Appeal from a judgment of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, dismissing action by member of the armed services for damages under Federal Tort Claims Act, 28 U.S.C. § 2671-2680. Affirmed.
Kearse, Cardamone, and Pierce, Circuit Judges.
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. §§ 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, 95 L. Ed. 152, 71 S. Ct. 153 (1950). For the reasons below, we affirm.
Most of the factual background of this litigation is set forth in Sanchez I, 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.
A. The Original Dismissal and the Decisions in Sanchez I and II
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. 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, 87 L. Ed. 2d 38, 105 S. Ct. 3039 (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). Though the government urged us to affirm on the basis of Bozeman, we noted that in that case
the service-member's injury arose out of his participation in a social activity along 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.
Sanchez I, 813 F.2d at 596. We concluded that the dismissal here had been premature:
At this early stage of the case, it is difficult to predict the specifics of plaintiff's 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.
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.
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 ...