Edwin Miller and Donna Miller, Executors for Douglas Miller, Deceased v. United States , 643 F.2d 481 ( 1981 )

SCOTT O. WRIGHT, District Judge.

This is an appeal from the final order of the district court, 478 F.Supp. 989, granting defendant’s motion for summary judgment. Plaintiffs brought this action in the district court pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671 et seq., to recover damages caused by the alleged negligence of the defendant which resulted in the death of the plaintiffs’ son, Douglas B. Miller.

Douglas Miller was a Private First Class on active duty in the United States Army, assigned to the 47th Engineer Company at Fort Wainwright, Alaska. On June 23, 1977, after completing his normal military duties and with the knowledge and permission of his superior officer, PFC Miller reported to a part-time job which he held in a civilian capacity. He was employed during his off-duty hours by George Rodman, a civilian subcontractor, to erect scaffolds on government-owned family quarters. While so employed, PFC Miller was electrocuted when an aluminum ladder he was holding came into contact with a main electrical power line.

The district court granted defendant’s motion for summary judgment on the grounds that plaintiffs’ claim was barred by the doctrine set forth in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The Feres doctrine bars suits against the government brought by members of the military for injuries which arose out of activities incident to military service. Plaintiffs contend, and this Court agrees, that PFC Miller’s death arose out of activities that were not related to or dependent upon military service, and, therefore, Feres does not apply.

The Federal Tort Claims Act, passed in 1948, waived governmental tort immunity for injuries negligently caused by government employees acting within the scope of their employment where the United States, if a private person, would be liable under the law of the place where the act or omission occurred. Section 2671 provides that members of the military or naval forces are deemed to be employees of the government. Section 2680 lists twelve specific exceptions to the Federal Tort Claims Act. None completely bars the right of servicemen and women to sue the government. Only one of the twelve exceptions directly relate to the military. Section 2680(j) exempts the government from liability on any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. The government is also immune from liability under Section 2680(k) for any claim arising in a foreign country. Under general rules of statutory construction, the Federal Tort Claims Act could easily be interpreted to allow suits against the government by servicemen and women for all torts except those exempted under Section 2680. The Act does not provide for the exclusion of claims which arise out of activities “incident to military service.” Nevertheless, the exclusion was judicially created and is strictly followed.

After passage of the Act in 1948, the government argued that all tort claims of military personnel should be barred under the Act. This argument was soundly rejected by the Supreme Court in Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949). Brooks involved two soldiers who were off the military base and on furlough when their civilian vehicle was struck by an Army truck. One soldier was killed and the other badly injured. After a judgment in favor of the plaintiffs was reversed by the Court of Appeals for the Fourth Circuit, the United States Supreme Court granted certiorari and reinstated the trial court’s decision, holding that military personnel had the right to sue the United States for tortious acts under the Federal Tort Claims Act. But the Court qualified its holding by stating that if the accident were “incident to service” a different case would be presented. Id. at 52, 69 S.Ct. at 920.

One year later, this different case was presented in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and the Supreme Court created what is now widely known as the Feres doctrine. Feres was a consolidation of three claims, Feres v. United States, Jefferson v. United States, and United States v. Griggs. Feres involved a serviceman who died as a result of fire when his barracks burned while he was asleep. Jefferson and Griggs involved servicemen who were injured as a result of alleged negligence of Army doctors. The Supreme Court held in all three instances that the injury or death arose out of or were in the course of activity incident to military service, and all three claims were barred.

The Court reached this conclusion on the basis of several factors.¹ First, the relationship between the government and members of its military is “distinctively federal in character” and has traditionally been governed by federal law rather than local law. 340 U.S. at 143, 71 S.Ct. at 158, citing United States v. Standard Oil Company, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947). Because the FTCA relies upon the law of the place where the act or omission occurred, the Court felt that the fortuitous circumstances of where a serviceman was stationed should not control the government’s liability. Second, Congress has established a comprehensive system of relief available to injured servicemen and women and their dependents under the Veterans’ Benefits Act, which provides a statutory “no fault” compensation scheme. A third factor was clarified in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954). Interpreting the Feres rationale, the Brown court placed emphasis on

[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 .

