Gonzalez v. USAF ( 2004 )


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  •                                                                          F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                           UNITED STATES COURT OF APPEALS
                                                                              FEB 24 2004
                                        TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk
    
     NICOLETTE M. GONZALEZ,
    
               Plaintiff - Appellant,
                                                            No. 03-6047
     vs.                                              (D.C. No. CIV-02-629-A)
                                                            (W.D. Okla.)
     UNITED STATES AIR FORCE,
    
               Defendant - Appellee.
    
    
                                  ORDER AND JUDGMENT *
    
    
    Before KELLY, LUCERO, and O’BRIEN, Circuit Judges.
    
    
    
           Plaintiff-Appellant Nicolette M. Gonzalez appeals from the district court’s
    
    judgment dismissing her complaint with prejudice. After raising the possibility of
    
    lack of subject matter jurisdiction based upon Feres v. United States, 
    340 U.S. 135
     (1950), and allowing the Plaintiff to respond, the district court dismissed
    
    Plaintiff’s FTCA claims. Subsequently, the court granted the government’s
    
    motion to dismiss the remaining claims. We exercise jurisdiction pursuant to 28
    
    
    
           *
            This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    U.S.C. § 1291. Though this case involves tragic facts, we affirm.
    
    
    
                                        Background
    
          The events giving rise to this lawsuit took place in 1999, while Plaintiff
    
    was an active duty member of the United States Air Force. In July of that year
    
    Plaintiff was temporarily assigned to Altus Air Force Base, Oklahoma, for
    
    training. On the afternoon of July 19, Plaintiff attended an on-base party which
    
    was taking place in an open patio or “mod” area in the vicinity of the enlisted
    
    barracks. Both military and civilian personnel were in attendance at the party.
    
    Despite Plaintiff’s status as a minor, alcoholic beverages were readily available.
    
    She had too much to drink and became ill. She was then assisted in returning to
    
    her barracks by two service members including one Kerry Nazario, her would-be
    
    attacker.
    
           Airman Nazario then was served alcohol at the E-Club on base. At some
    
    point during the evening, while Plaintiff slept, Airman Nazario returned to
    
    Plaintiff’s room and raped her. His access to Plaintiff’s room was facilitated by
    
    the fact that the door to her assigned floor had been left unlocked, ostensibly
    
    because it proved very difficult for authorized residents to unlock, even with the
    
    appropriate key. Further, the door to Plaintiff’s room had been left ajar because
    
    the air conditioning in the barracks was not functioning properly that evening.
    
    
                                             -2-
    Airman Nazario was convicted by court martial of unlawful entry, rape, and
    
    fraudulent enlistment.
    
          Thereafter, Plaintiff initiated this action seeking monetary relief in federal
    
    court based upon various federal and state law theories. She sought relief under
    
    the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 for negligence,
    
    gross negligence, and violation of statutory duties, and under 42 U.S.C. § 1981
    
    and Title VII, 42 U.S.C. § 2000e et. seq. for violation of civil rights. Aplt. App.
    
    at 1. She also included supplemental state law claims for breach of contract and
    
    fiduciary duties, and intrusion upon seclusion. Id. at 9. The district court
    
    dismissed the FTCA claims for lack of subject matter jurisdiction based upon the
    
    Feres doctrine. Id. at 31-41. It dismissed the civil rights claims for failing to state
    
    a claim under Fed. R. Civ. P. 12(b)(6). Aplt. App. at 51-56. Thereafter, Plaintiff
    
    sought the trial judge’s recusal under 28 U.S.C. § 455(a). The district court
    
    declined to recuse and then dismissed Plaintiff’s breach of contract and fiduciary
    
    duty claims based on lack of subject matter jurisdiction and failure to state a
    
    claim, Fed. R. Civ. P. 12(b)(1) and (6). Aplt. App. at 95-98.
    
