Appeal from the United States District Court for the District of New Jersey.
Aldisert, Gibbons and Garth, Circuit Judges.
These appeals from summary judgments in favor of defendants emanate from a vehicular collision involving two servicemen on active duty and require us to interpret provisions of the Federal Tort Claims Act and the Federal Drivers Act. We affirm.
Appellant Thomason, a member of the United States Army, was operating his motorcycle on the grounds of Fort Dix, New Jersey on November 30, 1972, when he was struck by an automobile owned and operated by defendant Sanchez, himself a serviceman. Subsequently, Thomason commenced a number of lawsuits seeking compensation for injuries incurred in the collision. The district court has detailed these various actions - now consolidated - and their procedural nuances. 398 F. Supp. 500, 501 (D.N.J. 1975). In the interests of simplicity, the following recitation suffices for our purposes. A common law action, commenced in state court against Sanchez and his wife, was removed to federal court pursuant to 28 U.S.C. § 2679(d).*fn1 Plaintiff filed federal complaints naming variously as defendants Sanchez, his insurer the Government Employees Insurance Company, and the United States. In these federal actions, Thomason sought money damages and other relief, essentially under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671 et seq.
Reluctantly, the district court granted summary judgment in favor of all three defendants. In its view, the doctrine of Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950), barred the action against the United States, while the exclusivity provision of the Federal Drivers Act, 28 U.S.C. § 2679(b),*fn2 defeated the claims against Sanchez and GEICO. Thomason now challenges, with varying ferocity, each of these conclusions.
Feres v. United States 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.*fn3 Injured servicemen were limited to seeking redress through "systems of simple, certain, and uniform compensation for injuries or death of those in armed services." Ibid. at 144 (footnote omitted). In so ruling, the Court distinguished its then one-year-old precedent of Brooks v. United States, 337 U.S. 49, 93 L. Ed. 1200, 69 S. Ct. 918 (1949): "The injury to Brooks did not arise out of or in the course of military duty. Brooks was on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission." 340 U.S. at 146. In the instant case, the district court found Feres, not Brooks, applicable:
The fact that Thomason was in a "present for duty" status and not on any type of leave or pass, as sworn to in an affidavit by Captain James A. Kerchman, Commander of the Medical Company at Fort Dix, brings plaintiff within the ambit of Feres, thereby negating the applicability of the FTCA.
On appeal, Thomason does not urge that there is a genuine issue as to the material fact of his status at the time of the collision. See F.R. Civ. P. 56(c). Moreover, he concedes that "it seems that the Feres line of decisions is too firmly entrenched to be dislodged at this time." Appellant's Brief at 9. We previously expressed reservations about the continuing validity of the broad Feres doctrine. Peluso v. United States, 474 F.2d 605 (3d Cir.) (per curiam), cert. denied, 414 U.S. 879, 38 L. Ed. 2d 124, 94 S. Ct. 50 (1973) (three Justices voting to grant certiorari). Upon reconsideration we reiterate that concern; as we noted there, however, we are powerless to jettison Feres or to dislodge it sufficiently to create an exception for vehicular collisions involving servicemen. See ibid. at 606.
Appellant challenges the judgments as to Sanchez and GEICO on ...