Roush v. U.S., 83-6282

• Decision Date: 06 February 1985
• Docket Number: No. 83-6282,83-6282
• Citation: 752 F.2d 1460
• Parties: Robert ROUSH, Plaintiff-Appellant, v. UNITED STATES of America, Command Club Management Systems, Enlisted Men's Club, Defendant-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1460

752 F.2d 1460

Robert ROUSH, Plaintiff-Appellant, v. UNITED STATES of America, Command Club Management Systems Enlisted Men's Club, Defendant-Appellees.

No. 83-6282.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 5, 1984.

Decided Feb. 6, 1985.

Edmund J. Bradley, Lichtman, Bradley & Mayuga, Santa Ana, Cal., for plaintiff-appellant.

Stephen O'Neil, U.S. Atty., Los Angeles, Cal., David W. Brennan, Brennan & Hollins, Santa Ana, Cal., for U.S.

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

Before TUTTLE, ¹ Senior Circuit Judge, and NORRIS and BEEZER, Circuit Judges.

TUTTLE, Senior Circuit Judge:

We have here for consideration another suit by a serviceman against the United States and its agents based on the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b). The complaint was met in the district court by a motion by the United States to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief could be granted. The trial court dismissed the complaint, citing Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), stating that the "plaintiff's action is hereby dismissed for lack of jurisdiction over the subject matter."

Although the trial court did, in its opinion supporting the dismissal of the complaint, recite certain facts, it did so only by paraphrasing the allegations of the complaint, which was the only pleading before it.

I. THE COMPLAINT

Since we must read the complaint carefully to determine whether, taking all allegations of fact as true, the plaintiff can prove any state of facts which would entitle him to relief we reproduce much of it here:

1. Plaintiff is and at all times herein mentioned was a resident of the County of Orange, State of California, and a citizen of the United States of America on active duty with the United States Marine Corps.

2. This lawsuit is brought against the UNITED STATES OF AMERICA and at all times herein mentioned is subject to the Federal Tort Claims Act Title 28 U.S.C. Sec. 1346.

3. A claim for damages was filed and served on the UNITED STATES OF AMERICA on or about September 13, 1982. More than six (6) months has elapsed without a formal rejection of said claim.

4. Plaintiff is informed and believes and on that basis alleges that Defendant COMMAND CLUB MANAGEMENT SYSTEMS is a business entity which manages the Defendant ENLISTED MENS CLUB and is doing business on El Toro Marine Corps Base in the County of Orange, State of California, by and through said managed Defendant ENLISTED MENS CLUB which is a nonappropriated fund activity and which is not an integral part of the United States Marine Corps, but instead a social club organization that was at all times herein mentioned an instrumentality of the Defendant UNITED STATES OF AMERICA.

5. Defendant ENLISTED MENS CLUB is and at all times herein mentioned was an organization doing business in the County of Orange, State of California, open to military personnel and to non-military persons upon invitation from Marine Corps personnel.

6. Defendant COMMAND CLUB MANAGEMENT SYSTEMS is a non-appropriated fund activity which is not an integral part of the United States Marine Corps, but is a social organization which was at all times herein mentioned an instrumentality of the Defendant UNITED STATES OF AMERICA, managed by civilians. Plaintiff is informed and believes and thereon alleges that each of the defendants designated herein acted negligently and are legally responsible in some manner for the events and happenings hereinafter referred to and thereby, negligently caused the injury and damage to plaintiff.

* * *

8. At all times herein mentioned, defendants, and each of them, managed, owned, operated, maintained, and/or controlled a club known as the ENLISTED MENS CLUB at the United States Marine Corps Base, El Toro, Santa Ana, Orange County, State of California, engaged in selling intoxicating liquors to the United States Marine Corps personnel and their guests for consumption on the premises, such acts constituting a non-appropriated fund activity and not being an integral part of the United States Marine Corps, but being a social club organization which was at all times herein mentioned, and is an instrumentality of the UNITED STATES OF AMERICA, separate and apart from the United States Marine Corps.

9. At all times herein mentioned, plaintiff was an invitee and paying person of said social club whose presence in said social club was during his off duty hours while dressed in civilian clothing and not acting in any furtherance of the United States Marine Corps mission, activity, and/or business.

10. At all times herein mentioned, SCOTT P. ALIX was off duty and dressed in civilian clothing and at all times herein mentioned, acted pursuant to his civilian employment and paid as a bouncer by said Defendant ENLISTED MENS CLUB and not acting in the furtherance of any United States Marine Corps mission, activity, and/or business, and negligently evicted said plaintiff causing the injuries and damages alleged herein.

11. On or about May 26, 1981, at approximately 4:30 P.M., on the United States Marine Corps Base known as El Toro, in the City of Santa Ana, County of Orange, State of California, plaintiff, while lawfully in said social club, was negligently evicted from said social club and injured in the parking lot of said ENLISTED MENS CLUB. Said employee, SCOTT P. ALIX, did negligently evict plaintiff by pushing plaintiff from behind and pushing plaintiff into the ground of the parking lot of said ENLISTED MENS CLUB face first.

The complaint further set out the alleged acts of negligence and the claimed damages suffered by the plaintiff.

In addition, appellant stated in his Response to Notice to Dismiss Pursuant to F.R.C.P. 12(b)(6) Memorandum of Points and Authorities, relating to the status of Alix, the bouncer. "The bouncer, Scott P. Alix, was an off-duty Marine dressed in civilian clothing, who caused plaintiff severe injury by his negligence."

II. THE FERES DOCTRINE

The Feres doctrine is a court-engrafted exception to the Federal Tort Claims Act. ²

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court was faced with three cases: two for medical malpractice by military doctors and one for maintenance of unsafe military barracks. The Court found that none of these claims could establish a cause of action under the FTCA for injuries to servicemen "where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159.

III. APPLICABILITY OF FERES TO THE PETITIONER'S CASE

As might have been expected, much litigation ensued, and the United States courts arrived at somewhat differing results in construing the term "arise out of or are in the course of activity incident to [military] service." However, our task is somewhat simplified by the binding effect of our decision in Johnson v. United States, 704 F.2d 1431 (9th Cir.1983). In Johnson, we traced the history of each type of case that had dealt with the Feres doctrine and concluded that:

[T]he most persuasive justification for the Feres doctrine is the potential impact of civil suits on military discipline. After reviewing the Feres doctrine, the Supreme Court concluded that the incident to service exception is "best explained" by the disciplinary rationale. United States v. Muniz, 374 U.S. 150, 159-62, 88 S.Ct. 1850, 1856-57, 10 L.Ed.2d 805 (1963). As the Court has noted,

the 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 Torts Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the Court to read the act as excluding claims of that character.

United States v. Brown, 348 U.S. at 112, 75 S.Ct. at 145 [99 L.Ed. 139 (1954) ]. See also Hunt v. United States, 636 F.2d at 599 [ (D.C.Cir.1980) ] ("the protection of military discipline ... serves largely if not exclusively as the predicate for the Feres doctrine ... Only this factor can truly explain the Feres doctrine and the crucial line it draws...."); Parker v. United States, 611 F.2d [1007] at 1010 [ (5th Cir.1980) ]; Veillette v. United States, 615 F.2d 505, 506 (9th Cir.1980).

Id. at 1436.

Both parties cite Johnson to us as supporting their respective positions. Since we are bound by Johnson in any similar case, it is necessary to set out the facts in that litigation:

Sergeant Freddie Johnson, a...