Posted on 09/16/2004 5:55:32 PM PDT by Bronc1
Date: 8/8/02
Case Style: Bill L. Burkett v. William W. Goodwin, Jackie L. Taliaferro and Archie M. Meador
Case Number: 03-01-00302-CV
Judge: Puryear
Court: Texas County of Appeals, Third Appellate District
Plaintiff's Attorney: David Van Os
Defendant's Attorney: Kamilla L. Stokes
Description: Bill Burkett, a retired Lieutenant Colonel in the Texas Army National Guard, brought a personal injury action against appellees, William Goodwin, Jackie Taliaferro, and Archie Meador, all of whom were his superior officers. (1) Burkett appeals from the trial court's order dismissing his lawsuit. While Burkett sets out his appellate issue as "whether the court below erred in granting summary judgment to the defendants-appellees," he raises the following contention in the argument portion of his brief: Because he commenced his claims against the appellees in their individual capacities only, (1) his claims were justiciable in a civilian court and (2) the appellees were not entitled to statutory immunity under Texas Government Code section 431.085; therefore, the court erred in dismissing his lawsuit. See Tex. Gov't Code Ann. § 431.085(a) (West 1998). We will liberally construe Burkett's brief and will focus our review on this contention. See Tex. R. App. P. 38.9. We will affirm the trial court's order of dismissal.
Background
Burkett alleged that on January 17, 1998, he collapsed at the Abilene airport on his return home from an active duty assignment in Panama with the United States Army. He alleged that his collapse was caused by a tropical disease he contracted while on active duty in Panama. After several days of illness, Burkett went to Dyess Air Force Base in Abilene seeking medical care. Individuals at the medical facility's admissions office told Burkett that they needed clearance or confirmation of Burkett's active duty status from the Texas Army National Guard before he could be admitted for medical care. Burkett alleged that pursuant to Texas Army National Guard regulation 7-3, had any of the appellees, who were in command positions with the Texas Army National Guard, provided the admissions office at Dyess with clearance or confirmation, he could have received prompt medical attention at Dyess. He asserted that based on Guard regulations, it was Goodwin's, Taliaferro's and Meador's ministerial duty to provide clearance or confirmation of his active duty status to Dyess and that they were without discretion or authority to refuse to provide the clearance or confirmation of his status to Dyess.
Burkett alleged that over the next four months Goodwin, Taliaferro and Meador willfully and maliciously refused to provide Dyess with clearance or confirmation of his duty status thereby denying him access to military medical care. Burkett alleged that these three individuals' conduct was "so completely beyond and outside any military authority or discretion as to have been outside the scope of military duty, outside any military duty, outside any military capacity, and not incident to military duty." Burkett alleged that they "acted purely as individuals, not as military officers, albeit pretending to have military authority and abusing their offices through such pretense in order to willfully and maliciously wreak havoc upon [Burkett's] life." As a result of their refusal to provide clearance and confirmation of Burkett's active duty status, he was unable to obtain a medical diagnosis or military medical care for his debilitating illness. Burkett finally received access to military health care due to the intervention of a United States Congressman. By the time he received military health care, the disease had ravaged his body, and left him disabled and unable to return to either military duty or gainful civilian employment. Burkett alleged that as a direct and proximate result of Goodwin's, Taliaferro's and Meador's tortious conduct, he suffered various personal injuries. Further, he alleged that because their actions were willful and malicious, he was entitled to exemplary damages.
Goodwin, Taliaferro and Meador moved to dismiss the case for want of jurisdiction and moved for summary judgment. They contended that the trial court was without subject matter jurisdiction over the case because the military personnel matter at issue was not justiciable in civilian courts. See Feres v. United States, 340 U.S. 135, 146 (1950); Newth v. Adjutant Gen.'s Dep't, 883 S.W.2d 356, 358 (Tex. App.--Austin 1994, writ denied). Additionally, they moved for summary judgment on the grounds that they were statutorily immune for their alleged actions. Tex. Gov't Code Ann. § 431.085 (West 1998). Burkett responded to the appellees' motions contending that indeed the court had subject matter jurisdiction because he was suing Goodwin, Taliaferro and Meador in their individual capacities and not as military personnel. Burkett contended that due to the appellees' intentional failure to discharge a mandatory, non-discretionary duty under Texas Army National Guard regulation procedure 7-3 to confirm Burkett's duty status to the medical facility at Dyess, he suffered damages for which he could recover at common law. The trial court dismissed Burkett's case.
