F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

FEB 24 2004

PATRICK FISHER
Clerk

NICOLETTE M. GONZALEZ,
Plaintiff - Appellant,
vs.
UNITED STATES AIR FORCE,

No. 03-6047
(D.C. No. CIV-02-629-A)
(W.D. Okla.)

Defendant - Appellee.
ORDER AND JUDGMENT *
Before KELLY, LUCERO, and OBRIEN, Circuit Judges.

Plaintiff-Appellant Nicolette M. Gonzalez appeals from the district courts

judgment dismissing her complaint with prejudice. After raising the possibility of
lack of subject matter jurisdiction based upon Feres v. United States, 340 U.S.
135 (1950), and allowing the Plaintiff to respond, the district court dismissed
Plaintiffs FTCA claims. Subsequently, the court granted the governments
motion to dismiss the remaining claims. We exercise jurisdiction pursuant to 28

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

U.S.C. 1291. Though this case involves tragic facts, we affirm.

Background
The events giving rise to this lawsuit took place in 1999, while Plaintiff
was an active duty member of the United States Air Force. In July of that year
Plaintiff was temporarily assigned to Altus Air Force Base, Oklahoma, for
training. On the afternoon of July 19, Plaintiff attended an on-base party which
was taking place in an open patio or mod area in the vicinity of the enlisted
barracks. Both military and civilian personnel were in attendance at the party.
Despite Plaintiffs status as a minor, alcoholic beverages were readily available.
She had too much to drink and became ill. She was then assisted in returning to
her barracks by two service members including one Kerry Nazario, her would-be
attacker.
Airman Nazario then was served alcohol at the E-Club on base. At some
point during the evening, while Plaintiff slept, Airman Nazario returned to
Plaintiffs room and raped her. His access to Plaintiffs room was facilitated by
the fact that the door to her assigned floor had been left unlocked, ostensibly
because it proved very difficult for authorized residents to unlock, even with the
appropriate key. Further, the door to Plaintiffs room had been left ajar because
the air conditioning in the barracks was not functioning properly that evening.
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Airman Nazario was convicted by court martial of unlawful entry, rape, and
fraudulent enlistment.
Thereafter, Plaintiff initiated this action seeking monetary relief in federal
court based upon various federal and state law theories. She sought relief under
the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-2680 for negligence,
gross negligence, and violation of statutory duties, and under 42 U.S.C. 1981
and Title VII, 42 U.S.C. 2000e et. seq. for violation of civil rights. Aplt. App.
at 1. She also included supplemental state law claims for breach of contract and
fiduciary duties, and intrusion upon seclusion. Id. at 9. The district court
dismissed the FTCA claims for lack of subject matter jurisdiction based upon the
Feres doctrine. Id. at 31-41. It dismissed the civil rights claims for failing to state
a claim under Fed. R. Civ. P. 12(b)(6). Aplt. App. at 51-56. Thereafter, Plaintiff
sought the trial judges recusal under 28 U.S.C. 455(a). The district court
declined to recuse and then dismissed Plaintiffs breach of contract and fiduciary
duty claims based on lack of subject matter jurisdiction and failure to state a
claim, Fed. R. Civ. P. 12(b)(1) and (6). Aplt. App. at 95-98.
On appeal, Plaintiff contends that the district court erred (1) in ruling that a
Dram Shop action based on Oklahoma public policy was barred by the Feres
doctrine, (2) in dismissing her breach of contract and breach of fiduciary duty
claims, (3) in dismissing her civil rights claims, and (4) in declining to recuse on
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the basis of perceived bias or partiality.

Discussion
A. Standard of Review
The district court premised its dismissal of Plaintiffs FTCA claims on a
lack of subject matter jurisdiction. In reaching this result, the district court
reasoned that pursuant to the Feres doctrine, the FTCAs limited waiver of
sovereign immunity did not extend to her claims. The court therefore lacked
subject matter jurisdiction. Our cases, however, clearly hold that a dismissal of
claims on the basis of the Feres doctrine is not purely jurisdictional, but
implicates merits issues as well. See Pringle v. United States, 208 F.3d 1220,
1223-24 (10th Cir. 2000). Accordingly, this dismissal must be reviewed as would
a grant of summary judgment. See Bell v. United States, 127 F.3d 1226, 1228
(10th Cir. 1997). Our summary judgment standard of review requires us to
determine de novo whether there is any genuine disputed issue of material fact
and whether the prevailing party was entitled to judgment as a matter of law.
Pringle, 208 F.3d at 1223. Having reviewed the record and the briefs, we
conclude that there is no genuine issue of material fact. Thus we will review the
district courts legal conclusions supporting dismissal of Plaintiffs FTCA claims
de novo.
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The district court dismissed Plaintiffs claims for violation of 42 U.S.C.

