Millang v. U.S., 86-5575

• Citation: 817 F.2d 533
• Decision Date: 14 May 1987
• Docket Number: No. 86-5575,86-5575
• Parties: Brian MILLANG, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 533

817 F.2d 533

Brian MILLANG, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 86-5575.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 6, 1987.

Decided May 14, 1987.

Ian Herzog, Los Angeles, Cal., for plaintiff-appellee.

Freddi Lipstein, Washington, D.C., for defendant-appellant.

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

Before WALLACE, WIGGINS and KOZINSKI, Circuit Judges.

PER CURIAM:

We consider whether an off-duty military police officer's suit for injuries suffered when he was run over by an on-duty military police officer at an on-base picnic site is barred by the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

Facts

Appellee Brian Millang, a Marine Corps military policeman, attended a picnic on Saturday, July 25, 1981, at a park on a marine corps air station. The picnic was an informal gathering of servicemen, their families and guests. Millang was off duty at the time.

In the late afternoon Sergeant Carlo G. Troiani, an on-duty military police officer, drove his military police vehicle to the picnic site. Whether he arrived in response to an official summons or simply stopped by on his own is unclear from the record. Troiani stepped out of his vehicle, leaving the engine running, and spoke to some of the picnickers. Horseplay followed and someone threatened to spray Troiani with beer. Troiani rushed back to his truck, put it in gear and began to speed off. Unfortunately, an eighteen month old child had wandered in front of the vehicle. Millang, standing nearby, threw the child clear, but was himself run over by the truck.

Millang sustained severe injuries to his back and lower extremities. He received a disability discharge from the service and is entitled to government disability benefits for the duration of his disability. His medical bills to date have also been paid by the government.

Millang brought suit against the United States for Troiani's negligence pursuant to the Federal Tort Claims Act. 28 U.S.C. Sec. 1346(b). The government claimed the suit involved an activity "incident to military service" and was thus barred by Feres. The district court disagreed, finding Feres inapplicable because Millang was off duty at a site where non-military personnel were present. In addition, the district court concluded that the suit did not involve the command function of military service and presented no threat to military discipline. Finding that Troiani was acting in the course of his military duty when the accident occurred, the court awarded Millang damages in the amount of $833,896 for lost earning capacity and $250,000 for pain and suffering. The government appeals.

Discussion ¹

The Feres doctrine deprives federal courts of subject matter jurisdiction to decide claims by members of the armed services where the injuries "arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146, 71 S.Ct. at 159; Bon v. United States, 802 F.2d 1092, 1094 (9th Cir.1986). The problem, of course, is determining which activities meet the somewhat elusive "incident to service" standard. While the courts may consider a variety of factors in making this determination, ² the key inquiry is "whether the suit requires the civilian court to second-guess military decisions, ... and whether the suit might impair essential military discipline." United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 3043, 87 L.Ed.2d 38 (1985) (citation omitted); Atkinson v. United States, 804 F.2d 561, 563 (9th Cir.1986). We conclude that Millang's claim is barred by Feres under this standard.

Feres prohibits not only those suits that directly call into question military decisions, but also "the type of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness." Shearer, 105 S.Ct. at 3044 (emphasis original). Although Millang does not specifically challenge a military decision in this case, a claim that an on duty soldier acted negligently while discharging his responsibilities in an area subject to military control is the type of claim that could well call military decisions into question. For example, there might well be an inquiry into whether Troiani was sent to the area by his superiors and why, a matter that is in fact in dispute here. Other plaintiffs bringing similar suits could allege inadequate supervision or training, requiring military personnel to defend their actions in court. Moreover, the military police have the express duty of enforcing military discipline. A lawsuit that challenges the conduct of an on-duty military police officer acting within the...