Opinion · Court of Appeals for the First Circuit

Russell Hall v. United States

Russell Hall v. United States, 451 F.2d 353 (1st Cir. 1971)

Type
Opinion
Court
Court of Appeals for the First Circuit
Jurisdiction
Federal
Date
1971-11-18
Topic
general

How later courts describe this case

  • rejecting contention that Feres applies only where military discipline is involved.
  • no “connection between the activity which injured plaintiff and [military] discipline” necessary

Citator

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Cited by
21 opinions
HALL v. UNITED STATES,451 F.2d 353(1st Cir. 1971)
RUSSELL HALL, PLAINTIFF, APPELLANT, v. UNITED STATES OF AMERICA, DEFENDANT,
APPELLEE.
No. 71-1230.
United States Court of Appeals, First Circuit.
Heard November 1, 1971.
Decided November 18, 1971.
Michael E. Mone, Boston, Mass., with whom Schneider Reilly, Inc., Boston, Mass., was on brief, for plaintiff-appellant.

Robert M. Feinson, Atty., Dept. of Justice, with whom L. Patrick Gray, III, Asst. Atty. Gen., Herbert F. Travers,Page 354Jr., U.S. Atty. and Morton Hollander, Atty., Dept. of Justice, were on brief, for defendant-appellee.
Appeal from the United States District Court for the District of Massachusetts.
Before ALDRICH, Chief Judge, BREITENSTEIN, Senior Circuit Judge,fn*and McENTEE, Circuit Judge.
PER CURIAM.
[1] Plaintiff appellant's Federal Tort Claims Act complaint for malpractice injury incurred in an army hospital while he was on active service was dismissed on the authority of Feres v. United States, 1950,340 U.S. 135,71 S.Ct. 153,95 L.Ed. 152. Under theFeresdoctrine, the government is not liable under the Act,28 U.S.C. § 1346(b), "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. Plaintiff seeks to distinguish, or more exactly, asks us not to follow, that case on the ground that the various rationale supporting it have been cut away, if not eliminated. We may assume that to some extent plaintiff is correct, but we think too facile his claim that there can be no valid economic reason for allowing recovery by a discharged soldier for malpractice in a veterans hospital, and denying recovery for such injury while on active duty. Congress may well wish to recognize one standard for veterans' benefits, and to provide a different package for in-service injury and disability.See38 U.S.C. § 401 et seq.

[2] Even more basic, we reject plaintiff's contention thatFeresis inapplicable in any case where no military discipline was involved — "there must [he says] be a rational connection between the activity which injured plaintiff and the discipline." Even though there may have been no disciplinary element in this case, the much abused invocation of Pandora's Box will surely become appropriate if plaintiff's principle were to be established. If every injury "aris[ing] out of or * * * incident to service,"340 U.S. at 146,71 S.Ct. at 159, must invite inquiry, not only would the difficulties of what, legally, would constitute discipline-connected be substantial, but the Armed Services would be faced with maintaining a claims department. Such avenues should be opened — if they are to be — by Congress.Feresrequired no nexus between discipline and injury. We see no occasion to depart therefrom, even if we could. For recent decisions resisting similar importunities,seeBuckingham v. United States, 4 Cir., 1968,394 F.2d 483; Shults v. United States, 5 Cir., 1969,421 F.2d 170; Lowe v. United States, 5 Cir., 1971,440 F.2d 452, cert. denied, 1971,404 U.S. 833,92 S.Ct. 83,30 L.Ed.2d 64,1971.

[3] Affirmed.Page 399
  1. Of the Tenth Circuit, Sitting by designation. ↩