Hass for Use and Benefit of U.S. v. U. S., 74-1996

Citation518 F.2d 1138
Decision Date01 July 1975
Docket NumberNo. 74-1996,74-1996
PartiesJon Edward HASS, for the sole Use and Benefit of the UNITED STATES of America, and Jon Edward Hass, Individually, Appellant, v. UNITED STATES of America et al., Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Robert R. Smiley, III, Washington, D. C. (Smiley & Lear, Washington D. C., Trawick H. Stubbs, Jr., New Bern, N. C. on brief), for appellant.

Joseph W. Dean, Asst. U. S. Atty., and William C. Lawton, Raleigh (Thomas P. McNamara, U. S. Atty., on brief), for appellees.

Before WINTER, CRAVEN and RUSSELL, Circuit Judges.

CRAVEN, Circuit Judge:

On May 30, 1971, Marine First Lieutenant Jon Edward Hass was injured while riding a horse he had rented from a stable owned and operated by the Marine Corps at its Air Station in Cherry Point, North Carolina. He sued Raymond Russ and William Williams, the civilian manager and assistant manager of the stable, alleging negligence in their failure to warn him of the horse's dangerous propensity to break its gait and bolt, and also sued the United States, as their employer, under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The district court granted summary judgment to Russ and Williams on the ground that they were immune from liability, and to the United States on the ground that Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), precluded Hass's suit against it. We affirm.

I. Claim Against the United States

The district court held that Hass's suit against the United States was blocked because his injuries arose out of or in the course of activity incident to his military service. In reaching this conclusion the judge relied upon his findings that (1) Hass was on active duty though in an "off-duty" status at the time of the accident; (2) the government owned and operated the stable for the benefit of servicemen like Hass; (3) the stable was organized pursuant to military order, the Marine Special Services Officer had responsibility for its management and regulation pursuant to Special Services Rules, and Hass and other servicemen were subject to disciplinary measures for violation of the rules; (4) and the government "obviously" supported the stable financially.

It is settled 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.

Feres, supra, at 146, 71 S.Ct. at 159. See United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949); Shaw v. United States, 448 F.2d 1240, 1241 (4th Cir. 1971) (per curiam). Hass argues, however, that the district court misinterpreted what the Supreme Court meant by the phrase "incident to service" and thus looked to the wrong factors. We disagree.

In Brooks, supra, the Supreme Court found no incidence to military service in injuries and death incurred by two servicemen on furlough when the private car in which they were riding on a public highway was struck by an Army truck. In Feres, supra, the Court disallowed three suits, finding incidence to service in these situations: death of an active-duty serviceman in a barracks fire allegedly caused by negligence of military personnel, injury to an active-duty serviceman from a foreign object left in his abdomen during surgery by a military doctor, and death of an active-duty serviceman due to negligent medical treatment by Army surgeons. In Brown, supra, the Court found no incidence to service in an injury incurred by a discharged veteran during treatment in a Veterans Administration hospital.

The phrase "incident to service" was given content by Justice Jackson in Feres when, after setting out the facts of the three appeals there under review, he stated: "The common fact underlying the three cases is that each claimant, while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces." 340 U.S. at 138, 71 S.Ct. at 155. This common fact was sufficient for the Court to find incidence to service in all three appeals without further discussion. Id. Brooks and Brown failed the Feres test of "incidence to service" because the claimants in those cases were not on active duty, the soldiers in Brooks being on furlough and the claimant in Brown having been discharged. Cf. Alexander v. United States, 500 F.2d 1, 5 (8th Cir. 1974), cert. denied, 419 U.S. 1107, 95 S.Ct. 779, 42 L.Ed.2d 803 (1975).

Hass argues, however, that language in Brown and the later case of United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963), has enlarged liability and that the dispositive questions are whether his activity at the time of the accident was directly related to his specific military duties and whether allowance of his suit would tend to interfere with military discipline by pitting him in litigation against persons in his chain of command. We disagree. The language in Brown 1 relied upon by Hass is simply an explanation or rationale for the Feres test. The operations undergone by two of the claimants in Feres bore no relationship to their specific duties, and allowing suit against the doctors could not conceivably have interfered with discipline in claimants' lines of command; yet suit was disallowed because the injuries were deemed incident to service.

