Regan v. Starcraft Marine, LLC

627 Thus, jurisdiction dispense personal be- fer with La. art. 3492. tions.9 Civ.Code requirement adequate of notice. See had become against action GE cause her Shelby id.; 2;§at id. 15 William suit filed on Lehmann’s second prescribed, McKen- Johnson, zie & H. Alston 2004, III, ac- 23, not revive the could Louisiana August TREatise, period prescrip- of & cause another Civil Law Insuranoe Law tion or (3d ed.2006). § PRACTICE 23 tion to run. nonetheless, court, conclud- The district IV. CONCLUSION ac- prescription of Lehmann’s ed that the reasons, For these we AFFIRM the by the ten- governed against tion GE was court. judgment district period for revival year prescription La. Code money judgments under Civil underlying purpose because the

art. 3501 money judgment. is to enforce a

of her suit however, agree, cannot

We court suit that in Lehmann’s state

record REGAN; Daniel J. Francis Elwood judgment against in her Par- resulted Jr., Regan, Plaintiffs- not made a that GE was ish demonstrates Appellees, suit, that never submit- to that GE party jurisdiction of the court in that ted to the v. case, judgment the state court MARINE, LLC, STARCRAFT adjudicate rights. purport GE’s does party Defendant-Third judgment court Consequently, the state Plaintiff-Appellant, of a valid satisfy requisites does not v. enforceable judgment insofar as be America, United States of on behalf of of this case. against purposes GE for See Army, Department of op op Judg- United States (Seoond) the Law Restatement Defendant-Appellee. party Third (1982). introductory note and 1 ments argument suggesting The plaintiffs No. 07-30382. somehow author-

the direct action statute Appeals, United States Court judgment against her to enforce her izes Fifth Circuit. allowing day it to have its GE without 10, April 2008. above, misplaced. As noted court also substantive, remedial, the statute creates procedural rights, but it does not con- case, Hodgeses' against Gray prescription, claim purposes

9. the Louisiana For classify injured person’s peti action prescribed courts amended on the face of their against under the direct action an insurer one-year after the tion because it was filed consistently underlying statute with an delic- period passed.”); v. prescriptive Etienne See, e.g., Liberty Cacamo v. Mut. tual action. 593, Co., (La. 747 So.2d 596 Nat’l Auto. Ins. Co., 41, (La.2000) Fire Ins. 764 So.2d (“Here, brought against Ct.App.1999) suit was ("[The statute] direct action was enacted 1995, 8, February on within insurer ”); rights give special to tort victims .... period.”); applicable one-year prescriptive York, New Reeves v. Globe Indem. Co. of Co., Georgia Underwriters Robertson v. First of 42, 488, (1936) (“Act No. 55 La. 168 So. ('“Di (La.Ct.App.1985) 464 So.2d right gives plaintiff which by LSA-R.S. 22:655 rect actions authorized carrier, proceed directly the insurance ”) liability only.’ (quoting tort are limited to kind, i.e., expressly ac- covers cases of this Co., Mfg. Champion v. Panel Era 410 So.2d delicto.”); Hodges Republic W. Ins. tions ex (La.Ct.App.1982)). Co., (“In (La.Ct.App.2005) 921 So.2d engaged injured on the boat was incident to service. We agree, reverse and remand.

FACTS 16, 2005, noon, April near Saturday, On Plaintiff, Regan, the Daniel J. met his friend, Vandergriff, Army’s John at the Morale, Welfare, Toledo Bend and Recre- (MWR) facility.1 ation The recreational deGravelles, deGravelles, Pal- John W. forty-five facility is located miles from the mintier, Frugé, Rouge, & Baton Holthaus Polk, military base at Fort Louisiana. LA, Plaintiffs-Appellees. Regan Vandergriff Both and were active Cathlynn (argued), H. E. Strat- Cannon duty Army sergeants assigned staff to Moskowitz, Horres, Jr., Wilson, Elser, ton duty day. Fort Polk who were off for the LLP, Dallas, TX, Dicker, Edelman & morning, Sergeant Earlier that Staff Van- Wilson, (argued), El- Francis P. Manchisi pontoon boat from dergriff had rented Dicker, LLP, ser, Moskowitz, Edelman & facility. Sergeant Regan the MWR Staff Marine, Plains, NY, for Starcraft White was a Missouri National Guardsman who LLC. military duty had been on active with the Army year. Regan’s for more than a civil- Robert Sturgill, (argued), Jr.

Lowell Y. girlfriend Including ian was with him. Justice, Civ. Greenspan, Dept, S. U.S. them, guests joined and who other soldiers Div., DC, Bailey Jennifer Washington, pontoon on the boat. eight people were LA, for Drago, LAfayette, U.S. day relaxing, swim- group spent The ming, drinking. and kept in a The rental boats MWR Army of the recre- part cove that is small facility, the boats be taken ational but KING, Before DeMOSS Bend Reservoir. At out into the Toledo SOUTHWICK, Judges. Circuit day, pon- p.m. 7:00 approximately SOUTHWICK, Judge: Circuit in the waters of the Reser- toon was boat from his seat in manufacturer, Regan up voir. As stood which is the de- A boat boat, suit, Vandergriff reduced the bow of the personal appeals in a fendant boat, causing Regan to speed third- court’s dismissal of its the district Regan grabbed the forward. against the States. stumble party complaint United regain his balance indemnity gate front effort sought This defendant falling him from overboard. Army prevent re- alleged negligence by an basis of post, causing from its gate ripped The facility, which owned the boat creational of the boat. to fall off the front off-duty Regan an soldier. The and rented it to Re- propeller struck jurisdiction pontoon ex- The boat’s argues manufacturer causing serious gan’s right leg, member who was ists because service designed promote that are ation activities Toledo Bend MWR site is 1. The mission of the relaxation, development of skills and pa- "provide authorized the soldier and being.” participate recre- sense of well opportunity to trons the remand, leg’s amputa- Following Starcraft filed a ultimately leading to the complaint against tion. third-party States, alleging claims under the Federal accident, conducted After the (FTCA). third-party Act Tort Claims resulting report de- investigation. complaint alleged that the United States activities were termined that soldiers’ (1) negligent renting the boat to related, training not mission or (2) Vandergriff Vandergriff disrepair; and that when it was in off-post, accident was duty at the time of the Regan were off renting Vandergriff to use in a boat report found neither accident. manner inconsistent with the intended Vandergriff Regan nor received (3) boat; failing function of the to ascertain pontoon necessary operate license to in- Vandergriff boating party how and his Reservoir, pontoon and the boat on the (4) boat; failing pro- tended to use the to civilian, military, equipment. boat not adequate Vandergriff instructions to vide report included recommendations for The party boating regarding proper and his safety briefings for soldiers rent- improved (5) boat; failing use of the and to maintain Army report ing boats. A different made repair properly. and boat recommendations, improving other such as again The United States removed the safety briefings, equipping each boat with removal, case to federal court. After propeller guards, strengthening and sought complaint to dismiss the due to pontoons. end of the gates at the front doctrine, what to is referred as the Feres facility Bend falls un- The Toledo MWR against which bars tort suits the United der the direct command of the Garrison by States or on behalf of service members2 Polk, facility but the Commander Fort whose arise out of incident facility is run employees. civilian to their service. Feres v. United open only personnel is to and 135, 146, dependents, employ- their federal civilian (1950). 26, 2007, L.Ed. 152 On March Polk, retirees, ees of Fort and court district issued two orders. The first guests accompanying patrons. authorized third-party order dismissed the claim ¶ Army Reg. See 7-1. against the United States for lack of sub- designed LLC Starcraft Marine ject jurisdiction matter under the Feres Vandergriff manufactured the boat rented doctrine. The second order remanded the facility. Regan from the MWR sued Star- state-law claims to state court. Starcraft craft, companies, insurance two Van- timely appealed from the district court’s dergriff in state court. Louisiana The alle- judgment. presents Starcraft for our re- gations were against Starcraft defective only view the district court’s dismissal manufacture, design, marketing third-party claim the United pontoon removed the boat. Starcraft case pursuant States to the Feres doctrine. court, alleging question to federal federal jurisdiction the accident allegedly property

