878 F.

2d 633

Pablo SANCHEZ, Plaintiff-Appellant,

v.
UNITED STATES of America, Defendant-Appellee.
No. 1127, Docket 89-6026.

United States Court of Appeals,

Second Circuit.
Argued May 8, 1989.
Decided June 29, 1989.

Edward Cherney (Breadbar & Garfield, New York City, on the brief), for
plaintiff-appellant.
Varuni Nelson, Asst. U.S. Atty., Brooklyn (Andrew J. Maloney, U.S. Atty.
for the E.D.N.Y., Robert L. Begleiter, Asst. U.S. Atty., Brooklyn, on the
brief), for defendant-appellee.
Before KEARSE, CARDAMONE, and PIERCE, Circuit Judges.
KEARSE, Circuit Judge:

Plaintiff Pablo Sanchez appeals from a final judgment of the United States
District Court for the Eastern District of New York, Eugene H. Nickerson,
Judge, dismissing his complaint under the Federal Tort Claims Act ("FTCA"),
28 U.S.C. Secs. 2671-2680 (1982), following our remand in Sanchez v. United
States, 813 F.2d 593 (2d Cir.1987) ("Sanchez I "), modified, 839 F.2d 40 (2d
Cir.1988) (per curiam) ("Sanchez II "), and our modification in Sanchez II.
Sanchez sought $3 million in damages from the United States for injuries he
suffered while a member of the armed forces. The district court granted the
government's motion for summary judgment dismissing the complaint for lack
of jurisdiction under the doctrine of Feres v. United States, 340 U.S. 135, 71
S.Ct. 153, 95 L.Ed. 152 (1950). For the reasons below, we affirm.

I. BACKGROUND
Most of the factual background of this litigation is set forth in Sanchez I,
2

familiarity with which is assumed. Sanchez brought the present action against
the government to recover for injuries he suffered in an automobile accident in
1984 while he was a private in the United States Marine Corps. He was "on
liberty" and was a passenger in an automobile owned and driven by Marine
Corps Corporal Ernest Yracheta when the car overturned on a public highway
after Yracheta lost control due to an alleged malfunction of the car's cruise
control mechanism and brakes. Less than a month earlier, the car had been
repaired at a service station on the Marine Corps base; the station was owned
and operated by the government and was staffed by both marines and civilians.
Sanchez contended that his injuries were the result of negligent servicing of
Yracheta's car by service station personnel.

3A. The Original Dismissal and the Decisions in Sanchez I and II

4

The district court dismissed the complaint for lack of subject matter jurisdiction
on the authority of Feres and Bozeman v. United States, 780 F.2d 198, 200 (2d
Cir.1985) ("Bozeman "). The Feres doctrine generally prohibits FTCA suits
against the government by members of the armed services for injuries that
"arise out of or are in the course of activity incident to service." Feres, 340 U.S.
at 146, 71 S.Ct. at 159. Its three rationales are (1) the "distinctively federal"
character of the relationship between the government and the members of its
armed forces, (2) the existence of generous statutory disability and death
benefits for servicemen, and (3) the general propensity of claims against the
government by service members for injuries incurred incident to service to
involve the judiciary in sensitive military matters at the expense of military
discipline and effectiveness. In Bozeman, we ruled that military personnel who
are on liberty or on leave are generally still on "active duty" status and that their
suits against the government are barred by the Feres doctrine unless they were
also on furlough at the time they were injured. The district court noted that
Sanchez did not show he had been on furlough, and it concluded that the Feres
factors required dismissal of his complaint.