348 U.S. at 112, 75 S.Ct. at 143. Subsequent Supreme Court opinions have weakened the importance of the first two factors,² and it appears that the third factor is the most widely used basis for applying the Feres doctrine.³ However, the rationale behind Feres only justifies applying Feres to service-connected injuries. As discussed below, the death of the plaintiffs’ son in this instance was not service-connected, and, therefore, Feres does not apply.

Deciding whether to apply Feres or Brooks in any given situation is not an easy task. Defining “incident to service” is the key, but the Supreme Court has never fully defined the term.⁴ As a result, the lower courts have developed guidelines for determining whether an activity is incident to service. Generally, the Feres doctrine applies if the incident occurs (1) on a military base, or (2) while the serviceman is on active duty status,⁵ or (3) under compulsion of military orders or on a military mission or directly subject to military control, or (4) the activity is a privilege related to or dependent upon military status.⁶ The Brooks doctrine is the converse of the Feres doctrine and applies if the accident occurs while the serviceman is (1) off the military base,and (2) on leave or furlough, and (3) not under compulsion of military orders or on a military mission or directly subject to military control, and (4) the activity is not a privilege dependent upon military status.⁷

The use of the conjunctions “and” and “or” in the two tests is pertinent. Under the Feres rule, any one factor has been sufficient to bar the claim but under the Brooks rule, it has generally been necessary to find that all the factors are present before a serviceman can proceed with his claim.⁸ This test is understandable for the third and fourth factors because if either factor is present, the activity is necessarily incident to military service. But, blind application of this test for the first two factors is of questionable validity and represents only the most superficial analysis. The facts of each case must be carefully analyzed, and the first two factors should be considerations only, not determinative factors.

Nevertheless, the majority of decided cases indicate that if he is either on active duty status or on base, Feres automatically applies,⁹ and if he is not on active duty status and off base, Feres may or may not apply, depending upon what he is doing at the time of injury.¹⁰ If either factor is present, an irrebuttable presumption is raised that the injury arose out of activities incident to military service. The rationale is that if he is on active duty status or on the base, he is presumably subject to military control. He can be recalled for duty at any time and is subject to the possibility of immediate orders. Chambers v. United States, 357 F.2d 224 (8th Cir. 1966); Zoula v. United States, 217 F.2d 81 (5th Cir. 1954); Mariano v. United States, 444 F.Supp. 316 (E.D.Va.1977), aff’d, 605 F.2d 721 (4th Cir. 1979). Theoretically, his off-duty time is not his own. But, this reasoning broadens the scope of the test needlessly, because almost all of the cases could have been decided on narrower grounds.¹¹

For example, a decision by this Court stressed the importance of the serviceman’s active duty status and presence on base when the injury occurred, but this decision could have been restricted to a narrower holding. In Chambers v. United States, 357 F.2d 224 (8th Cir. 1966), the plaintiffs brought an action against the United States under the Federal Tort Claims Act seeking damages for the death of their son, Airman Third Class John G. Chambers. The decedent had drowned in a base swimming pool during his off-duty hours. This Court held that Feres applied and barred the claims, stating

[t]he significant fact here is that Chambers was assigned to duty at the White-man Base, subject to the control of his military superiors. Even though he might have had a furlough order in his pocket or might have been engaged in swimming for recreation, his claim would be subject to the Feres rule and no recovery permitted.

357 F.2d at 229.

The language of the opinion indicates that the mere fact of being on active duty status and on base, thereby being subject to ultimate military control, is sufficient to bar the claim under Feres. However, the Court further stated that “[a]s a matter fact, Airman Chambers’ use of the pool, which was a part of the base, was related to and dependent upon his military service; otherwise, he would not have been privileged to use it.” 357 F.2d at 229. This reasoning represents a much narrower holding, but also a much more logical one. The injury arose out of activities incident to service because the decedent would not have been privileged to use the pool but for his military status.

