Timothy Allen Bowers v. United States, 904 F.2d 450 (8th Cir. 1990). · Go Syfert
Timothy Allen Bowers v. United States, 904 F.2d 450 (8th Cir. 1990). Cases Citing This Book View Copy Cite
42 citation events (5 in the last 25 years) across 13 distinct courts.
Strongest positive: Presley v. Jackson Municipal Airport Authority (mssd, 2000-03-30)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) Presley v. Jackson Municipal Airport Authority
S.D. Miss. · 2000 · confidence medium
Moreover, as plaintiffs employment was governed by a “comprehensive military regulatory scheme” requiring, inter alia, that he meet specified medical criteria as a condition of his employment, it follows that any injury he suffered as a consequence of MSANG’s determination that he failed to meet those criteria “arose out of or was in the course of activity incident to service.” 13 Cf. Schoemer v. United States, 59 *764 F.3d 26, 30 (5th Cir.1995) (observing that “[t]here is no question that pre-induction physicals are activities incident to service.’ ’’)(quoting Bowers v. Unit…
discussed Cited as authority (rule) Dennis Backman and Jeanette Backman, Co-Personal Representatives of the Estate of Tama Jean Backman v. United States
10th Cir. · 1998 · confidence medium
This is the kind of suggestion we rarely make, and it of course is not binding on anyone, but we hope it will be heeded. 15 Bowers v. United States, 904 F.2d 450, 452 (8th Cir.1990). ** Honorable Frank J.
cited Cited as authority (rule) Backman v. United States
10th Cir. · 1998 · confidence medium
Bowers v. United States, 904 F.2d 450, 452 (8th Cir. 1990). 2
discussed Cited as authority (rule) Morse v. West
D. Colo. · 1997 · confidence medium
Miller v. United States, 42 F.3d 297, 300 (5th Cir.1995) (claims of Naval Academy cadet were barred by Feres because he was “in training for future military service as [an] officer[]”); Joseph v. United States, 505 F.2d 525, 526-27 (7th Cir.1974) (alleged negligence which occurred in preinduction physical while plaintiff was still a civilian was barred by Feres when the injury came about as a result of later military activity); Bowers v. United States, 904 F.2d 450, 451-52 (8th Cir.1990) (same); Jackson v. United States, 110 F.3d 1484, 1487-88 (9th Cir.1997) (claim of member of the Naval R…
discussed Cited as authority (rule) Wake v. United States
2d Cir. · 1996 · confidence medium
Similarly, Wake was only entitled to travel in the military vehicle because of her affiliation with the Navy. 36 Moreover, preinduction physicals, which by their nature occur prior to any "active duty" in the military, have also been held to be "incident to service." See, e.g., Schoemer v. United States, 59 F.3d 26, 30 (5th Cir.) (inactive reservist's preenlistment physical for National Guard was incident to service), cert. denied, --- U.S. ----, 116 S.Ct. 519 , 133 L.Ed.2d 427 (1995); Bowers v. United States, 904 F.2d 450, 452 (8th Cir.1990) ("there is no question that pre-induction physicals…
discussed Cited as authority (rule) Wake v. United States
2d Cir. · 1996 · confidence medium
Moreover, preinduetion physicals, which by their nature occur prior to any “active duty” in the military, have also been held to be “incident to service.” See, e.g., Schoemer v. United States, 59 F.3d 26, 30 (5th Cir.) (inactive reservist’s preenlistment physical for National Guard was incident to service), cert. denied, — U.S. -, 116 S.Ct. 519 , 133 L.Ed.2d 427 (1995); Bowers v. United States, 904 F.2d 450, 452 (8th Cir.1990) (“there is no question that pre-induction physicals are activities incident to service”); Hall v. United States, 528 F.Supp. 963, 966 (D.N.J.1981) (same)…