occurred on over which the Unit- DISCUSSION jurisdiction. ed States had exclusive I. Jurisdiction district court remanded because Starcraft subject The order which is the of this authority failed to offer evidence of federal over the site of the accident. appeal is the dismissal of the United Marines, Guardsmen, phrase 2. We will use the “service to member’’ Coast sailors with the Force, and, generically any Navy, refer member of one of the airmen with the Air as was apply Sergeant Regan, Army. armed services. The rules discussed Staff soldiers in the desirability again seeking bring district court in the party. as a States court, together remanded the remain- all the claims in one judgment the same litigation possibility significantly impacted by to the state what- ing issues of the suit had earlier been ever has occurred state court since the court from which year ago, parties may the dismissal order is remand over one removed. Whether subject appeal legal is our first address that issue the state and federal proper trial courts. issue. coupled Because the district court Generally, appellate a federal court order, dismissal awith remand we must

may not review a remand district questions answer two to determine wheth subject lack of court to state court for er the dismissal order be reviewed on 1447(d). jurisdiction. matter 28 U.S.C. appeal. The first is whether there is an However, “clearly the trial court when separable” order that “distinct and remanding that it is affirmatively” states order, the remand and therefore not en lack ground on a other than a 1447(d)’s compassed within Section bar to 1447(d) jurisdiction, matter the Section bar review of a remand. First Nat’l Bank v. apply. Tillman v. CSX appeal does Servs., Inc., Marine Genina (5th 1023, 1027 Transportation, 929 F.2d Cir.1998). (5th question The second Cir.1991). The district court here dis ap- whether order is either final and juris original missed all claims over which § pealable under 28 U.S.C. or sub existed, diction then exercised its discre ject appeal because of some doctrinal supplemental jurisdiction tion to retain not exception finality. Doleac ex rel. Doleac remaining claims. 28 U.S.C. over See (5th Michalson, 470, 478, v. 264 F.3d 489 1367(c). § This has held that a Circuit Cir.2001). clear and affirmative use of the Section 1367(c) supplemen discretion not to retain Turning question, to the first “we remand, jurisdiction tal but instead to is may any aspect judgment of a con review appeal reviewable on for an abuse of dis taining remand order that is distinct Corp., cretion. Thomas v. LTV separable proper. from the remand An (5th Cir.1994). 616 We note if ‘separable’ precedes order is the re recently has found it “far ‘in in fact’ and is logic mand order ” free of from clear” that such remand is Marine, ‘conclusive.’ Genina 136 1447(d) Corp. v. the Section bar. Powerex (citations quota and some internal at 394 — Servs., U.S. -, Energy Reliant 127 omitted). tion marks The district court’s 2411, 2418-19, 112 S.Ct. 168 L.Ed.2d claims third-party dismissal of Starcraft’s (2007). concurring opinion recom Army the remand against preceded asserting authority mends our to review order; the dismissal is conclusive because logically the remand order and describes in state- preclusive “it will have effect However, doing some benefits of so. Star- litigation and will not be court craft in brief that “it is not stated Id.; City there.” see Waco v. review of appealing the order of remand.” We de Co., Fidelity States & Guar. 293 proceed beyond appellant’s cline to 140, 143, L.Ed. 244 55 S.Ct. U.S. disclaimer. (1934). in de Judge Barksdale Doleac being appealed separableness concept as

Our conclusion about the order scribed below, here, City Waco decision. explained in some detail “rooted” Doleac, separate 264 F.3d at 479. A order that the dismissal of the United States was just purposes these does not determine improper. suggest Should our decision for a claim will be heard. The doctrine is an exception the forum which to the requirements judgment that determines whether there is of a final but in It is one any any practical claim to be heard forum. Id. stead is “a construction of the Digital Equip. Corp. Desktop The result of the district court’s rule.” 487-88. Direct, Inc., 863, 867, unreviewably has deter- dismissal here U.S. (1994). mined, now, 1992, 128 unless there is review L.Ed.2d 842 anywhere there was no claim to be heard case, Looking now to our we find against the United States on these facts. judg the district court entered one final separate This is a order. ment that contained both an order dismiss question, ing turn to the second against We which is Starcraft’s claims procedural remanding there is some mecha- and an order all whether other claims to appeal appears nism for of this order. The state court. A similar set of facts appeal process is from a final precedent usual deci- a 1998 of this Circuit. Geni Marine, sion of a district court. See 28 U.S.C. na 136 F.3d 391. The initial de (circuit § jurisdiction courts “have fendant a third-party complaint filed appeals from all final entity, decisions” of district a federal the Farmers courts). (FmHA), There can be room for doubt on Home Administration which then application this statute: “a decision removed the suit to federal district court. ordinarily forum, appeal- considered final and Once in a federal sought the FmHA only if litiga- able under it ends the sovereign be dismissed based on immu nothing nity. tion on merits and leaves The district court dismissed the the court to do but judgment.” execute the FmHA and remanded the remainder of Quackenbush Co., v. Allstate Ins. the suit to state court. The dismissal was 706, 712, 1 appealed. 135 L.Ed.2d Id. at 394. Instead using (1996). analysis, Cohen’s collateral order this City Court found that “under Waco and Quackenbush description finality progeny, jurisdiction we have to review is with Supreme consistent Court’s the district court’s third-par dismissal” of long-standing position that Section 1291 ty against entity, claims a federal when the given “practical must be rather than a order of dismissal was contained technical construction.” Cohen Benefi- judgment same but analytically preceded 541, Corp., 546, cial Indus. Loan 337 U.S. the remand order. Id. By referring to (1949). 1221, 93 L.Ed. 69 S.Ct. 1528 City and not Waco to the later Cohen Cohen, the Court held that courts could decision that first mentioned the collateral appeals entertain of certain decisions doctrine, order this Court have been although not final in a technical that — making a using clear choice of not sense—“fall into that small class which doctrine. finally determine right separable claims of from, to, rights Here, and collateral asserted in the dismissal resolved the merits action, important too to be denied re- third-party of Starcraft’s against claims independent view and Army. too of the cause The district court then re- require itself to that appellate claims, consider- manded remaining leaving no ation be deferred until the whole ongoing case is federal district court litigation Id.; Hallock, adjudicated.” see upon Will v. 546 which this by court would “intrude” 345, 349-50, 952, U.S. 126 entertaining S.Ct. 163 Starcraft’s appeal. See Co- (2006). This, hen, 546, L.Ed.2d 836 unsurprisingly, 337 U.S. 69 S.Ct. 1221. We is known as the compelling juris- collateral order doctrine. find no need to label our

