Latchum v. U.S., Civ. No. 00-00826 SOM/KSC.

• Decision Date: 01 November 2001
• Docket Number: Civ. No. 00-00826 SOM/KSC.
• Citation: 183 F.Supp.2d 1220
• Parties: Wendy N. LATCHUM, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Hawaii

183 F.Supp.2d 1220

Wendy N. LATCHUM, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. 00-00826 SOM/KSC.

United States District Court, D. Hawai`i.

November 1, 2001.

COPYRIGHT MATERIAL OMITTED

Michael D. Formby, Frame Formby & O'Kane (argued), Honolulu, HI, Vladimir Devens, Winer & Meheula, Kailua, HI, for Plaintiffs.

David E. Dauenheimer United States Department of Justice, Torts Branch, Civil Division (argued), Washington, DC, for Defendants.

ORDER GRANTING GOVERNMENT'S MOTION TO DISMISS

MOLLWAY, District Judge.

I. INTRODUCTION.

This case arises out of the murder of a military serviceman on vacation with his family at the Waianae Army Recreational Center ("WARC") in Hawaii. Chief Warrant Officer 2 John R. Latchum ("Latchum") was fatally shot by a person who was not in the military as Latchum stood on the porch of the cabin he and his family were renting at WARC. Pursuant to the Federal Tort Claims Act ("FTCA"), Latchum's wife, two young children, and estate (collectively, "Plaintiffs") are suing the United States of America (the "Government") for up to $8,500,000, claiming that the Government's negligence contributed to Latchum's death.

Pursuant to Fed.R.Civ.P. 12(b)(1), the Government, relying on the Feres doctrine, has moved to dismiss Plaintiffs' claims for lack of subject matter jurisdiction. This court has been faced with the Feres doctrine before and has each time undertaken a very fact-specific analysis to determine whether Feres did or did not bar the servicemember's claims. Plaintiffs argue here that the Feres doctrine has been applied by courts too broadly and that this court should follow the original intent of the Feres doctrine. This court, however, is bound by appellate rulings that have examined that doctrine. Although the court agrees with Plaintiffs that barring their claims is a harsh result, this court is compelled by governing precedent to conclude that their claims are indeed barred by the Feres doctrine. Accordingly, the court grants the Government's motion to dismiss.

II. BACKGROUND FACTS.

Latchum was an "active duty" serviceman at the time of his death. See Exhibit 1, Tab A (Latchum's Officer Record Brief). While Latchum was on authorized leave for eleven days, see Exhibit 1, Tab E (authorized leave request), he and his wife and children rented a cabin at WARC. Complaint ¶ 11. Plaintiffs allege that the United States was negligent and that, as a result, on or about June 3, 1998, Latchum was shot and killed by "unlawful trespassers upon WARC property." Id.

There is no dispute that WARC is owned and operated by the Department of the United States Army. See Declaration of Randall K. Tsuneyoshi (June 6, 2001) ¶¶ 2, 6. WARC is operated as part of the Army's Morale, Welfare, and Recreation ("MWR") program. Declaration of Lt Col. Beverly S. Cardinal¹ (June 13, 2001) ¶ 4. The MWR program is a quality-of-life program that is intended to "support readiness" by providing a variety of community, soldier, and family support activities and services. The MWR program includes social, fitness, recreational, educational, and other activities that promote mental and physical fitness and generally provide a working and living environment that attracts and retains quality soldiers. Id.; Army Regulation ("AR") 215-1, ¶¶ 1.7(a), 1.8(c), 1.9 (attached to Cardinal Decl. as Tabs 1 to 3); Department of Defense ("DOD") Directive No. 1015.2 (June 14, 1995), ¶ 4 (attached to Declaration of Lester T. Akeo Decl.).² The MWR program is designed to meet the needs of those involved with a military installation, including not only the soldiers, but also retirees and civilian employees, as well as their families. Cardinal Decl. ¶ 4; AR 215-1, ¶ 1.8(a).

MWR programs are established primarily for active duty military personnel. Cardinal Decl. ¶ 7; AR 215-1, ¶ 6.2(a) (attached to Cardinal Decl. as Tab 7). Accordingly, active duty military personnel, their guests, and their families receive first priority for use of MWR programs. AR 215-1, ¶ 6.2(a). "All others have equal access after first priority patrons, on a first come basis, unless determined otherwise by the local commander." Id. Local rules govern priority for using WARC facilities. Under the Standard Operating Procedure for the WARC ("SOP WARC"), active duty Army personnel and their families have the highest priority to use WARC facilities. All other active duty military personnel and their families have second priority. Various civilians employed with the Department of Defense and other federal employees have lower priority. See SOP-WARC, App. A (attached to Exhibit 1, Tab B). The general public cannot rent cabins at WARC. Declaration of Gerald L. Reyes (June 14, 2001) ¶ 6.

