167 F.3d 678 (1st Cir. 1999), 98-1727, Day v. Massachusetts Air Nat. Guard

Docket Nº:98-1727.
Citation:167 F.3d 678
Party Name:Andrew DAY, Plaintiff, Appellant, v. MASSACHUSETTS AIR NATIONAL GUARD, United States Department of the Air Force, James Duclos, Richard Duquette, James Towle, Duane Caton, James Balisle, and John Does 1-8,Defendants, Appellees.
Case Date:January 29, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 678

167 F.3d 678 (1st Cir. 1999)

Andrew DAY, Plaintiff, Appellant,



of the Air Force, James Duclos, Richard Duquette,

James Towle, Duane Caton, James Balisle,

and John Does 1-8,Defendants, Appellees.

No. 98-1727.

United States Court of Appeals, First Circuit

January 29, 1999

Page 679

Daniel E. Bruso with whom Mark D. Mason and Cooley, Shrair P.C. were on brief for appellant.

Page 680

Karen L. Goodwin, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellees.

Before BOUDIN, LYNCH, and LIPEZ, Circuit Judges.

BOUDIN, Circuit Judge.

This case presents uncommonly difficult questions as to whether a serviceman, subject to assault and battery in an on-base hazing incident properly described by the district court as "despicable," may recover damages from the government or from military personnel variously connected to the attack. The district court ruled that the claims were barred by the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), limiting suits for injuries arising "incident to military service." Id. at 146, 71 S.Ct. 153. Day v. Massachusetts Air Nat'l Guard, 994 F.Supp. 72 (D.Mass.1998). We affirm in part and reverse in part.

Because the complaint was resolved on motions to dismiss, the facts are set forth as alleged in the complaint and inferences are taken in the light most favorable to the non-moving party. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989). That party is the plaintiff in the district court, Andrew Day, who at the time of the alleged incident was an enlisted airman of the Massachusetts Air National Guard, holding the rank of senior airman/E-4. In July 1994, Day was serving with the 104th Fighter Group and was assigned to participate in a training exercise at Volk Field in Wisconsin.

During this exercise, Day says that he saw other members of the 104th subjected to repeated instances of severe hazing; for example, Day claims that in one case other airmen ripped off the clothes of a member of the 104th, duct taped the naked victim to his bed, and left him outside subject to public ridicule. Day also alleges that the officers and non-commissioned officers did nothing to halt the attacks. Day also says that he was warned by several men, including several of the later defendants, that he would be the victim of similar attacks.

The incident that gives rise to the lawsuit occurred on July 22, 1994. According to the complaint later filed by Day, after his release from duty on July 21, he went to a party at the Base Club at Volk Field together with other members of the 104th. Day left the party at 1 a.m. on July 22, 1994, returned to his barracks on the base, and went to sleep. Day says that he asked Richard Duquette, apparently the senior enlisted man on the scene, whether Day would be attacked and was assured he would not be attacked that night.

Nevertheless, during the night Day was awakened by several individuals; these including serviceman (and later defendant) James Towle and others whom Day was unable to identify (but are listed in the complaint as John Does 1 through 8). These men stripped Day, carried him outside, forced him to kneel on the ground with his stomach across a bed set up outside the barracks and--pouring an unknown liquid between Day's buttocks--forcibly inserted a traffic cone between them. Another defendant, serviceman Duane Caton, allegedly took photographs.

The complaint alleges without detail that Duquette aided and abetted the attack. Duquette's own version, which the military apparently accepted, was that he was the one who broke up the attack. James Balisle and James Duclos, the remaining individuals eventually named in the subsequent complaint, were not alleged to have directly participated in the attack; it was Day's theory that Balisle and Duclos were implicated because they had negligently supervised others.

On July 19, 1996, Day filed his present damage claim in the district court, naming as defendants the Massachusetts Air National Guard, the U.S. Department of the Air Force, five named individuals (Duquette, Towle, Caton, Balisle and Duclos), and John Does 1 through 8. The complaint asserted against the defendants a federal civil rights claim under 42 U.S.C. § 1983 and/or a host of state claims for civil rights violations under state law, M.G.L. ch. 12, § 11I, and for assault, battery, intentional and negligent infliction of emotional distress, and negligent enlistment and supervision.

Page 681

Acting under the Westfall Act, the United States Attorney certified that Duquette, Duclos and Balisle had been acting within the scope of their office or employment "at the time of the incident out of which the claim arose." 28 U.S.C. § 2679(d)(1). The effect of certification is to substitute the United States as defendant on certified claims and protect the individual from liability as to such claims. Id. §§ 2679(b)(1), (d)(1). 1 The U.S. Attorney declined to certify the claims against Towle or Caton under the Westfall Act.

Thereafter, the district court in a thoughtful decision dated February 12, 1998, dismissed all claims against all defendants under the Feres doctrine. The court concluded that even as to deliberate injuries, the injuries alleged by Day were "incident to military service" based primarily on Day's duty status, the on-base location of the injuries, and the liability of the wrongdoers to military discipline. See Day, 994 F.Supp. at 77-80. The court upheld the certifications by the U.S. Attorney and rejected Towle's claim that he also should have been certified (Caton defaulted and did not challenge the denial). Id. at 76.

On this appeal by Day, the central questions are whether the Feres doctrine applies; if so, whether it bars his claims against the individual servicemen named as defendants; and to the extent it does not whether claims against individual defendants were properly certified under the Westfall Act. These are primarily questions of law, which we decide de novo, the facts alleged in the complaint being taken as true. See United States v. Omar, 104 F.3d 519, 522 (1st Cir.1997). We conclude that Feres bars federal claims against all defendants and state claims against the United States and its components but does not bar state claims against individual servicemen for conduct outside the scope of their duties. We also uphold the district court's decisions as to the Westfall Act to the extent that they are challenged.

Starting with Feres, the clearest way to approach this issue is to consider whether Feres 's incident to service test bars Day's claims against the federal government and its components, as the district court held. Although Day's asserted aim on appeal is to secure relief only against certain of the individual defendants and not the government, his argument rests in part on his interpretation of the Feres rationale and the factors ordinarily considered under Feres. In any case, Feres and its proper application is the building block on which the balance of the analysis must rest.

As sovereign, the United States may not be sued for damages without its consent. See Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995). The United States has consented, in the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., to be sued for damages for personal injury caused by "the negligent or wrongful act or omission" of a federal employee "while acting within the scope of his employment," provided that in the same circumstances a private employer would be liable for the acts of his employee under the local law. 28 U.S.C. §§ 1346(b), 2674, 2675(a). No explicit exception bars claims by or against military personnel.

Nevertheless, in 1950 the Supreme Court determined in Feres that the Federal Tort Claims Act did not extend to a suit by a deceased soldier's estate for negligent medical treatment by army surgeons resulting in the soldier's death. See 340 U.S. at 145-46, 71 S.Ct. 153. Using the like-circumstances...

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