          On appeal, Plaintiff contends that the district court erred (1) in ruling that a
    
    Dram Shop action based on Oklahoma public policy was barred by the Feres
    
    doctrine, (2) in dismissing her breach of contract and breach of fiduciary duty
    
    claims, (3) in dismissing her civil rights claims, and (4) in declining to recuse on
    
    
                                              -3-
    the basis of perceived bias or partiality.
    
    
    
                                          Discussion
    
          A. Standard of Review
    
          The district court premised its dismissal of Plaintiff’s FTCA claims on a
    
    lack of subject matter jurisdiction. In reaching this result, the district court
    
    reasoned that pursuant to the Feres doctrine, the FTCA’s limited waiver of
    
    sovereign immunity did not extend to her claims. The court therefore lacked
    
    subject matter jurisdiction. Our cases, however, clearly hold that a dismissal of
    
    claims on the basis of the Feres doctrine is not purely jurisdictional, but
    
    implicates merits issues as well. See Pringle v. United States, 
    208 F.3d 1220
    ,
    
    1223-24 (10th Cir. 2000). Accordingly, this dismissal must be reviewed as would
    
    a grant of summary judgment. See Bell v. United States, 
    127 F.3d 1226
    , 1228
    
    (10th Cir. 1997). “Our summary judgment standard of review requires us to
    
    determine de novo whether there is any genuine disputed issue of material fact
    
    and whether the prevailing party was entitled to judgment as a matter of law.”
    
    Pringle, 208 F.3d at 1223. Having reviewed the record and the briefs, we
    
    conclude that there is no genuine issue of material fact. Thus we will review the
    
    district court’s legal conclusions supporting dismissal of Plaintiff’s FTCA claims
    
    de novo.
    
    
                                                 -4-
          The district court dismissed Plaintiff’s claims for violation of 42 U.S.C. §
    
    1981 and Title VII under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
    
    Aplt. App. at 51-56. We review de novo dismissals for failure to state a claim
    
    under Rule 12(b)(6). Colo. Envtl. Coalition v. Wenker, No. 02-1254, 
    2004 WL 34490
    , at *4 (10th Cir. Jan. 7, 2004). The district court dismissed Gonzalez’s
    
    claims for breach of contract and breach of fiduciary duty under Fed. R. Civ. P.
    
    12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a
    
    claim. Aplt. App. at 95. Application of either of these standards is reviewed de
    
    novo. Wenker, 
    2004 WL 34490
    , at *4.
    
          B.     FTCA Claims
    
          In her original complaint, Plaintiff asserted claims of common law
    
    negligence based on the Air Force’s failure properly to supervise Airman Nazario,
    
    its failure properly to maintain the barracks to which she was assigned, its failure
    
    adequately to check Nazario’s criminal background prior to permitting his
    
    enlistment, and its failure to prevent intrusion into her seclusion. She also alleged
    
    violation of duties statutorily imposed by Oklahoma’s Dram Shop Act, Okla. Stat.
    
    Ann. tit. 37, § 537. The district court found each of these claims barred by Feres.
    
    On appeal, Plaintiff does not challenge the dismissal of her claims based on
    
    common law tort, but does challenge the district court’s dismissal of her action
    
    claiming violation of duties that she characterizes as expressly arising under
    
    
                                             -5-
    statute.
    
           “Absent a waiver of sovereign immunity, the Federal Government is
    
    immune from suit.” Loeffler v. Frank, 
    486 U.S. 549
    , 554 (1988). Congress has,
    
    however, provided a limited statutory exception to the general rule of sovereign
    
    immunity, allowing for recovery of monetary damages by those injured due to the
    
    negligent actions of government employees. See 28 U.S.C. §§ 1346(b), 2671-80.
    
    This waiver, contained in the Federal Tort Claims Act, grants the district courts
    
    jurisdiction over claims “for injury or loss of property, or personal injury or death
    
    caused by the negligent or wrongful act or omission of any employee of the
    
    Government while acting within the scope of his office or employment.” 28
    
    U.S.C. § 1346(b).
    
