Estate of Himsel v. State

HIMSEL, ESTATE OF Kenneth W. De

ceased, Brought by Dr. B. Carls Kerk

hove, Representative Personal of the Es Himsel;

tate of Kenneth W. Deborah Himsel, Individually

Ann and in Ca pacity as Parent of Krista S. Himsel and Himsel;

Kendra J. Estate of Richard E.

Brink, Deceased, Brought by Zita Rosa

Brink, Representative Personal

Estate Brink; of Richard E. Zita Rosa

Brink, Individually; Brink, Boris Indi

vidually; Wood, Estate of Wilfried E.

Deceased, Brought by Crystal Wood, M. Representative

Personal of the Estate of Wood; Crystal

Wilfried E. Wood, M. In

dividually Capacity and in the as Parent Wood;

of Kirsten A. Estate of Michael

Joseph Schmidt, Deceased, Brought by Schmidt,

Deanna Sue Repre Personal

sentative of the Estate of Michael Jo seph Schmidt; Schmidt, Deanna Sue In

dividually Capacity and in her as Parent

of Preston R. Schmidt and Garret M.

Schmidt; Llewellyn Estate Archie

Kahklen, Brought by Ida Marie Kah

klen, Representative Personal of the Es Llewellyn

tate of Kahklen; Archie Ida Kahklen,

Marie Individually and in her

Capacity as Parent of Kristen Kahklen Figueroa Kahklen, Marcos Appel

lants, Alaska,

STATE Appellee.

No. S-8640.

Supreme Court of Alaska.

Nov.

Rehearing Denied Dec. Cowan, of Co- Law Offices Merle Robert Himsel, Kenai, Appellants Gerry, for

wan & and Brink, Wood; E. Aldous Steven and Davis,Austin, TX, for Davis, H. Slack & Tom Wood; Brink, Himsel, and Appellants Hellén, Barker, Jr., Barker & E. Kermit Kah- Appellants Schmidt Anchorage, for klen. Attorney Guarino, Gen- Assistant

Gary M. Botelho, At- eral, Anchorage, and Bruce M. Juneau, General, Appellee. torney Justice, MATTHEWS, Chief Before: BRYNER, EASTAUGH,FABE, CARPENETI, Justices.

OPINION Sergeant Michael Schmidt were on Active Guard Reserve status. CARPENETI, Justice.

I, INTRODUCTION The families Himsel, of General Colonel Wood, Sergeant Major Kahklen, Sergeant November 1992 an Alaska Na- Brink, Sergeant (collectively, Schmidt crashed; plane tional Guard per- all aboard families) the against filed suit Family ished. the State members of passengers the Alaska and Beech Alaska, Aircraft in sued the state court. alleging pilot State of negli- The families claimed that crash was genee. granted The summary court by "design caused pilot induced error." Fur- judgment in favor of grounds the state on the ther, the state, that the claims families contended were related to that the ser- vice. We reverse and remand this Colonel employer, case be- Clark's vicariously was lia- bie for negligence cause the his families' claims are under the not barred merely they respondeat superior. because arose incident mili- tary service and genuine because there exist Beech Aircraft filed a third-party com- issues of material fact relating to whether plaint against the estates of Colonel Clark pilot acting was on behalf of the state as and Warrant Pospisil Officer seeking equita- employee. a borrowed apportionment ble of fault. II. FACTS AND The United PROCEEDINGS States intervened to remove the case to United States District Court on 12, 1992, On November Alaska grounds that ColonelClark was a federal airplane National Guard carrying C-12 eight employee and that the Federal Tort Claims Army National Guard members crashed into 1 (FTCA) Act remedy was the exclusive for a mountain approaching while the Juneau against employees claims acting federal with airport, killing persons all aboard. The in seope of their employment. The Unit plane piloted by was State Aviation Officer requested ed States further the claims Colonel Thomas co-piloted by Clark and against asserted Colonel Clark's estate be Pospisil. Warrant Officer passen- John The "deemed an action the United gers Major Himsel, were General Kenneth Additionally, States." the United States De Carroll, General Thomas Colonel Wilfried partment of Justice certified that Colonel Wood, Sergeant Major Llewellyn Kahklen, acting Clark "was within scope of his Sergeant Brink, First Class Richard employment employee as an of the United Sergeant MichaelSchmidt. States the time of the November General Himsel passengers and the other Juneau, crash of the C-12 aireraft near Alas flying were Anchorage from to Juneau to ka," facilities, review personnel, training pro- action, Concurrent with the removal cedures at the Juneau headquar- Battalion United States filed ters. motions to dismiss and summary judgment. for In support of its erash, At the time of the Colonel Clark was motions, the United States cited the Feres2 employed as a National Guard "technician" doctrine, which bars armed service members and was the "State Aviation Officer." Gener- suing from the United States under al executing Himsel was orders from the injuries FTCA for that arose out of activities Indiana National Guard and was on "Active that were incident to service.3 The case was Duty Special Work" status. General Thomas removed to federal court. Carroll was the Commander of the Alaska Array National Guard. Colonel Wilfried The voluntarily families dismissed their Wood, Sergeant Major Kahklen, Llewellyn Beech Aircraft and the estates Sergeant Brink, First Class Richard and of Colonel Clark Pospi- and Warrant Officer 1346(b)(1), (West §§ 1. 28 U.S.CA. 3. See id. at 71 S.Ct. 153. Supp.1999). 1994& United States, 340 U.S. 135, 71 S.Ct. 95 L.Ed. 152 gil. against the bring tort suits cannot the members remaining only defendant injuries "arise government federal issues no federal Alaska. Since State activity incident are the course out of or remained, was remanded the case this conclu The Court reached to service." superior court. FTCA that under the spite of the fact sion summary judgment on sought The state generally had waived government the federal all doctrine bars that the Feres grounds ren immunity. The FTCA sovereign its claims, including those be- intra-military tort "the government Hable for federal dered the members Army National Guard tween any wrongful act or omission negligent or argued that Alternatively, the state Alaska. acting while the Government employee of employee and a federal Clark was Colonel employment." scope of his office within liable under could not be the state thus 7 theory lability/respondeat vicarious Feres explained that the has The Court negligence. claim of for the premised upon the concern is doctrine summary judg- granted superior court The relationship of the sol special "peculiar and were families' claims that the ment and held main effects of the superiors, the dier to his Ad- by doctrine." the Feres indeed "barred discipline, and the suits on of such tenance since the fami- ditionally, held that the court might if suits obtain results extreme barred, rule on it need not were lies' claims Act were allowed Tort Claims under the fami- could be liable whether the state com negligent acts given orders negligent supe- liability/respondeat the vicarious lies on 8 duty." military mitted in the course theory. rior inception, the its thus limited While OF REVIEW III STANDARD pre expanded has been Feres doctrine variety in federal court great of suits clude a judgments summary de review We (1) to bar a years. It has been held the over any genuine is to determine whether movo the United States negligence suit exist and whether material fact sues of by of a soldier who brought the mother judgment as moving party entitled to a is the victim by another soldier while murdered law, questions of we law.4 On matter of (2) off-duty;9 an indemnifi and was off-base judgment and independent apply our brought against the United States cation suit light of persuasive in rule of law "most 5 neg military regarding a by subcontractor reason, policy." precedent, and ejection aircraft ligently manufactured (8) seat;10 the United a suit DISCUSSION IV. by of a Coast brought the widow States Against The Fomulies' Claims A. alleged that helicopter pilot, which Guard by the Feres Are Not Barred State em Administration Federal Aviation civilian Doctrine. helicopter pilot's negligently caused the ployees cra sh.11 Feres Doctrine 1. The application, expanded in it has And while States, the United v. United Feres supported by a held that service been Supreme Court doctrine has

