Appeal from the order of the United States District Court for the Western District of New York, Telesca, J., granting defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) the plaintiff's claim for relief under 28 U.S.C. § 2671 et seq. on the ground that the claim was barred by the holding in Feres v. United States, 340 U.S. 135 (1950). Affirmed.
Before: FEINBERG, Chief Judge, VAN GRAAFEILAND and MESKILL, Circuit Judges
Mrs. Bozeman appeals the order of the United States District Court for the Western District of New York, Telesca, J., granting defendant's motion under Fed. R. Civ. P. 12(b)(6) and dismissing her claim for relief under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1982) (FTCA), on the ground that it was barred by the doctrine of Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950).
The court below had jurisdiction under 28 U.S.C. § 1346-(b) (1982) to entertain the complaint. This Court has jurisdiction of the appeal under 28 U.S.C. § 1291 (1982). For the reasons that follow, we affirm decision of the district court.
Plaintiff Mrs. Bozeman is the executor of her deceased husband's estate. Her husband, Johnny Bozeman, a military policeman in the United States Army, died when the car in which he was a passenger left Route 96-A in Fayette, New York, collided with a house and overturned.*fn1 On the day that he died, Johnny Bozeman and the driver of the car, David Brown, had been drinking at the Non-Commissioned Officers' (NCO) club at the Seneca Army Depot (Depot), Romulus, New York, where they were stationed. Both men were off duty the day of the accident; however, neither was on furlough.
The NCO club is a social club, operated out of "nonappropriated" funds, funds "other than moneys appropriated by the Congress." Army Regulation (AR) 230-1-3b (1976). The club is under military regulation and control.*fn2 Bozeman and Brown were served alcoholic drinks there by a civilian employee of the club.
Mrs. Bozeman received survivor's benefits through the Army and settled a claim against Brown before bringing this action against the United States.*fn3 Her complaint alleged two causes of action, one under New York's Dram Shop Act*fn4 and a second under the theory that the Army owed Johnny Bozeman a duty of care to serve alcoholic beverages in a responsible manner. The duty was allegedly breached when the Army, through its employee, continued to serve drinks to Brown, the driver of the car, when he was obviously drunk.
The Army moved to dismiss Mrs. Bozeman's complaint on the ground that it was barred by the doctrine first stated in Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950) (Jackson, J.). Judge Telesca granted the motion on the ground that Johnny Bozeman's death was "incident to service," reasoning that the tort occurred on base even though the injury occurred off the base. J. App. at 31. Mrs. Bozeman claims on this appeal that Feres should not apply to this case because (1) Bozeman was off duty and therefore not subject to military discipline at the time of his injury, and (2) the injury occurred off the Depot.
The district court correctly interpreted and applied the law of this Circuit as it had been stated prior to the Supreme Court's recent decision in Shearer v. United States, 473 U.S. 52, 87 L. Ed. 2d 38, 105 S. Ct. 3039, 53 U.S.L.W. 4917 (1985). Shearer partially restates the Feres doctrine. After carefully considering Shearer, the arguments of counsel and the record before us, we conclude that the district court's dismissal of this case should stand.
In Feres the Supreme Court held that "the Government is not liable under the Federal Tort Claims Act 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 holding was supported by three considerations. First, the FTCA did not create new causes of action but rather acknowledged liability "under the circumstances that would bring private liability into existence." Id. at 141. Second, the relationship between the service and the service member was "distinctively federal in character," id. at 143 (citing United States v. Standard Oil Co., 332 U.S. 301, 91 L. Ed. 2067, 67 S. Ct. 1604 (1947)); therefore, subjecting any of the services to conflicting demands of state tort law ...