633 States, the col- it dismissed. Our review of being as under dictional conclusion legal issue is de novo. Meister v. corollary appeal to an Texas lateral order 332, Adjutant 233 judgment, Dep’t, or whether General’s usual final (5th Cir.2000). and the base rule 336 corollary inapplicable is example, For it has been being applied. examining by a claim a third We that a similar held the Third Circuit manufacturer, party, a boat who seeks in- justified ap- under both appeal was demnity from the United States for claims Cross, v. Am. Red proaches. Carr potentially would barred be under Cir.1994) (dismissal (3d 671, of one against if brought Government remaining litigation and remand of party the service member. The a final order under Section was both operation Court addressed the of the Feres order). as a collateral appealable doctrine on a implead defendant’s effort to jurisdiction to therefore have review indemnity We the Government for or contribu- dismissal. Our sole issue is whether original tion in situations where “the de- jurisdiction matter there was fendant claims the United States was claim the United third-party wholly partially responsible for the ” us the We do not have before .... plaintiffs injury Engi- States. Stencel Aero merits of that claim. neering Corp. v. United 431 U.S. 666, 669-70, 2054, 97 S.Ct. 52 L.Ed.2d 665 II. The Feres doctrine (1977) (quoting United States v. Yellow Co., Cab 340 U.S. S.Ct. claims third-party Starcraft’s (1951)). L.Ed. 523 against the United States were dismissed of this doctrine: “the Government in- Stencel involved service member injuries not liable under the FTCA for jured in an due to malfunction aircraft where the arise out to servicemen life-support system. 431 U.S. at incident of or are course 2054. The service member sued Feres, to service.” 340 U.S. both the United States and the Govern- This doctrine has been much- S.Ct. 153. ment contractor manufactured the Johnson, E.g., criticized. States v. system accord- malfunctioning life-support 681, 700, 95 ing specifications. to the Government’s (1987) (Scalia, J., dissenting) L.Ed.2d 648 Stencel, the Government contractor and (lists arti appellate decisions and academic manufacturer, against cross-claimed the view that “Feres was supporting cles by the States. The motions United United wrongly heartily decided and deserves the for dismissal of both the service States it ‘widespread, almost universal criticism’ suit and cross-claim member’s Stencel’s received”); Brou, has Deirdre G. Alterna granted. Supreme were Id. The Court Judicially Promulgated tives to the “an found that suits based on (doc Doctrine, (2007) 192 4 L.Rev. Mil. by duty, the sustained a soldier while on broad). overly Regardless, trine our task upon discipline of the action effect current is to determine the doctrine’s brought by is identical whether the suit is reach. directly by third-party.” the soldier or Id. at 97 S.Ct. 2054. Both the service The district court made its determina- trials would application of Feres to Staff member’s the contractor’s tion about orders, second-guessing “involve Sergeant Regan’s actions at Toledo Bend. members of the jurisdiction require and would often ruling After that there was no testify in court as to Armed Services to over Starcraft’s claims the United 634 each other’s decisions and actions.” Id. and to the same extent private as a indi- ” indemnity of Stencel’s suit dismissal vidual under like circumstances ....

against the States was therefore unique U.S.C. 2674. The relationship affirmed. between member of one of the armed government services and the means there

Having found the Feres doctrine to be are no “like with circumstances” which to action, implicated in this we start our ef- comparison. make a by fort to understand the doctrine consid- ering three broad rationales that The second rationale focused on alterna- past by were identified the Supreme Court liability: tives to FTCA justifying as the doctrine. all Whether Second, the gener- existence of these any of the rationales must be served be- statutory disability ous and death bene- recovery fore in particular is barred case independent why fits is an reason question, is the next but these rationales at Feres doctrine bars suit for service-re- explain least Supreme justifi- Court’s Feres, injuries. lated the Court ob- cations for the doctrine. primary served that the purpose of the The first rationale has been described in remedy FTCA “was to extend a to those way: without; who incidentally had been if it relationship between the Govern- already those provided [benefited] well ment and members of its armed forces is for, appears to have been unintention- distinctively federal in character. This al.” relationship implicated federal to the Johnson, 689-90, 481 U.S. at greatest degree when a service member (footnotes omitted). and citations performing activities incident to his This rationale focuses on other forms of federal service .... compensation available members of the Johnson, 688-89, 481 U.S. at 107 S.Ct. military services whose claims were inci- (footnotes, marks, internal quotation service, dent to their but did not concern omitted). Similarly, citations itself with differences in the amount of the nature, Court held that the “scope, legal compensation available under the FTCA consequences incidents and of the relation and under the relevant benefits between persons [military] service and programs. the Government fundamentally derived The third and final rationale identified governed federal sources by fed by Court is this: Feres, authority.” eral U.S. Third, Feres and progeny indicate (quoting S.Ct. 153 United States v. that suits brought service members Co., 301, 305-06,

