The Decision in Burkett's appeal re: his medical condition

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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.

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.

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.

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)).

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.

We overrule Burkett's contention and affirm the trial court's order of dismissal. (2)

1. Goodwin was chief of staff for the Adjutant General for the State of Texas, Taliaferro was director of military personnel responsible to the Adjutant General for all matters pertaining to the overall management and supervision of the Directorate of Military Personnel, and Meador, Burkett's immediate supervising officer, served as director of plans, operations and training, and military support.

2. Having determined that the trial court did not err in dismissing the case, we need not address Burkett's contention relating to statutory immunity as that issue is not necessary to the disposition of this appeal. See Tex. R. App. P. 47.1.

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.

My guess here is that he was on orders to Panama, came home "collapsed at the airport", then waited several days to seek medical treatment.

The problem then becomes that his orders were no longer valid. They were probably good thru the date he first arrived back home then ended.

So he got sick, waited... then showed up at a military hospital. Problem then is that his orders aren't valid. So he calls these honchos at the TxNG HQ to tell them to call the hospital and say he's on orders. But he's not. They just aren't going to cut this guy new orders so he can go to the hospital for medical treatment for a non-specified illness he say he contracted overseas. At least not in the first few days back in the States.

What I find amazing is that for all the crud you find from Burkett posted on the internet, you only find him saying what illness he *thought* he had. I never did find anything with him saying what the doctors found wrong with him.

Ok - here it comes: WARNING! WARNING! Dumb question from a newbie! Simply this - in all the things I've read/heard/thought about in the dark of night/etc. I can't figure out what George Bush had to do with any of this. This yay-hoo was in the guard, got back from Panama with some tropical disease (maybe?? - do we even know that this debilitating disease was??), waited a few days and decided to try to get help from the Air Force Hospital, and then instead of getting urgent care to take care of himself, decides instead to carry on a prolonged four month fight to get some kind of a status certification... and besides THAT he made me write this really long sentence (can I blame that on someone else??? Oh, no, I'm not a Democrat). Does anyone know the "George Bush interfered with Burkett getting medical care" story or is all of this just a huge smokescreen?

This man claims he was a LTC in the Texas ANG and couldn't get, or didn't know how to get some Spec 4 to type and some AG 2LT to sign a memorandum that he was on active duty during the incubation period for the disease.

Failing that, he didn't walk into the Sergeant Major of the admin section and say, "Hey, Samj, I got a little problem I need your help with...."

That's what Sergeants Major are for.

(2 years ago, friends son couldn't get Airborne School orders. One call to the SMaj at Benning and 30 minutes later I got a call back; "Sir, this is Sergeant Major XXXXX. If you would ask that fine young soldier to see me about 0700 Monday morning here at Building #1 at Ft. Benning, we'll take care of his little problem. Orders bringing him in TDY from Ft. Sill? No problem. We'll get those later. I'll give his first sergeant a call......")

I can't figure out what George Bush had to do with any of this.

Nothing at all. The point of the research is to determine how far in the can CBS is/was. Did CBS take docs from a nut-case? Of is there another person who is the "unimpeachable source" of the Killian forgeries?

My present opinion is that either Max Clelland or Ben Barnes lent their imprimateur to the memos, on their way to CBS. The alternative is that CBS took Burkett as unimpeachable, which he clearly is not. Is CBS really that stupid? Maybe, they aired obvious forgeries.

"... in Lutz¹, 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."

Interesting that Burkett cited that case in his appeal. Note the basis of Lutz ... sound familiar?

¹ Lutz v. Secretary of the Air Force, 944 F.2d 1477 (9th Cir. 1999)

The basis of all this, and his activity against Bush, is that he was asked to falsify records on Bush's behalf. He refused to do it and was thus blackballed by the TxNG.

So all these people mentioned in the lawsuit are out to get him.

That's his story. And I'm sure he won't be sticking to it much longer.

OR
The good LTC was pushing to get some kind of related disability so all or most of his retirement pay would be tax free.

I saw many officers (while active in USAF) collect flight pay up to their last month of active duty and 'somehow' become 100% disabled in that last month -- protecting their retirement pay from taxes and (maybe more important) from an ex-wife looking to glom onto the retirement check - remember this was about the time Patsy S (D Colo) was pushing to give ex-wives 1/2 of a retirement check 'because'..... Regulations were later (much later) changed because of the blatant abuse, making it harder for folks with real disabilities to get the certification.

or not.

The answer is obvious: Can't you see that Karl Rove, anticipating this person with inside information about the destruction of Bush Guard documents would be a problem, arranged for him to be sent to Panama, arranged to have him be exposed to some exotic illness that wouldn't manifest itself until after he returned, and did this knowing Texas courts would deny his claim. Thus, Rove effectively neutralized this whistleblower by making him seem like a disgruntled loon long before he produced the documents to Rather.

If you just read the DUmmies, it would all be perfectly clear to you.

I can't figure out what George Bush had to do with any of this.

Burkett has claimed, in the past, that he had been sent to Panama as punishment for refusing to "cleanse" Bush's file while Bush ran for governor. At least that is one of two different stories I've heard attributed to him about the President's personal file.

But in truth the guy is clearly crazy and does not need a rational excuse. As a member of the of the tin foil hat crowd, Burkett just needs an object to obsess on.

http://www.steveverdon.com/archives/politics/001110.html

"I self prescribed procaine penicillin g - from a veterinary source at one and one-half times the recommended doseage. Even with the massive doseage, it did not kill the disease organisms within my spine, but did provide nominal control"-Bill Burkett

oh, wow... yeah, I get it now... I should have been reading the forum on the DNC website all along... Thanks...

Seriously, the guy has NO credibility - the only thing weird about the whole story is that CBS would even hang a portion of their story on anything that could remotely be traced back to a source like this... or maybe they just didn't understand the resources that would be brought to bear. I have to say, I'm very impressed with most all that I read on here - quite a great bunch, and I look forward to hanging out with this crowd for some time to come!

I think the guy IS a looney-- see my blog at faithhopeandcharity.blogspot.com. To shed a little extra light-- a motion for summary judgment, which the court is ruling on is a motion that says, basically, even if everything you say is true, you have no legal claim against me. A motion to dismiss for lack of jurisdiction, is a motion that says to the court, you have no authority to rule on these claims. The court ruled on the latter motion, saying that these issues had to be raised in a millitary administrative proceeding, if at all. For purposes of either motion, the court accepts as true the allegations of the complaint, no matter how absurd they are. The reason for this posture is that everyone is entitled to have a trial if there is conflicting evidence on a factual issue. So the court says, assuming everything you, the plaintiff, say is true ( which the court may or may not believe) we are not the court to be hearing your claims.

Because we know Burkett is a nut case, we can't really believe that everything he (Burkett) said in this case is true. Courts often have to deal with nut cases and this is one of the ways they get out of wasting their time on lunatic fringe cases. It is one of the unfortunate facts of life that any paranoid with a pen and piece of paper can file a case. In this instance, Van Os, his lawyer apparently sifted out some of the loonier claims.

On another website where Burkett is lauding his lawyer, Van Os, he says he, Burkett has been involved in some 40 cases. When the person saying that is a retired military officer and not the head of some corporation, it is another sign of a nutcase. One of the things paranoid schizophrenics like to do is sue people.

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