States the Feres 52, Shearer, 473 U.S. 57- v. (Alaska 9. See United States 118 116, A.C.D., 4. See T.P.D.v. 230, 1999) Beilgard (1985). (citing 233 87 L.Ed.2d 38 59, 3039, 105 S.Ct. 1995)). (Alaska States, Corp. Eng'g v. United 10. See Stencel Aero (citing Club, v. Bar Great Ins. Co. Id. at 119 Am. 2054, 666, 673-74, L.Ed.2d 97 S.Ct. 52 U.S. 431 (Alaska 1996)). 627 P.2d Inc., 921 (1977). 665 135, 146, L.Ed. 152 71 S.Ct. 95 6. 340 U.S. (1950). Johnson, 481 U.S. States v. 11. See United 95 LEd.2d (West 1346(b)(1) Supp.1999). 7. 28 U.S.C.A. (1987). 112, 75 Brown, 348 U.S. 8. United States S.Ct. 99 L.Ed. 139 dwindling number of the members of the time of his death.1 The Feres doctrine has Supreme Scalia, Court. Justice dissenting in heavily also been criticized only relue- tantly applied in the federal cireuit courts. speaking

Johnson and for a four-member minority, not, noted that the FTCA does on face, generally preclude its Alaska suits law personnel.12 Moreover, argued he that the directly We have never ruled on plain language of the FTCA rendered the applicability of the Feres doctrine in United States persons, "liable to all including Alaska.17 regard With liability, to tort servicemen, injured by negligence policy basic of law in Alaska is that "when employees.1 Government Addressing the negligence, there is liability, rule is im government's argument the Feres doc munity is exception." Since the fami trine was needed to maintain disci lies' brought claims are pursu state court pline morale, Justice ironically Sealia ant to the Act,19 Alaska Tort Claims and the barring noted that recovery in tort mili is, strictly speaking, a federal tary personnel "might adversely affect mili doctrine, we are not bound its holding. tary discipline. all, After the morale of [Johnson's] likely us, then, comrades-in-arms will not before whether based on Alaska law we be boosted ap should news that his widow and chil ply dren will only Feres doctrine to the families' claims receive a fraction of simply they might amount because the claims arose "incident to have recovered had he piloting been a helicopter commercial military service." Before judicially we create (Scalia, 12. See id. at 692-93, causes 107 S.Ct. 2063 military interference with the J., mission." (footnote omitted). dissenting). 1d. at 896 Justices Brennan, Marshall, joined Stevens Justice Scalia in this dissent. Abbott, 18. (Alaska State v. 1972) (citation and quotation internal marks Id. at 107 S.Ct. 2063. omitted). Id. at 107 S.Ct. 2063. 19. Alaska Statute 09.50.250 is entitled "ACTION- ABLE CLAIMS AGAINST THE STATE." It pro- States, 15. See Costo v. United 248 F.3d 869-76 vides: ( Cir.2001) (Ferguson, dissenting, argu J., 9th person A corporation contract, having or a ing that equal Feres doctrine protec "violates the quasi-contract, against or tort claim the state rights women," military tion of service men and may bring against an action the state in a state "violates our separation constitutional pow of jurisdiction court that has over the claim. A ers," judicial re-writing constitutes "a of an person may present who the claim under AS unambiguous statute"). and constitutional see may bring 44.77 not an action under this sec- States, also Estate McAllister v. United of except 44.77.040(c). tion as set out in AS A (9th Cir.1991) ("In F.2d [affirming person may bring who an action under AS the district long court], we follow a tradition of may bring 36.30.560-36.30.695 action gn reluctantly acknowledging the enormous breadth except under this section as set out in AS doctrine."). of a troubled 36.30.685. However, an action not be may brought under this section if the claim "reluctantly" id. at concluding (1) is an tort, action for and is based an upon that the case "falls within the [Feres] doctrine's state, act or employee omission of an of the ever-expanding applying reach" and therefore care, exercising due in the execution of a statute relish"). the Feres doctrine "without See also regulation, or regu- whether or not the statute or McAllister, ("reluc- Estate 942 F.2d at 1480 of valid; tort, lation is or is an action for and based ). tantly" applying Feres upon performance the exercise or or the failure perform to discretionary exercise or a function However, implicitly we rejected have duty part agency or on the of a state or an Chappell state, extension of the pre- employee Feres doctrine that of the whether or not the discre- cluded all abused; constitutional soldiers tion involved is superiors. Wallace, their Chappell (2) See damages is for imposition caused or 296, 304, 462 U.S. state; 76 L.Ed.2d quarantine by establishment of a (3) We Dep't Military assault, held in battery, arises out of impris- false onment, arrest, (Alaska and Vet. prosecution, false Bowen, 953 P.2d 888 malicious Affairs 1998), guard that a bring libel, member process, slander, could a consti- abuse misrepresenta- tutional claim if the tion, deceit, or rights; interference with contract was "not expertise one of or one which AQ operational planning/ "discretionary" employ the we civil remedies limits the