1981 and Title VII under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
Aplt. App. at 51-56. We review de novo dismissals for failure to state a claim
under Rule 12(b)(6). Colo. Envtl. Coalition v. Wenker, No. 02-1254, 2004 WL
34490, at *4 (10th Cir. Jan. 7, 2004). The district court dismissed Gonzalezs
claims for breach of contract and breach of fiduciary duty under Fed. R. Civ. P.
12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a
claim. Aplt. App. at 95. Application of either of these standards is reviewed de
novo. Wenker, 2004 WL 34490, at *4.
B.

FTCA Claims

In her original complaint, Plaintiff asserted claims of common law

negligence based on the Air Forces failure properly to supervise Airman Nazario,
its failure properly to maintain the barracks to which she was assigned, its failure
adequately to check Nazarios criminal background prior to permitting his
enlistment, and its failure to prevent intrusion into her seclusion. She also alleged
violation of duties statutorily imposed by Oklahomas Dram Shop Act, Okla. Stat.
Ann. tit. 37, 537. The district court found each of these claims barred by Feres.
On appeal, Plaintiff does not challenge the dismissal of her claims based on
common law tort, but does challenge the district courts dismissal of her action
claiming violation of duties that she characterizes as expressly arising under
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statute.
Absent a waiver of sovereign immunity, the Federal Government is
immune from suit. Loeffler v. Frank, 486 U.S. 549, 554 (1988). Congress has,
however, provided a limited statutory exception to the general rule of sovereign
immunity, allowing for recovery of monetary damages by those injured due to the
negligent actions of government employees. See 28 U.S.C. 1346(b), 2671-80.
This waiver, contained in the Federal Tort Claims Act, grants the district courts
jurisdiction over claims 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. 28
U.S.C. 1346(b).
In Feres, the Supreme Court held the FTCAs waiver of sovereign immunity
inapplicable to suits 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. The primary
justifications advanced in support of this result were (1) a desire to see the
military regime governed exclusively by federal law rather than disparate state
laws which would make the availability of recovery depend upon the purely
coincidental location of ones duty station; (2) a general hesitancy on the part of
the judiciary to second guess decisions regarding command and discipline within
the military structure; and (3) the ready availability of an alternative
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compensatory scheme for injured service personnel. See id. at 143-45.

