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. e du/thir dc ir c uit_1998/99Filed 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 Jud ge

The petition for rehearing filed by appellants in t he above-entitled case having been submitted to the ju dges who participated in the decision of this Court and to all the other available circuit judges of the circuit in re gular 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 Cou rt in

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*The Honorable Louis H. Pollak, United States Distr ict Judge for the Eastern District of Pennsylvania, who sat by design ation, as to panel rehearing only.banc, is denied. Chief Judge Becker would grant reh earing

for the reasons set forth in the attached Statement

.

BY THE COURT,

/s/ Anthony J. Scirica

Circuit Judge

Dated: May 1, 1998

2STATEMENT 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 anno unced 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 Uni ted States v. Shearer, 473 U.S. 52 (1985), where the Su preme Court held that the family of a service member coul d not recover under the Federal Tort Claims Act ("FTCA") for the death of their son who was murdered by a fellow ser vice member. The facts of this case, however, are quite different
from those in Shearer. So far as we can tell from t he published opinions in Shearer, the men involved ser ved together; their relationship was formed on this bas is; and the court reasonably concluded that the injury occu rred "incident to service." In contrast, the relationshi p between Kerryn O'Neill and her assailant was a purely perso nal one.** Indeed, it is difficult for me to imagine an ything less incident to service than being attacked by an ex-lo ver while

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**O'Neill, a Naval officer, was murdered by her for mer fiance, Ensign George Smith. O'Neill met Smith at the United State s 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 Die go, O'Neill broke off their engagement and he began to stalk her. One nig ht while O'Neill was sitting in her on-base apartment watching a movie w ith a friend, Smith came to her building, shot and killed her and her c ompanion and then
killed himself.

Smith had been given a battery of psychological tes ts to determine his psychological fitness for submarine duty. On this " Subscreen" test he
had scored four standard deviations above normal le vels (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. U nder Naval procedures, these results should have been forwarde d to the Department of Psychiatry at the Naval Hospital for a full psyc hological evaluation. O'Neill's family, with considerable force, urges th at the Navy was negligent in failing to follow-up on these extreme test results.

3sitting at home watching a movie with a friend. Sur ely,

Smith would have killed O'Neill even if she was a c ivilian at
the time.

The government urges that the primary rationale for the Feres doctrine -- the desire to prevent the judicia ry from second-guessing sensitive military decisions -- is implicated in this case. However, the gravamen of the Feres do ctrine is that the government is immune from suit when injuri es 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 implica ted,
but I do not believe that we would dismiss the laws uit. Similarly, where a plaintiff has engaged in an acti vity of a civilian nature, the "incident to service" test is not satisfied and the Feres bar has not been applied. See e.g., J ohnson v. United States, 704 F.2d 1431, 1439 (9th Cir. 198 3).

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 inci dent to
service test was not satisfied:

The Government envisages dire consequences s hould 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 ha d nothing to do with the [plaintiffs'] army careers, i njuries not caused by their service except in the sense that all human events depend upon what has already transpired. Were the accident incident to th e [plaintiffs'] service, a wholly different ca se would be presented.

Id. at 52. In Feres and Shearer, the court was pres ented with "wholly different cases," cases where the serv ice members' injuries occurred incident to their servic e. However, here, where decedent's injuries were wholl y unrelated to her military service, we should follow the Supreme Court's direction in Brooks and not be sway ed by the military judgment rationale. Because I think th at this

4case has been wrongly decided, and because of the

importance of the issue, I vote for rehearing en ba nc (see Third Circuit I.O.P. 9.3.1). I acknowledge that und er my view there will occasionally be cases in which so-c alled 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 t he 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 th at "Feres was wrongly decided and heartily deserves the `wide spread, almost universal criticism' it has received." (citi ng Agent Orange Product Liability Litigation, 580 F. Supp. 1 242, 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 Sup reme Court would reverse it, observing that the "facts p leaded here, if true, cry out for a remedy." Id. at 606. A nd in Hinkie v. United States, 715 F.2d 96, 97 (3d Cir. 1 983), we dismissed a lawsuit under the Feres bar, but only a fter 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

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***See, e.g., Jonathan P. Tomes,Feres to Chappell t o Stanley: Three Strikes and Servicemembers Are Out, 25 U. Rich. L. Rev. 93 (1990); Barry Bennett, The Feres Doctrine, Discipline and t he 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, No te, Servicemembers' Rights Under the Feres Doctrine: Rethinking`Inciden t To Service' Analysis, 33 Vill. L. Rev. 175 (1988); David S. Sch wartz, Note, Making Intramilitary Tort Law More Civil: A Proposed Refor m of the Feres Doctrine, 95 Yale L. J. 992 (1986); William S. Meye rs, Comment, The Feres Doctrine: Has It Created Remediless Wrongs Fo r Relatives of Servicemen?, 44 U. Pitt. L. Rev. 929 (1983); Note, From Feres to Stencel: Should Military Personnel Have Access to FTCA Recov ery?, 77 Mich. L. Rev. 1099 (1979);

5commentators 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 Ker ryn O'Neill. Bolstered by the oft-quoted words of Justice Frankf urter:

Wisdom too often never comes, and so one oug ht 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 re consider 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

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