law that that planning act is one A test. if state, determine we must in this personnel decision, with involves a basic inadequate to deal whereas existing policy law im the execution or act involves operational Since exist factual situation. particular this decision; only a policy case, of a plementation this we decline adequate for ing law is immunity as a time.20 at this to planning act Feres doctrine is entitled to discretionary function.30 choosing path. this alone are not We outr adopted Feres because we have this distinction some states have made While We apply it. not to is done have chosen of what ight,21 recognize "[mJuch others that government concluded Supreme employees Court The Montana officers and judicial range with the Montana beyond conflicted the Feres doctrine remain must stitution,22 that "Courts states which obviously Con a tort for the it is not inquiry; govern." government every person.... open justice shall be legal ... full deprived of person shall be No in- framework apply now We employment...." injury incurred redress obviously planning act It case. was stant 23 Himsel to Alaska bring General to decide to Supreme Washington Court Similarly, the train- Army National Guard's to review statute, has, by waived fly Washington to Ju- The decision held that ing procedures. immunity from suit.24 sovereign its blanket Army Na- Anchorage aboard an from neau Clark, C-12, exception to that is a narrow flown Colonel there tional Guard While acts,25 discretionary government waiver for But planning act. might considered a also be at issue not all of the acts the court held that plane if, flew the alleged, Colonel Clark fell with by Washington National Guard not in the negligence negligently, such, exception.26 the State in that As imple- trip, but rather planning of the being immune from Washington was not prop- it is plan. that Therefore mentation of such, of fellow for the acts "operational." As in tort soldiers erly sued described soldiers.27 liability. immunized from state is not must argues that we The state analytical adopted framework

The inappropriately lest the court gener Feres doctrine Alaska also has Washington is sound. But, military matters. as we immunity upon sovereign has intrude ally but waived its State, Military and Department noted in discretionary governmental it for reserved Bowen, questions all v. Veterans governmental if act is To determine a acts.28 Affairs omitted) (quoting (emphasis Mont. (4) ignition 23. See id. interlock out of the use of an arises II, 16). 33.05.020(c). Const. Art. under AS device certified Cline, 395, v. 837 F.2d Guard, 20. cites Stauber The state Emsley Army Wash.2d v. Nat'l 106 24. See Cir.1988), (9th proposition that for the 397-99 (1986) (citing Wash. 1299, 722 P.2d 1302 474, claims held that Feres bars the Ninth Circuit has (1963)). § 4.92.090 Rev.Code against that this is there Alaska, the State of and disagree. is We This assertion fore settled law. 25. id. See 2(a) Section of the with Article IV in conflict supreme "The that states: Alaska Constitution 26. See id. state, highest with court of the court shall be the appellate jurisdiction." final at 1303-04. 27. See id. Cline, 9, Mangan NW.2d 11-12 v. 411 09.50.250(1). 28. See AS Parker, (Minn.App.1987); 169 Misc.2d Zaccaro v. (Sup.Ct.1996), 985, 990-91 266, 645 N.Y.S.2d Abbott, 498 P.2d 721-22 See State v. 671 N.Y.S.2d 362 249 A.D.2d mem., aff'd (Alaska 1972). S.W.2d (App.Div.1998); Gill, Wade v. (Tenn.1994); Adjutant v. Newth Tex., Dep't 883 S.W.2d General's 30. See id. (Tex.App.1994). (internal (brackets original) cita- at 721 Id. omitted) (quoting State, quotation Military Affairs, marks Dep't tions 22. See Trankel (Cal.1968)). Johnson 282 Mont. military require "military that involve the only arise scope "within the employment.3 doctrine, expertise" uniquely military or are so Under this that two judicial inquiry into them would cause undue requirements must be inmet order for interference with the mission.32 employer negli- be liable for an actor's nothing "uniquely There military" is about a (1) genee: that employee the actor was an flight Anchorage Juneau, from and evalu (2) employer; that alleged negli ating negligent whether Colonel Clark was gent act occurred within scope of the require special "military expertise." does not employee's employment. However, as we Simply put, being the C-12 was used to recognized Co.,35 first in Reader v. Ghemm transport passengers Anchorage between exception there is an general rule of being and Juneau. It was not used in com respondeat superior: An employer who bor training, bat or in exigent nor were there employee can, rows the of another in certain prevented cireumstances that the members circumstances, be held negli liable for the group of the flying Himsel from either on a gent acts of employee.36 the borrowed plane chartered civilian regularly or on a flight. they scheduled commercial If had We later modified the doctrine of the bor employee rowed in Kastner v. plane flown on either a chartered Toombs a civilian or a plane, unquestioned commercial it is that the manner left lending employer both the pursue families could a tort action borrowing employer and the potentially liable employer pilot. Likewise, a civil for negligent employee acts of the under ian on board the C-12 would have a tort system apportioned fault between the claim employer. Colonel Clark's employers.38 two statutory sys Under the only military aspect of the causing event time, place tem in at that liability fault and objective loss this case was the of review apportioned were according to contribution ing the Juneau; National Guard facilities in indemnity.39 Alaska has since moved to flight nature of the during which the system comparative negligence ap losses indistinguishable occurred is from an portioning liability according to fault.40 ordinary flight. commercial ap No reason Thus, liability under the doctrine of the bor pears why passen status of the employee apportioned rowed between the gers alone should limit their civil remedies. employers according two comparative neg Accordingly, we hold that in this case the ligence. But we need not reach that issue preclude doctrine does not a tort action here; it suffices to note that the state could under Alaska law. be found liable to the families under of employee. the borrowed There