Standard Oil against the Government for in- (1947)). 91 L.Ed. 2067 curred incident to service are barred centrality contrasted the of federal they Feres doctrine because are the military law to issues with the FTCA’s that, “type[s] of generally claims if per- requirement that the law of the state in mitted, judiciary would involve the in which injury governs occurred liability un military sensitive affairs at the expense Feres, 142, der the Act. 340 U.S. at military discipline and effectiveness.” 1346(b)). (citing S.Ct. 153 28 U.S.C. addition, In 690-91, supported Id. at (quoting S.Ct. 2063 first rationale distinguishing provi- Shearer, 52, 59, United States v. 473 U.S. sion in 3039, (1985) (em- that FTCA the United States 105 S.Ct. 87 L.Ed.2d 38 omitted)). liable under that Act “in phasis the same manner This last rationale is the discovery pro- concluded that The Court vary arguable in its likely to most one depositions as that would be cedures such cases, spe- existence between a disruptive needed to determine how re- with members relationship of service cial be, military judgment would view pro- benefits separate and the military Instead, disruptive. would themselves be injury occurs an exist whenever grams im- Stanley sought “bright a line” rule of to service. incident Feres bar when the posing the 1985, rationales were first two By Discerning that line incident to service. controlling.” longer “no found to be inquiry “less extensive into require would 4, Shearer, 105 S.Ct. at 58 n. 683, Id. at 107 S.Ct. military matters.” contin- the third rationale Though 3039.3 third Feres ratio- 3054. It is true invoked, question separate to be ues con- nale includes the “incident service” apply, whether, Feres bar will before the the central cept, concept but that is also allowing a must be evidence there in the definition of the doctrine: element in fact intrude into suit would particular is not liable under the “the Government Supreme affairs. The sensitive injuries Tort Claims Act for Federal nega- question Court answered arise out of servicemen where two months in handed down tive a decision in incident to or are the course after Johnson: Feres, 146, 71 340 U.S. at service.” liability depends A test for summary, Stanley straightfor- In is a 153. suits would particular extent to which of the incident to service application ward military discipline and question call into in- improper found it test. The Court judi- require decisionmaking would itself of the third ratio- quire applicability into into, hence intrusion inquiry cial specific in a case. nale a case military matters. Whether upon, in majority Stanley Though the would often be those concerns implicates objective rule that did sought impose of com- raising prospect problematic, litigation specific whether not examine testimony by and trial depositions pelled military judgments, with would interfere concerning the details military officers just years management, two discipline, and put- military commands. Even their that the Court stated earlier the judicial of erroneous ting aside the risk using objec- applied not be doctrine could (which mili- becloud would conclusions the Court found tests. tive process mere decisionmaking), the tary making case-by- critical third rationale would correct conclusions arriving the incident the location of analysis: case “inci- military regime. The disrupt the deciding nearly important as was not contrast, test, by pro- to service” dent as was apply Feres should whether relatively clear and that is vides line civilian requires “whether the suit extensive with less that can be discerned decisions, second-guess court to into matters. inquiry might impair essen- the suit and whether Shearer, 473 U.S. military discipline.” tial Stanley, 483 U.S. United States omitted). (citations 105 S.Ct. 3039 L.Ed.2d 550 at Army negligently that the (1987). The claim was Astley, States v. Johnson: Supreme Court has John years, the 3. "Over the to of Feres and Continues the foundations Gets New refined and narrowed Doctrine Life (1988). military discipline Grow, ra- point where the 217 to the Am. U.L.Rev. Note, explains the doctrine.” tionale best using control a soldier who once the Toledo Bend MWR services. failed to allegations manslaughter require Those would examina- of and was been convicted implemented of how Toledo tion Bend dangerous, a failure that led known to be military rules that developed. itself soldier. Id. at 57- killing of another to the allegation Another that this boat was not 3039. The Court concluded properly inspected and maintained. As to allegation directly to the went issues, specific those no known and Toledo military litiga- of the “management” policy Bend has been asserted. impermissibly would tion over issue military in reviewing involve the courts implicate military How these issues judgments. Id. S.Ct. 3039. degree to some can be seen from the fact program the MWR falls under clarity with which Shearer stated authority direct of the Garrison Command- military disruption that the likelihood of of Army Regulation er Fort Polk. 215-1 particular in a case was critical judgments policy and the Garrison Commander’s set determining apply whether to the Feres the basic rules use. Starcraft’s suit bar, Stanley despite the later decision’s might require the Garrison Commander at not, equally clear statement it was explain jury Fort Polk to to a civilian some caused this and be what has other aspects judgment regarding of his the To- precedents Circuits since the date of both facility. ledo Bend military MWR applicability to continue to examine the of implicated facility also is because the is not See, specific e.g., the rationales in cases. open the general public. All who use it Schoemer v. subject Army are to the and Garrison- (5th Cir.1995); Kelly v. Panama Canal established rules. Soldiers who violate (5th Cir.1994). Comm’n, subject military those rules are disci- Certainly, inju- if the claim is based an on pline, and damage soldiers who or lose ry that was incident if to service and re- property subject liability to financial solving that claim also would demand sec- Army under Regulation 735-5. On the ond-guessing judgments, hand, other though Toledo Bend Feres is application of clear. We will open public, to the civilians are allowed to applicability therefore review of the facility guests use the as last Feres rationale to indemnity employees. federal guest One this inci- claim. Sergeant Regan’s dent was Staff civilian girlfriend. Application III. the third Feres ratio- nale Military judgment clearly was exercised after the incident. An official inves- analysis Our military’s judg- how the tigation of the Specific accident occurred. impacted ment would be here starts with recommendations were made to improve third-party Starcraft’s complaint. At least safety briefings for equip- boat rentals and allegations three of its negligence— radios, ping kits, the boats with first aid renting the boat for use in a manner incon- guard rails, higher stronger gates, and sistent with the intended function of the propeller guards. boat, failing to boating par- ascertain the ty’s boat, intended use of the Certainly, authority pro- over this MWR failing provide adequate gram instructions re- military. is exercised garding the boat’s proper question argues Government that allowing Star- use— the Government’s supervi- choices about third-party complaint go craft’s forward sion and control of the service judicial members could involve review of The district court ob- military purpose. concerning the regulations and decisions very ques- close that this was “a the mainte- served particular, in program, MWR tion,” Regan’s concluded activities to Army-owned but of the repair and nance military Yet service. We radios, equipment. be incident to his boats, and other but not the agree recreational boats with the observation maintenance of and use mili- conclusion, with reasonably compared explain. as we will be cannot traditional of the more tary judgments uses a three-factor This Circuit facility is a civilian-run MWR The sort. a service member’s analysis for whether involve a does not program program. (1) military service: injury was incident to function, unique to training, operation (3) (2) status, injury, activ duty site in most attenuated military. Only Schoemer, ity being performed. reviewed to be judgments are the sense States, 611 (citing Parker v. United decisionmaking that military kind of (5th Cir.1980)) (this 1007, 1013-15 F.2d second-guessing. not be courts should these factors as the “Par Circuit refers to the ac- saying that because are not We test”). each factor. ker We will review mili- uniquely was not a tivity question in one, us are resolved the issues before tary Duty A. status saying that on suit. We are in favor of de- Duty has sometimes been status third of the applicability of the question fac- important most scribed as the Feres, the activi- the fact that rationale for activity an was incident to tors for whether civilian charac- largely has a ty question in Schoemer, 59 F.3d at 28-29. service. relevance. ter has key it reveals Duty status is because is interference not an issue here Also between the service member relation discipline. Nothing with injury the time of on the boat any soldier record indicates truly to service therefore how incident if Army, and even disciplined by the who has a National Guardsman was. For occurred, disruption of we discern no serving period and is been mobilized by this suit. process Sergeant duty as was Staff active federal soldier (identically a situation to a traditional Regan conclude that this is We National underlying to a Reservist or traditional concerns and in contrast which the are been called for the Feres bar who has not third rationale Guardsman Stanley concerned duty), this factor is not active absent. is at that of the three service member made this review with whether the may have That opin- military discipline. unnecessary. The Court’s time rationales focus, active wrong “incident to service” would be the ion focused always subject ratio- are duty for the members and exhibited unconcern service test actions, just not unambiguously for their discipline now turn to nales. We performing in uniform or they of whether these relevant issue when 802(a)(1). Regan’s Sergeant 10 U.S.C. incident to Staff duties. were Instead, about the status what is relevant military service. at the duty service member an active jTV. being incident to Test an is on a where that status injury time of service tasks performing the continuum between on extend- being assigned mission oc- of Sergeant Regan to Staff Parker, duty. See base, ed leave from duty, off off when he was curred at 1013. activity with a direct any engaged 638 place duty, of to off- Authorized absence of definitions relevant sampling