The holding in Chambers was further clarified in Alexander v. United States, 500 F.2d 1 (8th Cir. 1974), cert.denied, 419 U.S. 1107, 95 S.Ct. 779, 42 L.Ed.2d 803 (1975). In Alexander, Chambers was interpreted to hold “that as long as the serviceman was engaged in an activity ‘related to and dependent upon his military service' while ‘subject to military control,’ any consequent injury would be ‘incident to service.’ ” 500 F.2d at 5, quoting from Chambers v. United States, 357 F.2d at 229 and note 4. The Court’s interpretation of Chambers in Alexander properly puts the emphasis on what he is doing at the time of injury instead of on where he is or what his status is.

It is understandable why so many courts have overemphasized the fact that the serviceman is on base or on active duty status. The military is more than just a career or a job; it is a way of life. It permeates every aspect of a serviceman’s daily routine — his livelihood, living arrangements, meals, recreation, personal property, travel, medical care, etc. Therefore, if he is on base or on active duty status, a strong presumption is raised that the injury arose out of activities incident to military service, just as the opposite presumption is raised when he is off base and on pass, leave, or furlough. The courts carefully scrutinize the facts in the second situation to determine whether the serviceman was engaged in an activity incident to service,¹² and the same consideration should be given to the facts in the first situation. Neither presumption should be irrebuttable.

Of course, some may argue that mechanical application of the Feres doctrine has the “virtue of simplicity,” while a test such as this Court proposes would involve difficult questions of fact. Hass, United States v. United States, 518 F.2d 1138, 1141 (4th Cir. 1975). Although economy of judicial time is a meritorious goal, it is hardly a commendable reason for denying a grievant redress in the courts. If the injury arose out of activities incident to service, the rationale behind Feres justifies barring the suit. But, if the injury arose out of activities that were not incident to service, there is no justification for barring a serviceman from maintaining a suit that a civilian would be entitled to bring, and it is doubtful that such a practice would withstand a due process challenge. The only way to determine whether an activity is truly incident to service is to decide difficult questions of fact.

Careful analysis of each fact situation to determine whether the injury actually arose out of activities incident to service will not seriously undermine military discipline and authority as so many courts fear. In fact, most claims for injuries likely to be sustained by military personnel would be barred by the Feres rule. Suits for injuries incurred in combat, of course, are specifically excepted under the Act in Section 2680(j). Suits for injuries incurred while following orders, or during a military mission, or in the course of duty are barred because the injury would clearly arise out of activities incident to military service. Many of the decided cases involve several recurring fact situations which would also be barred by Feres. One of the most common fact situations is when a serviceman is injured as a result of negligence of military physicians or military hospital personnel.¹³ A second recurring fact situation is when a serviceman is injured while riding on a military vehicle in a nonmilitary capacity pursuant to a privilege to ride free on a standby basis.¹⁴ A third situation is where the serviceman is injured while using military recreational facilities.¹⁵ In all three instances, the serviceman is taking advantage of a privilege permitted because of his military status, and the activity is, therefore, incident to military service, and the suit would be barred. Even the simple activity of sleeping in the barracks¹⁶ would be incident to service because civilians are generally not permitted to sleep in military barracks or housing. Almost every aspect of a serviceman’s life is incident to service, and most claims for injuries sustained by servicemen would be barred by Feres. However, as Brooks and its progeny show, situations do arise where a serviceman is injured while engaged in an activity not incident to service due to the negligence of a government employee. The Brooks rationale should not be limited to those cases where the serviceman is on leave or furlough, but should also be applied in cases where the serviceman is on active duty status but engaged in an activity that is really not related to or dependent upon his military career. The facts of this case provide a perfect example of a situation where justice demands application of Brooks, but where traditional legal principles dictate application of Feres.