B. There Exist Genuine Issues Mate of fore, in grant order for the court summary rial Regarding Fact the State's Liabil judgment issue, on this there must exist no ity Colonel Alleged Neglig Clark's genuine question as to whether ColonelClark ence.33 employee was either an of the state or a generally We adopted employee have acting borrowed on behalf of the view that lability vicarious respondeat state. (Alaska 1998).

32. 953 P.2d (Alas- Toombs, Kastner v. 1980). ka superior 33. The court did not reach this issue granted summary judgment because it based on phrase employee We use the "the borrowed provide guidance the Feres doctrine. In order to place doctrine" here in of the former "the term remand, superior court on we discuss it borrowed servant doctrine." now. Slope Borough, 34. Taranto v. North 38. See 611 P.2d at 65-66. (Alaska 1996) (internal quotation 358 omitted) marks (quoting Rogers Luth v. and Babler 39. See id. at 65 & n. 4. (Alaska Co., Constr. 507 P.2d 761, 764-65 n. 14 1973)). 40. See AS 09.17.060. (Alaska 1971). 35. 490 P.2d acting Colonel Clark was not as an b. Colonel acting Clark was not as Army an Alaska State National Guard employee Alaska at official member at the time the crash. the time the crash. If, crash, at the time of the Colonel Clark a. Army An National Guard techni- acting only was Army as an Alaska National cian is a employee. Guard member placed federal who had been on Ac (AGR) status, tive Guard Reserve then he Army An National Guard technician would have employee been a state at the time such as Colonel employee Clark is "an of the crash.45 technician, United States." As a Colonel argue The families that Colonel Clark was (1) required Clark was "be a member of in AGR status because he was a member of Guard;" (2) the National hold the Army the Alaska National Guard. This is appropriate (8) position; rank for the Merely incorrect. being in the National appropriate wear the uniform.44 Guard does not mean the Guard member is status, AGR status. To be in AGR "position" Colonel Clark's as a technician Guard member must be ordered into it.46 was that of Supervisory Aircraft Pilot/State Wood, While there is record of Colonel Aviation Officer. Army The Alaska National Sergeant Major Kahklen, Sergeant First Guard stated that at the time of the erash: Brink, Class Sergeant being Schmidt so ordered, there is no such record for Colonel Col. Clark was a Federal Excepted Mili- Clark. tary Technician. He was a federal em- Additionally, previously discussed, both ployee required which him posi- to hold a Army the Alaska National Guard and the tion in the Alaska guard National Department United States of Justice stated and wear the uniform. He was that Colonel Clark acting was as a federal not duty on active fly orders to it because employee in his role as a serving technician part position

was of his description as the as the State Aviation Officer at the time of [State SAO Aviation Officer]. Col. Clark the crash.47 acting in his official capacity as the sum, since Colonel indisput- Clark was pilot and the SAO. ably a federal and not a employee state crash, time the state cannot be argue The families that Colonel Clark's vicariously employer liable as his for his al- status as the State Aviation Su- Officer/State leged negligence. pervisory Pilot made him a employee. above, As discussed these duties were his 2. A jury reasonable could find "position" technician, as a separate as the Colonel Clark was a borrowed em- families infer. ployee acting on assuming Even for the sake the State behalf of Alaska,. argument that the families' inference was correct, it is clear that State Aviation Offi- noted, As previously Alaska has rec Supervisory position Pilot cer/State is a fed- onciled the respondeat eral one. In the federal Desecrip- "Position with the employee the borrowed so that when employer one borrows the em tion" for position, this Colonel Clark was ployee employer, of may another both be assigned a pay federal responsibility responsible held negligent for the acts of that grade of GM-14. employee.48Accordingly,the State of Alaska 709(d) (West 41. § Supp.1999). U.S.C.A. 502(f) (West 46. § See 32 Supp.1999); U.S.C.A. Bowen, 953 P.2d at 891. Id., 709(b)(1). § 42. II, 47. See id., supra Parts IV.B.1.a. 709(b)(2). § 43. See id., 709(b)(3). 48. See Kastner Toombs, 611 P.2d 62, 65-66 (Alaska 1980). 45. Dep't Military See and Vet. of Affairs Bowen, (Alaska 1998). may be liable for the acts of Colonel if Clark acting pilot Army as "a in an aircraft as- added.) signed (Emphasis employee acting to the State" he was borrowed for the And, passengers several of the state at the time of the accident. flight on the had been called into AGR status and were announcing original In doctrine thus employees. considered state There is at employee, employ borrowed "A[n we stated: least some evidence the record that acts of permitted by [employer] ee] directed or his Clark, Colonel capacity his as the State perform may for services another become Officer, Aviation/Safety may have been con- [employee] performing of such other in trolled specifically gen- state both may the services. He become the other's erally. Whether the state exerted such con- [employee] as to some acts and not as to trol disputed is therefore a material fact. others." The decisive is whether remand, Upon plaintiffs are entitled to employee particular was loaned as to the trial on this issue. acts at issue.50 And the test turns on the control, question of or the transfer of cont V. CONCLUSION previously