A against the soldier’s leave ac- Sergeant chargeable Re- used Staff duty status 2 service, in- count. It is earned at the rate of Army, gan’s 1/2 duty days per leave month for active structive: more, days except of 30 consecutive or Annual leave periods nonpay status. for of a com- execution granted Leave Pass chargeable leave program, mand’s leave called ordi- Such leave is also granted account. An absence for short authorized nary leave. periods provide respite to from the specif- or for other working environment leave Convalescent pass peri- ic reasons. At the end of granted of authorized absence period A od, places at their soldiers will be care for sick- under medical to soldiers duty they or in the locations from which duty. fit yet and not for ness or wounds regularly commute to work. prescribed for part It is of the treatment Glossary, at 111-12. 600-8-10, Army Reg. and convalescence and is recuperation Though “furlough” a is identified in some chargeable as leave. likely caselaw as the status least Emergency leave bar, evoke a that word is not in a Chargeable granted personal leave for Regulation as current terminol- requiring the sol- family emergency ogy.4 period A of leave of more than three presence. dier’s days present-day equivalent, is the while encompassed a period the shorter within Leave Feres, 153; "relaxation, year, E.g., 71 which would be used for 4. (5th ¶ recreation, health, Miller v. United A diversion.” Id. 2. 600; Parker, Cir.1995); Kelly, 26 F.3d at "furlough” was the term for an authorized Historically, "furlough” F.2d at 1008. was greater days, absence than three while proper term for authorized absences from "passes” periods. would be for shorter Id. duty ¶ of American enlisted soldiers. William Act, implement regu- 1. To the 1946 a new Military adopted which Winthrop, lation was combined the for- Law And Precedents (G.P.O. 1920) (2d 1896). reprint ed. A U.S. merly regulations governing separate leave gave background report on fur- Senate for officers and authorized absences for en- comprehensive loughs the first armed when (20 Army Reg. listed n.* soldiers. 600-115 adopted act was after World War forces leave 1946). "Furlough” Aug. appear does not pay equity: by the Act was II. The reason for regulation regular, lengthy, the new but dis- — right creating “leave” en- a retroactive duty cretionary absence from was now an replace system listed service members to concept. lengthy A obsolete authorized ab- discretionary furloughs, purely the Act al- sence for enlisted soldiers or for officers was (not everyone just already lowed officers who appear now called “leave.” It would that as rights) coming off active wartime leave Act, "furlough” of the 1946 the word duty paid to be for accumulated leave of as dropped Army usage though from official it days. S.Rep. as 120 No. 79th much lingered jargon. imprecise as a matter of Sess., Service, Cong., Cong. p. 2nd U.S.Code "pass” “Leave” and are now the correct 1342, discussing Armed Forces Leave Act Army terms. August 60 Stat. 963. The word Act, generous cooperation Pentagon of a “furlough” was not used in the 1946 but librarian, Henson, Angela one appear regulation it did in a that was soon ed., Learning (final Judge Advocate General’s Center superceded. Army Reg. 615-275 School, 1946). Layering, April Daniel with a Fifth regulation stated that was librarian, Tominello, Department policy grant Circuit Rosemarie War to enlisted regulations appreciated. "ordinary furlough” at least once find these dated soldiers an Louisiana, air- Shreveport, from friend at as distant quite not be would “pass” Bend where proceed to Toledo port, Feres bar. day. Ac- occurred the next the accident categories of varying These the Garrison cording deposition, to the purposes, different serve passes leave and a allowed soldiers to travel Commander “leave that Army recognizes but Polk, from Fort mileage distance certain command re- important policies included, Shreveport was within which further, that the “use quirement,” As we understand taking leave. without to contribution positive a will make leave statements, a Regan needed neither his and career morale, performance, level of had no because he pass nor leave ¶ 600-8-10, 2-1. Army Reg. motivation.” in that he was involved days duties they ar- provisions note these We recreation, and because he remained served military purpose ticulate the during to Fort Polk proximity in sufficient certainly is not as purpose leave. activities. his with the core closely associated in as, guard watch a say, being on mission pass a may granted a soldier be Though a leave serves Iraq, in but tower at a base (Army Reg. days than three for not more regu- This nonetheless. military purpose ¶ 5-27e.(2)), 600-8-10, even that form of duty status point lation reinforces grant- not been apparently had permission a continuum. authorized be Regan. ed to Unless Regan’s Sergeant determining absent, Staff in remains an available- a “soldier the fact start with injured, off-duty we during status when normal for-duty status National Guards- hours,” a Missouri explanation that he was be the best which According been mobilized. Regan’s man who had status when he Sergeant of Staff ¶ record, 600-8-10, he was on Army Reg. to an affidavit 5- injured. was duty beginning him active calling duty, not tech- orders was off apparently 27c. He 13, 2003, and was scheduled therefore pass, on November nically on leave a duty active about released from duty to be if called. available for accident.5 He therefore month after this duty status is con- noted that We have at the duty soldier was an active facts here factor. The a critical sidered injury. time in which an precedent are similar to soldier, though, will at duty An active weekend, duty for the off Army captain, locations on in different various times be the catamaran the mast of was killed when being fully engaged continuum from the Panama .Canal sailing through he was on an extended being mission Kelly, wires. electrical hanging struck determine where Staff of leave. To period sued the officer’s widow at 599. The on that placed should be Sergeant Regan Commission, was the which Panama Canal continuum, the official inves- we start with This for the wires. agency responsible It de- on the accident. tigation report “duty Kelly’s Captain Court found duty.” being “off Regan simply as scribed spec- middle of along falls status strong indicator is not a trum and Regan indicated deposition, In his to service.” acting incident whether he was apparently leave or not need to take he did Id. at 600. pick up girl- his pass even receive the date of a Government As of active habilitalion. Sergeant Regan's release from 5. Staff August he was still on he motion filed delayed in order that duty apparently was duty. and re- active medical treatment continue his could Sergeant Circuit, that Staff physical We conclude Re- location of the gan’s duty status was similar to that of issue, is relevant for the incident to service Captain Kelly. We do not find it critical possible not the location of the negligence. may not have Regan pass received a Parker, Kelly, (citing 26 F.3d at 600 (only deposition or leave his 1014). addresses this purpose F.2d at of this factor point), policy because under Fort Polk he is to determine where service member off-duty away was entitled to time injury. was at the time of That fact adds post undertaking formality without understanding beyond just to our knowing pass paperwork. Regan leave and status, duty of whether the service mem- two-day effect on at least a informal ber “was in an engaged activity incident to at the time pass of the accident. theOn Parker, service.” 611 F.2d at 1014. continuum, duty status being post off on a possible One injury location for the here pass sufficiently far from core concerns itself, was the MWR recreation site of Feres as to make the of first the Parker which has a small cove within its bound- weigh factors in favor allowing of suit. aries. It was unclear to the district court We next examine whether the location of and also is to us whether the accident injury Regan’s activity indicates that occurred outside that Regard- small cove. was service oriented. location, precise less of the there was much less control there than is B. injury Location of exerted at Fort Polk. This factor weighs Site, The Toledo Bend Recreation where in favor of suit. the boat was being rented before sailed factor, We now examine the final which Reservoir, into the is under Fort Polk activity is whether the at the time of the control and owned the United States. injury served a sufficient military purpose. The district court found a factual dispute about whether the boat was within the Activity being performed C. when in- geographical boundaries of the MWR site jured or further public out into the waters of the injury Reservoir when the occurred. The third factor of the Parker test is to activity “examine the being per The Government language refers us to formed at injury the time of the if in a to see precedent from another Circuit that Parker, served some function.” alleged location of the negligence relevant, 611 F.2d at 1014. not the location injury. of the Bon v. United Sergeant Staff Regan was engaged in (9th Cir.1986). We make point be- purely activity. recreational Army’s cause the negligence alleged by Starcraft investigative report stated that Regan’s was in the maintenance procedures and for related,” was “not mission and not rental of the boat. negligence That oc- any related to tactical or field training. curred at facility, the MWR which was Regan’s presence on the boat was due to military property. his relation with Vandergriff, the renter of