Discussion
We first address whether the trial court erred in dismissing Burkett's case on the ground that his claims were not justiciable in a civilian court.
Standard of Review
In examining whether a dismissal for want of jurisdiction is appropriate, we "construe the pleadings in favor of the plaintiff and look to the pleader's intent." See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We are obliged to take as true the allegations in Burkett's petition and construe them favorably to his position. See id. We must reverse the dismissal unless the petition affirmatively demonstrates that no cause of action exists or that the plaintiff's recovery is barred. See Dorchester Master Ltd. P'ship v. Dorchester, 914 S.W.2d 696, 703 (Tex. App.--Corpus Christi 1996, writ granted w.r.m.); Ramirez v. Lyford Consol. I. S. D., 900 S.W.2d 902, 906 (Tex. App.--Corpus Christi 1995, no writ). A court is without jurisdiction only when the court can determine from the allegations of a pleading that, even by amendment, no cause of action can be stated consistent with the facts alleged. Ramirez, 900 S.W.2d at 906 (citing Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910, 917 (Tex. 1960)).
Justiciability of National Guard Disputes
Burkett's petition alleged that the appellees failed to abide by National Guard regulations, that is, they failed to confirm Burkett's duty status to the Dyess military medical facility, and, as a result, Burkett suffered damages. Burkett alleged that despite the fact that at all times appellees were National Guard officers and the act about which he complains is governed solely by National Guard regulations, the appellees' alleged actions or failure to act regarding particular regulations took them outside their status as National Guard officers making appellees subject to the jurisdiction of civilian courts. We disagree.
Because National Guard members serve in a branch of the federal military service, decisions regarding the regular military service are relevant in determining the proper scope of judicial inquiry into claims brought by Guard members. Holdiness v. Stroud, 808 F.2d 417, 422 (5th Cir. 1987). We are mindful of the well-established principle announced in Feres v. United States, that claims brought by military personnel for injuries arising from or in the course of activity incident to military service are nonjusticiable. 340 U.S. at 136; see also United States v. Stanley, 483 U.S. 669, 683-84 (1987); Chappell v. Wallace, 462 U.S. 296, 305 (1983); Holdiness, 808 F.2d at 423; Crawford v. Texas Army Nat'l Guard, 794 F.2d 1034, 1035 (5th Cir. 1986); Texas Adjutant Gen.'s Dep't v. Amos, 54 S.W.3d 74, 79 (Tex. App.--Austin 2001, pet. denied); Newth, 883 S.W.2d at 357. While the Supreme Court has not held that military personnel are barred from all redress in civilian courts for wrongs suffered in the course of military service, the "special relationships that define military life have 'supported the military establishment's broad power to deal with its own personnel'" instead of involving civilian courts in such decisions. Chappell, 462 U.S. at 305. "The permissible range of lawsuits by present or former servicemen against their superior officers is, at the very least, narrowly circumscribed." Crawford, 794 F.2d at 1035. "Civilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the Military Establishment." Chappell, 462 U.S. at 300.
Burkett contends that these cases do not apply because here the appellees were not operating in an area where they could exercise discretion and there was nothing to second-guess. Burkett contends that based upon the Texas Army National Guard regulation procedure 7-3, the appellees were under a mandatory duty to confirm his duty status to the medical facility at Dyess and they deliberately failed to discharge that nondiscretionary duty.
Burkett suggests that the facts here are analogous to those in Brown v. United States, 739 F.2d 362 (8th Cir. 1984), Day v. Massachusetts Air National Guard, 167 F.3d 678 (1st Cir. 1999), and Lutz v. Secretary of the Air Force, 944 F.2d 1477 (9th Cir. 1999). In Brown, the plaintiff serviceman alleged he suffered injuries from a mock lynching; in Day, the plaintiff serviceman alleged he suffered injuries from a hazing incident described by the trial court as "despicable"; in Lutz, the plaintiff servicewoman alleged she suffered injuries when the defendants broke into her office, took personal papers and disseminated them to other military personnel with the intent to injure her reputation and career. Brown, 739 F.2d at 364; Day, 167 F.3d at 680; Lutz, 944 F.2d at 1478. In these three cases, the courts reviewed the plaintiffs' allegations under Feres and concluded that the plaintiffs' claims for injuries arose from situations that were not within the course of activity incident to military service. Due to the "extreme nature of the alleged conduct and its total antipathy to any conceivable military purpose," there was no relevant relationship among the activity, injury and military service. Brown, 739 F.2d at 368.
