Kitowski v. United States. No. 90-3744 (11th Cir.May 29, 1991)(per Lively,J. (designated); Anderson & Roney, JJ., concur), 931 F2d 1526 FTCA: Feres Doctrine. Plaintiff's son, a Navy airman recruit, died from cardiac failure during a simulated water rescue drill in which his instructors held him under water until he turned blue. The district court dismissed plaintiff's wrongful death action, holding that the claim was Feres-barred as arising out of activity incident to service. Plaintiff has appealed, resting principally on the claim that the Supreme Court has recognized an exception to Feres for "egregious conduct." The court disagrees, noting that plaintiff's interpretation draws its only support from the dissent of Justice Sandra Day O'Connor in Stanley, infra. Although as many as three members of the Stanley court might agree to this exception in an FTCA case, this is not the majority opinion of the High Court, and hence this court is unable to recognize it. Since the decedent clearly died while on active duty in a drill that was incident to service, the claim is barred, despite the extreme circumstances surrounding his death.

For appellant: Martin H. Levin, Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, 226 S. Palafax St., Pensacola, FL 32581 (904) 435-7000
For appellee: Michael P. Finney, AUSA, 100 N. Palafox St.,
Pensacola, FL 32501 (904) 434-3251

Cases Discussed:
Feres v. U.S., 340 U.S. 135 (1950)
U.S. v. Johnson, 481 U.S. 681, 15 MLR 2214 (1987)
U.S. v. Stanley, 483 U.S. 669, 15 MLR 2320 (1987)

Before ANDERSON, Circuit Judge, and RONEY and LIVELY, Senior Circuit Judges.

LIVELY, Senior Circuit Judge:
This is a suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-80 (1988), by the mother of a Navy enlisted man who died during a training exercise. The complaint sought damages for wrongful death. The district court determined that it laced subject matter jurisdiction and dismissed the action. The district court reached this conclusion by applying the holding in

Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), which states that the FTCA does not permit claims for injuries to active duty military personnel that "arise out of or are in the course of activity incident to service." Id. At 146, 71 S. Ct. at 159. On appeal the plaintiff argues that the Feres doctrine does not bar an action under the FTCA when the acts causing injury to active duty military personnel are "egregious." Finding no authority for such an exception Feres, we affirm.
The facts are not in dispute. Lee Mirecki was an Airman Recruit in the United States Navy. He died on March 2, 1988, while participating in sea rescue training at the Naval Air Station in Pensacola, Florida. Mirecki enlisted in the Navy and entered active duty in 1987. Under his enlistment contract, he was guaranteed specialized training as an Aviation Anti-Submarine Warfare Operator (AW). According to this agreement, if Mirecki became ineligible to continue the specialized training due to some personal fact of which he was unaware, he could choose either to be reassigned to another program or to be separated from the Navy.

As part of his specialized training as an AW, Mirecki was required to complete a program at the Rescue Swimmer School (RSS) at the Naval Air Station in Pensacola. Before beginning the course at the RSS, he signed an agreement that permitted him to drop the course on request at any time, generally referred to as "drop-on-request" or "DOR." If he dropped the course, he would no longer be eligible for AW training and would have to decide at that time whether he wished reassignment or discharge from the Navy. The RSS program involved rigorous training to prepare recruits for retrieving downed aircraft carrier-based airmen under wartime conditions.

As part of the RSS program, the recruits must participate in a drill known as "sharks and daisies," in which students, wearing only swim fins and no safety equipment, swim in a circle with their hands behind their backs. Instructors grab the students in either a front or rear head hold in an attempt to simulate panicking victims in need of rescue. If a student correctly performs the release procedure, he continues swimming in a circle and other instructors repeat the scenario. If a student fails to perform the maneuver correctly, he is given additional instruction.

