Pierce v. U.S.

• Decision Date: 27 March 1987
• Docket Number: No. 86-8339,86-8339
• Citation: 813 F.2d 349
• Parties: Larry PIERCE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 349

813 F.2d 349

Larry PIERCE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 86-8339.

United States Court of Appeals, Eleventh Circuit.

March 27, 1987.

Billy N. Jones, Hinesville, Ga., for plaintiff-appellant.

G.R. Smith, Asst. U.S. Atty., Savannah, Ga., Hinton R. Pierce, Brent O. Hatch, U.S. Attys., U.S. Dept. of Justice, Associate Atty. Gen. Office; Civil Div., Washington, D.C., for defendant-appellee.

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

Before HILL and HATCHETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

The issue in this case is whether the federal courts have subject matter jurisdiction of personal injury claims filed by servicemen under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-2680.

Appellant, Larry Pierce, a former serviceman, filed a personal injury action against the United States government. His claim arose from a motor vehicle collision between him and another serviceman; the collision did not occur on a military base. The District Court for the Southern District of Georgia dismissed the action ruling that the claim arose in the course of activities incident to Pierce's service and was thus barred by Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Because we conclude that Pierce's injuries were not incurred from activities incident to service, and since the maintenance of the action in this case will not threaten the military disciplinary structure, we reverse and remand for further proceedings.

BACKGROUND

Larry Pierce, a former Staff Sergeant of the United States Army, served his country in the armed forces for over twelve years. In August of 1982, Pierce was transferred to Fort Stewart, Georgia. On August 24, the day he was assigned to active duty, Pierce requested and received permission from his Master Sergeant to leave the military base and take care of some personal business. Pierce was told that he did not have to return until late afternoon.

Shortly before noon, Pierce left the base on his motorcycle and traveled south to the nearby city of Hinesville, Georgia. After attending to his personal errands, he ate lunch and began his journey back to the base. Pierce's intentions were to return to his room at the barracks and unpack his personal belongings.

At approximately 12:30 p.m., Pierce drove his motorcycle north on General Screven Road--a public highway which traverses the Fort Stewart Military Reservation.

As he approached the intersection of General Screven Road and the south driveway of the Son Bon Plaza (a shopping center within the city limits of Hinesville), a vehicle driven by Roland Peterson, a navy recruiter, exited the Son Bon Plaza in front of Pierce, causing a collision. Peterson, driving an automobile owned by the United States, intended to turn left and proceed south on General Screven Road. He was cited for failure to yield the right-of-way.

As a result of the collision, Pierce received injuries to his right elbow, wrist, and ankle. These injuries left him with a disability rating of seventy percent. Because of this degree of physical impairment, Pierce was declared unfit for active duty and was relieved from assignment on January 19, 1983.

Pierce filed an administrative claim on March 7, 1984; it was denied on May 10, 1984. Thereafter, this suit was filed under the Federal Tort Claims Act seeking damages for injuries allegedly caused by Peterson's negligent operation of a United States vehicle while acting within the scope of his official duties as a member of the United States Navy.

The United States filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) on September 27, 1985. After considering the pleadings, briefs, and the applicable law, the court concluded that Pierce's claim fell within the exception to government liability judicially created by the Supreme Court in Feres. The district court granted the motion to dismiss on April 22, 1986.

DISCUSSION

I. The Feres Doctrine

Under the common law, the doctrine of sovereign immunity barred suits against the United States. See Feres, 340 U.S. at 139, 71 S.Ct. at 156; Johnson v. United States, 749 F.2d 1530, 1532 (11th Cir.1985), reinstating panel opinion 779 F.2d 1492 (11th Cir.1986) (en banc), cert. granted, --- U.S. ----, 107 S.Ct. 59, 93 L.Ed.2d 19 (1986). In an effort to "provide remedies for wrongful government actions through a waiver of sovereign immunity and to relieve Congress of the burden and the public of the inequities of private bills ...," Congress enacted the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b); 2671-2680. Parker v. United States, 611 F.2d 1007, 1009 (5th Cir.), reh'g denied, 615 F.2d 919 (5th Cir.1980). ¹ This act allows civil actions against the United States

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. Sec. 1346(b) (1976). If liability is imposed, the United States must compensate "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. Sec. 2674 (1976).