discussed Cited as authority (rule) Carianne C. Cutshall v. United States
8th Cir. · 1996 · confidence medium
See Johnson, 481 U.S. at 692-703 (Scalia, J., dissenting); Taber v. Maine, 67 F.3d 1029 (2d Cir. 1995) (correcting and superseding Taber v. Maine, 45 F.3d 598 (2d Cir. 1995); Bowers, 904 F.2d at 452 (reaching result with pronounced lack of enthusiasm).
discussed Cited as authority (rule) George Melvin Cannon v. United States
8th Cir. · 1995 · confidence medium
Sec. 2733 (b)(3) (1994) (excepting from MCA coverage injuries to military personnel which occurred incident to military service); Feres v. United States Army, 340 U.S. 135, 146 (1950) (holding FTCA provided no basis for jurisdiction where injuries allegedly caused by negligent military surgeons arose out of or were in course of activity incident to military service); Bowers v. United States, 904 F.2d 450, 451-52 (8th Cir.1990) (holding FTCA claim for allegedly negligent pre-induction physical by Air Force doctor was barred by Feres ).
discussed Cited as authority (rule) Schoemer v. United States (2×) also: Cited "see"
5th Cir. · 1995 · confidence medium
Since two of the three rationales were relevant, the Eighth Circuit applied Feres because “there is no question that pre-induction physicals are activities incident to service.” Id. at 452.
cited Cited as authority (rule) C.R.S. v. United States
D. Minnesota · 1991 · confidence medium
Id. at 452.
discussed Cited "see" Carter v. United States
SCOTUS · 2025 · signal: accord · confidence high
Evans Army Community Hosp., 786 F. 3d 817 , 822–823 (CA10 2015) (collecting cases); accord, Bowers v. United States, 904 F. 2d 450, 452 (CA8 1990) (applying Feres as “obligated” and “with a pronounced lack of enthu- siasm”).
cited Cited "see" Hays v. Cummins (In Re Cummins)
Bankr. W.D. Ark. · 1994 · signal: accord · confidence high
Accord United States v. Kroh, 896 F.2d 1524 , 1527 n. 4 (8th Cir.), vacated and reh’g en banc granted, 904 F.2d 450 (8th Cir.), opinion adopted, 915 F.2d 326 (8th Cir.1990). 12 .
discussed Cited "see, e.g." Gregory Maas, Frank Felinski, Richard Sciaraffa, and Gregory Binnebose v. United States (2×)
7th Cir. · 1996 · signal: see also · confidence medium
See Rogers, 902 F.2d at 1272 (serviceman's claim that military negligently arrested him on desertion charge even though plaintiff was not entitled to benefits relating to that charge barred by Feres); see also Bowers v. United States, 904 F.2d 450, 452 (8th Cir.1990) (applying Feres although plaintiff not entitled to military benefits); Maw v. United States, 733 F.2d 174, 176 (1st Cir.1984) (same). 17 The district court correctly held that the Feres doctrine bars plaintiffs' FTCA claims alleging that the military negligently exposed them to radiation during Project Crested Ice. 1 18 B.
cited Cited "see, e.g." Uhl v. Swanstrom
N.D. Iowa · 1995 · signal: see, e.g. · confidence low
See, e.g., Bowers v. United States, 904 F.2d 450 (8th Cir.1990). 16 .
Retrieving the full opinion text from the archive…
Timothy Allen BOWERS, Appellant,
v.
UNITED STATES of America, Appellee
89-1655.
Court of Appeals for the Eighth Circuit.
Jun 1, 1990.
904 F.2d 450
James E. Reeves, Caruthersville, Mo., for appellant., Lowell V. Sturgill, Jr., Washington, D.C., for appellee.
Arnold, Bowman, Heaney.
Cited by 18 opinions  |  Published
[*451] ARNOLD, Circuit Judge.

