248 F.3d 863 (9th Cir. 2001), 99-36101, Costo v. United States

Docket Nº:99-36101
Citation:248 F.3d 863
Party Name:SUZANNE C. COSTO, as Personal Representative for Nollie P. Costo; PEDRO COSTO, husband; ROSA COSTO, wife; JEFFREY GRAHAM, as Personal Representative for Christopher J. Graham, Plaintiffs-Appellants, and NOLLIE P. COSTO; CHRISTOPHER J. GRAHAM, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant-Appellee.
Case Date:April 20, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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248 F.3d 863 (9th Cir. 2001)

SUZANNE C. COSTO, as Personal Representative for Nollie P. Costo; PEDRO COSTO, husband; ROSA COSTO, wife; JEFFREY GRAHAM, as Personal Representative for Christopher J. Graham, Plaintiffs-Appellants,





No. 99-36101

United States Court of Appeals, Ninth Circuit

April 20, 2001

Argued and Submitted October 6, 2000

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Lowell V. Sturgill Jr., Civil Division, Department of Justice, Washington, D.C., for the defendant-appellee.

Robert A. Weppner, Law Office of J. Michael Koch and Associates, P.S., Inc., Silverdale, Washington, for the plaintiffs-appellants.

Appeal from the United States District Court for the Western District of Washington. John C. Coughenour, District Judge, Presiding. D.C. No. CV-98-01227-JJCC.

Before: Arthur L. Alarcon, Warren J. Ferguson, and M. Margaret McKeown, Circuit Judges.

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.


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 Nooksack River in Whatcom County, Washington. Both were off duty and on liberty 1 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.

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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) 1710.11BP3 (July 1, 1994), available at http://www.bupers.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 Responsibilities P3. 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 P4.

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 supervise those guides. They further alleged that MWR breached its duty by failing 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

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de novo. Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1997). 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.


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 damages." 28 U.S.C. § 2674. However, this blanket waiver contained an exception, by which the Government withheld consent to be sued for "any 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, 95 L.Ed. 2d 648, 107 S.Ct. 2063 (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 (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 (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, 87 L.Ed. 2d 38, 105 S.Ct. 3039 (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

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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 (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...

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