed a lawsuit under the Feres bar, but only after 

noting that "[w]e are forced once again to decide a case 

where `we sense the injustice . . . of [the] result.' " Moreover, 

as I document in the margin, scholarly criticism of the 

doctrine is legion.*** 

In the last decade, however, these voices of courts and 

_________________________________________________________________ 

***See, e.g., Jonathan P. Tomes,Feres to Chappell to Stanley: Three 

Strikes and Servicemembers Are Out, 25 U. Rich. L. Rev. 93 (1990); 

Barry Bennett, The Feres Doctrine, Discipline and the Weapons of War, 

29 St. Louis U. L.J. 383 (1984); David E. Seidelson, The Feres Exception 

to the Federal Tort Claims Act: New Insight Into an Old Problem, 11 

Hofstra L. Rev. 629 (1983); Thomas M. Gallagher, Note, Servicemembers' 

Rights Under the Feres Doctrine: Rethinking`Incident To Service' 

Analysis, 33 Vill. L. Rev. 175 (1988); David S. Schwartz, Note, Making 

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

Doctrine, 95 Yale L. J. 992 (1986); William S. Meyers, Comment, The 

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); 

 5 
commentators have died down. Everyone seems to have

given up. But the harshness of the doctrine remains. Just 

look at the injustice suffered by the family of Kerryn O'Neill. 

Bolstered by the oft-quoted words of Justice Frankfurter: 

 Wisdom too often never comes, and so one ought not to 

 reject it merely because it comes late. 

Henslee v. Union Planters Bank, 335 U.S. 595, 600 (1949), 

I urge the Supreme Court to grant certiorari and reconsider 

Feres. Judge Sloviter and Judge McKee join in this 

Statement. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 6