The Federal Tort Claims Act is not, however, a blanket waiver of sovereign immunity. See Parker, 611 F.2d at 1009. The Act contains several limitations, one of which preserves sovereign immunity if the claim arises "out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." 28 U.S.C. Sec. 2680(j). Although the text of the Act does not specifically exclude actions by servicemen arising from peacetime activities, the Supreme Court has created an exception for injuries arising from activity "incident to" military service. See Johnson, 749 F.2d at 1532; Feres, 340 U.S. at 146, 71 S.Ct. at 159; see United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985); Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); Stencel Aero Engineering Corp. v In Feres, the Supreme Court resolved a conflict among the Federal Courts of Appeals by considering the claims of three servicemen seeking to recover under the Federal Tort Claims Act for injuries sustained while on active duty. Feres, 340 U.S. at 136-37, 71 S.Ct. at 154-55. The Court noted that the reason for the Act was to allow parties aggrieved by agents of the federal government to redress "wrongs which could have been actionable if inflicted by an individual or corporation," but not to expose the United States to "novel and unprecedented liabilities." ² Feres, 340 U.S. at 139, 142, 71 S.Ct. at 156, 157. Finding no theory of private liability "even remotely analogous" to negligence actions brought by soldiers against their superior officers, the Court concluded that "in the absence of express congressional command," Congress did not intend to waive immunity for service-connected injuries and make a "radical departure from established law." Feres, 340 U.S. at 141, 146, 71 S.Ct. at 157, 159. In the absence of an express waiver of immunity, "a district court has no jurisdiction to entertain a suit against the United States." Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1156 (5th Cir. Unit B 1981). ³

United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977).

The Court has acknowledged several rationales justifying the Feres "incident to service" exception, including: (1) the "distinctively federal" relationship between the government and the members of the armed forces, (2) the substitute for tort liability provided by the Veterans Benefits Act, and (3)

[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty....

Stencel, 431 U.S. at 671-72, 97 S.Ct. at 2058 (quoting United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 135 (1954)). As the Court has recently reiterated, however, "[i]n the last analysis, Feres seems best explained by the 'peculiar and special relationship of the soldier to his superiors, [and] the effects of the maintenance of such suits on discipline....' " Shearer, 105 S.Ct. at 3043; Chappell, 462 U.S. at 299, 103 S.Ct. at 2365. Thus, in order to determine whether the Feres doctrine is applicable, a court must pay "particular attention to whether or not the claims asserted ... will implicate civilian courts in conflicts involving the military structure or military decisions." Johnson, 779 F.2d at 1494; See Shearer, 105 S.Ct. at 3043; see also Stencel, 431 U.S. at 672, 97 S.Ct. at 2058.

II. Incident to Service

Despite the fact that "[t]he Feres doctrine cannot be reduced to a few bright-line rules" and that "each case must be examined in light of the [Federal Tort Claims Act] as it has been construed," Shearer, 105 S.Ct. at 3043, this circuit has adopted a three-part test for determining whether the activity of a serviceman is "incident to service." Parker, 611 F.2d at 1013-15. See Flowers v. United States, 764 F.2d 759, 760-61 (11th Cir.1985); Johnson, 749 F.2d at 1537. ⁴ The factors to

                be considered include (1) the duty status of the service member, (2) the place where the injury occurred, and (3) the activity the serviceman was engaged in at the time of the injury.   Parker, 611 F.2d at 1013.  After evaluating the relative weight of these factors, a court should determine whether an activity is incident to service based on the totality of the circumstances.   Parker, 611 F.2d at 1013
                

A. Duty Status

The United States stresses the fact that Pierce was a member...