Sanchez appealed, contending that, because his injury occurred off the marine
base and while he was on liberty, the Feres doctrine did not apply. In Sanchez I,
we reversed, noting that over the years the Feres doctrine had been much
criticized and the rationale for its application had been substantially narrowed.
We concluded that, in light of the Supreme Court's decision in United States v.
Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), "the key questions
are 'whether the suit requires the civilian court to second-guess military
decisions ... and whether the suit might impair essential military discipline.' "
Sanchez I, 813 F.2d at 595 (quoting United States v. Shearer, 473 U.S. at 57,
105 S.Ct. at 3043). Though the government urged us to affirm on the basis of

Bozeman, we noted that in that case

6 service-member's injury arose out of his participation in a social activity along
the
with another serviceman who became drunk and caused an accident. The activity
was related to their membership in the United States Army.... More significantly, in
order for the plaintiff to succeed in her suit in Bozeman, it was necessary for her to
establish that the Army owed a duty of care to her husband as a member of the
service and failed to meet it by allowing a fellow service member to drink to excess
at a Non-Commissioned Officers' ("NCO") club.... In Bozeman, the plaintiff clearly
was questioning Army policies in staffing, operating and supervising its NCO clubs
and whether the policies were followed by superior officers. Herein, it does not
appear on the present record that the district court will find it inevitably necessary to
inquire into Marine Corps policies for staffing and operating its auto repair facilities.
7

Sanchez I, 813 F.2d at 596. We concluded that the dismissal here had been
premature:

8 this early stage of the case, it is difficult to predict the specifics of plaintiff's
At
theory in this litigation; consequently, it does not seem inevitable to us, on the basis
of the record thus far, that military decisions will be questioned.
9

Id. at 595. We therefore remanded to the district court for further proceedings,
though we noted that it was "not our intention to foreclose the applicability of
the Feres doctrine herein" if the court found it necessary to inquire into military
decisionmaking in any significant way. Id. at 596.

10

Some months later, in Sanchez II, we recalled our mandate for further
consideration in light of the Supreme Court's then-recent decisions in United
States v. Johnson, 481 U.S. 681, 107 S.Ct., 2063 95 L.Ed.2d 648 (1987), and
United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987),
which undercut the rationale of Sanchez I by ruling that the "military
discipline" rationale should not be the only focus of inquiry. The Supreme
Court in Johnson held that a suit involving injuries that were "incident to
service" was barred by the Feres doctrine even if the complaint alleged
negligence by the government's civilian employees rather than military
employees, and it reaffirmed the vitality of the "three broad rationales
underlying the Feres decision." United States v. Johnson, 107 S.Ct. at 2064-69.
Accordingly, we revised our remand to the district court as follows:

11

In light of Johnson and Stanley, we find that a clarification of our prior opinion
is in order. We withdraw the conclusion in our prior opinion that the military
discipline rationale "has come to be considered the primary rationale of the

Feres doctrine." Nonetheless, we adhere to our view that, at this preliminary

stage in the proceedings, it remains to be seen whether Sanchez's injuries "arise
out of or are in the course of activity incident to service." Accordingly, we
grant the motion to recall our prior mandate, reverse the decision of the district
court, and remand this action for further proceedings in light of the "three broad
rationales" underlying Feres, and to determine whether the appellant's injuries
"arise out of or are in the course of activity incident to service."
12

Sanchez II, 839 F.2d at 42.

B. The District Court's Decision on Remand

13

On remand, the government renewed its motion for summary judgment. In

support of the motion, it submitted, inter alia, documents and affidavits from
military personnel detailing the operation of the auto repair station, the extent
of Sanchez's injury, which prevented full use of one arm and resulted in a 10%
disability, and the government benefits to which this disability entitled him. In
a Memorandum and Order dated November 25, 1988 ("Decision"), the district
court granted the motion. 701 F.Supp. 374. Analyzing the facts before it in light
of the three traditional Feres factors, the court concluded that all three factors
pointed toward application of the doctrine.

14

As to the federal character of the relationship, the court found that Sanchez was
on active-duty status at the time of the accident. It noted that Sanchez's
contention that he was not on active-duty status was based only on the fact that
he was then on liberty. In rejecting this contention, the court relied on our
ruling in Bozeman that "military personnel who are on liberty or on leave are
still on active duty status." Decision at 4. The court noted that Sanchez's "active
status itself indicates that his injuries arose out of or were suffered in the course
of activity incident to service." Id. In addition, the court found that other factors
suggested that Sanchez's injuries arose out of service-related activity, to wit, the
facts that Sanchez alleged negligent servicing of Yracheta's car at the base
service station, that use of the base service station was limited to military
personnel and civilians connected with the military mission, and that Yracheta
was an authorized patron of the station because of his status as a Marine.

