Bon v. U.S., 85-5968

• Decision Date: 21 October 1986
• Docket Number: No. 85-5968,85-5968
• Citation: 802 F.2d 1092
• Parties: Janice BON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1092

802 F.2d 1092

Janice BON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 85-5968.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1986.

Decided Sept. 10, 1986.

Designated for Publication Oct. 21, 1986.

Frederick A. Meiser, Jr., Jan Kendrick, Klinedinst & Meiser, San Diego, Cal., for plaintiff-appellant.

Jeanne M. Franken, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before TANG and BRUNETTI, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, District Judge:

Janice Bon brought this action under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-80, seeking damages for injuries sustained while using the facilities and equipment of the Special Services Center at the Naval Training Center in San Diego. The district court granted the Government's motion to dismiss the complaint for lack of subject matter jurisdiction under the Feres doctrine, which holds that a member of the armed services may not recover for the Government's otherwise tortious conduct where the plaintiff's injuries "arise out of or are in the course of an activity incident to service." Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950). We affirm.

I. Background

At the time of the accident Bon was on active duty with the United States Navy. The accident occurred on or near a Navy Special Services facility at the Naval Training Center in San Diego. ¹ Bon and another individual were in a canoe rented from the Special Services Center. Her injuries occurred when a motor boat owned by the Government struck her canoe. The motor boat had also been rented from Special Services and was operated by an active duty service member. Both Bon and the operator of the motor boat were on authorized liberty and were not engaged in official duties.

The Naval Special Services Center is operated by the Naval Training Center and is under the direct responsibility of the commanding officer of the Naval Training Center. The purpose of the Special Services Center is to "provide for Navy personnel and their dependents a varied program of wholesome and constructive off-duty leisure and recreation activities which will effectively contribute to the mental and physical well being of the participants." (Special Services Recreation Manual). Base rules and regulations govern the rental and operation of boats at the Naval Training Center. In addition, Special Service Department guidelines also govern the rental services. At all times relevant, both Bon and the operator of the motor boat were subject to military discipline for any violations of these rules, regulations, and guidelines.

II. Contentions on Appeal

The sole issue on appeal is whether the Feres doctrine bars Bon's claim for relief. Bon claims that the Feres doctrine does not apply because (1) at the time of the accident she was officially off-duty and the recreational activities in which she was engaged were in no way related to her official duties, and (2) neither she nor the other off-duty service member involved in the accident was subject to military discipline or was participating in activities under direct military command. The Government contends that Bon and the other service member involved in the accident were engaged in an activity which has an express military purpose and which is governed by military regulations and rules. Consequently, the Government argues, the district court correctly applied the Feres doctrine.

III. Standard of Review

This court reviews de novo the district court's dismissal of Bon's complaint for lack of subject matter jurisdiction. Clayton v. Republic Airlines, Inc., 716 F.2d 729, 730 (9th Cir.1983) (citing Phoenix Title & Trust Co. v. Stewart, 337 F.2d 978, 985 (9th Cir.), cert. denied, 380 U.S. 979, 85 S.Ct. 1335, 14 L.Ed.2d 273 (1964)).

IV. The Feres Doctrine

Under the Feres doctrine courts lack subject matter jurisdiction to adjudicate claims by members of the armed services where the injuries complained of "arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159. ² This court has held that the determination of whether an activity is incident to service must focus on the potential impact of a civil action on military discipline. Johnson v. United States, 704 F.2d 1431, 1436 (9th Cir.1983). Thus, "the most important line of inquiry [is] the nature of the plaintiff's activities at the time of the government's tortious action." Id. The Supreme Court has recently confirmed this approach. United States v. Shearer, --- U.S. ----, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). Application of the Feres doctrine necessarily involves a case-by-case analysis. Id. at 3043.

In Johnson this court looked to the following four factors to determine whether an activity is incident to military service:

(1) the place where the negligent act occurred;

(2) the duty status of the plaintiff when the negligent act occurred;

(3) the benefits accruing to the plaintiff because of his status as a service member; and

(4) the nature of the plaintiff's activities at the time the negligent act occurred.

704 F.2d at 1436-41.

In Johnson, the plaintiff, an active-duty service member, during his off-duty time worked as a bartender at the base noncommissioned officers club (NCO club). The plaintiff was injured in an automobile accident which occurred off-base. The automobile was driven by another off-duty service member who also worked as a bartender at the NCO club. Prior to the accident both the plaintiff and the driver had attended an after hours party at the club. The party was conducted in violation of both state law and military regulations. While driving the plaintiff home, the driver, who was legally intoxicated, ran off the road. The plaintiff claimed that the Government's negligence in operating the NCO club was a proximate cause of his injuries. The Government claimed that the Feres doctrine barred recovery.

Applying the four factors listed above, this court found that the plaintiff was subject to military discipline only in the most remote sense. Id. at 1440. Consequently, he was not engaged in an activity incident to military service, and the Feres doctrine did not bar his recovery. Id.

In Roush v. United States, 752 F.2d 1460, 1463 (9th Cir.1985), this court again emphasized the need to focus on the impact on the military disciplinary structure. As in Johnson, the plaintiff alleged that the Government's negligent operation of an on-base service members' club was a proximate cause of his injuries. The plaintiff, an active duty service member, attended the club while he was off duty. His injuries occurred when the club's bouncer evicted him from the club. The bouncer was another active duty service member who was working at the club while off-duty. The district court dismissed the plaintiff's complaint for lack of subject matter jurisdiction under the Feres doctrine. On appeal this court distinguished Johnson on the basis that Roush's presence at the club was a direct result of his status as a member of the military. Whereas in Johnson the plaintiff's use of the Government's facilities could not be distinguished from that of an ordinary civilian, Roush's use of the facilities arose solely by virtue of his status as a member of the military. Id. at 1464. The court remanded for a determination of the extent of the military's direct control of the facility when the negligent act occurred. Id. at 1465. The court noted that sufficient control could be shown by the existence of federal statutes or regulations "providing that persons in the relation of the [the plaintiff and the bouncer] were within the direct control of the military at the time the negligent act occurred...." Id. at 1464.

The present case is more closely analogous to Roush than it is to Johnson. In this case, however, the control of the military over the activity involved is sufficiently evidenced in the record, and there is no need to remand to the district court....