Because Latchum was on active duty, he and his family had first priority to use WARC. Declaration of Lester T. Akeo (July 25, 2001) ¶ 6. There is no dispute that active duty Army and Army reserve members could reserve cabins 90 days in advance, other military active duty and reserve members could reserve cabins 80 days in advance, DOD civilian employees could reserve cabins 60 days in advance, and other federal employees could reserve cabins 30 days in advance. On the day Latchum was killed, 37 out of 39 cabins at WARC were occupied, 23 by active duty military, 11 by retired military, 2 by military reservists, and 1 by a DOD civilian. Akeo Decl. ¶ 7; Tab 5 to Akeo Decl. (guest ledger); see also last page of Ex. D to Declaration of Michael D. Formby (undated but filed April 11, 2001) (map of WARC indicating the existence of 39 cabins). Akeo says that the cabins are almost exclusively rented by active duty and retired military, as well as reservists. Akeo says that federal employees (those with the lowest priority) are rarely able to rent cabins at WARC. Akeo Decl. ¶¶ 7-8.

WARC is an Army nonappropriated fund instrumentality ("NAFI") of the United States, which appears to mean that it does not receive funding from the Army's budget. Cardinal Decl. ¶ 6. Nevertheless, NAFIs like WARC are "considered integral and essential to the conduct of the military mission." AR 215-1, ¶ 3.1(b)(9) (attached to Cardinal Decl. as Tab 5); DOD Directive No. 1015.2, ¶ 4.2 ("The Department of Defense recognizes that MWR programs are vital to mission accomplishment and form an integral part of the non-pay compensation system").

Installation commanders plan, manage, and operate MWR programs. Cardinal Decl. ¶ 5; AR 215-1, ¶ 2.4 (attached to Cardinal Decl. as Tab 4). On July 3, 1998, operations at WARC were governed by the following chain of command:

1. Maj. Gen. James T. Hill, Commander 25th Infantry Division (Light) and United States Army;

2. Brig. Gen. James L. Campbell, Assistant Division Commander for Support, 25th Infantry Division;

3. Col. James T. Hirai, Commander United States Army Garrison, Hawaii;

4. Lt. Col. Beverly S. Cardinal, Director, Directorate of Community Activities;

5. Ted Otaguro (Civilian), Cardinal's Deputy;

6. Richard Ambrose (Civilian), Chief, Business Recreation Division; and

7. Lester Akeo (Civilian), Manager WARC

Cardinal Decl. ¶ 2. Although civilians had day-to-day control over the management of WARC, Lieutenant Colonel Cardinal had overall responsibility for WARC. This meant that policy changes, and all major improvements (including renovations, safety, fences, lighting) came through or were initiated by her because they required larger expenditures of nonappropriated funds. Cardinal Decl. ¶ 1. Additionally, Cardinal briefed her superiors, Brigadier General Campbell and Colonel Hirai, on important matters relating to WARC on a monthly basis. Id.

Law enforcement operations at WARC were supervised by the Provost Marshal's Office, Fort Shafter, under a chain of command separate from that of the Directorate of Community Activities.³ Cardinal Decl. ¶ 3. Accordingly, the number and type of security officers at WARC was determined by the Provost Marshal's Office, Fort Shafter. Reyes Decl. ¶ 5. On June 3, 1998, law enforcement operations at WARC were governed by the following chain of command:

1. Maj. Gen. James T. Hill, Commander 25th Infantry Division (Light) and United States Army Garrison, Hawaii;

2. Col. James T. Hirai, Commander United States Army Garrison, Hawaii;

3. Col. Manolito Garabato, Commander Military Police Brigade Hawaii;

4. Lt. Col. Rose M. Miller, Provost Marshal Fort Shafter;

5. Fred MaKinney (Civilian), Company Commander, Department of Army Civilian Police, Fort Shafter;

6. Gerald Reyes (Civilian), Detachment Commander, Department of Army Police, WARC;

7. Department of Army Police Officers and Military Police Officers assigned to WARC.

Declaration of Rose M. Miller (June 1, 2001) ¶ 2.

Although WARC is a military facility, the general public is allowed to enter WARC's front gate (which is manned 24 hours a day by an armed officer) on foot to get to the beach. Reyes Decl. ¶ 6. The area surrounding the rental cabins is off-limits to anyone other than the occupants and their guests. Id. The Government says that Army Police officers patrol the area regularly, stopping and questioning individuals who do not appear to be occupants or guests of WARC. Id. However, civilians walking to and from the beach may use the soda machines located next to the parking lot and the public showers. Deposition of Lester T. Akeo (July 17, 2001) at 50-51. There is some evidence indicating that civilians have, in the past, entered WARC property to commit crimes.

While utilizing WARC facilities, Latchum was governed by Army Regulations, WARC rules, and other military rules. See Cardinal Decl. ¶ 8.

III. MOTION TO DISMISS STANDARD.

A motion to dismiss pursuant to the Feres doctrine is properly treated as a Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Jackson v. United States, 110 F.3d 1484, 1486 (9th Cir.1997) (stating that the district court erred in analyzing the Feres doctrine as a motion for summary judgment,...