Lead Opinion
Opinion by Judge Callahan; Concurrence by Judge Gould
The sole issue in this case is whether the Feres doctrine, which prohibits suit against the government for injuries that are incident to military service, bars appellants’ civil suit against the United States for the tragic death of their son, Lieutenant McConnell, in a waterskiing accident. We determine that under our precedent the facts that Lt. McConnell’s use of the boat was a benefit of his status as a service member and that the alleged negligence was subject to military orders and regulations compel us to affirm the district court’s grant of summary judgment to the government.
I
This case arises out of a fatal boating accident at Lake Pleasant, Arizona on May 19, 2001. At the time of the accident, Lieutenants Joseph James McConnell, Steven Frodsham, Mark Donohue, and Matthew Crowell were F-16 student pilots in the United States Air Force (“USAF”), assigned to Luke Air Force Base (“Luke AFB”), Arizona. On May 18, the day before the accident, Lt. Crowell rented a 1990 USAF-owned boat from the Luke AFB Recreation Center, located at Luke AFB. Lt. Crowell rented the boat because his colleagues were busy in a meeting. Nevertheless, the record indicates that Lts. McConnell, Frodsham, and Donohue were subsequently briefed on the installation rules and regulations governing the use of the boat, and were required to follow them.
On the morning of May 19, Lts. McConnell, Frodsham, and Donohue transported the boat to Lake Pleasant using McConnell’s truck. Lt. Crowell planned to join
The boat was rented pursuant to an agreement with the Luke AFB Recreation Center, which is operated by the Luke AFB Recreation Program. Through the Recreation Center, boat rentals are available to “active duty members and their family members” although civilian guests may use recreational equipment if accompanied and supervised by military personnel. The Recreation Center is part of the broader USAF services programs supporting the Air Force mission.
The appellants, Lt. McConnell’s parents, filed a complaint against the United States for wrongful death and loss of consortium under the Federal Tort Claims Act. Their complaint is solely against the United States, and no other individuals. They allege that the USAF failed to properly maintain, service, and repair the boat, and failed to warn its users and the public that the boat was defective and unreasonably dangerous.
The district court granted the government’s motion for summary judgment, holding that the Feres doctrine deprived the court of subject matter jurisdiction. Lt. McConnell’s parents filed a timely notice of appeal.
We review a dismissal for lack of subject matter jurisdiction pursuant to the Feres doctrine de novo. Wilkins v. United States, 279 F.3d 782, 785 (9th Cir.2002). “Factual findings are reviewed de novo, with all disputed facts resolved in favor of the non-moving party.” Costo v. United States, 248 F.3d 863, 866 (9th Cir.2001), cert. denied, 534 U.S. 1078, 122 S.Ct. 808, 151 L.Ed.2d 693 (2002) (citing Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996)).
II
The Federal Tort Claims Act (“FTCA”) is a waiver of the federal government’s
Subsequent Supreme Court decisions have identified three policy rationales underlying the Feres doctrine: “(1) the distinctly federal nature of the relationship between the Government and the members of its armed forces ..., (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.” Id. at 866 (citing United States v. Johnson, 481 U.S. 681, 684 n. 2, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987)).
The third policy rationale — preserving the integrity of military discipline — is the most robust explanation for the Feres doctrine and most critical to this case.
The peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Torts Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the [Feres] Court to read that Act as excluding claims of that character.
United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139 (1954); see also Costo, 248 F.3d at 866 (“[T]he danger to discipline ... has been identified as the best explanation for Feres.”); cf. Zaputil v. Cowgill, 335 F.3d 885, 887 (9th Cir.2003) (“The Feres doctrine is applicable whenever a legal action would require a civilian court to examine decisions regarding management, discipline, supervision, and control of members of the armed forces of the United States.”) (internal quotation marks omitted).
In determining whether a service member’s injury is “incident to service” and therefore, barred under the Feres doctrine, we have employed a case-by-case approach, addressing four factors:
(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 the plaintiffs status as a service member, and (4) the nature of the plaintiffs activities at the time the negligent act occurred.
Costo, 248 F.3d at 867 (citing Dreier, 106 F.3d at 848). Moreover, we have stated that none of these factors are dispositive. Id. “Rather than seizing on any particular combination of factors, we have focused on ‘the totality of the circumstances.’ ” Id. Furthermore, although the various cases applying the Feres doctrine may defy reconciliation, we are bound by, and seek to align our resolution of this particular case to, our precedents.
Our application of the four factors to the particular facts in this case compels our determination that under our precedent, particularly Costo and Bon v. United States, 802 F.2d 1092 (9th Cir.1986), the Feres doctrine bars appellants’ suit against the government.
Although appellants stress that the accident occurred on a public lake, the district court properly focused on the situs of the negligence, not the location of the accident. Costo, 248 F.3d at 868 (“The appropriate consideration is the ‘situs of the negligence,’ not the location of the accident.”); see also Johnson v. United States, 704 F.2d 1431, 1436 (9th Cir.1983) (“[T]he place on the base where the negligent act was found by the trial court to have occurred must be distinguished from the place where the accident occurred.”);
The parties agree that Lt. McConnell was on leave but on active duty at the time of the accident. The plaintiffs in Bon and Costo were “on liberty” at the time of the accidents, but also on active duty. Costo, 248 F.3d at 867. Similar to the plaintiffs in Bon and Costo, the record indicates that Lt. McConnell was still subject to military orders and discipline though on leave. Cf. Charland v. United States, 615 F.2d 508, 509 (9th Cir.1980) (“Although on furlough he remained on active duty and was subject to military orders and discipline at all times while on board the Navy vessel.”). Nevertheless, Lt. McConnell was not on duty at the time of the accident. Accordingly, this factor, although not dispositive, may weigh against the application of the Feres doctrine.