Later cases from this and other circuits concerning this doctrine generally
focus on the question whether a given injury was incident to service. In Dreier
v. United States, 106 F.3d 844, 848 (9th Cir. 1997), the Ninth Circuit set forth
four factors to be used as guides in determining whether a given injury was
incident to service and thus barred by Feres. The four factors are
(1) the place where the negligent conduct occurred; (2) the duty
status of the plaintiff when the negligent act occurred; (3) the
benefits accruing to the plaintiff because of his status as a service
member; and (4) the nature of the plaintiffs activities at the time the
negligent act occurred.
Id.
In deciding whether Feres acts as a jurisdictional bar to recovery, this court
has used the four Dreier factors as general guideposts. We applied those factors
in Pringle, 208 F.3d at 1224. There the plaintiff, an active duty member of the
Army, sued the United States seeking monetary relief for injuries suffered when
he was severely beaten outside a social club operated by the Army and located on
a military base. Finding plaintiffs claim barred by Feres, this court stressed that
plaintiff was an active duty member of the Army at the time of his injury, and that
his injury occurred on military property. Further, plaintiff was afforded access to
the club by virtue of his status as a member of the Army, and was subject to
military discipline and control while at the club. Id. at 1226. Subjecting these
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factors to a policy analysis, the court held that permitting liability would result
in much second-guessing of military decisions and involve judicial inquiry into
military affairs which may impair military discipline and effectiveness. Id. at
1227 (quoting Pringle v. United States, 44 F. Supp. 2d 1168, 1176 (D. Kan.
1999)).
In Corey v. United States, No. 96-6409, 1997 WL 474521, at *3-5 (10th
Cir. Aug. 20, 1997), an unpublished order and judgment, this court applied the
same analytical framework to a factual scenario quite similar to that in the present
case. There the plaintiff, an active duty member of the Air Force, attended an onbase party at which she was sexually assaulted by a senior officer. Finding her
suit against the Air Force barred by Feres, this court found that plaintiffs
attendance at the party was a consequence of her military status because the
party occurred on base and was organized and attended by military members.
Id. at *5. As a supporting policy rationale, the court explained that [a]llowing
[this] lawsuit to proceed . . . would be inviting the district court to second-guess
the military decisions made concerning the conduct that occurred at the on-base
party. . . . This is precisely the type of second-guessing and intrusion into
military affairs that the Feres doctrine was designed to prevent. Id.
Application of this analytical framework to the present case leads us to
conclude that Plaintiffs claims are barred by Feres. Plaintiffs injuries occurred
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on a military base while she was on active duty as a member of the Air Force and
while she was subject to military discipline and control, all of which counsel in
favor of finding this action barred by Feres. Plaintiff attempts to avoid
application of Feres by arguing that the activities giving rise to liability here are
not incident to military service. Neither Plaintiffs being served alcohol at the
open party nor sleeping while in an impaired condition are consequence[s] of
her military status []or her military activities. Aplt. Br. at 17-18 (emphasis
omitted). Thus, she argues, deciding liability in this case would not invit[e] the
court to second guess any military decision. Id. at 17. We analyze each of these
activities in turn to determine whether they constitute activities incident to
service under Feres.
In general, the applicable test for whether an activity is incident to service
is far broader than Plaintiff suggests, encompassing most recreational and social
opportunities afforded to service members by the military. See Bon v. United
States, 802 F.2d 1092, 1095-96 (9th Cir. 1986) (finding claims arising from
recreational boating accident barred by Feres). Plaintiffs attendance at the party
which arguably gave rise to her injuries was a direct consequence of her military
status. See Pringle, 208 F.3d at 1226. The fact that the party was attended by
civilians as well as military personnel does not vitiate the fact that her attendance
at the party was a direct consequence of her enlisted status. Although the party
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here took place in an open mod area in the vicinity of barracks provided for
enlisted personnel, rather than in a social club as in Pringle, Plaintiff does not
allege that the mod area was essentially open to the public. See Dreier, 106
F.3d at 853 (finding Feres doctrine inapplicable when situs of soldiers injury was
readily accessible by the general public). Plaintiff also was subject to military
discipline and control while at the party. Thus, contrary to Plaintiffs suggestion,
imposition of liability here, as in Corey, would serve to second-guess military
policy concerning military discipline and training.
The same is true of Plaintiffs claim that sleeping in an impaired state is
not an activity incident to service. Although this activity, like Plaintiffs
attendance at the party, may not have been done in direct furtherance of a military
objective, it nonetheless occurred on a military base while she was subject to
military control and discipline. It implicates military experience and judgment.
Plaintiffs second argument against application of Feres here is that the
duties she claims the Air Force breached are not a product of the common law
tort, but rather arise expressly through statute. Accordingly, claims based upon
those duties are not barred by Feres. Her claim is that by permitting alcohol to be
served to her as well as her assailant, the Air Force violated a duty to minors
imposed by the Dram Shop Act in Oklahoma. See Okla. Stat. Ann. tit. 37, 537.
In support of her argument, Gonzalez cites Hallett v. United States
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Department of Navy, 850 F. Supp. 874 (D. Nev. 1994), for the proposition that a
duty imposed by state law precludes an exception to the waiver of liability
contained in the FTCA. The argument represents, to be charitable, an extreme
misreading of that case. There, plaintiffs, all non-military personnel, sought
recovery against the United States for sexual assaults which took place during the
1990 and 1991 Tailhook conventions in Las Vegas. The pertinent issue before
the court was whether the FTCA permitted governmental liability for any claims
arising out of an instance of assault and battery. Discussing the limitations of the
FTCA, the court explained that the assault and battery exception does not bar
recovery when a negligence claim against the government arises out of an
incident of battery . . . when the governments liability is based on its breach of a
duty owed the victim that is independent of its relationship . . . to the
perpetrator. Id. at 878. The court thus explained that determining whether the
government could be held liable under the FTCA required a prior determination
of whether the government owed an independent duty to plaintiffs under Nevada
law. Id. Nowhere did the court state, or even imply, that state substantive law
could stretch the bounds of the FTCA. What is more, Hallett did not address the
preclusive effects of the Feres doctrine. As all plaintiffs were non-military
personnel, Feres was inapplicable. Plaintiffs reliance on Hallett is therefore
misplaced.
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Plaintiffs distinction between claims based on common law and claims

based on statutorily imposed duties must fail as it is contrary to both the express
holding in Feres and the policy considerations supporting that decision. In Feres,
the Court made no distinction between claims based on the supporting legal
theory, holding only that the 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. 340 U.S. at 146. Such language clearly covers both
injuries sustained as a result of breach of common law, as well as statutory duties.
Furthermore, validating this distinction would only serve to realize an additional
problem that the Court in Feres sought to avoid, namely the subjection of a
traditionally federal institution to liability based on disparate state laws.
C.