rol.51 We have stated that "[the control borrowing [employer] which the must Because we decline to hold that the state is acquire for the servant to become loaned is immune under the doctrine of Feres v. Unit- merely control [employee's] spe ed States in case, the cireumstances of this over acts, cific but rather control in a broader genuine and because issues of fact exist as to sense."52 whether Colonel acting Clark was on behalf of the State of employ- Alaska as a borrowed Evidence in suggests the record ee, we REVERSE and REMAND to the may state have exerted control over Colonel superior court for proceedings further consis- regarding question. Clark acts For tent opinion. with this example, Description" the "Position for Colo- job nel Clark's Army states that the State MATTHEWS, Justice, Chief with whom Safety Aviation Officer and Officer for a EASTAUGH, Justice, joins, dissenting. (ARNG) Army State National Guard "[mJan- ages program aviation my ARNG the state opinion the doctrine of intra-mili- which planning, coordinating, includes imple- tary immunity was properly govern held to menting directing doctrine, all aviation assets this case. outgrowth within the ... States,1 [and State as a acts] laison Feres v. United bars claims mili organizations with all concerning matters rel- tary personnel against military service actors support." evant to aviation (Emphasis injuries arising add- for out of activities that are ed.) Further, position "[clontrols the applies "incident to service."2 It to state program aviation claims,3 the state ..." and the common law tort statutory for provisions of Army claims,4 the U.S. claims,5 Airerew Train- federal constitutional tort ing program complied must claims,6 be with statutory when and federal as well as Co., See, Gill, 49. Reader v. Ghemm eg., 3. Wade v. 889 SW.2d (Alaska 1971) (Second) (quoting (Tenn.1994) (Feres 1 Restatement precludes doctrine state claim (1957)). Agency § battery.). See, e.g., Adjutant Dep't Newth v. Gen.'s Tex- (Second) (citing 50. See id. 1 Restatement 501). (Tex.App.1994) 883 SW.2d Agency § 227 cmt. a at as, (Feres precludes alleging claim violation act.). of state whistleblower (citations omitted). 51. See id. See, Guard, eg., v. Texas Nat'l Crawford Id. (5th Cir.1986) (Constitutional 794 F.2d 1034 doctrine.). by claims barred Feres 135, 153, 1. 340 U.S. 71 S.Ct 95 LEd. 152 (1950). See, Swanstrom, 751, eg., 6. Uhl v. 79 F.3d 756 (8th Cir.1996) (Civil rights Privacy Act suit doctrine.); by barred Feres see also Watson v. Id. at 146, 153; 71 S.Ct. see Durant v. Nene (10th Cir.1989), man, 884 1350, F.2d cert. Guard, Arkansas Nat'l 886 F.2d 1004, 1008-09 (8th Cir.1989) (Race (1990). brought discrimination suit denied, 1024, 493 U.S. 110 S.Ct. 728 Declining permit to brought under the Federal Tort review of National operations Guard internal justiciability on Claims Act.7It only immunizes not the Unit grounds, Gilligan 1, 10, Morgan, in v. 413 U.S. States, ed personnel but individual service 2440, 2445, (1973), 93 S.Ct. 37 LEd.2d 407 the and state agencies.8 National Guard Supreme Court noted that it is difficult to con- governmental ceive of an area activity in In Stauber v. Cline9 ap the Ninth Circuit competence. which the courts have less plied the intra-military doctrine of immunity subtle, complex, professional decisions as to claims that had brought by been one em composition, training, the equipping, and con- military trol of a ployee essentially profession- force are Army of the Alaska National Guard military judgments, subject al always to civilian against other employees of the Guard and of Legislative control of the and Executive Branch- the State of Alaska. In holding that the es. intra-military immunity applied (emphasis Id. original), in quoted in and barred state law tort claims the court Chappell Wallace, v. 462 U.S. explained the rationale of the doctrine: 2862, 2866, 108 S.Ct. 76 LEd.2d 586 [The Feres doctrine has come to rest at (1983)[.]10 in significant part least on the view that judiciary the ought not to intrude mili The doctrine intra-military immunity tary affairs. Thus the Feres rule has only immunizes not military personnel, but interpreted been necessary as to avoid the employers. their states, Thus employers as courts' second-guessing military decisions, military personnel Guard, the National impairing military Shearer, discipline. are immunized the doctrine. This issue 8048; U.S. at S.Ct. see was discussed in the context of the Alaska Wallace, Chappell 296, 304, 462 U.S. 103 Air National Guard the Ninth Cireuit in 2362, 2367, (1983). S.Ct. 76 LEd.2d 586 Bowen v. involved, Oistead.11 Bowen among Indeed, courts have even been viewed as @ claims, other by Bowen, tort claims a mem '«l-equipped to determine impact ber Guard, of the against National other upon discipline any particular intru Guard members and the state. The Ninth upon sion military authority might have.'" Circuit held that the doctrine of intra-mili- Chappell, 462 U.S. at 108S.Ct. at 2868 tary immunity barred against his claims (quoting Warren, Rights The Bill state state, Guard officers and the discussing the Military, 87 NY.UL.Rev. length. issue at some The court stated: (1962)). argument While Bowen's first against doctrine, Thus the Feres presently interpreted, application has far more to Feres doctrine do with the focus proper upon es courts, relation his own between the status as a employ Con ee, gress and his military argument second against than it has to do Feres fo with individual defendants. It is upon not a cuses status of the defendants. personal matter of immunity urges Bowen of the mili us not to bar his claims tary personnel may who be because, defendants in a state officers he ar Bivens-type gues, action incident to the Feres services. doctrine ap "cannot be Un ited States v. Stanley, U.S. plied states," i.e., it applicable 3054, 3064, 97 LEd.2d 550 only to those actions where federal mili judicial It is a tary leaving personnel implicated are somehow matters incident to service military, alleged Thus, unlawful conduct. Bow in the congressional absence of direction distinguishes en Stauber noting that contrary. parties in that case were "under the by National Guard member under 42 U.S.C. National Guard and individual §§ doctrine.). 1981 and 1983 barred personnel.). eg., 7. See, United States Johnson, 481 U.S. 681, (9th Cir.1988). 9. 837 F.2d 395 692, 107 (1987); S.Ct. 2063, 95 L.Ed.2d 648 see Feres, also 340 U.S. at 71 S.Ct. 153. Id. at 398-99. Crawford, 794 F.2d (Dismissing claims of constitutional (9th Cir.1997). violations Texas 11. 125 F.3d 800