Mirecki had a fear acquired in childhood of being held under the water, and this fear prevented him from succeeding in the sharks and daisies drill. In February 1988 Mirecki was unable to complete the drill and voluntarily withdrew from the RSS. At that time, he underwent a series of physical and psychological exams and was placed on "medical hold." Soon thereafter, Mirecki exercised his option to return to the RSS program, allegedly because of pressure from RSS instructors. Mirecki was re-enrolled in the RSS class, and on the day of his death, March 2, 1988, he was once again undergoing the rigors of the sharks and daisies drill. According to the plaintiff, at least two of the instructors on duty that day were aware of Mirecki's earlier problem with the drill. Once again, Mirecki had extreme difficulty with the drill and requested that he be dropped from the course and not be forced to re-enter the pool. Instead of honoring his request, the instructors seized him and forced him back into the water, and began "smurfing" himholding him under the water until he was unconscious and had turned blue. At this time, other recruits were commanded to line up, turn their backs and sing the national anthem. After being held under the water for a considerable length of time, Mirecki died from heart arrhythmia, ventricular fibrillation and decreased oxygen.

In addition to the foregoing facts surrounding Mirecki's death, the complaint alleged that for two months after Mirecki's death, the Navy maintained that his death was caused by accidental drowning. After hearing from other trainees who were present that day at the pool that the navy was not revealing all the circumstances of Mirecki's death, the family contacted members of Congress and the press. After several inquiries from the press and members of Congress, the Navy finally admitted the circumstances surrounding Mirecki's death. On January 25, 1990, Mirecki's mother, Elain Kitowski, as personal representative of his estate, filed this wrongful death action under the Federal Tort Claims Act in district court for the Southern District of Florida. She appeals from the judgment of dismissal.

In Feres the Supreme Court held that the government "is not liable under the Federal Tort Claims Act 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, 71 S. Ct. at 159. Feres announced a judicially created immunity doctrine that had the effect of limiting the general waiver of governmental immunity for tort established by the FTCA.

In applying Feres, this court has identified three factors to be considered in determining whether the particular activity of a member of a military service at the time of injury is "incident to service." These factors are...
(1) the duty status of the service member
(2) the place where the injury occurred
(3) the activity the serviceman was engaged in at the time of injury
Pierce v. United States, 813F.2d 349, 353 (11th Cir.1987); Parker v. United States, 611 F.2d 1007, 1013 (5th Cir.1980) (The Eleventh Circuit in Boner v. City of Richard, 661 F.2d 1206, 1207 (11th Cir.1981) (en ban) adopted as precedents decisions of the former Fifth Circuit rendered prior to October 1, 1981.) In this case the district court held, "the undisputed facts establish that decedent was on active duty participating in training exercises at NAS when the fatal injury was inflicted, and thus such injuries were obviously incident to his duties in the USN.

The plaintiff makes three arguments on appeal: (1) that her son had been effectively discharged at the time of his death; (2) that the Supreme Court has recognized an exception to the Feres doctrine where the conduct of military superiors is egregious; and (3)that Feres should be overruled.

A. Turning to the third argument first, we clearly have no authority to overrule a decision of the Supreme Court. In Feres, Justice Jackson noted that if the Court had misinterpreted the FTCA, "at least Congress possesses a ready remedy." 340U.S. at 138, 71 S. Ct. at 155. In the more than forty years since Feres, Congress has not indicated that Feres misinterpreted the Act. Furthermore, the Supreme Court has continued to apply Feres strictly when lower courts have sought to give the "doctrine" more elasticity in cases where the facts were different from those considered in Feres. See, e.g., United States v. Johnson, 481 U.S. 681, 107 S. Ct. 2063, 95 L.Ed.2d648 (1987); United States v. Stanley, 483 U.S.669, 107 S. Ct. 3054, 97 L.Ed.2d 550 (1987). It is true that there now appears to be some support on the Supreme Court for overruling Feres. See Justice Scalia's dissent in Johnson, 481 U.S. at6i92-703, 107 S. Ct. at 2069-2075. It seems clear, however, that a majority of the Justices do not agree at this time.

B. With respect to the first argument, the only conclusion can be that Mirecki was on active duty at the time he started RSS training again on March 2, 1988. He had not been discharged from the Navy or even transferred from the RSS program. If we assume that his oral request to "DOR" was effective to remove him from the program, he continued be a Navy serviceman until a decision was made either to discharge him or to transfer him to other duties. He could not effect his discharge unilaterally by merely withdrawing from the RSS program.