Breach of Contract and Breach of Fiduciary Duty

Plaintiff also claimed damages under the Little Tucker Act, 28 U.S.C.
1346(a)(2), for breach of an implied-in-fact contract between herself and the
Air Force. Specifically, Plaintiff states that as a matter of law, the Air Force is
required to follow its own internal regulations, and that these regulations
expressly incorporate state law as concerns the distribution of alcohol to minors.
Aplt. Br. at 20-21. This coupling of internal regulations with requirements of
state law, Plaintiff contends, gives rise to a contract implied-in-fact on which
Gonzalez was justified in relying. Consequently, she argues that breach of this
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contract gives rise to governmental liability under the Little Tucker Act, which
provides a jurisdictional grant for claims up to $10,000 founded upon any
express or implied contract with the United States. 28 U.S.C. 1346(a)(2). 1
Section 1346, however, is itself only a jurisdictional statute; it does not
create any substantive right enforceable against the United States for money
damages. United States v. Testan, 424 U.S. 392, 398 (1976). In order to
recover against the United States on the basis of an implied contract, Plaintiff
must couple her reliance on the Tucker Act with a statute or provision expressly
authorizing monetary damages. See Army & Air Force Exch. Serv. v. Sheehan,
456 U.S. 728, 739-40 (1982) (As Testan makes clear, jurisdiction over
respondents complaint cannot be premised on the asserted violation of
regulations that do not specifically authorize awards of money damages.).
Plaintiff recognizes this line of authority and readily admits her inability to
find a statute mandating monetary compensation for this type of violation.
Instead, she relies upon Air Force regulations incorporating the Oklahoma Dram
Shop Act and argues that, by incorporating this state statute into its regulations,

As an additional basis for rejection of Plaintiffs claims here, we note that

the relationship between a member of the armed forces and the government
do[es] not turn on contract doctrines but are matters of legal status even where
compacts are made. Kania v. United States, 650 F.2d 264, 268 (Ct. Cl. 1981).
Thus, her reliance on contract principles as a basis for her claims against the
military is misplaced.
1

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the Air Force also incorporated the liability provisions. See Aplt. Br. at 23.
Despite the fact that Oklahoma courts have read the Dram Shop Act as
giving rise to a private right of action for its violation, see Brigance v. Velvet
Dove Rest, Inc., 725 P.2d 300, 301 (Okla. 1986), no express or implied mandate
for compensation by the federal government contemplated in Testan and Sheehan
exists. See also United States v. Mitchell, 463 U.S. 206, 216-17 (1983). It goes
without saying that the presence of a private right of action grounded in state law
does not explicitly authorize the assessment of monetary damages against the
federal government, particularly given the need for an express waiver of
sovereign immunity.
D.