15

As to the manner in which Sanchez had been treated and compensated as a

result of his injuries, the court noted that he had received free health care after
sustaining his injuries. The Office of Naval Disability Evaluation had found
that Sanchez was "unfit for duty because of physical disability due to the
accident, that his disability might be permanent, and that he incurred the
disability in the line of duty." Id. at 2. Sanchez had been awarded $4,759.20 in

disability severance pay and was receiving $133 per month as service-related
compensation for his injuries. In addition, he remained eligible for free lifetime
hospital care and medical treatment at Veterans Administration facilities and
would be entitled to various preferences in insurance, loans, and employment.
The court concluded that Sanchez's military status had "afforded him
substantial benefits not available to civilians." Id. at 5.
16

As to the relationship of the present claim to military decisionmaking, having

previously observed that the base service station was not a public facility but
was open only to servicemen and civilians connected with the military mission,
the court noted the Marine Corps' control over operation of the station:

17 military service established Standing Operating Procedures for the [station], and
The
it issued the work order made out to Corporal Yracheta for the repairs that plaintiff
alleges were negligently done. A determination of whether there was such
negligence might well require review of decisions of the military such as those
involving the staffing, training and supervision of the mechanics at the base service
station and the procurement of equipment and spare parts. As the Supreme Court
noted: "Even if military negligence is not specifically alleged in a tort action, a suit
based upon service-related activity necessarily implicates military judgments and
decisions that are inextricably intertwined with the conduct of the military mission."
18

Id. at 5-6 (quoting United States v. Johnson, 107 S.Ct. at 2069).

19

The court concluded that Sanchez's suit against the government under the
FTCA was barred, and it dismissed the complaint. This appeal followed.

II. DISCUSSION
20

On this appeal, Sanchez contends principally (1) that the district court failed to
follow the mandate of Sanchez II, which invited a factual inquiry into the
question of whether Sanchez's injuries arose out of or were in the course of
activity incident to military service, and (2) that the court's conclusion that his
injuries were incident to military service was based solely on the
characterization of Sanchez's status as active-duty status. For the reasons below,
we reject all of his contentions.

21

First, we see no procedural flaw in the district court's proceedings on remand

nor any failure to follow our Sanchez II mandate. On the prior appeals we
found that the initial dismissal of the complaint was premature. We did not state
that there were issues of fact to be tried but only that "at this preliminary stage
in the proceedings, it remain[ed] to be seen" whether Sanchez's injuries

occurred in the course of activity incident to military service. On remand, the

government made a new motion for summary judgment and produced a number
of documents and affidavits that provided new details as to, inter alia, the
treatment of Sanchez following his injuries and the operation of the service
station on the base. The government's factual presentation was not controverted
by Sanchez, and the augmented record provided the district court with
sufficient facts with which to analyze the relationship between the injuries
claimed by Sanchez and all three factors underlying the Feres doctrine.
22

Second, we reject Sanchez's contention that the district court's finding that his
injury arose out of activity incident to his military service was based solely on
the classification of Sanchez's status as active-duty status. The court focused on
Sanchez's status in part in order to analyze the first Feres factor, i.e., the nature
of the relationship between the government and the plaintiff; and given
Sanchez's position as a United States Marine and his active-duty status at the
time of the accident, it is obvious that his relationship to the government was
distinctively federal. Neither this factor nor Sanchez's active-duty status was the
sole premise for the court's conclusion that the injury arose out of or in the
course of activity incident to military service. Rather, the court went on to
consider such factors as the character of the Marine Corps' operation of the
facility in reaching its final conclusion.

23

Finally, given our prior decision in Bozeman, we conclude that the district
court, in light of the record before it, properly found that the three Feres factors
required dismissal of Sanchez's claim. Bozeman involved an FTCA claim
against the government by the widow of Johnny Bozeman, a soldier who died
when the car in which he was a passenger left the highway, collided with a
house, and overturned. Prior to the accident, Bozeman and the driver of the car
had been drinking at the non-commissioned officers' ("NCO") club at the Army
depot where they were stationed. Both were off duty on that day but were not
on furlough. Mrs. Bozeman contended that the Army breached its obligations to
Bozeman by serving drinks to the driver of the car after he was obviously
drunk. The district court dismissed the complaint on the ground that it was
barred by the Feres doctrine, and we affirmed.

