Arthur J. McGowan v. Gerald R. Scoggins Richard B. Kloskinski Harold v. Breiding James A. Etheridge, Jr. Ward R. Wilder and Bruce Johnson

Professor Arthur J. McGowan, Jr., (Professor McGowan) appeals from the entry of a judgment dismissing his action against Sergeant Gerald R. Scoggins, Sergeant Richard B. Klosinski, Sergeant Harold V. Breiding, Captain James A. Etheridge, Jr., Lieutenant Colonel Ward R. Wilder, and Does I-X, inclusive, (hereinafter collectively the military officials). The complaint alleged states causes of action and a deprivation of rights protected from governmental interference by the Fourth, Fifth, Sixth, and Fourteenth Amendments.

The district court entered a judgment dismissing the action for lack of subject matter jurisdiction under the Feres doc *129 trine. 1 Professor McGowan filed a timely appeal.

We have jurisdiction because the dismissal of the action for lack of subject matter jurisdiction was a final judgment. 28 U.S.C. § 1291 . We review independently the question whether the Feres doctrine is applicable to the facts reflected in the record. Atkinson v. United States, 825 F.2d 202, 204-05 (9th Cir.1987), cert. denied, 485 U.S. 987 , 108 S.Ct. 1288 , 99 L.Ed.2d 499 (1988).

We must decide whether a retired army captain, discharged as permanently disabled due to combat injuries, who…

concurring in the judgment:

This is a closer case than Judge Alar-con’s opinion indicates. The incident took place on a military base and involved active duty military personnel, and its resolution will require an evaluation of the manner in which these personnel performed their respective duties, including that of the base commander, in the light of the obligations imposed upon them by military regulations and orders. I assume, as does Judge Alar-con, that a civilian having no ties with the military would not be barred by Feres v. United States, 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed. 152 (1950), from bringing suit against the United States on the claim Professor McGowan has stated. The issue, therefore, is whether Professor McGowan should be treated as if he had no ties to the military when in fact he does have some such ties. These latter ties, however, do not suggest that Professor McGowan’s active duty status is either imminent or even probable. Under these circumstances, I am prepared to treat him as a civilian.

Therefore, I concur in the judgment reached by the majority.

890 F.2d 128 Arthur J. McGOWAN, Plaintiff-Appellant, v. Gerald R. SCOGGINS; Richard B. Kloskinski; Harold V. Breiding; James A. Etheridge, Jr.; Ward R. Wilder; and Bruce Johnson, Defendants-Appellees. No. 88-15055. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 5, 1989. Decided July 26, 1989. As Amended on Denial of Rehearing Nov. 17, 1989. James W. Lewis, Sacramento, Cal., for plaintiff-appellant. Mary L. Grad, Asst. U.S. Atty., Sacramento, Cal., for defendants-appellees. Appeal from the United States District Court for the Eastern District of California. Before SNEED, ALARCON and LEAVY, Circuit Judges. ALARCON, Circuit Judge: 1 Professor Arthur J. McGowan, Jr., (Professor McGowan) appeals from the entry of a judgment dismissing his action against Sergeant Gerald R. Scoggins, Sergeant Richard B. Klosinski, Sergeant Harold V. Breiding, Captain James A. Etheridge, Jr., Lieutenant Colonel Ward R. Wilder, and Does I-X, inclusive, (hereinafter collectively the military officials). The complaint alleged states causes of action and a deprivation of rights protected from governmental interference by the Fourth, Fifth, Sixth, and Fourteenth Amendments. 2 The…