           In Feres, the Supreme Court held the FTCA’s waiver of sovereign immunity
    
    inapplicable to suits “for injuries to servicemen where the injuries arise out of or
    
    are in the course of activity incident to service.” 340 U.S. at 146. The primary
    
    justifications advanced in support of this result were (1) a desire to see the
    
    military regime governed exclusively by federal law rather than disparate state
    
    laws which would make the availability of recovery depend upon the purely
    
    coincidental location of one’s duty station; (2) a general hesitancy on the part of
    
    the judiciary to second guess decisions regarding command and discipline within
    
    the military structure; and (3) the ready availability of an alternative
    
    
                                              -6-
    compensatory scheme for injured service personnel. See id. at 143-45.
    
          Later cases from this and other circuits concerning this doctrine generally
    
    focus on the question whether a given injury was “incident to service.” In Dreier
    
    v. United States, 
    106 F.3d 844
    , 848 (9th Cir. 1997), the Ninth Circuit set forth
    
    four factors to be used as guides in determining whether a given injury was
    
    incident to service and thus barred by Feres. The four factors are
    
          (1) the place where the negligent conduct occurred; (2) the duty
          status of the plaintiff when the negligent act occurred; (3) the
          benefits accruing to the plaintiff because of his status as a service
          member; and (4) the nature of the plaintiff’s activities at the time the
          negligent act occurred.
    
    Id.
    
          In deciding whether Feres acts as a jurisdictional bar to recovery, this court
    
    has used the four Dreier factors as general guideposts. We applied those factors
    
    in Pringle, 208 F.3d at 1224. There the plaintiff, an active duty member of the
    
    Army, sued the United States seeking monetary relief for injuries suffered when
    
    he was severely beaten outside a social club operated by the Army and located on
    
    a military base. Finding plaintiff’s claim barred by Feres, this court stressed that
    
    plaintiff was an active duty member of the Army at the time of his injury, and that
    
    his injury occurred on military property. Further, plaintiff was afforded access to
    
    the club by virtue of his status as a member of the Army, and was “subject to
    
    military discipline and control while at the club.” Id. at 1226. Subjecting these
    
    
                                             -7-
    factors to a policy analysis, the court held that permitting liability would “result
    
    in much second-guessing of military decisions and involve judicial inquiry into
    
    military affairs which may impair military discipline and effectiveness.” Id. at
    
    1227 (quoting Pringle v. United States, 
    44 F. Supp. 2d 1168
    , 1176 (D. Kan.
    
    1999)).
    
          In Corey v. United States, No. 96-6409, 
    1997 WL 474521
    , at *3-5 (10th
    
    Cir. Aug. 20, 1997), an unpublished order and judgment, this court applied the
    
    same analytical framework to a factual scenario quite similar to that in the present
    
    case. There the plaintiff, an active duty member of the Air Force, attended an on-
    
    base party at which she was sexually assaulted by a senior officer. Finding her
    
    suit against the Air Force barred by Feres, this court found that plaintiff’s
    
    attendance at the party “was a consequence of her military status” because the
    
    “party occurred on base and was organized and attended by military members.”
    
    Id. at *5. As a supporting policy rationale, the court explained that “[a]llowing
    
    [this] lawsuit to proceed . . . would be inviting the district court to second-guess
    
    the military decisions made concerning the conduct that occurred at the on-base
    
    party. . . . This is precisely the type of second-guessing and intrusion into
    
    military affairs that the Feres doctrine was designed to prevent.” Id.
    