C. In making his second argumentthat there is an exception Feres where egregious conduct causes an injurythe plaintiff contends that a careful reading of recent Supreme Court decisions supports her position. We disagree. Justice O'Connor, dissenting in Stanley, wrote that, in her view, "conduct of the type alleged in this case is so far beyond the bounds of human decency that as a matter of law it simply cannot be considered a part of the military mission." 483 UK. S. at 709, 107 S. Ct. at 3065. The conduct referred to was subjecting a soldier to medical experimentation without his knowledge or consent.

The Supreme Court considered Stanley only as a direct action for violation of constitutional rights as recognized in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L.Ed.2d 619 (1971), not as an FTCA case. The majority in Stanley, however, did not apply the Feres rationale and held that "no Bivens remedy is available for injuries that arise out of or are in the course of activity incident to service.'" 483 U.S. at 684, 107 S. Ct. at 3064. Thus, Stanley forecloses a direct Bivens-type action by a member of the military if the injury results from an activity incident to service. Justice O'Connor would hold that injury resulting from conduct "beyond the abounds of human decency" just cannot be considered "incident to service" because such conduct is not part of the military mission.

Presumably Justice O'Connor would apply the same reasoning to similar conduct in an FTCA case. Furthermore, Justices Marshall and Stevens, who joined Justice Brennan's dissent in Stanley on the ground that military discipline should not be a "special factor counseling hesitation" when a remedy is required for a constitutional violation, might agree to an "egregious conduct" exception to Feres. Nevertheless, a majority of the Supreme Court has not established such an exception and this court is powerless to do so.

Three separate appeals were decided in Feres. The common denominator of the cases was that a person on active duty had "sustained injury due to negligence of others in the armed forces." 340 U.S. at 138, 71 S. Ct. at 155. Although the instructors intentionally subjected Mirecki to "smurfin" his death resulted from their negligence in persisting in that exercise, not from an intention kill him. The Supreme Court and the lower federal courts have wrestled with the application of the "doctrine" in numerous cases since it was announced. Despite the extreme circumstances surrounding Mirecki's death, we cannot escape the fact his death arose out of an activity incident to his military service. All three factors applied by this court in determining whether an activity is incident to service were present: Mirecki was on active duty; his death occurred on a Navy base; and he was engaged in a prescribed training exercise. AFFIRM.

Comments by a legal beagle (name withheld) to those conducting their own research...

Bivens is the name of the plaintiff (person suing) in a landmark U.S. Supreme Court case that permits suits for money damages to be filed against federal officials for violations of constitutional rights.

There have been a number of subsequent U.S. Supreme Court decisions involving "Bivens-type" cases since the original Bivens decision. The problem with a military member trying to use a "Bivens-type" case to go after another military member is that the U.S. Supreme Court pretty much appears to have shut down this line of attack by using the rationale of the Feres doctrine. The case in which this was done was Chappell v. Wallace, a 1983 Supreme Court case concerning enlisted military personnel who tried to sue superior officers for money damages for constitutional violations.

The legal citation to Chappell is 462 U.S. 296 (1983). The legal citation to Bivens v. Six Unknown Federal Narcotics Agents is 403 U.S. 388 (1971). Anyone in the military thinking about a "Bivens-type" case should also read United States v. Stanley, 483 U.S. 669 (1987), the Supreme Court decision that shut down the law suit of the former Army sergeant who was unknowingly given LSD in military experiments testing the effects of the mind bending drug on human subjects.

There is a terrific Web site named Findlaw that has (among other things) free copies of U.S. Supreme Court decisions from 1893 to present. Anyone interested in reading the law should consider researching this web site. What's really needed is a comprehensive, legally savvy Web page (with statutes, DOD Directives, regulations, court cases, whistleblower info, articles, etc) for military personnel who find themselves in conflict with the system--but that would take a lot of time to do and keep current). Suggestion: check out Findlaw. On the Findlaw search form for Supreme Court case law, type in the citation for Chappell, and take a look at the case. If you are historically inclined, take a look at Parker v. Levy, 417 U.S. 733 (1974), to see what happened to an Army doctor during the Vietnam era.