The district court found that Lt. McConnell’s use of the motorboat was a benefit of his position as a USAF service-man. Appellants, however, argue that because Lt. McConnell did not rent the boat, he was more similarly situated to a civilian, like the service members in Dreier, 106 F.3d at 844, and Johnson, 704 F.2d at 1431. These cases can be distinguished. In
Similarly, in Johnson, the court identified Johnson’s after-hours employment at the non-commissioned officers club with work routinely performed by civilian bartenders, and stated that the employment could not “logically be distinguished from second jobs held by other off-duty military personnel.” 704 F.2d at 1439. The court distinguished Johnson’s situation from instances where “the plaintiffs had access to the various recreational and medical benefits only because of their status as military personnel.” Id. at 1438.
This case falls into the latter category. Boat rentals were provided through the Luke AFB Recreation Center to “active duty members and their family members” and guests had to be supervised and accompanied by military personnel. Thus, Lt. McConnell’s use of the USAF-owned boat on Lake Pleasant is more like the situation in Bon than in Dreier. Moreover, Lts. McConnell, Donohue, and Frodsham took possession of and transported the boat, indicating that they were exercising their privileges as service members rather than as civilian guests of Lt. Crowell or each other. Accordingly, neither Dreier nor Johnson preclude the panel from holding that the benefit accruing to Lt. McConnell — his use of the boat — was due to his status as a service member.
It is true that Lt. McConnell’s activities were purely recreational on May 19, 2001, but this does not mean that they were unrelated to his military status. The plaintiffs in both Bon and Costo were similarly engaged in purely recreational activities. In Costo, we stated that “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.” 248 F.3d at 868. Furthermore, the government here argues that the recreational activities are part of the military mission.
IV
Finally, as in Costo we note that we apply the Feres doctrine “without relish.” 248 F.3d at 869. We remain aware of the criticism that has been rightly leveled at the doctrine, but in light of the Supreme Court’s failure to address the expansion of the Feres doctrine,
. Air Force Instruction 34-262, Services Programs and Use Eligibility, provides:
1.1 Purpose. Services programs support the Air Force mission by contributing to readiness and improving productivity through programs promoting fitness, esprit-de-corps, and quality-of-life for authorized patrons or customers.
1.2 Importance. Services programs are vital to mission accomplishment and form an integral part of the non-pay compensation system.... Services programs encourage positive individual values and aid in recruitment and retention of personnel. They provide for the physical, cultural, and social needs and general well-being of military members and their families, providing community support systems that make Air Force bases hometowns for a mobile military population.
. An outline of some of the criticism of the rationales is set forth in our opinion in Costo. 248 F.3d at 866-67.
. In Costo, we noted that “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
. Appellants have filed a motion for leave to supplement the record on appeal with the underlying complaint in Bon as well as portions of the government's appellate brief in Bon. In the alternative, appellants ask that we take judicial notice of “the public records presented from the Bon district court and appellate files.” The government opposes the motion for leave to supplement the record, and urges that judicial notice be limited to the fact that the two documents contain certain allegations and not extend to the veracity of those allegations.
We hereby grant appellants’ motion for judicial notice and deny their motion to supplement the record.
. The Supreme Court's decision in United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) is not related to the Ninth Circuit's case, Johnson v. United States, 704 F.2d 1431 (9th Cir.1983).
. The government asserts that
[rjecreational programs help reduce the stress caused by the arduous training and lifestyle members of the military are required to endure and provide opportunities for relaxation that otherwise are unavailable because of the location of military bases and the demands of military services. These are core military functions, no less than combat training and military medical care.
. As we noted in Costo, 248 F.3d at 868, cases from outside the Ninth Circuit support this conclusion. 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.”); Walls v. United States, 832 F.2d 93 (7th Cir.1987) (crash of airplane belonging to recreational Aero Club); Bozeman v. United States, 780 F.2d 198, 201 (2d Cir.1985) (patron of Non-Commissioned Officers Club injured when ejected by bouncer; "Johnny Bozeman was only entitled to be in the NCO club because he had an appropriate rank, was a member of the Army and was on active duty status.”); 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 mo
. The Supreme Court denied the petition for certiorari filed in Costo. 534 U.S. 1078 (2002).
Concurrence Opinion
concurring.
I concur in Judge Callahan’s opinion which accurately reflects our prior circuit precedent and its application here. However, I am left with the concern that our precedent interpreting the scope of the Feres doctrine creates an injustice. The justifications for the doctrine as applied to the death of Lieutenant McConnell seem slim to me, for it is unrealistic for our precedent to suggest that dismissal of the claim here is needed to foster military discipline. In my view, and respectfully, it would be appropriate for our court en banc to reassess the scope of the Feres doctrine. Also, many might welcome the Supreme Court’s clarification of the doctrine’s application in the case of military-sponsored recreational programs.