          Application of this analytical framework to the present case leads us to
    
    conclude that Plaintiff’s claims are barred by Feres. Plaintiff’s injuries occurred
    
    
                                              -8-
    on a military base while she was on active duty as a member of the Air Force and
    
    while she was subject to military discipline and control, all of which counsel in
    
    favor of finding this action barred by Feres. Plaintiff attempts to avoid
    
    application of Feres by arguing that the activities giving rise to liability here are
    
    not incident to military service. Neither “Plaintiff’s being served alcohol at the
    
    open party” nor “sleeping while in an impaired condition” are “consequence[s] of
    
    her military status []or her military activities.” Aplt. Br. at 17-18 (emphasis
    
    omitted). Thus, she argues, deciding liability in this case would not “invit[e] the
    
    court to second guess any military decision.” Id. at 17. We analyze each of these
    
    activities in turn to determine whether they constitute activities incident to
    
    service under Feres.
    
          In general, the applicable test for whether an activity is incident to service
    
    is far broader than Plaintiff suggests, encompassing most recreational and social
    
    opportunities afforded to service members by the military. See Bon v. United
    
    States, 
    802 F.2d 1092
    , 1095-96 (9th Cir. 1986) (finding claims arising from
    
    recreational boating accident barred by Feres). Plaintiff’s attendance at the party
    
    which arguably gave rise to her injuries was a direct consequence of her military
    
    status. See Pringle, 208 F.3d at 1226. The fact that the party was attended by
    
    civilians as well as military personnel does not vitiate the fact that her attendance
    
    at the party was a direct consequence of her enlisted status. Although the party
    
    
                                              -9-
    here took place in an open “mod” area in the vicinity of barracks provided for
    
    enlisted personnel, rather than in a social club as in Pringle, Plaintiff does not
    
    allege that the “mod” area was essentially open to the public. See Dreier, 106
    
    F.3d at 853 (finding Feres doctrine inapplicable when situs of soldier’s injury was
    
    readily accessible by the general public). Plaintiff also was subject to military
    
    discipline and control while at the party. Thus, contrary to Plaintiff’s suggestion,
    
    imposition of liability here, as in Corey, would serve to second-guess military
    
    policy concerning military discipline and training.
    
          The same is true of Plaintiff’s claim that “sleeping in an impaired state” is
    
    not an activity incident to service. Although this activity, like Plaintiff’s
    
    attendance at the party, may not have been done in direct furtherance of a military
    
    objective, it nonetheless occurred on a military base while she was subject to
    
    military control and discipline. It implicates military experience and judgment.
    
          Plaintiff’s second argument against application of Feres here is that the
    
    duties she claims the Air Force breached are not a product of the common law
    
    tort, but rather arise expressly through statute. Accordingly, claims based upon
    
    those duties are not barred by Feres. Her claim is that by permitting alcohol to be
    
    served to her as well as her assailant, the Air Force violated a duty to minors
    
    imposed by the Dram Shop Act in Oklahoma. See Okla. Stat. Ann. tit. 37, § 537.
    
          In support of her argument, Gonzalez cites Hallett v. United States
    
    
                                             - 10 -
    Department of Navy, 
    850 F. Supp. 874
     (D. Nev. 1994), for the proposition that a
    
    duty imposed by state law precludes an exception to the waiver of liability
    
    contained in the FTCA. The argument represents, to be charitable, an extreme
    
    misreading of that case. There, plaintiffs, all non-military personnel, sought
    
    recovery against the United States for sexual assaults which took place during the
    
    1990 and 1991 Tailhook conventions in Las Vegas. The pertinent issue before
    
    the court was whether the FTCA permitted governmental liability for any claims
    
    arising out of an instance of assault and battery. Discussing the limitations of the
    
    FTCA, the court explained that “the assault and battery exception does not bar
    
    recovery when a negligence claim against the government arises out of an
    
    incident of battery . . . when the government’s liability is based on its breach of a
    
    duty owed the victim that is independent of its relationship . . . to the
    
    perpetrator.” Id. at 878. The court thus explained that determining whether the
    
    government could be held liable under the FTCA required a prior determination
    
    of whether the government owed an independent duty to plaintiffs under Nevada
    
    law. Id. Nowhere did the court state, or even imply, that state substantive law
    
    could stretch the bounds of the FTCA. What is more, Hallett did not address the
    
    preclusive effects of the Feres doctrine. As all plaintiffs were non-military
    
    personnel, Feres was inapplicable. Plaintiff’s reliance on Hallett is therefore
    
    misplaced.
    