45 commanding officer, uniformed, his Adjutant direct command of full-time Stauber, Army lieutenant U.S. colonel." See General of Guard, the Iowa Air National 37 F.2dat897. 8 Guard); Air the Towa National Lovell Johnson, In United States v. (8th Cir.1989) (Na Heng, v. the Su- 890 F.2d 68 preme Court noted that it had tional against Guardsman's 1983 action suggested never that the status state National Guard officers barred under alleged of the tortfeasor is crucial ); Seurer, Feres F.Supp. Townsend v. 791 application [Feres] doctrine. Nor 227, (D.Minn.1992) 229 ("[Rlegardless of have the lower courts understood this whether brought against the suit fact to be relevant under Feres. In- state National Guard and individual Guard stead, the Feres doctrine ap- has been personnel against the United States and plied consistently to bar all suits on be- personnel, individual Guard the Feres doc against half of service members action."). Indeed, trine will bar the we upon Government based service-related indicated Stauber the Feres doc injuries. trine "has far more proper to do with the 681, 686-88, 2068, 481 U.S. 2066- courts, relation Congress between the 67, (1987). 95 L.Ed.2d 648 than it has to do with individu interpreted Courts have not this lan al judicial defendants.... It is a guage to mean that the person's service leaving matters incident to service to the suit against must be govern federal military, congressional the absence of ment or The overwhelm federal officers. contrary." Stauber, direction to the 837 ing weight authority indicates that state of F.2d at 399.12 National Guard protected are officers suit Guardsmen from fellow literally There are of applying scores cases Stauber, example, Feres doctrine. ap intra-military immunity plied Feres to a Guardsman's claims National Guard officers and their employers 14 individual members of the Alaska 13 / Guard, Adjutant National the Alaska Gen Moreover, indicates, eral, as Bowen Department applica- the Alaska Military of tion of the doctrine Affairs, intra-military immuni- and Veterans and the State of ty is a Swanstrom, Alaska of federal itself. See also v. law even when Uhl (8th Cir.1996) applied 79 (applying F.3d 751 state defendants based on state bar to suit National Guardsman Discussing claims. some of the numerous added). (emphasis Id. at 804-05 (2000); State, 721, 360 Md. 759 802, A.2d 814 96, Missavage, Mich.App. Harris v. 165 418 (1987); See, Alexander, N.W.2d 687, 690 eg., 1292, Speigner Parker, Zaccaro v. v. 249 248 F.3d (11th Cir.2001); (N.Y.App.Div. 1003, A.D.2d 671 N.Y.S.2d 362 Adjutant 1298 Meister v. Texas 1998); Texas, Adjutant Dep't Newth v. Gen.'s 332, Dep't, (5th Cir.2000); Gen.'s 233 F.3d 338 356, (Tex.App.1994). 883 S.W.2d 360 State, Military Jones Affairs, v. Div. & Naval (2nd Cir.1999); Wright 166 F.3d 52 45, Park, v. 5 586, (1st Cir.1993); contrast, F.3d By aware, 590-91 Knutson v. Wis only so far as I am two Guard, 765, jurisdictions, consin Air Nat'l 995 F.2d 770-71 Washington, reject Montana and (7th Cir.1993); States, Wood v. intra-military United 968 F.2d immunity the doctrine of with re 738, (8th Cir.1992); spect 740 Watson v. Arkansas to the National Guard. See Trankel v. State, 348, Dep't (8th Cir.1989); Military Affairs, 282 Mont. Guard, Nat'l 886 1004, F.2d 1009 Guard, 614, Army (1997); v. Texas Nat'l Emsley 794 F.2d 621 v. Nat'l Crawford Guard, 474, (1986); (5th Cir.1986); 106 Wash.2d 722 P.2d 1299 1034, 1035-36 Brown v. United 894, Kirtley (8th Cir.1984); Wash.App. 49 States, 739 748 P.2d 1128 362, F.2d 366 Martel (10th Temple, on v. 747 F.2d 1350-51 But the courts of these states nonethe Cir.1984); Carlton, Mollnow v. 716 F.2d personnel less make clear that claims Guard (9th Cir.1983); arising Gordon v. Illinois Nat'l employment against out of their Guard Guard, (C.D.Ill.1999); F.Supp.2d 46 permitted the state are not for other reasons. Swanstrom, Trankel, F.Supp. 617-18, 623; Uhl v. See 938 P.2d at and see (N.D.Iowa 1995); Egloff Jersey v. New Air Nat'l Son, A.T. Klemens & 303 Mont. 274, 16 Schuff (D.N.J.1988); (2000) Tramkel); Guard, (explaining P.3d F.Supp. Emsley, (concurring opinion 722 P.2d at 1304 Williams v. Colorado Air Guard, Nat'l (Colo.App.1991); Callow); Kirtley, Estate Burris v. Justice 748 P.2d at 1130. cases which applied have Feres to Guards- and his subordinates. military The con- claims, men's the Bowen court stated: stitutes community gov- specializecl by erned implicitly separate discipline These cases recognize that the from that

