United States America v. Ardell Lee

CARTER, Circuit Judge: This is a Tort Claim case, where the personal representatives and dependents of two servicemen brought suit against the government,
due to the death of the servicemen in a crash of a military aircraft. The government moved to dismiss the complaint on the
basis of Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950). The motion was denied; the trial court
filed an opinion, Ardell Lee, etc. et al. v. United States, 261 F. Supp. 252. (Cen. Dist. of Calif. 1966). The district court
denied a timely motion for reconsideration, but certified that its denial involved a controlling question of law, and that
an immediate appeal would materially advance the termination of the litigation. On March 23, 1967, this court, pursuant to
28 U.S.C. § 1292(b) and this court's Rule 38, granted the government's application for leave to take an interlocutory appeal.