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Hendry v. United States

decided: November 12, 1969.

ERNEST J. HENDRY, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE



Waterman, Friendly and Kaufman, Circuit Judges.

Author: Waterman

WATERMAN, Circuit Judge:

Appellant was licensed in 1943 by the U.S. Coast Guard pursuant to authority contained in 46 U.S.C. § 224 as qualified "to sail as Master of a steam vessel of any gross tonnage upon the oceans of the world,"*fn1 and until 1962 served on Merchant Marine vessels as a deck or watch officer. In March 1962 he complained to the Coast Guard that while serving on an oil tanker he had been assaulted and threatened by the captain of the vessel. A Coast Guard investigation ensued and the investigation report concluded that these accusations were unfounded. The report reached the same conclusions about an earlier similar complaint by the appellant. According to the report, various interviewed crew members felt Hendry was "always complaining" and was "under the illusion that everyone was against him." They also said that "some of his actions appear[ed] to be bizarre." The Philadelphia office of Hendry's union declined to participate in the investigation but did state that Hendry "had a history of registering complaints." The recommendation of the investigation report was that, although appellant was apparently a well qualified officer, he possibly might be unfit for duty because of his apparent inability to get along with his shipmates.

Upon the request of the Senior Investigating Officer, appellant voluntarily agreed to deposit his license with the Coast Guard "until such time as I am declared fit for sea duty by the U.S. Public Health Service." He further agreed that "pending my certification as fit for sea duty, I will not accept employment on any merchant vessel of the United States."

Pursuant to the applicable federal regulations appellant underwent a psychiatric examination at a United States Public Health Hospital on Staten Island on April 5. The initial report of the examining psychiatrist, Dr. Ramirez, stated:

This is the case of a man 42 years, married, working in the Merchant Marine. This man is in a special situation because he had a trouble with his boss. They had an intense and violent disagreement. His intelligence is normal. Ideas are well coordinated. Reasonable. Emotional normal. Connation normal. Sleep O.K. Diagnostic-normality? Normality apparently in his family.

At the trial Dr. Ramirez testified that the question mark after "Diagnostic-normality?" reflected doubts in his mind about this conclusion, but inasmuch as he had little to go on, he declared the appellant "fit."

The day following this examination Dr. Ramirez received a copy of the Coast Guard report on the appellant and certain letters written by Hendry to the Coast Guard. After seeing these items Dr. Ramirez recommended a further examination, using psychological tests, and appellant was examined by a clinical psychologist at the hospital. Dr. Feuerburgh, the examining clinical psychologist, sent a report to Dr. Ramirez which stated that psychological tests revealed a personality

"with a latent paranoid thinking disorder * * * from the record this is a man who has difficulty in getting along with people * * * we have evidence of a pattern of responses consistent with a paranoid schizophrenic condition * * * (he) does not show the ego defenses to be able to be regarded as now suitable for active duty * * * he should be encouraged to seek psychotherapy."

Upon considering Dr. Feurerburgh's report and the Coast Guard report Dr. Ramirez reviewed his own examination of appellant and this time concluded that appellant was not fit for sea duty and that his case should be reevaluated in six months.

Appellant objected to this conclusion, enlisted the aid of union representatives, and underwent a psychiatric examination by a private psychiatrist. This psychiatrist arrived at a different conclusion about Hendry's "fitness" from that reached by Dr. Ramirez. Thereafter appellant procured a Coast Guard reexamination by the Chief of the Psychiatric Service, Dr. Paul Smith. Dr. Smith's findings, filed on July 6, 1962, were as follows:

"After a complete review of the available documents and the information of all sorts already available in our clinical record, it is my opinion that an appropriate diagnostic label for this man would be a paranoid personality. He shows the sensitivity, the suspiciousness, the stubbornness and the tendency to utilize the mechanism of projection, characteristic of such a personality type. I do not believe however, that his psychological state is disabling at this time nor does it seem likely to become so in the foreseeable future. He is accordingly fit for duty at sea psychiatrically."

As a result of this reexamination report the Coast Guard restored appellant's license to him and he was pronounced fit for sea duty.

The within action was then instituted. Appellant seeks $50,000 in alleged damages caused by the claimed negligence and malpractice of the agents of the United States, Doctors Ramirez and Feuerburgh, professional employees of the U.S. Public Health Service.*fn2 Jurisdiction was based on the Federal Tort Claims Act, Title 28 U.S.C. § 1346(b), § 2671 et seq. Hendry claimed that negligent psychiatric examinations by the doctors caused him to lose wages for the period of three and one half months that elapsed during the suspension of his license. He also claimed that, as a result of these negligent examinations, he suffered mental and physical hardship and anguish and was damaged in his reputation.

After the filing of an extensive pretrial order the case was tried in the United States District Court for the Southern District of New York by Judge Pollack sitting without a jury; and after the evidence had been concluded he dismissed the cause for lack of subject matter jurisdiction and, alternatively, gave judgment to the defendant United States on the merits. His opinion is reported at 280 F. Supp. 27 (SDNY 1968). In dismissing the action for lack of jurisdiction the court below relied upon ...


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