Blakey v. U.S.S. Iowa

991 F.2d 148
CourtCourt of Appeals for the Fourth Circuit
DecidedApril 21, 1993
DocketNo. 92-1156
StatusPublished
Cited by29 cases

This text of 991 F.2d 148 (Blakey v. U.S.S. Iowa) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blakey v. U.S.S. Iowa, 991 F.2d 148 (4th Cir. 1993).

Opinion

OPINION

ERVIN, Chief Judge:

Walter Gene and Mary Lou Blakey appeal the district court’s order dismissing their negligence action against the U.S.S. Iowa, the United States Navy, and the United States of America (“Government”), arising out of an explosion aboard the U.S.S. Iowa which killed their son Walter Scot Blakey. Walter Gene Blakey brought suit for his son’s wrongful death in his capacity as personal representative for the estate of his son. In addition, Walter Gene and Mary Lou Blakey sued in their individual capacities for negligent infliction of emotional distress based on the Navy’s post-explosion handling of its investigation of their son’s death. The Government filed a motion to dismiss for lack of subject matter jurisdiction, and the district court granted the motion as to both claims. 780 F.Supp. 350. We affirm.

[150]*150I

The decedent was a Petty Officer in the United States Navy assigned to active duty on the U.S.S. Iowa. On April 19, 1989, the Iowa was sailing in navigable waters off the coast of Puerto Rico. The Iowa’s crew was engaged in firing exercises from its sixteen-inch gun turrets. The decedent was participating in an exercise in gun turret II when a series of explosions occurred, causing the death of decedent and forty-six other sailors. The Blakeys assert that the exercises were unauthorized because the tests included mixtures of 1,900- and 2,700-pound projectiles with five bags of D846 powder rather than the required six bags, in direct violation of the Navy’s standard firing-configuration regulations.

Pursuant to the Manual of the Judge Advocate General (“JAG Manual”), the Navy convened a one-officer fact-finding investigation of the explosion.1 The Navy initially decided to put off any criminal investigations. On May 8, 1989, however, the Navy received information that suggested foul play,2 so it requested that the Naval Investigative Service commence a separate criminal investigation. As a result of these investigations, the Navy concluded that the intentional, wrongful act of an individual had caused the explosion.

A subcommittee of the Committee on Armed Services of the House of Representatives studied the Navy’s investigation and issued a report criticizing its findings. Staff of the Investigations Subcomm. and Defense Policy Panel of the House of Representatives Comm, on Armed Services, 101st Cong., 2d Sess., “Report on the USS Iowa Tragedy: An Investigative Failure” 25-26 (Comm. Print 1990). The General Accounting Office subsequently requested an independent investigation, which found that an inexperienced rammer-man who may have over-rammed the propellant in the sixteen-inch gun fired in turret II could have caused the explosion. Ultimately, on October 17, 1991, the Navy issued a statement that “the opinion that the explosion resulted from a wrongful intentional act is disapproved. The exact cause of the explosion is unknown.” Comnavseasys Com letter 8030 00/MRN SER 00/0101091.

II

The Blakeys assert subject matter jurisdiction for their representative claim under various admiralty statutes, including the Jones Act, 46 U.S.C.App. § 688; the Suits in Admiralty Act, 46 U.S.C.App. §§ 741-752; the Death on the High Seas Act, 46 U.S.C.App. §§ 761-768; and the Public Vessels Act, 46 U.S.C.App. §§ 781-790. The Blakeys seek to invoke jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, for their individual negligence claim. Addressing each claim in turn, we find that subject matter jurisdiction is lacking for both claims.

A

With the promulgation of the Federal Tort Claims Act (“FTCA”), Congress abrogated the United States’ sovereign immunity against actions for its tortious conduct. In Feres v. United States, however, the Supreme Court excepted from permissible tort claims against the United States those actions based on injuries to service members that occur incident to military activity. 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950). The Court has continued to support immunity in such military matters. See, e.g., United States v. Johnson, 481 U.S. 681, 692, 107 S.Ct. 2063, 2069-70, 95 L.Ed.2d 648 (1987).

The Supreme Court has offered three justifications for immunity to actions involving tortious injuries to military personnel. First, the nature of the relationship between the Government and members of the armed services requires a uniform fed[151]*151eral remedy that does not vary upon the situs of the incident. Id. at 689, 107 S.Ct. at 2068. Second, litigants may not use the FTCA for remedial recovery when Congress already has provided an adequate, simple, certain, and uniform compensation system for injuries or death of those in the armed services.3 Id. at 689, 107 S.Ct. at 2068. Third, the federal courts should avoid involvement in the military or unnecessary infringement in the military’s relationship with its members. This relationship is grounded upon the need for discipline and compliance with orders, and should not be second-guessed. Id. at 690-91, 107 S.Ct. at 2068-69.

Although these three factors apply to the Blakeys’ case, their case differs from Feres and its progeny in one respect. While the Feres doctrine addresses directly the United States’ immunity from suit under the FTCA, the Blakeys attempted to proceed with their wrongful death claims under various admiralty statutes. The Blakeys do not contest that the decedent was stationed on the U.S.S. Iowa on active duty and therefore that the decedent was engaged in the firing exercises incident to military activities. Instead, the Blakeys assert that the Feres doctrine should not apply when the military activities that proximately caused the injury are unauthorized or when the claim sounds in products liability. In addition, the Blakeys assert that the Feres doctrine does not apply to actions brought pursuant to the Jones Act,4 the Suits in Admiralty Act,5 the Public Vessels Act,6 or the Death on the High Seas Act.7

The three factors highlighted by the Supreme Court as justifications for barring recovery against the military under the FTCA apply equally to actions under the various admiralty provisions relied upon by the Blakeys. All of the circuits that have addressed this issue agree: Feres blocks actions by service members or their survivors based on admiralty jurisdiction. See, e.g., Potts v. United States, 728 F.2d 20, 21-22 (6th Cir.1983) (denying jurisdiction under Suits in Admiralty Act and Public [152]*152Vessels Act), cert. denied, 466 U.S. 959, 104 S.Ct. 2172, 80 L.Ed.2d 555 (1984); Hillier v. Southern Towing Co., 714 F.2d 714, 721 (7th Cir.1983) (denying jurisdiction under Suits in Admiralty Act); Cusanelli v. Klaver, 698 F.2d 82, 85 (2d Cir.1983) (denying jurisdiction under Public Vessels Act); Charland v. United States,

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Bluebook (online)
991 F.2d 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blakey-v-uss-iowa-ca4-1993.