Conversely, here the issue is whether Burkett's superior officers properly followed a Texas Army National Guard regulation related to a request for medical care at a military medical facility. Despite the fact that Burkett sued appellees in their individual capacities only, his pleadings complain about his superior officers' conduct in relation to a military personnel action pursuant to military regulations which can only arise when Texas Army National Guard officers are on active duty. Burkett's pleadings alleged wrongdoing that was within the course of activity incident to military service. We hold that Burkett failed to allege an adequate basis for civilian court jurisdiction and his claims are not justiciable in a civilian court.
* * *
Click the case caption above for the full text of the Court's opinion.
Outcome: We overrule Burkett's contention and affirm the trial court's order of dismissal.
Plaintiff's Experts: Unavailable
Defendant's Experts: Unavailable
Comments: None
Lawyer translation PING!
If he felt he was as seriously ill as he contends and the NG was not going to permit him access to a military hospital why did he not get himself to a civilian hospital? The prudent person would seek care outside the military system if need be.
This gentleman (or a person who can act for him if he is too ill--wife, sibling) has some responsibility to seek appropriate care and not to let a situation deteriorate so that he becomes unemployable. (Unless of course that was his original intent).
I was wondering that myself. Meningioencephalitis has a very high fatality rate. Go to the ER and sue for expenses later.
Someone claiming to be or actually Bill Burkett answered the same question on a BB by saying he couldn't go to the nearby hospital as he was already under collection for care given to his son for IIRC a back injury. I find that hard to believe. illegal aliens do it all the time and are not turned away. Me thinks he is mad at himself for not pushing the issue, and taking it out on others...
Here it is:
...We were undere collection lawsuit from the local hospital for a previous back injury to a child and did not have insurance of any kind other than the medical care that I was supposed to receive due to my active duty status....
http://www.steveverdon.com/archives/politics/001110.html
Also - the guy in the blue shirt who is clapping on the right of Van Os is Glenn Maxey - a former long-time Austin state representative (Democrat, of course) who is now a radical homosexual activist.
Letter from Lieutenant Colonel (Ret.) Bill Burkett
Former Client of David Van Os
I have a 30 plus year experience of working within and around litigators in one fashion or another. I would guess that I have worked with over 100 attorneys and on and with about 40 cases; a small number if you're a lawyer, but a rather large exposure if you are a citizen.
When I needed an attorney for a case of pure retaliatory abuse that denied me medical care that I had both earned and paid for, I studied the resumes and reputations of attorneys throughout Texas. David Van Os had and has the highest rating and reputation for ethics of any attorney in Texas. And after dealing with him, I would certainly confirm that he has been the most principled and honest man in the legal profession that I have ever dealt with; and my experience has been that lawyers are notoriously dishonest and lack credibility.
Mr. Van Os has met every commitment within my case, which worked itself through the State court system and ended up at the US Supreme Court.
But he was also realistic, honest and fair concerning the law and what it means and also what it does not mean. He stood by the law and the intent of the law throughout our case.
Yes, David will be a People's Judge. I think that's good. On the Texas Supreme Court, I wouldn't believe that the corporations would be too disappointed that the People of Texas would be represented by one of nine seats.
And how would just one judge make any difference?
There is no one in the entire field of law that I would select to represent me over David Van Os. Therefore, I have faith that he can be more influential in returning the beginning of balance and equity to this important court. Certainly, by the responses given by Mr. Brister to the Senate confirmation committee, his responses will be far more honest, dignified and legally correct than what Mr. Brister told that committee.
Bill Burkett
ambulance-chaser wants to be Texas Supreme Judge...bump
BTTT
No wonder they had to "reassemble" the Bush records, got all those documents via a lawsuit.
So what is the pay off, how would they get reimbursed for all that wasted time and money suing?
I suspect that there's a very wealthy Kerry supporter lurking about somewhere.
More likely a position in the new administration, hidden deep in the bowels of government. Kinda like the lotto, prove you sealed the election for JFKerry and you have the winning ticket.
This would require massive record keeping, cause they will need proof they were the one.
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