Costo v. United States , 248 F.3d 863 ( 2001 )

Opinion by Judge McKEOWN; Dissent by Judge FERGUSON.

McKEOWN, Circuit Judge:

This tort case is a suit stemming from a personal tragedy. Nollie Costo and Christopher Graham drowned during an employer-sponsored rafting trip, and their estates sued their employer for negligence. But their employer is not an ordinary one. It is the United States Navy. Thus, the suit is barred unless the United States has waived its sovereign immunity. To determine whether the suit can properly proceed, we must confront — yet again — the Feres doctrine, which limits the United States’ waiver of sovereign immunity. We conclude that this suit falls within the doctrine’s ever-expanding reach. We reach this conclusion only reluctantly, bound by circuit precedent to apply this doctrine to yet another case that seems far removed from its original purposes.

I. Factual and Procedural Background

Nollie Costo and Christopher Graham were sailors in the United States Navy, stationed at Naval Air Station Whidbey Island, in Oak Harbor, Washington. On July 1, 1995, they participated in a Navy-led recreational rafting trip on the Nook-sack River in Whatcom County, Washington. Both were off duty and on liberty¹ at the time. The trip, which included three rafts, was led by Brian Benjamin, a civilian in charge of the base’s rafting program.

The rafting program was operated within the command structure of the military. The Navy sponsors various recreational programs that are intended to "effectively contribute to the morale, well-being and quality of life of naval personnel and their family members." Department of the Navy, Bureau of Personnel Instruction (BUPERINST) 1710.11B ¶ 3 (July 1, 1994), available at http://www.bu-pers.navy.mil. Among these are the Morale, Welfare and Recreation (MWR) programs.

According to Navy regulations, the "administration, supervision, and operation of local MWR programs supporting all eligible personnel is a command function and is the responsibility of cognizant commanding officers." Id. at Authorities and Re-sponsibifities ¶ 3. Here, the commanding officer was Captain John Schork. Underneath Schork was the MWR Director, Thomas Lindscott, a civilian. Lindscott was accountable to Schork "for the program content, financial integrity, and health and successful accomplishment of the MWR mission." Id. at Authorities and Responsibilities ¶ 4.

Beneath Lindscott in the chain of command was Richard Score, also a civilian, who headed the recreation division of MWR. Score, in turn, supervised Edward Dunning, a civilian, who managed the Outdoor Recreation Center. It was Dunning who implemented the rafting program, He advertised in local papers for a lead raft guide, and eventually hired Brian Benjamin to head the rafting program. Benjamin hired Tim Herron, first as a guide, then eventually to handle logistics and training.

Prior to the tragic trip, Benjamin and Cathy Crouch-a civilian guide trained by Benjamin-scouted the route. When they did, they observed a log blocking the river, and determined that the rafts would have to pass through a narrow channel to avoid the log.

On the trip itself, the three rafts reached the log shortly after the trip had begun. The first raft negotiated the narrow channel without difficulty. As the remaining two boats prepared to negotiate the channel, they pulled too close to one another for both to pass safely, and one boat hit the log and flipped over. All of the boat's passengers fell into the water. Costo and Graham were trapped beneath the water in the log's submerged branches and drowned.

Costo's parents and personal representative and Graham's personal representative (collectively referred to as "the estates") brought suit against the United States in federal court in Washington.² In their Complaint, brought under the Federal Tort Claims Act, 28 U.S.C. § 1346, they alleged that MWR "breached its duty to the plaintiffs" by failing to obtain a rafting permit; failing to hire trained guides; and failing to properly supervine those guides. They further alleged that MWR breached its duty by faffing to scout out the river, to warn the rafters of the river's condition, to properly equip the rafts, to properly instruct the rafters, to rescue the rafters, and to administer life saving aid.

The United States moved to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The district court granted the motion, holding that, because the estates' claims fell within the Feres doctrine, the suit was barred by sovereign immunity.

Whether the Feres doctrine applies to the facts in the record is reviewed de novo. Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996). Factual findings are reviewed de novo, with all disputed facts resolved in favor of the non-moving party. Id. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

II. TIlE FERES DOCTRINE-BACKGROUND

The passage of the Federal Tort Claims Act (FTCA) in 1948 resulted in a broad waiver of the Federal Government's sovereign immunity: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive darn-ages." 28 U.S.C. § 2674. However, this blanket waiver contained an exception, by which the Government withheld consent to be sued for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Id. § 2680(j). Only two years later, this exception was broadened significantly by the Supreme Court, which held in Feres v. United States that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). This broad exception has been labeled "the Feres doctrine."

The Supreme Court has enunciated three policy rationales for the Feres doctrine: 1) the distinctively federal nature of the relationship between the Government and the armed forces requires a uniform system of compensation for soldiers stationed around the country and around the world; 2) a generous compensation scheme for soldiers (the Veterans' Benefits Act) serves as an ample alternative to tort recovery; and 3) permitting military personnel to sue the armed forces would endanger discipline. See United States v. Johnson, 481 U.S. 681, 684 n. 2, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987).