We believe, therefore, that the correct test is the relatively mechanical one derived from the Feres language quoted above, rather than the test urged by Hass. Accord, Harten v. Coons, 502 F.2d 1363, 1365 (10th Cir. 1974), cert. denied, --- U.S. ---, 95 S.Ct. 1354, 43 L.Ed.2d 441 (1975); Henninger v. United States, 473 F.2d 814, 816 (9th Cir. 1973), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973); Hall v. United States, 451 F.2d 353, 354 (1st Cir. 1971). But cf. Hale v. United States, 416 F.2d 355, 358- 60 (6th Cir. 1969). The Feres test has the virtue of simplicity, always an important consideration, while Hass's test would present difficult fact questions in every instance. See Henninger, supra, at 815-16. And the Feres test is supported by cogent policies. See Muniz, supra, 374 U.S. at 159, 83 S.Ct. 1850; Feres, supra, 340 U.S. at 141-45, 71 S.Ct. 153.

Whether Hass was engaged in activity incident to his military service, and thus barred from suit by the Feres doctrine, is a fact question. "Incident to service" is not, of course, a narrow term restricted to actual military operations such as field maneuvers or small arms instruction. It has been held that a member of the military is engaged in activity incident to his military service when he is enjoying a drink in a noncommissioned officers club, Richardson v. United States, 226 F.Supp. 49 (E.D.Va.1964), and when he is riding a donkey during a ballgame sponsored by the Special Services division of a naval air station, Keisel v. Buckeye Donkey Ball, Inc., 311 F.Supp. 370 (E.D.Va.1970), and while swimming in a swimming pool at an airbase, Chambers v. United States, 357 F.2d 224 (8th Cir. 1966).

Although relevant to the ultimate fact inference to be drawn, it is not, we think, essential to application of the Feres doctrine that the injury to the serviceman have been caused by another member of the military rather than a civilian employee of the military. United States v. Lee, 400 F.2d 558, 561 (9th Cir. 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969); Gamage v. Peal, 217 F.Supp. 384, 389 (N.D.Cal.1962).

We think it might suffice here to bar this suit that (as found by the district court) the stable was owned and operated by the government and that a Marine officer was in charge of it and that servicemen could be disciplined for misconduct while using it. 2 Recreational activity provided by the military can reinforce both morale and health and thus serve the overall military purpose. 3 The district court found that Russ and Williams worked as hired managers under the control and supervision of a military officer. Their civilian status did not affect their job performance, and under such circumstances we hold that their civilian status does not operate to prevent application of the Feres doctrine. 4 Cf. Lee, supra, at 561-62; United Air Lines, Inc. v. Wiener, 335 F.2d 379, 396-98, 402 (9th Cir. 1964), cert. denied, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964); Layne v. United States, 295 F.2d 433 (7th Cir. 1961), cert. denied, 368 U.S. 990, 82 S.Ct. 605, 7 L.Ed.2d 527 (1962).

We hold that an active-duty serviceman, temporarily in off-duty status and engaged in recreational activity on a military base, cannot sue the United States for the alleged negligence of another serviceman or civilian employee of the military. Cf. Chambers, supra; Keisel, supra; Richardson, supra.

II. Claim Against Civilian Employees of Military

The district court held Russ and Williams immune from liability under an extension of Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). We believe the principle of Barr, when applied to this case, becomes too attenuated to protect these defendants.

In Barr the Supreme Court held that the Director of the Office of Rent Stabilization was immune from a libel action growing out of a press release issued in the course of his duties. Lower courts have accorded similar immunity to federal officials and employees lower than the one in Barr, see, e. g., Sowders v. Damron, 457 F.2d 1182 (10th Cir. 1972) (IRS agent); Garner v. Rathburn, 346 F.2d 55 (10th Cir. 1965) (Roads and Grounds Maintenance Foreman on Air Force base); and have granted immunity for negligent acts as well as intentional torts, see, e. g., Estate of Burks v. Ross, 438 F.2d 230 (6th Cir. 1971); Garner, supra.

Unfortunately there is no litmus test for determining which officials and employees should receive the benefit of this judicially created immunity. In...

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