military apparatus of Orderly of the civilian. government the United States re- quires cannot strictly be divided into judiciary state and be serupu- as lous not to legitimate interfere with components. federal We endorse these holdings: Army applies matters state Na as the must be tional Guards and their members due scrupulous not judicial intervene the integral they play role part matters. of the nation's defense force and the substantial Only recently we restated principle degree to which the state National Guards in Rostker v. Goldberg, 57, 64-65, 458 U.S. financed, are regulated, and controlled 2646, 2651, 101 S.Ct. 69 LEd.2d 478 government federal even when not (1981): called into active federal service. Conse The case arises the context of Con- quently, under Stauber and the clear gress' authority over national defense weight authority circuits, of in other Bow affairs, and military perhaps and in no en's constitutional claims and other area has the Court accorded Con- sounding in subject tort are to the Feres gress greater deference. doctrine.15 Gilligan Morgan, v. 418 U.S. Since the doctrine of intra-military immu- S.Ct. (19783), L.Ed.2d 407 we ad- nity is a matter of federal law we need not dressed the Congress' whether ask whether state law contains a similar im- analogous power militia, over the granted munity. The immunity federal applies to I, Art. el. would be impermissi- state law claims for reasons found sufficient bly compromised by a seeking suit to have under federal law. But even if immunity a Federal District Court "pat- examine the were imposed by law, federal I believe tern training, weaponry and orders" of a that state law should it for a number of state's National Guard. In denying relief reasons. we stated: First, the basic rationale military deci It would be difficult to think of a clear- affecting military sions personnel should not er example type governmental of the be reviewed civilian persuasive. courts is action that was intended the Consti- Supreme The Court of the United States tution to be left to political branch- articulated this rationale in Chappell v. Walla directly es responsible-as the Judicial ce.16 In doing so the Court included within Branch is not-to process. electoral

its discussion state National Guards: Moreover, it is difficult to conceive of Congress' authority area, in this and the governmental area of activity in distance life, between and civilian which the courts competence. have less up by summed the Court in subtle, complex, Orloff professional Willoughby, supra, 345 U.S. at decisions as to the composition, train- S.Ct. at 540: ing, equipping, and control a mili- [JJudges given are not the task run- tary are essentially professional force ning Army. The responsibility for military judgments, subject always to setting up channels through which ... civilian control Legislative grievances can be fairly considered and Executive Branches. The ultimate re- settled upon rests Congress sponsibility for these appro- decisions is upon the President of the United priately States vested in branches gov- Bowen, 125 F.3d Day at 805. See also scope employment within the of their Guard, Massachusetts Air Nat'l 167 F.3d Guard). National (1st Cir.1999) (where the First Circuit indicated that there is a consensus view that 16. 462 U.S. 76 LEd.2d 586 supports immunity, a federal based on "federal policies protect autonomy," applica ble to state claims where the defendants' conduct officers or the serving." Government he is periodically subject

ernment which are accountability. Further, to electoral the Feres Court observed that it permitted Id., knew of no state "which 10, has mem (emphasis 98 at 2446 S.Ct. original).17 bers of its militia to maintain tort actions for injuries suffered in the service...."25 The Second, Against the Alaska Claims Court thus permit concluded that to service adopted by State Act was first the territorial 18 personnel to sue their commanders tort legislature in 1957 and was recodified with would be "to visit the Government novel with change by out substantial legisla the state unprecedented beyond liabilities" closely ture in 1962.19 The Alaska act was purposes of the Federal Tort Claims Act.26It on modeled the Federal Tort Claims Act. We legislature is hard to believe that cases,20 recognized have in a number of modeling the Alaska Claims Act on the Fed noting "rely heavily that on federal we cases 21 eral Tort permit Claims Act meant to interpreting the Federal Tort Claims Act." Feres, kind of claim that in interpreting the presumption "[a] There is rebuttable ... that Act, already reject Federal Tort Claims had when Alaska bases a statute on one from unprecedented. ed as novel and jurisdiction, adopts another it into the Alaska previous statute all cases from the other Further, provides AS 26.05.060 explicitly 22 jurisdiction's statute." The Feres decision that the Alaska National Guard and its mem- was handed down in 1950. Another notable subject bers "are to all federal laws and interpreting case Feres and the Federal Tort regulations relating to the National Guard Act, Brown,23 Claims United States v. and Naval Militia of the several states and published in 1954. Thus the Feres doctrine territories of the United States." The Feres was a well-established feature of the Federal applies to the National Guards of Tort Act legisla Claims when the territorial the several states. The doctrine is a matter ture decided to a similar act for Alas By application of federal law. of AS ka. Since there rebutting is no basis for 26.05.060it apply should also to the Alaska presumption that a borrowed statute carries National Guard. prior judicial it interpretations, with Alaska's Against Claims the State Act should be con Today's opinion appear does not to com adopting strued interpretation which pletely reject intra-military all forms of im gave to the Federal Tort Claims Act. Instead, munity. suggests the court that Supreme gave Court in Feres as one "uniquely military" where an action is reason for requires its decision that "no "military expertise" evaluate, American law immunity might case for permitted exist.27 As a divid