    
                                             - 11 -
          Plaintiff’s distinction between claims based on common law and claims
    
    based on statutorily imposed duties must fail as it is contrary to both the express
    
    holding in Feres and the policy considerations supporting that decision. In Feres,
    
    the Court made no distinction between claims based on the supporting legal
    
    theory, holding only that “the Government is not liable under the [FTCA] for
    
    injuries to servicemen where the injuries arise out of or are in the course of
    
    activity incident to service.” 340 U.S. at 146. Such language clearly covers both
    
    injuries sustained as a result of breach of common law, as well as statutory duties.
    
    Furthermore, validating this distinction would only serve to realize an additional
    
    problem that the Court in Feres sought to avoid, namely the subjection of a
    
    traditionally federal institution to liability based on disparate state laws.
    
          C.     Breach of Contract and Breach of Fiduciary Duty
    
          Plaintiff also claimed damages under the Little Tucker Act, 28 U.S.C.
    
    § 1346(a)(2), for breach of an implied-in-fact contract between herself and the
    
    Air Force. Specifically, Plaintiff states that as a matter of law, the Air Force is
    
    required to follow its own internal regulations, and that these regulations
    
    expressly incorporate state law as concerns the distribution of alcohol to minors.
    
    Aplt. Br. at 20-21. This coupling of internal regulations with requirements of
    
    state law, Plaintiff contends, gives rise to a contract implied-in-fact on which
    
    Gonzalez was justified in relying. Consequently, she argues that breach of this
    
    
                                              - 12 -
    contract gives rise to governmental liability under the Little Tucker Act, which
    
    provides a jurisdictional grant for claims up to $10,000 founded “upon any
    
    express or implied contract with the United States.” 28 U.S.C. § 1346(a)(2). 1
    
          Section 1346, however, “is itself only a jurisdictional statute; it does not
    
    create any substantive right enforceable against the United States for money
    
    damages.” United States v. Testan, 
    424 U.S. 392
    , 398 (1976). In order to
    
    recover against the United States on the basis of an implied contract, Plaintiff
    
    must couple her reliance on the Tucker Act with a statute or provision expressly
    
    authorizing monetary damages. See Army & Air Force Exch. Serv. v. Sheehan,
    
    
    456 U.S. 728
    , 739-40 (1982) (“As Testan makes clear, jurisdiction over
    
    respondent’s complaint cannot be premised on the asserted violation of
    
    regulations that do not specifically authorize awards of money damages.”).
    
          Plaintiff recognizes this line of authority and readily admits her inability to
    
    find a statute mandating monetary compensation for this type of violation.
    
    Instead, she relies upon Air Force regulations incorporating the Oklahoma Dram
    
    Shop Act and argues that, by incorporating this state statute into its regulations,
    
    
    
          1
            As an additional basis for rejection of Plaintiff’s claims here, we note that
    the relationship between a member of the armed forces and the government
    “do[es] not turn on contract doctrines but are matters of legal status even where
    compacts are made.” Kania v. United States, 
    650 F.2d 264
    , 268 (Ct. Cl. 1981).
    Thus, her reliance on contract principles as a basis for her claims against the
    military is misplaced.
    
                                            - 13 -
    the Air Force also incorporated the liability provisions. See Aplt. Br. at 23.
    