24

Though Mrs. Bozeman argued that the Feres doctrine did not apply because
Bozeman was off duty at the time of the injury and the injury occurred off the
Army base, we disagreed for several reasons. Though the accident occurred off
the Army base, the alleged breach of duty occurred on the base. The NCO club
at which the alleged negligence occurred was not open to the public; Bozeman
was entitled to be there only because he was a member of the Army, held an
appropriate rank, and was on active-duty status. The NCO club was an

instrumentality of the Army designed to " 'perform an essential government

function,' ... and 'provide for the comfort, pleasure, contentment ... of service
personnel.' " 780 F.2d at 199 n. 2 (quoting Army regulations). In operating the
club, the Army hired civilian personnel, and it was to these employees that the
primary negligence was attributed. Thus, we noted that
25 evidence needed to establish that the Army owed Johnny Bozeman a duty of
The
care when he was in the NCO club would require Army officers to testify about their
policies in staffing and running the NCO club.... If a duty of care toward Johnny
Bozeman could be established, then demonstrating a breach of the duty would entail
proof that the Army's employees either failed to enforce regulations by overlooking
certain behavior or neglected to enforce rules formulated with the unique demands of
military morale and base discipline in mind. A defense would require Army officers
to justify employment decisions related to hiring the bartender.
26

780 F.2d at 202.

27

The facts of the present case are not meaningfully distinguishable from those of
Bozeman. As revealed in the documents submitted by the government in the
district court, the Marine Corps maintained the automobile repair facility,
which was not open to the public but only to military personnel and certain
civilians connected with the base, in recognition of the fact that "[t]he
automobile plays a highly vital role in the life of the military patron and his or
her family." Standing Operating Procedures for the Exchange Automotive
Services Section Activities p 1000.1. Further, one of the Corps' goals in
providing service station facilities was "[t]o realize sufficient income from each
facility to finance it's [sic ] operation and to contribute the proportionate share
of profit, determined by the Exchange Officer, to support the welfare and
recreation of the Commands supported by this Exchange." Id. p 1001.2. The
Corps hired the employees of the repair facility, and its operations were
overseen by the base's Exchange Officer, who gave detailed directions on
matters ranging from hours of operation, to internal repairs of engines and
transmissions, to gauge stick measurement of gallonage. Employees were
required to be familiar with the Exchange Officer's instructions and were
referred for additional information to Army, Navy, and Air Force manuals.

28

These facts persuade us that establishment of Sanchez's claim would require

Marine Corps officers to testify about their policies in hiring employees for the
repair station and in running the station. Further, since one goal of operation of
the facility was to "realize sufficient income" to contribute to the support of the
base's welfare and recreation programs, defense of the present action might
require military officials to seek to justify decisions that balanced quality of

service against the financial needs of other base activities.

29

Thus, the parallels between this case and Bozeman are striking. In both cases,
the injured serviceman had been on liberty but not on furlough. In both, the
alleged negligence occurred on the base, and the injury occurred off the base. In
both, the alleged negligence occurred at a facility operated by the military with
the use, at least in part, of civilian personnel. In both, the facility at which the
alleged negligence occurred was open only to a limited class of military or
military-connected patrons, not to the public. In both, the alleged negligence
occurred in connection with an activity that was recreational rather than
occupational. In both, the military branch had given explicit recognition to the
value of facilitating relaxation and recreation. See also Hass v. United States,
518 F.2d 1138, 1141 (4th Cir.1975) ("Recreational activity provided by the
military can reinforce both morale and health and thus serve the overall military
purpose."). And in both, defense of the suit could require military officers to
defend employment and other decisions related to certain of their policies.

30

We held in Bozeman that the Feres doctrine barred Mrs. Bozeman's FTCA
claim against the government. We can see no principled basis on which to
conclude that Sanchez's claim is not similarly barred.

CONCLUSION
31

The judgment of the district court is affirmed.