Carlis Starke v. United States , 249 F. App'x 774 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 2, 2007
No. 06-16541 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-00105-CV-AAA-2
CARLIS STARKE,
as guardian for Reginald Starke, an incapacitated
adult,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 2, 2007)
Before BIRCH, BARKETT and COX, Circuit Judges.
PER CURIAM:
Plaintiff-appellant, Carlis Starke, as guardian for her husband, Reginald
Starke, appeals the dismissal by the district court of claims brought pursuant to the
Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). Carlis Starke argues that
the district court erred in finding those claims were barred by the Feres doctrine.
We agree with the district court that the claims are barred and affirm.
I. BACKGROUND
On 11 August 2003, Reginald Starke was on active duty for the United
States Navy. He was stationed at Kings Bay Naval Submarine Base. He
completed his assigned duties for the day and returned to his off-base housing in
the mid-afternoon. That same afternoon, he decided to return to the base with
some friends to play golf at the Kings Bay Trident Lakes Golf Course.
At the time, the course, which was owned and operated by the Navy with the
assistance of civilian contractors, was open only to military personnel and their
guests. Late that afternoon, Reginald Starke was struck by lightning while playing
on the course. The Starkes’ complaint alleges that the golf course personnel
negligently failed to sound the inclement weather alarm, and that, had such an
alarm been sounded, Reginald Starke would have taken precautionary measures to
avoid injury. Instead, he was totally incapacitated by a lightning strike and
remains in a semi-comatose or comatose state.
Carlis Starke filed claims related to his injury on behalf of each of them
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pursuant to the FTCA. The government filed a motion to dismiss for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
The district court, applying the Feres doctrine, found that because Reginald
Starke’s injury had occurred incident to his military service, the court lacked
subject matter jurisdiction over those claims.
II. DISCUSSION
We review a district court’s dismissal of claims for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) de novo. Mexiport, Inc. v.
Frontier Commc’ns Servs., Inc., 253 F.3d 573, 574 (11th Cir. 2001) (per curiam).
“[T]he Government is not liable under the [FTCA] for injuries to servicemen
where the injuries arise out of or are in the course of activity incident to service.”
Feres v. United States, 340 U.S. 135, 146, 71 S. Ct. 153, 159 (1950). We consider
three factors, “(1) duty status, (2) location, and (3) activity, to determine whether a
service member’s injuries resulting from government negligence . . . are incident to
service[,]” and thus subject to the doctrine announced in Feres. Whitley v. United
States, 170 F.3d 1061, 1070 (11th Cir. 1999).
For the purpose of Feres doctrine analysis, we have drawn a distinction
between service members on furlough, whose FTCA claims would less likely be
barred, and those on “off-duty time experienced daily” in the course of active duty,
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whose negligence claims are precluded by Feres. Id. at 1070, 1071 & nn.19-20.
Although Starke was off-duty at the time of his injury, his status was still that of an
active duty service member for purposes of Feres analysis.
“Where the claimant is injured on base while on ‘active duty,’ Feres applies
virtually as a matter of law.” Watkins v. United States, 462 F. Supp. 980, 986-87
(D.C. Ga., 1977), aff’d by, Watkins v. United States, 587 F.2d 279, 279 (5th Cir.
1979) (expressly adopting district court’s reasoning). “[E]ven plaintiffs who were
off-duty (with or without a pass or liberty card) are barred by Feres where the
injury occurs on base.” Id. at 987. Starke’s injury occurred at a golf course
located on the base. Thus, the location at which Starke’s injury occurred calls for
the application of Feres.
Finally, activities on a military reservation often involve privileges or
services that accrue to service members “incident to their military service.”
Whitley, 170 F.3d at 1073-74, 1074 n.29 (recreational activities); Ricks v. United
States, 842 F.2d 300, 301 (11th Cir. 1988) (medical services). In this case, not
only was the golf course located on the base but, at the time of Starke’s injury, the
facility was restricted to military personnel and their guests. Accordingly, he
played on the course only by virtue of his military service. Thus, Starke’s activity
was clearly incident to his service.
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The circumstances of Reginald Starke’s injury satisfy all three factors
required for the application of the Feres doctrine. Accordingly, the Starkes’ FTCA
claims are barred.
III. CONCLUSION
Carlis Starke appeals the district court’s dismissal of her and her husband’s
FTCA claims arising out of her husband’s incapacitating injury on a United States
Navy-owned golf course. Because we find that the Feres doctrine applies, barring
these claims, we AFFIRM the district court’s order.
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