PFC Miller was off duty, working in a civilian capacity at a part-time job for a private contractor.¹⁷ He was not performing any military duties or complying with any orders, nor was he taking advantage of a military privilege. This work was not something that a serviceman would ordinarily do while off duty. Even though he was on active duty and on a military base, he was exactly in the same position as any civilian employee of the private contractor might have been at that time and place.

PFC Miller had permission from his superior officers to work the part-time job. The Army “loaned” him out to a private contractor and, for all practical purposes, temporarily released their jurisdiction and control over him. At the time of the injury, the decedent was subject to the control and authority of his civilian employer — not his military superiors. The government takes a risk when it permits the members of the military to engage in outside activities totally unrelated to military life. If the government chooses to “loan” out the members of its military to civilian government employees,¹⁸ it must bear the risk of liability for resulting injuries. PFC Miller’s death did not arise out of activities incident to service, and, therefore, the facts of the case do not fall within the rationale of Feres. Summary judgment entered in favor of defendant by the district court was inappropriate, and the judgment is reversed. The cause is remanded to the district court for further proceedings.

1 . See generally, Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); 1 L. Jayson, Handling Federal Tort Claims § 155.05 (1964), (hereinafter “Jayson”).

2 . Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957); Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954). But see, Stencel Aero Engineering Corp. v. United States, supra note 1 (Court reached its decision after analysis of all the factors of the rationale behind Feres).

3 . United States v. Muniz, 374 U.S. 150 at 162, 83 S.Ct. 1850 at 1858, 10 L.Ed.2d 805 (1963); United States v. Brown, supra note 2; United States v. Carroll, 369 F.2d 618 (8th Cir. 1966).

4 . Hale v. United States, 416 F.2d 355 (6th Cir. 1969) , on remand, 334 F.Supp. 566 (M.D.Tenn. 1970) , aff'd, 452 F.2d 668 (6th Cir. 1971).

5 . The term “active duty status” encompasses more than just the time during on-duty hours. It includes off-duty hours, and time spent on liberty or pass, although a few courts have applied Brooks when the serviceman was on pass. See, e. g., Hand v. United States, 260 F.Supp. 38 (M.D.Ga.1966).

6 . E. g., Stencel Aero Engineering Corp. v. United States, supra note 1; Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950); Stansberry v. Middendorf, 567 F.2d 617 (4th Cir. 1978); Thomason v. Sanchez, 539 F.2d 955, 957 (3rd Cir. 1976), cert. denied, 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977); Camassar v. United States, 531 F.2d 1149 (2nd Cir. 1976), aff'g 400 F.Supp. 894 (D.Conn.1975); Hass, United States v. United States, 518 F.2d 1138 (4th Cir. 1975); Shults v. United States, 421 F.2d 170 (5th Cir. 1969); United States v. Carroll, supra note 3; Chambers v. United States, 357 F.2d 224 (8th Cir. 1966); Enoch v. United States, 316 F.2d 532 (9th Cir. 1963); Buer v. United States, 241 F.2d 3 (7th Cir. 1956), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957); Orken v. United States, 239 F.2d 850 (6th Cir. 1956); O’Brien v. United States, 192 F.2d 948 (8th Cir. 1951); Herreman v. United States, 332 F.Supp. 763, 766 (E.D.Wis.1971), aff'd, 476 F.2d 234 (7th Cir. 1973). See generally, JAYSON, § 155.08.

7 . E. g., Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949); Mills v. Tucker, 499 F.2d 866 (9th Cir. 1974); Knecht v. United States, 144 F.Supp. 786 (E.D.Pa.1956), afFd, 242 F.2d 929 (3rd Cir. 1957); Barnes v. United States, 103' F.Supp. 51 (W.D.Ky.1952); see generally, JAYSON, § 155.07. But see, Hand v. United States, 260 F.Supp. 38 (M.D.Ga. 1966) (applied Brooks even though injury occurred on military base).

8 . See generally, cases cited supra notes 6 and 7.