. ever has a soldier to recover negligence, ing either his separating line immune from non-im (emphasis 17. Id. at 103 Oregon Supreme S.Ct. 2362 add- tation Court] then be ed). came the law in Alaska reason of the well adopted established that a statute rule from an 18, 170, 1,§ Ch. SLA 1957. other state, which has been construed court, highest presumed adopted state's is to be 101, 26.01-06, 19. Ch. SLA 1962. it."). placed upon with the construction thus eg., 20. See, Abbott, State v. 712, 498 P.2d 720 110, 141, 23. 348 U.S. 99 L.Ed. 139 (Alaska 1972); I'Anson, State v. (1954) (Discharged veteran could maintain mal- (Alaska 1974). practice hospital action VA because the injuries resulting Servs., malpractice Dep't from the were not 21. P.G. v. Health & Human service.). Servs., received incident to Family Div. & Youth P.3d (Alaska 2000); State, Dep't Transp. see also & Sanders, Pub. Facilities v. Feres, 24. 340 U.S. at 71 S.Ct. 153. (Alaska 1997). Id. at 71 S.Ct. 153. City Borough & Sitka v. Construction & Gen. Laborers Local 644 P.2d 227, 231 n. 8 Id. (Alaska 1982). recognized applied We also Schaible, City this rule in Fairbanks v. 37 Op. (Alaska 1962) ("It at 40-41. P.2d [an interpre present, it will expertise will be but conduct, majority's "uniquely mili ness and mune degree unclear as to whether me as remain tary/military expertise" test strikes immunity. way impart apply. In a it sufficient being very difficult to thoroughly discredited resembles the now uncertainty implic me that the It seems to dichotomy for "governmental/proprietary" military/mili suggested "uniquely it in the immunity municipal merly to determine used good majority is a tary expertise" test of I am uses No case of which aware to adhere to the "incident to service" reason expertise" "uniquely military/military test as distinguishes non- immune from test which non-im separate to immune from a means the doctrine of intra- immune activities under activity. mune immunity. majority's if the military Even majority Further, proposed the the test application, it would still test were certain of inappropriate in intrusion into fairly result necessary litigate would ex to each case be military discipline and decision- necessary the affairs of tensively develop in to the order great many instances. For ex making in a apply the test. Avoidance of such facts to member sued ample, if one National Guard reasons for the intra- litigation is one of the a member tort for another National Guard Scalia, immunity military doctrine. Justice battery the two were which occurred while majority in writing for the United States office, rejected pro Stanley,30discussed and filing other in an such a suit documents proposed permitted under the test liability would be than posed tests more inclusive of clearly majority. Filing not a by the is to service" test. He wrote: the "incident Yet, activity. activity "uniquely military" the Stanley degree of dis underestimates the (battery by against anoth serviceperson one by the rule ruption that would be caused er) directly implicates military clearly and liability proposes. A that de he test It discipline and command structure. would particular pends on the extent to which step to inappropriate for a civilian court be military question disci suits would call into adjudicate dispute, because to do so and decisionmaking pline would itself re and abili compromise could the National Guard's into, quire judicial inquiry and hence intru ty discipline members.29 its own military a upon, sion matters Whether implicates would often Moreover, case those concerns it is unclear which side of problematic, raising prospect military/military expertise" line the be "uniquely testimony depositions trial compelled are told that present case should fall. We concerning military by military the details plane, transport, was a officers C-12 States, military putting commands. Even that it of their aircraft owned United judicial conclu by military personnel, that aside the risk of erroneous piloted was (which military deci- military mili- sions would becloud passengers all the were under process arriving sionmaking), the mere navigation tary I that orders. assume disrupt would systems plane on the at correct conclusions and communication military regime. The "incident to service" military, plane that was built were test, contrast, contract, provides a line that is military specifications under a relatively and that can be discerned military governing how clear that standards exist military inquiry If with less extensive into planes as this should be flown. this such matters." true, degree unique- then to some (Tenn.1994) dichotomy generally has been aban- 28. The latter Gill, Wade v. 889 S.W.2d 208 Cf. great difficulty that courts doned because (ruling Feres doctrine suit under that precluded determining municipality above). was had in when a factual situation described capacity acting governmental and when it in a Prosser, acting proprietary capacity. in a S.Ct. 97 L.Ed.2d 550 30. 483 U.S. questions discussing imponderable some of the dichotomy posed concluded that [there is little that can be said about such distinctions 107 S.Ct. 3054. Id. exist, they they highly except are artifi- that cial, they great and that make no amount of Prosser, sense." William L. Handbook of (4th ed.1971). Law Torts at 982 Although majority accurately judicial mune oversight, cites to civilian and activi- State, Department Military & Veteram's uniquely military ties which are not and do unexceptional v. Bowen32 for the require military not expertise, which civilian Affairs proposition questions all that involve may courts review. The distinction is not military people require "military expertise" only unmanageable practical matter, as a but particular or will interfere with inappropriately exposes it also military disci- mission,33it does not follow that Bowen re structure, pline, command and decision-mak- jected intra-military the doctrine of immuni ing to civilian scrutiny-precisely what the ty. Bowen in fact does not mention this designed prevent. doctrine is Feres, doctrine, or and none of the briefs I therefore dissent. filed before this court that case did so either. appeal Bowen was administrative

in which the was whether a National involuntarily

Guard officer who was termi right

nated had a pre-termination to a hear

ing. We answered that in the affir

mative based on permitting a federal statute personnel provided

termination of Guard "as by the laws of the we construed State"34 Clayton GOTTSCHALK, Appellant, W. the reference to the laws of the process federal statute to include the due clause of the state constitution which re Alaska, Appellee. STATE of quires pre-termination hearings government

emp No. A-7572. loyees.35 conclusion, fifty years more than after Appeals Court of of Alaska. decided, Feres v. United States was the ob- Nov. Jackson, writing servations of Justice for a Feres, unanimous Court in remain true. No permitted

state has members of its National

Guard to maintain incident to service tort the state. To do so would still both unprecedented."

be "novel and I be-

lieve that we should continue to follow the implicit

accumulated wisdom in more than century

half of decisional law.

Today's decision off sets on a course that

conflicts with the intra-military

immunity. followed, That doctrine must be my opinion, because it is a matter of policies

federal law based on federal protec- military autonomy. Further,

tive of implicitly adopted

Feres doctrine was as a

matter of territorial and state law when the Act,

Alaska Claims modeled on the Federal Act, adopted.

Tort Today's opin- Claims

ion also confusing seems to purports

unworkable test which to distin-

guish uniquely military between activities involving

and those military expertise, im- (Alaska 1998). 324(b).

32. 953 P.2d 34. See 32 U.S.C. Bowen, Op. at 41. P.2d

Case Details

Case Name: Estate of Himsel v. State

Court Name: Alaska Supreme Court

Date Published: Nov 30, 2001

Citation: 36 P.3d 35

Docket Number: S-8640

Court Abbreviation: Alaska