                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-1999

Richards v. USA
Precedential or Non-Precedential:

Docket 98-7235




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Recommended Citation
"Richards v. USA" (1999). 1999 Decisions. Paper 185.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/185


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Filed June 30, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7235

SHAMMARA RICHARDS, Individually and as Personal
Representative of the ESTATE of Charles A. Richards, Jr.,
and as Guardian and next of Kin of SHANEE A.
RICHARDS and CHARLES RICHARDS,

        Appellant,

v.

UNITED STATES OF AMERICA

PRESENT: BECKER, Chief Judge, SLOVITER,
MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO,
ROTH, LEWIS, McKEE, RENDELL, and GARTH,*
Circuit Judges.

SUR PETITION FOR REHEARING

The petition for rehearing filed by the appellant in the
above-entitled case having been submitted to the judges
who participated in the decision of this court and to all
other available circuit judges in regular active service, and
no judge who concurred in the decision having asked for
rehearing, and a majority of the circuit judges in regular
active service not having voted for rehearing by the court en
banc, the petition for rehearing is denied.



_________________________________________________________________

* Judge Garth's vote is limited to panel rehearing only.
        BY THE COURT,

        /s/Timothy K. Lewis
        Circuit Judge

DATED: June 30, 1999
RENDELL, Circuit Judge, dissenting:

This case presents yet another compelling argument for
the abandonment of the Feres doctrine. Feres represents
more than a "bad estimation[ ]" of what Congress intended
to do (but did not do), in the Federal Tort Claims Act. See
United States v. Johnson, 481 U.S. 681, 695 (1987) (Scalia,
J., dissenting), for it is also being employed by many courts
on a regular basis to deny a military employee's recovery,
and to prevent the government's accountability, for injuries
sustained in connection with essentially civilian activities
wholly unrelated to military service. See, e.g. , Flowers v.
United States, 764 F.2d 759, 760 (11th Cir. 1985); Warner
v. United States, 720 F.2d 837 (5th Cir. 1983); Mason v.
United States, 568 F.2d 1135 (5th Cir. 1976).

We have participated in this travesty, not only in this
case, but also in another recent case in which we applied
Feres, O'Neill v. United States, 140 F.3d 564, 565 (3d Cir.
1998) (Becker, J. dissenting from denial of petition for
rehearing) ("it is difficult for me to imagine anything less
incident to service than being attacked by an ex-lover while
sitting at home watching a movie with a friend.")

I agree with Chief Judge Becker's dissent in that case,
and also with Justice Scalia's words in dissenting from the
majority opinion in United States v. Johnson:

        The Feres Court claimed its decision was necessary to
        make "the entire statutory system of remedies against
        the Government . . . a workable, consistent and
        equitable whole." 350 U.S., at 139, 71 S. Ct. at 156. I
        am unable to find such beauty in what we have
        wrought.

Id. at 2074.

I urge the Supreme Court to grant certiorari and revisit
what we have wrought during the nearly fifty years since
the Court's pronouncement in Feres.

Chief Judge Becker and Judges Nygaard and McKee join
in this dissent.
A True Copy:
Teste:

        Clerk of the United States Court of Appeals
        for the Third Circuit