These policy justifications and the doctrine itself have been heavily criticized by commentators and by this Court. See, e.g., Estate of McAllister v. United States, 942 F.2d 1473, 1480 (9th Cir.1991) ("In [affirming the district court], we follow a long tradition of reluctantly acknowledging the enormous breadth of a troubled doctrine."). The goal of uniformity has been criticized as textually unsupported, Johnson, 481 U.S. at 696 (Scalia, J., dissenting), and illogical, id. at 695-96, 107 S.Ct. 2063 (Scalia, J., dissenting) ("nonuniform recovery cannot possibly be worse than (what Feres provides) uniform nonrecovery"). Further, it has been observed that if uniformity is the goal, it makes just as much sense to establish a federal common law of torts as it does to bar all tort suits. Taber v. Maine, 67 F.3d 1029, 1040 (2d Cir.1995). The second rationale for the bar to tort suits-the existence of the Veterans' Benefits Act-has been criticized as incoherent, given the fact that in certain cases, soldiers have been permitted to recover under both the VBA and the FTCA. Johnson, 481 U.S. at 697-98, 107 S.Ct. 2063 (Scalia, J., dissenting).

The third policy rationale-the danger to discipline-has been identified as the best explanation for Feres. United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985); Johnson v. United States, 704 F.2d 1431, 1436 (9th Cir.1983).³ This rationale has not, however, escaped criticism. If the danger to discipline is inherent in soldiers suing their commanding officers, then no such suit should be permitted, regardless of whether the “injuries arise out of or are in the course of activity incident to service.” But Feres itself imposes this limitation. If the fear is that civilian courts will be permitted to second-guess military decisions, then even civilian suits that raise such questions should be barred. But they are not. See Johnson, 481 U.S. at 699-700, 107 S.Ct. 2063 (Scalia, J., dissenting).

Perhaps because of these criticisms, circuit courts — including ours — have shied away from attempts to apply these policy rationales. See Taber, 67 F.3d at 1043 (citing cases from the Fifth and Eleventh Circuits). Instead, we have outlined four factors to consider in determining whether a particular suit should be barred by the Feres doctrine:

1) the place where the negligent act 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 plaintiffs activities at the time the negligent act occurred.

Dreier, 106 F.3d at 848 (citations omitted).

Even this four-factor test must be qualified. First, none of these factors is dispositive. Rather than seizing on any particular combination of factors, we have focused on “the totality of the circumstances.” See, e.g., Dreier, 106 F.3d at 852; Millang v. United States, 817 F.2d 533, 535 (9th Cir.1987).⁴ Second, we have reached the unhappy conclusion that the cases applying the Feres doctrine are irreconcilable, and thus, “ ‘comparison of fact patterns to outcomes in cases that have applied the Feres doctrine’ is the most appropriate way to resolve Feres doctrine cases.” Dreier, 106 F.3d at 848 (citing Estate of McAllister, 942 F.2d at 1477). With these competing considerations as well as the four factors in mind, we consider the case at hand.

III. Application of the Feres Doctrine

Our inquiry begins — and, in large measure, ends — with Bon v. United States, 802 F.2d 1092 (9th Cir.1986), a closely analogous Ninth Circuit case. In Bon, we considered claims brought by a Navy servicewoman who rented a canoe for recreational purposes from a Navy-run recreational center, and was hit and injured by a serviceman driving a recreational motorboat also rented from the base. Id. at 1093. We noted that both parties to the accident were on active duty when it occurred; that the activity was provided as a benefit of Bon’s military service; and that the activity was “incident to military service” because the boat rental was governed by military regulations, and the program was under the command of the base’s commanding officer. Id. at 1095. Thus, we held that the Feres doctrine barred suit.

Bon resembles the case at bar in each of these particulars. Like Janice Bon, Costo and Graham were on active duty but on liberty at the time of the accident. Like the canoe rental in Bon, the rafting trip was provided as a benefit of military service. And, as in Bon, the MWR program here was under the command of the base’s commanding officer. On these facts alone, Bon would be dispositive.

The estates’ efforts to distinguish Bon are unavailing. It is of no consequence that the alleged tortfeasors were civilians. This much is clear from the Supreme Court’s decision in Johnson, 481 U.S. at 691 & n. 11 (applying the Feres doctrine, in a case involving the alleged negligence of civilian Federal Aviation Administration employees). Nor is our decision affected by the fact that the accident occurred off-base. The appropriate consideration is the “situs of the negligence,” not the location of the accident. Johnson v. United States, 704 F.2d at 1436. Here, much of the alleged negligence was supervisory, and occurred on base. Moreover, this factor is not dispositive, id. at 1436-37, and does not overcome the factors in this case that weigh to the contrary.