Bon does not refer to boat. The place sug- Government has not negligence in explicit gested any uniquely place contrast to the function be- injury. Id. ing by Regan When the and served being guest negligence course, occur in place, the same boat. Morale, either Of the purpose of a word might be used a court discuss Welfare and Recreation facility operated ing the Regardless, facts. in the Fifth for service members improve is to The cases Id. at 600. soldiers, ing boat. part- of these morale welfare factually than the dis- closer can be somewhat outlets recreation. Such through ly because, even That is suggests. tinction military mis- of the performance improve opin- it was mentioned though sion. catama- ion, Kelly rented his Captain a Ninth Cir- on court relied The district facility. See Brief a MWR ran from ap- bar hold that the case to cuit Commission, Kelly, 26 F.3d Canal Panama Bon, In Bon, 1092. plied. (No. 93-3565), WL was barred claim duty sailor’s active (Court *3-4; at 599 Kelly, 26 F.3d cf. engaged duty was off though she as a civil- simply the boat-lessor describes of her activity at the time recreational at a Naval Station club located ian-run service member 1093. The injury. Id. at marina). Bon, renting the center while boat by a motor was struck in Bon Navy; control was under the boat Navy in a canoe rented riding Navy per- “provide purpose facili- facility. Use Services Special pro- dependents a their varied sonnel and of the mili- to members restricted ty was constructive off- gram of wholesome employees, Department tary, Defense ” .... and recreation activities duty leisure The com- dependents. guests their Therefore, Bon, F.2d at 1093. 802 Training the Naval manding officer simi- facilities were Kelly rental Bon and it. Id. authority over direct had Center lar. fact that focused Ninth Circuit precise of the distinctions Regardless driver motorboat and the plaintiff both Bon, little im- find Kelly and we who between members duty service active were pres- and the distinguish Kelly to portance activity provided in an taking part were members involved service Both ent case. their service. benefit of for the facilities, from MWR boats who rented concluded Bon court at 1095. Id. Both regulations. subject the facilities’ civilians, and mo- that, plaintiff unlike were off duty soldiers who active involved were operator torboat Both the accidents occurred. duty Navy’s when of the any violations discipline for use of arising from the injuries of the suffered operation rental and rules for the the boats. activity boats, was “incident thus 1095-96. Id. at

to service.” this case distinguish way to possible A for able counsel Kelly was noted decisions, in- also of this Circuit’s One a dis- argument, oral accident, at the United States boating a volving recreational doubt at least initial that creates tinction at 600. Kelly, Bon. distinguished a issue was even valid Feres Army about concerning an whether precedent Kelly is Kelly in arises because Kelly. in Doubt in the weekend duty for while off captain, Commission, not the Canal the Panama and was Panama, a who rented catamaran actor allegedly negligent military, was low-hang- hit the boat’s mast killed when low too hang lines to allowing power Id. at 599. We found lines. ing power al- were sailboats in which place over no evi- a there was inapplicable Bon Govern- at 599. Kelly, 26 F.3d lowed. Kelly “sail- was Captain dence that when argument that out at pointed ment counsel a civilian-run rented from ing a catamaran Commission, for administra- perhaps “directly subject to marina,” he was authority convenience, under fell tive control,” while Bon rented (22 U.S.C. Secretary Defense and of the facility a Naval recreational boat from counsel 3611(a)), statutory fact which us- military discipline when subject to was suggested explained why Feres con- ing military negligence and alleg- those why perhaps ing sidered and also it was not civilian negligence has nothing to applied as a bar to suit. except recommend it that it would limit clearly our wrong decision in Feres and However, important jus there is a more confine the irrationality unfairness and analysis Kelly. tification for in that, decision has bred. But I That Supreme better reason is think, justification enough. Court applied has Feres even when the Johnson, at U.S. 107 S.Ct. 2063 allegedly negligent governmental agency (Scalia, J., dissenting). military. had no connection to the In the relevant precedent, Coast Guardsman’s We return to the origins doctrine’s upon claims were based the alleged negli note is “the Government” that is not gence of a Federal injuries Aviation Administration liable “for to servicemen where Johnson, air traffic controller. 481 U.S. at arise out of or are 681, 107 S.Ct. 2063. This service,” decision was the course of incident (Feres, first time the splintered 153), U.S. application regardless of what agency Feres doctrine. Ast of the federal ley, government negligent U.L.Rev. at 222. A was the party. By Coast Am. viewing the helicopter pilot, Guard Panama Canal Lieutenant accident Com involv Johnson, ing Kelly perspective mander Horton from the was under FAA the Su preme decision, radar Court’s control when Johnson responding to a we find dis properly this Court was Johnson, applying tress call inclement weather. control ling precedent. When we U.S. found no Feres S.Ct. 2063. bar to the suit helicopter survivors of crashed into the side of a moun Captain Kelly, we silently tain. did not rely Johnson’s on widow filed a FTCA suit the fact that the Panama Canal the United Commis seeking States damages sion only an artificial connection to the injury the caused by alleged the negli military. So we look closely more gence by to the FAA controllers. Id. Even reasons for the Kelly decision. though the FAA was allegedly the negli actor, gent and the FAA is not a military Kelly sailing privately “was owned cat- agency of the United the Feres bar amaran, special and no military rules or applied nonetheless because Coast Guards regulations applied to govern the condi- man Johnson’s death was incident to his sailing.” tions of his Kelly, 26 F.3d at 600. military duty. at Id. 107 S.Ct. 2063. Allowing an FTCA claim in Kelly would require a court to second-guess mili-

