United States v. Ardell Lee

This is a Tort Claim case, where the personal representatives and dependents of two service men brought suit against the government, due to the death of the service men in a crash of a military aircraft. The government moved to dismiss the complaint on the basis of Feres v. United States, 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed. 152 (1950). The motion was denied; the trial court filed an opinion, Ardell Lee, etc. et al. v. United States, 261 F.Supp. 252 . (Cen.Dist. of Calif.1966). The district court denied a timely motion for reconsideration, but certified that its denial involved a controlling question of law, and that an immediate appeal would materially advance the termination of the litigation. On March 23, 1967, this court, pursuant to 28 U.S’.C. § 1292(b) and this court’s Rule 38, granted the government’s application for leave to take an interlocutory appeal.

The Question Presented

The sole question presented is whether Feres v. United States, supra, and its ultimate holding that servicemen on active duty, are not within the Act, is still good law, requiring the dismissal of the action for lack of jurisdiction and failure to state a claim, or whether, as the district court…