Beyond just Bon, it has long been recognized — in our court, at least — that military-sponsored activities fall within the Feres doctrine, regardless of whether they are related to military duties. Thus, in Uptegrove v. United States, we held that the family of Uptegrove (a soldier) could not sue the military for Uptegrove’s death in a military plane crash, despite the fact that Uptegrove was on leave, on his way to vacation with his family, and aboard the military aircraft only as a “space available” passenger. 600 F.2d 1248, 1249 (9th Cir.1979). Likewise, in the context of medical malpractice suits, we have consistently barred suit — even when the injury did not arise out of the course of duty. See, e.g., Estate of McAllister, 942 F.2d at 1474; Persons v. United States, 925 F.2d 292, 296 (9th Cir.1991) (“Although he was off-duty, Kelly Persons enjoyed the use of the naval hospital ‘solely by virtue of his status as a serviceman,’ Millang, 817 F.2d at 535, and the doctors who treated him were subject to military orders.”); Atkinson v. United States, 825 F.2d 202 (9th Cir.1987) (barring a medical malpractice suit arising from the prenatal care given to a soldier in a military hospital). Indeed, the Feres case itself involved medical malpractice.

Cases from outside the Ninth Circuit mirror this approach. In a range of factual situations, the courts of appeals have held that recreational activities sponsored by the military fall within the Feres doctrine. See, e.g., Pringle v. United States, 208 F.3d 1220, 1227 (10th Cir.2000) (soldier beaten by gang members after being ejected from military MWR club; “The relationship between the Army and service personnel engaged in recreational activities under the Army’s MWR program is ‘distinctively federal’ in character.”); Jones v. United States, 112 F.3d 299, 301 (7th Cir.1997) (medical malpractice suit against military physicians arising from an injury suffered while training for the Olympics; “In fact, courts have often concluded military personnel acted ‘incident to service’ and applied the Feres bar in cases arising from seivicemembers taking advantage of recreational military activities or other military perquisites because their use of the facilities was a consequence solely of their status as members of the military.”); Walls v. United States, 832 F.2d 93 (7th Cir.1987) (crash of airplane belonging to recreational Aero Club); Rayner v. United States, 760 F.2d 1217 (11th Cir.1985) (elective surgery); Woodside v. United States, 606 F.2d 134 (6th Cir.1979) (crash of airplane belonging to recreational Aero Club); Hass ex rel. United States v. United States, 518 F.2d 1138, 1141 (4th Cir.1975) (injury while riding a horse rented from a Marine Corps-operated stable; “Recreational activity provided by the military can reinforce both morale and health and thus serve the overall military purpose.”); Chambers v. United States, 357 F.2d 224, 229 (8th Cir.1966) (death in on-base swimming pool; “As a matter of fact, Airman Chambers’ use of the pool, which was a part of the base, was related to and dependent upon his military service; otherwise, he would not have been privileged to use it.”).

In citing this litany of cases, it bears note that the Supreme Court has not had occasion to apply Feres nearly so broadly as have the circuit courts. Indeed, it has been suggested that the Supreme Court’s cases could be interpreted to fall within the very limitation — activity based on military duty — that the estates urge us to apply here. Cf. Taber, 67 F.3d at 1044-45, 1049-50 & n. 21 (analogizing Feres to workers’ compensation systems, and suggesting that Feres be interpreted to bar suit “... for personal injuries sustained ‘in the performance of [the soldier’s] duty.’ ” (quoting 5 U.S.C. § 8102(a))). As the estates contend, the Supreme Court cases typically involve “activities] incident to service” that implicate military duty, see, e.g., Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648, or situations where military discipline was important precisely because it so fundamentally implicated the functioning of the military, see, e.g., Shearer, 473 U.S. at 58, 105 S.Ct. 3039. None of these cases involve military-sponsored re-creatioxl. But whatever the original scope of the Feres doctrine, it is clear that it has been interpreted throughout the lower courts — and, specifically, by our court — to include military-sponsored recreational programs. Therefore, we are compelled to hold that the estates’ suit is barred.

IV. Conclusion

As we noted at the outset, we apply the Feres doctrine here without relish. Nor are we the first to reluctantly reach such a conclusion under the doctrine. Rather, in determining this suit to be barred, we join the many panels of this Court that have criticized the inequitable extension of this doctrine to a range of situations that seem far removed from the doctrine’s original purposes. See, e.g., McAllister, 942 F.2d at 1480; Persons, 925 F.2d at 299; Atkinson, 825 F.2d at 206; Monaco v. United States, 661 F.2d 129, 134 (9th Cir.1981). But until Congress, the Supreme Court, or an en banc panel of this Court reorients the doctrine, we are bound to follow this well-worn path.

AFFIRMED.

1 . According to the government, "on liberty” refers generally to the time between the end of normal working hours on one day, and the beginning of normal working hours on the next. It includes weekends.

2 . It is unclear whether damages in this lawsuit is the only remedy they sought; the record does not reflect whether the estates sought or received damages under the Veterans' Benefits Act.

3 . The Ninth Circuit case of Johnson v. United States, 704 F.2d 1431 (9th Cir.1983) is unre-fated to the Supreme Court case bearing the same name, United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987).

4 . This approach may be a retrenchment against our unfortunate conversion of the four non-exclusive factors listed in Johnson, 704 F.2d at 1436-41, into a four-part test.

4 . Courts should be highly deferential to military decision-making and discipline procedures. United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139 (1954).