9 . Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) (claim barred under Feres because of claimant’s active duty status and presence on base, even though engaged in off-duty recreation); Knoch v. United States, 316 F.2d 532 (9th Cir. 1963) (malpractice claim barred under Feres even though claimant was on active duty status for purposes of physical examination only); Mariano v. United States, 444 F.Supp. 316 (E.D.Va.1977), aff'd, 605 F.2d 721 (4th Cir. 1979) (claim barred under Feres because of claimant’s active duty status and presence on base even though injury occurred during off-duty hours); Frazier v. United States, 372 F.Supp. 208 (M.D.Fla.1973) (during normal duty hours, claimant was injured while on personal business by a nonmilitary government employee; claim barred because it is the status of the claimant, not the status of the tortfeasor, which controls).

10 . [E]ven if a soldier is on leave or off duty, alternatively (1) if the soldier is injured taking advantage of military privileges generally restricted to the military and not generally permitted civilians, or (2) if the soldier is injured while under military jurisdiction, then . . he will be barred from suing the Government.

Herreman v. United States, 332 F.Supp. 763 at 766 (E.D.Wis.1971). See also, Shults v. United States, 421 F.2d 170 (5th Cir. 1969) (serviceman was injured while on leave and he was brought to naval hospital where he died of alleged malpractice; held: administrator’s claim was barred because deceased would not have been in a military hospital but for his military status); Buer v. United States, 241 F.2d 3 (7th Cir. 1956), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1957); Zoula v. United States, 217 F.2d 81 (5th Cir. 1954) (claimants had passes, were in civilian clothes and on personal business when injury occurred on base; held: claims were barred under Feres because claimants were under military jurisdiction); Archer v. United States, 217 F.2d 548 (9th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99 L.Ed. 745 (1955) (serviceman was on leave but “hitched” a ride on a military plane which crashed; held: Feres barred suit because claimant was subject to military discipline); O’Brien v. United States, 192 F.2d 948 (8th Cir. 1951); Homlitas v. United States, 202 F.Supp. 520 (D.Ore.1962).

11 . A few of the cited cases cannot be harmonized with the reasoning of this opinion. See, Thomason v. Sanchez, supra note 6; Camassar v. United States, supra note 6; Zoula v. United States, supra note 10; Frazier v. United States, supra note 9. These decisions were decided solely on the basis of the claimants’ active duty status or presence on base. If these decisions had been based upon an in-depth analysis of whether the activities involved were “incident to service”, different results would have been reached.

12 . See generally, cases cited supra note 10.

13 . Stansberry v. Middendorf, supra note 6; Alexander v. United States, 500 F.2d 1 (8th Cir. 1974); Shults v. United States, supra notes 6 and 10; Knoch v. United States, supra notes 6 and 9; Buer v. United States, supra notes 6 and 10.

14 . United States v. Carroll, supra note 6; Archer v. United States, supra note 10; O’Brien v. United States, supra notes 6 and 10; Herreman v. United States, supra notes 6 and 10; Homlitas v. United States, supra note 10.

15 . Hass, United States v. United States, supra note 6; Chambers v. United States, supra note 9; Mariano v. United States, supra note 9.

16 . Feres v. United States, supra, note 6; Orken v. United States, supra note 6.

17 . A similar fact situation existed in Mariano v. United States, supra note 9. The claimant was employed in a civilian capacity during his off-duty hours as a night manager at the Trade-winds Club, a recreational facility owned and operated by the United States for enlisted personnel. Claimant was injured while attempting to stop a disturbance at the Club. The district court held that his claim was barred by Feres, and this decision was affirmed on appeal. Although Mariano is factually similar to this case, it can easily be distinguished. In Mariano, the claimant was responsible for maintaining order in the Club pursuant to instructions issued or approved by the Commanding Officer, and all military personnel, whether patrons or employees, were subject to discipline under the Uniform Code of Military Justice for their conduct in the Club. The fact that he was subject to direct military control changes the complexion of the activity the claimant was engaged in and makes application of the Feres doctrine appropriate.

18 . The issue of whether the private contractor was an independent contractor or a government employee is not properly before this Court and is an issue of fact to be decided at the district court level.