Timothy Allen Bowers sued the United States under the Federal Tort Claims Act. Bowers claimed that the doctor who examined him during his pre-induction physical for the Air Force should have discovered the cancer then present in his body. Instead, the doctor pronounced Bowers fit for duty. Bowers’s cancer went untreated (thus the harm from the doctor’s alleged negligence). Bowers was then sworn in to the Air Force Reserve. He was scheduled to report for active duty some five months later. In the interim, a civilian doctor discovered and treated his cancer. The Air Force learned of Bowers’s condition and discharged him before he reported for active duty. Because he never entered on active military service, Bowers was not eligible for either military medical care or Veterans Administration care and benefits. 38 U.S.C. § 331.

The District Court [1] dismissed Bowers’s suit alleging negligence in the Air Force’s pre-induction medical exam. The Court applied the principles of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), in granting the government’s motion. That case excludes from the Federal Tort Claims Act cases brought by military personnel who allege governmental negligence in circumstances arising out of or incident to their service. The sole question in this case is the reach of Feres. Bowers took this appeal, and we affirm.

Whether the Feres doctrine applies to bar the action in this case is a question that has given us some difficulty. After a careful study of United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), the Supreme Court’s latest opinion on the subject, we conclude that precedent requires us to hold that the action is barred. In Johnson, a service member was killed during the course of an activity incident to service, but the alleged negligence was that of civilian employees of the United States, not of military personnel. Nevertheless, the Supreme Court held that Feres was a bar to the action. status of the alleged tortfeasor, whether civilian or military, was not relevant. The Court stated its views in broad terms: “[T]he Feres doctrine has been applied consistently to bar all suits on behalf of service members against the Government based upon service-related injuries. We decline to modify the doctrine at this late date.” Id. at 687-88, 107 S.Ct. at 2067 (footnote omitted).

The Court then went on to examine the various rationales that have from time to time been suggested as a basis for the Feres principle. First, it noted that the family of the deceased service member in the case before it would receive benefits under the Veterans’ Benefits Act, 72 Stat. 1118, as amended, 38 U.S.C. § 301 et seq. Second, it noted the distinctively federal character of the relationship between the government and service members and emphasized that the decedent was on active duty and performing military duties at the time of his death. The location of the alleged negligence should not affect the liability of the government to the service member, the Court said. And finally, the Court noted that the claim before it, if allowed to proceed, would involve the Judiciary in sensitive military judgments. Such judgments and decisions “are inextricably intertwined with the conduct of the military mission,” id. at 691, 107 S.Ct. at 2069 (footnote omitted), and judges should not be allowed, through the course of case-by-case adjudication, to affect such judgments and decisions.

Both Bowers and the United States can justly claim to find some support in the language of the Johnson opinion. Bowers was not a service member at the time of the alleged • negligence, and he had been discharged by the time he brought this action. No veterans’ benefits are available, not even treatment at a military hospital, because the Air Force, following its own regulations, discharged Bowers, before he entered on active duty, when it learned of[*452] the disease from which he suffered. Two of the Feres rationales, however, do clearly apply here. First, the relationship between Bowers and the armed forces is distinctively federal, and the relationship would be disrupted by the application of the laws of the several states on medical malpractice, depending on where various alleged incidents of negligence occurred. Second, a court decision that the physicians who examined Bowers were negligent would have a direct effect upon military judgments and decisions. The availability of a negligence action for mistakes made in pre-induction physical examinations would no doubt cause the armed forces to put more personnel, more money, and so forth into the conduct of these physical examinations. Indeed, that is one purpose of the law of negligence: to deter future accidents by encouraging potential tortfeasors to be more careful. Yet, such an effect on the allocation of military resources is precisely the kind of thing that the Feres doctrine is supposed to prevent. Such decisions are to be made by the military itself, we are told, and not by courts.

We conclude that we are obligated to affirm this judgment. We reach this result with a pronounced lack of enthusiasm. But there is no question that pre-induction physicals are activities incident to service, and that two out of the three bases for the Feres doctrine apply here. Perhaps a remedy ought to be available, but that decision is not ours to make. It is for Congress, arid Congress has chosen not to allow this kind of action. Or, at least, the Supreme Court has interpreted the words of Congress in such a way as not to allow this kind of action, and that is the same thing as far as judges of inferior courts are concerned.

We do not know whether there is anything that the defendant may lawfully do for this plaintiff, by way of treatment or other consideration. Indeed, the plaintiff, with the experience he has had of government physicians, may not want any such treatment. We take the liberty of urging, however, that the defendant, if it believes that some negligence may actually have occurred here, consider what steps can be appropriately taken to help the plaintiff. This is the kind of suggestion we rarely make, and it of course is not binding on anyone, but we hope it will be heeded.

The judgment is affirmed.

1

. The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern and Western Districts of Missouri.