That changed Johnson pattern Feres tary impair decisions or military discipline. that a military actor needed to be the Id. at 601. negligent agent of the United States is clear when Justice Scalia in dissent stood Unlike description of the sailing ac- athwart the road mapped by the majority tivity in Kelly (though if Captain Kelly’s said, “no further.” boat was rented from an facility, MWR majority

As the however, acknowledges, description may inexact), have been Staff “all of the cases decided Sergeant Court Regan was on a boat rented from under Feres have allegations involved of a military-owned, though civilian-run facili- negligence part ty. members facility That was far from post on Ante, the military.” at I 2066. Regan would which served. The renter of the not extend any boat, further. I confess Sergeant Staff Vandergriff, had a that the line between alleg- FTCA suits few hours Regan’s before agreed arrival specific have MWR certainly, There would been Almost rental. the rules to him which could have applicable rules have been also would Regan facility separate charges specifica- using constituted as a soldier those rules the boat. else rented those. Our determi- though someone tions had he violated even of the Feres applicability nation here of the sharp be useful point, At this largely coinciden- bar reduces to whether this factor purpose focus on en our few, or enough. tal factors are When determining In the Parker test. under most, of a service components or even all military pur activity served whether the military relationship with the member’s evaluation that the ultimate agree we pose, location, time, unnecessary to the were [stands] the service-member is “whether injury, apply? should Feres manner of the at relationship to type injury that or her the time of his do not ven- question, To answer that we out of causing arose occurrences seeking out the markers ture forth without military service.” Ste activity incident to It in so fact- already laid. is inevitable (7th Stone, 159, 162 phenson required analysis an area of as is specific Cir.1994). commentator summarized One Feres, in which the under one caselaw on whether review of the her “bright- no has stated that there are service activity was related (Shearer, at line rules” duties, more “attenuat by stating 3039), some the caselaw has military, from the activity is ed the possible, As much as inconsistencies. find that the activi likely courts will more alike. cases need to decided though, like be member’s to the service ty was not related are those analogous precedents The most Brou, 192 Mil. L.Rev. military duties.” involving recreational activities. is more a Admittedly, that conclusion 28. than a useful of the obvious recognition injuries, addressing recreation some tool, conclusion except that the analytical a service mem- suit because courts barred looking that courts have been highlights receiving a benefit of his ber was determina making when their the obvious the Ninth Circuit example, For service. tions. brought no claim could be determined that in drowning death of a sailor based “in Regan stood evaluating In whether on organized had rafting trip that been military at relationship to the type the program. by Navy MWR public waters make injury” that would time of his [ ] (9th States, 248 F.3d 863 Costo United injury arose causing the occurrences “the Cir.2001). inqui- that its court stated service,” military activity incident to out of measure, ends” large ry “begins, and relationship to the note that his we al- that have precedent we with its Bon injuries and not to his was coincidental Bon, (citing Id. at 867 ready discussed. simple matter of necessary to them. As a 1092). was on the sailor F.2d Because Bend, causation, and Regan was at Toledo activity that in an duty, participating active boat, he was particular on this service, which was his a benefit of was hand, soldiers’ the other soldier. On under program an MWR conducted exactly also allowed to be guests were commander, ap- Feres of the base control exactly the same doing the same location of the three- member Id. One plied. Further, subject to mil- Regan was thing. dissented, though on panel member Costo at that any misconduct itary penalty for was unconstitutional. that Feres the basis time, the case have been but would J., dissenting). (Ferguson, doing. Id. at 869 was, whatever he wherever he candor, majority With commendable 832 F.2d at 94 n. 2. subject The clubs are opinion in Costo noted that its decision to the pervasive “strict and control of the beyond guideposts Force,” went Air set to the overall re- Supreme sponsibility Court: of the base commander. Id. The court in Walls relied on the earlier cases, citing litany it bears precedent Woodside, and each found Supreme

note that Court has not that adverse effects on discipline apply nearly occasion so would arise from second-guessing the com- broadly as have circuit courts. In- mand’s decisions regarding the Aero deed, suggested been has Clubs. Id. at 95-96. Supreme Court’s cases could be inter- preted very to fall within the limitation- We find the Aero precedents Club infor- based on duty-that the mative, part because of the distinctions urge estates us to apply here .... As we see. These clubs supported by were contend, the estates actually located on Air Force bases. typically cases involve inci- “activitfies] provided clubs an opportunity for air- dent to that implicate military service” men “to learn safe, aviation skills under see, Johnson, duty, e.g., 681, 481 U.S. Woodside, low-cost conditions.” 107 S.Ct. L.Ed.2d or situa- at 142. The Air Force exerts control in tions military discipline where was im- part by regulations minutely detail portant precisely because it so funda- rights and restrictions. Air Force Instr. mentally implicated the functioning of 34-217; Air Force Manual 34-232. We see, military, Shearer, e.g., agree with finding “this relationship be- 87 L.Ed.2d 38. tween the Club and the Air Force to be None of these cases military- involve direct substantial, though even sponsored recreation. But whatever the Club is not an essential or integral part of original scope doctrine, of the Feres it is the military mission of Air Force.” clear it has been interpreted Woodside, 606 F.2d at 142. The Feres throughout and, the lower spe- courts— issue the relationship between an active cifically, by our court—to include mili- duty service member and the ex- tary-sponsored recreational programs. amines relative closeness. The connection Therefore, are compelled we to hold that of Aero Clubs operating air on bases with the estates’ suit is barred. the Air Force is much closer than an off- Costo, post boat rental program 869. The Ninth Cir- with the Army. cuit’s view forms one of the markers as we The final precedent in the recreational decide what direction we should take. arena that we will consider concerned a

