Day v. Massachusetts Air Nat. Guard

Citation1999 WL 44728,167 F.3d 678
Decision Date29 January 1999
Docket NumberNo. 98-1727,98-1727
PartiesAndrew 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. First Circuit
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

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

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.

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 language of section 2674(a) as a point of departure, Justice Jackson said that no precedent allowed a soldier to recover for negligence against his superiors or his government, and his opinion offered policy reasons against such recovery. See id. at 141-42, 71 S.Ct. 153. He concluded that the statute did not extend to suits for "injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. 153.

Writing in the aftermath of the Second World War, Justice Jackson likely thought that Congress (which had only recently enacted the Federal Tort Claims Act) did not mean to subject itself to negligence claims by every soldier injured in the line of duty or to open military decisions to second-guessing by civilians. See Feres, 340 U.S. at 141-142, 71 S.Ct. 153. In an age of modest tort judgments, the loss of a tort claim was balanced by the assurance of free medical care and veteran's benefits for an injured soldier. See id. at 144-45, 71 S.Ct. 153. The prospect of disparate state law governing tort liability for the military looked ominous. See id. at 143, 71 S.Ct. 153. In all events, the Court was unanimous.

In the ensuing half-century, the Court has reaffirmed and expanded the Feres doctrine, while somewhat adjusting the reasons given for it. The most significant expansion, from a conceptual standpoint, came in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). There, the Court used the incident to service test to bar a suit by seamen, not against the government under the Federal Tort Claims Act but against individual navy superiors, for deliberate racial discrimination in making assignments and other personnel decisions. See Chappell, 462 U.S. at 304-05, 103 S.Ct. 2362.

The Chappell suit was brought under the Bivens doctrine, which gives individuals federal tort claims against government officials...

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