          Despite the fact that Oklahoma courts have read the Dram Shop Act as
    
    giving rise to a private right of action for its violation, see Brigance v. Velvet
    
    Dove Rest, Inc., 
    725 P.2d 300
    , 301 (Okla. 1986), no express or implied mandate
    
    for compensation by the federal government contemplated in Testan and Sheehan
    
    exists. See also United States v. Mitchell, 
    463 U.S. 206
    , 216-17 (1983). It goes
    
    without saying that the presence of a private right of action grounded in state law
    
    does not explicitly authorize the assessment of monetary damages against the
    
    federal government, particularly given the need for an express waiver of
    
    sovereign immunity.
    
          D.     Section 1981 and Title VII Claims
    
          Plaintiff claims that the district court erred in dismissing her claims under
    
    42 U.S.C. § 1981 and Title VII. Although the legal arguments on appeal are
    
    lacking in detail, these claims fail as a matter of law. Section 1981 and Title VII
    
    are both statutes designed to eliminate invidious discrimination by state and
    
    private actors. Section 1981, therefore, is limited in its applicability to actions
    
    taken “under color of State law.” 42 U.S.C. § 1981(c); see Davis-Warren
    
    Auctioneers v. FDIC, 
    215 F.3d 1159
    , 1161 (10th Cir. 2000). The military acts
    
    under color of federal rather than state law, rendering § 1981 inapplicable here.
    
    Further, a viable § 1981 claim requires that Plaintiff allege discrimination on the
    
    
                                             - 14 -
    basis of race. Reynolds v. Sch. Dist. No. 1, 
    69 F.3d 1523
    , 1532 (10th Cir. 1995).
    
    Nowhere does her complaint allege that she was discriminated against on the
    
    basis of her race. For these basic reasons, the § 1981 claim fails.
    
          As to her claim for relief under Title VII, this court has clearly held Title
    
    VII inapplicable to members of the armed forces. See Salazar v. Heckler, 
    787 F.2d 527
    , 530 (10th Cir. 1986); Randall v. United States, 
    95 F.3d 339
    , 344 (4th
    
    Cir. 1996) (same). Plaintiff’s Title VII claims were, therefore, properly
    
    dismissed.
    
          E. Motion for Recusal
    
          Plaintiff moved to have the district judge recuse himself from further
    
    participation in the case due to perceived bias. The district court denied
    
    Plaintiff’s motion. Plaintiff now appeals that denial, but only insofar as it might
    
    apply to subsequent proceedings in the district court. Plaintiff does not seek to
    
    have the dismissal of her complaint vacated on this basis. Though this unusual
    
    request for relief detracts somewhat from the overall force of Plaintiff’s
    
    argument, the issue was raised below and we review the denial of a motion to
    
    recuse for abuse of discretion. Higganbotham v. Oklahoma ex rel. Okla. Transp.
    
    Comm’n., 
    328 F.3d 638
    , 645 (10th Cir. 2003).
    
          “Any justice, judge, or magistrate of the United States shall disqualify
    
    himself in any proceeding in which his impartiality might be questioned.” 28
    
    
                                            - 15 -
    U.S.C. § 455. Plaintiff contends that the district judge’s background as a career
    
    military lawyer combined with his raising the jurisdictional issue concerning
    
    Plaintiff’s negligence claims render his actions susceptible to a perception of
    
    partiality. Our cases make clear, however, that adverse rulings alone do not
    
    constitute a basis for recusal. Sac & Fox Nation v. Cuomo, 
    193 F.3d 1162
    , 1168
    
    (10th Cir. 1999). Clearly, it was not improper for the district judge to raise the
    
    issue of subject matter jurisdiction. Jurisdiction is an essential prerequisite to the
    
    existence of a justiciable controversy and it is the duty of the court to ensure its
    
    own jurisdiction even if the parties fail to raise the issue. Okla. Tpk. Auth. v.
    
    Bruner, 
    259 F.3d 1236
    , 1241 (10th Cir. 2001). Finally, there is no evidence
    
    supporting Plaintiff’s suggestion that the district judge’s career as a military
    
    lawyer creates an appearance or risk of partiality.
    