Section 1981 and Title VII Claims

Plaintiff claims that the district court erred in dismissing her claims under
42 U.S.C. 1981 and Title VII. Although the legal arguments on appeal are
lacking in detail, these claims fail as a matter of law. Section 1981 and Title VII
are both statutes designed to eliminate invidious discrimination by state and
private actors. Section 1981, therefore, is limited in its applicability to actions
taken under color of State law. 42 U.S.C. 1981(c); see Davis-Warren
Auctioneers v. FDIC, 215 F.3d 1159, 1161 (10th Cir. 2000). The military acts
under color of federal rather than state law, rendering 1981 inapplicable here.
Further, a viable 1981 claim requires that Plaintiff allege discrimination on the
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basis of race. Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1532 (10th Cir. 1995).
Nowhere does her complaint allege that she was discriminated against on the
basis of her race. For these basic reasons, the 1981 claim fails.
As to her claim for relief under Title VII, this court has clearly held Title
VII inapplicable to members of the armed forces. See Salazar v. Heckler, 787
F.2d 527, 530 (10th Cir. 1986); Randall v. United States, 95 F.3d 339, 344 (4th
Cir. 1996) (same). Plaintiffs Title VII claims were, therefore, properly
dismissed.
E. Motion for Recusal
Plaintiff moved to have the district judge recuse himself from further
participation in the case due to perceived bias. The district court denied
Plaintiffs motion. Plaintiff now appeals that denial, but only insofar as it might
apply to subsequent proceedings in the district court. Plaintiff does not seek to
have the dismissal of her complaint vacated on this basis. Though this unusual
request for relief detracts somewhat from the overall force of Plaintiffs
argument, the issue was raised below and we review the denial of a motion to
recuse for abuse of discretion. Higganbotham v. Oklahoma ex rel. Okla. Transp.
Commn., 328 F.3d 638, 645 (10th Cir. 2003).
Any justice, judge, or magistrate of the United States shall disqualify
himself in any proceeding in which his impartiality might be questioned. 28
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U.S.C. 455. Plaintiff contends that the district judges background as a career
military lawyer combined with his raising the jurisdictional issue concerning
Plaintiffs negligence claims render his actions susceptible to a perception of
partiality. Our cases make clear, however, that adverse rulings alone do not
constitute a basis for recusal. Sac & Fox Nation v. Cuomo, 193 F.3d 1162, 1168
(10th Cir. 1999). Clearly, it was not improper for the district judge to raise the
issue of subject matter jurisdiction. Jurisdiction is an essential prerequisite to the
existence of a justiciable controversy and it is the duty of the court to ensure its
own jurisdiction even if the parties fail to raise the issue. Okla. Tpk. Auth. v.
Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001). Finally, there is no evidence
supporting Plaintiffs suggestion that the district judges career as a military
lawyer creates an appearance or risk of partiality.
The judgment of the district court dismissing the complaint is therefore
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge

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No. 03-6047, Gonzalez v. United States Air Force

LUCERO, J., concurring.
Neither disagreement with the result reached, nor the analysis pursued by
the majority prompt me to write separately in this case. I thus join the majority
opinion. What does prompt me to write separately is my concern that the Feres
doctrine, Feres v. United States, 340 U.S. 135 (1950), used here to bar claims
arising from sexual assault, has grown far afield from the unremarkable facts that
led to its pronouncement by the Court in 1950.
Our circuits holding in Pringle, interpreting Feres incident to service
language to apply to all injuries suffered by military personnel that are even
remotely related to the individuals status as a member of the military, Pringle,
208 F.3d 1220, 122324 (10th Cir. 2000) (citations omitted), compels the result
we reach today. So broad is that language that, remarkably, we now consider
sexual assault as incident to service. As noted in the majority opinion, a case
factually similar to this onebarring recovery for sexual assault of a female
airmanwas not considered precedential. See, e.g., Corey v. United States, No.
96-6409, 1997 WL 474521 (10th Cir. Aug. 20, 1997) (unpublished). Nor under
the broad Feres-Pringle standard, is this case precedential.
Because neither the facts nor the holding in Feres suggest that the Supreme
Court intended such an expansive reach, it is my belief that such an interpretation
should be reconsidered. Notably, the year before Feres was decided, the Supreme

Court heard Brooks v. United States, 337 U.S. 49 (1949). 1 In Brooks, the Court
held that two service members, who were injured while off-base and on leave by a
negligently driven Army truck, were not barred from recovering under the FTCA
because the accident had nothing to do with [their] army careers and their
injuries [were] not caused by their service except in the sense that all human
events depend upon what has already transpired. Id. at 52.
In contrast, Feres involved three consolidated cases, all of which
considered injuries that ar[ose] out of or in the course of military duty. 340
U.S. at 146. Justice Jackson, speaking for the court in Feres, was careful to
distinguish the plaintiffs in Brooks from the plaintiffs in Feres, observing that the
plaintiffs in Brooks were not on duty, under no orders, and not on a mission;
therefore, their relationship while on leave was not analogous to that of a soldier
injured while performing duties under orders. Id.
As in Brooks, the sexual assault of Airman Gonzalez cannot be compared
to injuries received while performing duties under orders. Surely, no one should
suggest that when young Americans sign up for military service, they can expect
that potential sexual assaults upon them will be routinely considered incident to
that service. The only link between the sexual assault of Airman Gonzalez and
Brooks has neither been overruled nor expressly disapproved of by the
Court. See United States v. Johnson, 481 U.S. 681, 698 (1987) (Scalia, J.,
dissenting).
1

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her military service is attenuated at best, in the same sense as considered and
rejected in Brooks. Brooks, 337 U.S. at 52.
Thus it seems to me that were we deciding this case under the authoritative
holding of Brooks, rather than the tangential interpretation of Feres, which our
circuit and other circuits have followed, the result today would be different. It is
my hope that the expansive reach of Feres will be revisited.

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