At least two precedents prohibited suits suit for at a military sustained brought as a result of incidents involving riding horseback facility. Hass v. United U.S. Air Force Aero Clubs. States, (4th Walls v. Cir.1975). 518 F.2d 1138 A States, (7th 832 F.2d 93 Cir.1987); a Marine rented horse from stables owned States, Woodside v. United 606 F.2d 134 and by operated the Corps Marine at its (6th Cir.1979). These clubs operate on Air Cherry Point, Station in North Car- bases, some Air Force are non-appropriat- olina. The claim was that the civilian em- ed fund instrumentalities of ployees the United of the stables negligently failed to States, promote and morale among the warn of the horse’s propensity to “break active-duty personnel who eligible bolt,” gait causing inju- the Marine “active membership” Walls, ry. clubs. at Id. 1139. The Fourth Circuit control,” a valid short-hand ject military these under Feres for claim barred away from his com- description of a soldier reasons: little engaged in recreation that had mand here to bar might suffice it We think by military. In addi- any oversight if (as by the district found this suit tion, Kelly sailing a though license court) operat- owned and was the stable Sailing by Rodman-Marina issued that a Marine by government ed Club, located the “civilian-run club of it and ser- charge inwas officer Naval Station” from which Rodman for miscon- disciplined could be vicemen rented, “no special there were boat was activi- it. Recreational using duct while applied govern regulations rules or reinforce can by ty provided 26 F.3d sailing.” Kelly, his conditions of serve health and thus both morale case, rental In our the boat at 599-600. military purpose. the overall Sergeant Staff Vander- agreement given omitted). (footnote court Id. require- a minimal checklist of griff had matters, including that on several focused ments; al- the boats were importantly, operated by owned and were the stables by owned the cove lowed leave who and that those Corps, the Marine public out into the military and be taken discipline subject to stables were used the Reservoir. waters out, pointed have As we for misconduct. made, can but we find no Distinctions be are inevita- military members duty active Kelly. After meaningful with differences of their discipline regardless bly subject to factors, Parker we reviewing the three that it important An fact is duty status. inju- Regan’s Sergeant that Staff conclude on horse stables were the Hass appears as were not incident to his service ries at 1139. The Eleventh itself. Id. the base by Feres. meant way, and Hass that interpreted Circuit with other eases analytically it grouped conclusion Summary and V. a recre- applicable when that found Feres The ele- are numerous. precedents base. injury occurred on ational analysis Feres ratio- 1061, ments Whitley v. United —the activity being factors for an nales and the (11th Cir.1999). 1074 & n. 29 fairly uniform. incident to service—are survey, agree we brief caselaw After this point of the caselaw nearly-universal quoted we earlier observation with the fairly safely be stated: further can the area opinion Circuit from Ninth —in functions an uniquely military activi- activities, some military recreational be, from a the further ty Su- further than the gone courts have occurs, justified the less the incident base necessary. indicated is preme has the Feres bar. Costo, This has at 869. Circuit held that has never This Court far. We conclude journeyed as not off-base, off-duty by an service suffered Canal Kelly Panama our decision equip- using recreational the member when Commission, apply did not which commonly used kind valid, that is of the consider- ment bar, nuanced to be mili- was rented civilians and which off-post, that arise in ation of the issues else, ser- incident was tary to someone Kelly, off-duty recreation. is neither a service member vice. When the service member significant military base and duty nor on a all on military discipline, to as largely military is relationship with the military duty. found active We those on time, unnecessary to the coincidental “directly sub- Kelly was not that Captain location, and manner of the conclusion the Feres doctrine does not injury, argument claim. caused that an bar the activity is incident service is at to its weak- I write separately express my to person est. al view that we should have vacated the remand in addition reversing the dis

The closest that the issues Starcraft’s missal. After the court district erroneous third-party complaint indemnity will ly dismissed third-party Starcraft’s claim approach is that a recreational against the United it remanded the non-military boat used on primarily waters case to Louisiana pursuant state court may properly have been maintained 1367(c)(3), 28 U.S.C. which states that a the civilian-run facility, MWR district court sup decline exercise facility may that the MWR have failed to plemental jurisdiction if “the district court procedures follow some of its own during has dismissed all claims over which it has process. the rental Accordingly, some original jurisdiction.” Our decision to re judgments made by members of the mili- verse the Feres doctrine dismissal auto tary examined, may need to be but that 1367(c)(3) matically renders section re judicia- examination would not “involve the mand erroneous because the dismissal and ry in sensitive affairs at the ex- the remand are inextricably intertwined. pense of military discipline and effective- For purposes 1367(c)(3), of section “a dis Johnson, 690-91, ness.” 481 U.S. at trict court has no discretion to remand a It 2063. is true that the Supreme matter in which a federal-law claim still Court has made the incident-to-service exists.” Burks v. Amerada Hess Corp., 8 analysis controlling bar, for the Feres re- 301, (5th Cir.1993), abrogated on gardless particular of whether the litiga- grounds other v. Giles NYLCare Health tion would alarmingly intrude on military Plans, Inc., (5th 172 F.3d Cir. judgments. Stanley, 483 U.S. at 1999). However, 107 S.Ct. 3054. pri- mary rationale for the doctrine is satisfied appealed Starcraft the district court’s is at least some validity confirmation of the judgment 26, 2007, dated March which analysis of the incident-to-service contained both the dismissal and the re- issues. mand. Although the appeal notice of gave jurisdiction us remand, to review the Star- Because of holding our that Staff Ser- craft stated its briefing that it was not geant Regan’s activity was not incident to appealing remand, despite the fact that service, third-party Starcraft’s complaint (1) validity of the dismissal necessarily may proceed. The decision of the district implicates (2) the validity remand, court REVERSED the cause is 1367(c)(3) section remands are reviewable REMANDED for proceedings consistent (3) appeal, on initial determination with opinion. of whether the district court has discretion 1367(c)(3) to remand under section is sub- DeMOSS, Circuit Judge, specially ject to de novo review. Bernhard v. Whit- concurring: Bank, ney Nat’l 546, 550, 523 F.3d No. 07- I concur fully with majority’s deci- (5th 2008 WL at *3 Cir. sion to reverse the dismissal of 2, 2008); Starcraft’s April see Hook Morrison Mill- third-party Co., claim ing (5th Cir.1994) (“If States. I wholeheartedly agree with the a district court’s decision remand a case majority’s persuasive analysis and ultimate to state court is discretion, on its based decision obviously review we then America, of STATES UNITED The determination discretion. abuse Plaintiff-Appellee, discretion, how has the court whether review de one, we which ever, legal ais v. omitted). my novo.”) (internal citation BONILLA, Carlos Constantino the to vacate power view, have the we Defendant-Appellant. purported remand, despite Starcraft’s full issue, give in order waiver 06-40894. No. reversing the dis judgment to our effect the dismissal I believe missal. Appeals, Court of States coin and the same sides of are two remand Circuit. Fifth See together. appealed have been should April 2008. 75, 78, Knorr, 86-87 Johnson Cir.2007) (3d (reversing dismissal claim, the section vacating federal law

1367(c)(3) pendent state remand to the

claims, remanding case court). case was Because this

district has as and Starcraft removed

properly claim federal a valid

serted re be

Government, case should entire district federal forum: single in a

solved the dis fact Considering the

court. remand, its own cannot vacate court

trict Serv., Majoue, Inc. v. Pub.

New Orleans (5th Cir.1986), and be dispose of power have we

cause circum just under

case “as be 2106,1 that we argue

stances,” 28 U.S.C. fur “to obviate remand vacate

should unnecessary proceedings entirely

ther States, 390 U.S. v. United Grosso

below.”

62, 71-72, 19 L.Ed.2d let the

(1968). chose to My colleagues resolve court and the district

parties court’s by the district created

conundrum of the case remand sponte sua

precipitous, failure to parties’ court and state appeal. issue on the remand

address

Case Details

Case Name: Regan v. Starcraft Marine, LLC

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 17, 2008

Citation: 524 F.3d 627

Docket Number: 07-30382

Court Abbreviation: 5th Cir.