          The judgment of the district court dismissing the complaint is therefore
    
    AFFIRMED.
    
                                            Entered for the Court
    
    
                                            Paul J. Kelly, Jr.
                                            Circuit Judge
    
    
    
    
                                             - 16 -
    No. 03-6047, Gonzalez v. United States Air Force
    
    LUCERO, J., concurring.
    
          Neither disagreement with the result reached, nor the analysis pursued by
    
    the majority prompt me to write separately in this case. I thus join the majority
    
    opinion. What does prompt me to write separately is my concern that the Feres
    
    doctrine, Feres v. United States, 
    340 U.S. 135
     (1950), used here to bar claims
    
    arising from sexual assault, has grown far afield from the unremarkable facts that
    
    led to its pronouncement by the Court in 1950.
    
          Our circuit’s holding in Pringle, interpreting Feres’ “incident to service”
    
    language to apply to “all injuries suffered by military personnel that are even
    
    remotely related to the individual’s status as a member of the military,” Pringle,
    
    
    208 F.3d 1220
    , 1223–24 (10th Cir. 2000) (citations omitted), compels the result
    
    we reach today. So broad is that language that, remarkably, we now consider
    
    sexual assault as “incident to service.” As noted in the majority opinion, a case
    
    factually similar to this one—barring recovery for sexual assault of a female
    
    airman—was not considered precedential. See, e.g., Corey v. United States, No.
    
    96-6409, 
    1997 WL 474521
     (10th Cir. Aug. 20, 1997) (unpublished). Nor under
    
    the broad Feres-Pringle standard, is this case precedential.
    
          Because neither the facts nor the holding in Feres suggest that the Supreme
    
    Court intended such an expansive reach, it is my belief that such an interpretation
    
    should be reconsidered. Notably, the year before Feres was decided, the Supreme
    Court heard Brooks v. United States, 
    337 U.S. 49
     (1949). 1 In Brooks, the Court
    
    held that two service members, who were injured while off-base and on leave by a
    
    negligently driven Army truck, were not barred from recovering under the FTCA
    
    because the accident “had nothing to do with [their] army careers” and their
    
    “injuries [were] not caused by their service except in the sense that all human
    
    events depend upon what has already transpired.” Id. at 52.
    
              In contrast, Feres involved three consolidated cases, all of which
    
    considered injuries that “ar[ose] out of or in the course of military duty.” 340
    
    U.S. at 146. Justice Jackson, speaking for the court in Feres, was careful to
    
    distinguish the plaintiffs in Brooks from the plaintiffs in Feres, observing that the
    
    plaintiffs in Brooks were not on duty, under no orders, and not on a mission;
    
    therefore, their “relationship while on leave was not analogous to that of a soldier
    
    injured while performing duties under orders.” Id.
    
          As in Brooks, the sexual assault of Airman Gonzalez cannot be compared
    
    to injuries received while performing duties under orders. Surely, no one should
    
    suggest that when young Americans sign up for military service, they can expect
    
    that potential sexual assaults upon them will be routinely considered “incident” to
    
    that service. The only link between the sexual assault of Airman Gonzalez and
    
    
          1
             Brooks has neither been overruled nor expressly disapproved of by the
    Court. See United States v. Johnson, 
    481 U.S. 681
    , 698 (1987) (Scalia, J.,
    dissenting).
    
                                               -2-
    her military service is attenuated at best, in the same sense as considered and
    
    rejected in Brooks. Brooks, 337 U.S. at 52.
    
          Thus it seems to me that were we deciding this case under the authoritative
    
    holding of Brooks, rather than the tangential interpretation of Feres, which our
    
    circuit and other circuits have followed, the result today would be different. It is
    
    my hope that the expansive reach of Feres will be revisited.
    
    
    
    
                                             -3-