Lawrence Randall McConnell Deborah Ellen McConnell Individually and as Surviving Parent of Joseph James McConnell Deceased v. United States

478 F.3d 1092 Lawrence Randall McCONNELL; Deborah Ellen McConnell, individually and as surviving parent of Joseph James McConnell, deceased, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 05-15025. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 7, 2006. Filed March 8, 2007. Charles M. Brewer, John B. Brewer, Dane L. Wood, and David L. Abney, Charles M. Brewer, Ltd., Phoenix, AZ, for the plaintiffs-appellants. Paul K. Charlton, United States Attorney, John Tuchi, Deputy Chief, James C. Hair Jr., Assistant U.S. Attorney, and Peter M. Lantka, Assistant U.S. Attorney (presented argument), Phoenix, AZ, for the defendant-appellee. Appeal from the United States District Court for the District of Arizona; James A. Teilborg, District Judge, Presiding. D.C. No. CV-03-01886-JAT. Before T.G. NELSON, GOULD, and CALLAHAN, Circuit Judges. Opinion by Judge Callahan; Concurrence by Judge Gould CALLAHAN, Circuit Judge. 1 The sole issue in this case is whether the Feres doctrine, which prohibits suit against the government for injuries that are incident to military service, bars appellants' civil suit against the United States for the tragic…

Opinion by Judge Callahan; Concurrence by Judge Gould

The sole issue in this case is whether the Feres doctrine, which prohibits suit against the government for injuries that are incident to military service, bars appellants’ civil suit against the United States for the tragic death of their son, Lieutenant McConnell, in a waterskiing accident. We determine that under our precedent the facts that Lt. McConnell’s use of the boat was a benefit of his status as a service member and that the alleged negligence was subject to military orders and regulations compel us to affirm the district court’s grant of summary judgment to the government.

I

This case arises out of a fatal boating accident at Lake Pleasant, Arizona on May 19, 2001. At the time of the accident, Lieutenants Joseph James McConnell, Steven Frodsham, Mark Donohue, and Matthew Crowell were F-16 student pilots in the United States Air Force (“USAF”), assigned to Luke Air Force Base (“Luke AFB”), Arizona. On May 18, the day before the accident, Lt. Crowell rented a 1990 USAF-owned boat from the Luke AFB Recreation Center, located at Luke AFB. Lt. Crowell rented the boat because his colleagues were busy in a meeting.…

concurring.

I concur in Judge Callahan’s opinion which accurately reflects our prior circuit precedent and its application here. However, I am left with the concern that our precedent interpreting the scope of the Feres doctrine creates an injustice. The justifications for the doctrine as applied to the death of Lieutenant McConnell seem slim to me, for it is unrealistic for our precedent to suggest that dismissal of the claim here is needed to foster military discipline. In my view, and respectfully, it would be appropriate for our court en banc to reassess the scope of the Feres doctrine. Also, many might welcome the Supreme Court’s clarification of the doctrine’s application in the case of military-sponsored recreational programs.