as diverse as those involving injury to an Air Force officer
sustained while he was training for a commercial pilot's
license at a military-sponsored club, id. at 142; to a service
member riding a horse rented from a military stable, Hass v.
United States, 518 F.2d at 1141, and even to a military
policeman killed in an off-base accident allegedly caused by
his drunk-driver companion who had become intoxicated at an NCO
club, Bozeman v. United States, 780 F.2d at 200-01.
In reaching these results, courts have identified a number
of factors relevant to the applicability of Feres. Was the
serviceman on duty when the injury was sustained? Was the
serviceman, regardless of his duty status, on a military base
or craft, and therefore subject to military control or
discipline, at the time of the injury? Was he engaged in a
military mission? Was he enjoying a privilege related to or
dependent upon his military status at the time of the injury? A
number of decisions suggest that an affirmative answer to any
one of these questions suffices to bring the matter within the
bounds of Feres. E.g., Woodside v. United States, 606 F.2d at
141; Hass v. United States, 518 F.2d at 1141; In re Agent
Orange Product Liability Litigation, 506 F. Supp. at 776. Other
courts urge that the factors be reviewed flexibly in light of
the circumstances of a particular case. E.g., Miller v. United
States, 643 F.2d 481, 493 (8th Cir. 1981) (en banc); Stanley v.
Central Intelligence Agency, 639 F.2d 1146, 1151 (5th Cir.
1981); see generally 1 Jayson, Handling Federal Tort Claims §
155.02, 5-77 to 5-78 (and cases cited therein).
Whichever approach is here followed, the factors weigh
against plaintiffs' maintenance of this lawsuit. There is no
question that Veloz-Gertrudis was on active duty on board a
Navy ship detailed to patrol the Mediterranean Sea at the time
of the hazing. Neither he nor any other individual involved in
the incident would have been on board that ship but for
military assignment. Thus, the injury sustained by plaintiff,
whether the result of authorized activity or not, must be
deemed to have occurred incident to service in the United
Plaintiffs' contention that an injury cannot be sustained
incident to service if it originates in unauthorized or
forbidden activity ignores the rationale behind the
Feres doctrine. Civil suits by servicemen for injuries
sustained incident to their military service are barred because
of: (1) concern for the distinctly federal relationship between
the United States and its military personnel, which should not
be subject to various legal standards based on the fortuity of
where an injury occurs; (2) the presence of an alternative
compensation and benefit scheme for military personnel; and (3)
the potential for undue disruption of military discipline.
Although, for a time, the third factor seemed most important,
see United States v. Shearer, 473 U.S. 52, 58 n. 4, 105 S.Ct.
3039, 3043 n. 4, 87 L.Ed.2d 38 (1985), the Supreme Court has
recently reaffirmed the vitality of all three Feres
rationales, United States v. Johnson, 107 S.Ct. at 2068-69;
accord Sanchez v. United States, 878 F.2d at 635.
In this case, all three rationales are implicated.
Veloz-Gertrudis was injured on board a Navy ship patrolling
the Mediterranean. It would obviously intrude upon the
uniquely federal relationship between the United States and
individuals serving in its Navy if the government were to be
held accountable in various jurisdictions for torts occurring
to its servicemen while its ships were at sea. Moreover,
Veloz-Gertrudis has received treatment for his injuries at
Navy hospitals. Indeed, he is eligible for future treatment
and disability benefits pursuant to the military's alternative
compensation and benefit scheme.
Finally, and most obvious in this case, pursuit of
plaintiffs' claim would impermissibly intrude on military
discipline. The crux of the claim is, after all, that the Navy
fails to take the steps necessary to prevent hazings on board
its ships. Resolution of this claim would require "commanding
officers . . . to convince a civilian court of the wisdom of
a wide range of military and disciplinary decisions" that they
have made regarding the operation of a ship and the
supervision of the crew members who serve on it. See United
States v. Shearer, 473 U.S. at 58, 105 S.Ct. at 3043. This is
clearly barred by Feres. See, e.g., id.; Bozeman v. United
States, 780 F.2d at 202; Brown v. United States, 739 F.2d 362,
369 (8th Cir. 1984).
This prohibition against any inquiry into "the command
relationship between a service member and his or her superior
officers," Brown v. United States, 739 F.2d at 369, plainly
extends to unauthorized, or even illegal actions taken by
military personnel. In United States v. Shearer, supra, one
off-duty serviceman was killed by another in an incident
off-base, clearly an unlawful act. The complaint was that the
military had failed to take appropriate preventive action given
their knowledge that the killer had a previous conviction for
manslaughter. The Supreme Court found the suit barred by Feres.
In Bozeman v. United States, supra, an off-duty serviceman was
killed in an off-base drunk driving accident, an activity not
authorized by military authorities. The car's driver had become
intoxicated at an on-base club. The complaint was that the Army
negligently permitted alcoholic beverages to be served in such
clubs in an irresponsible manner. Once again, Feres required
dismissal. In Brown v. United States, supra, a case with
disturbing parallels to this one, an off-duty black National
Guardsman was the victim of a "mock lynching" conducted at an
on-base party. The complaint charged that base officials failed
to take the steps necessary to prevent this plainly
unauthorized occurrence. The court relied on Feres to dismiss
the complaint as against the United States.
Not insignificantly, the court in Brown permitted the case to
go forward against the individual guardsmen who had
participated in the incident, drawing a distinction between the
scope of Feres when suit was brought against the United States
and when it was brought against military personnel for acts
unrelated to their duties. Brown v. United States, 739 F.2d at
367-69. The distinction was approved in Durant v. Neneman,
884 F.2d 1350 (10th Cir. 1989), a case relied on by plaintiffs.
There, suit was permitted against the serviceman driver of a
private vehicle that struck and killed a soldier on a military
base. But no claim was even raised as against the United
States, and the court distinguished between the strict
standards applicable to "true Feres" actions against the
sovereign and the more flexible standards applicable to suits
by one serviceman against another for "non-military acts." See
id. at 1352-54. Plaintiffs pursue this action only as against
the United States. Thus, Durant is not squarely applicable.
This court dismisses plaintiffs' case for lack of subject
matter jurisdiction since it relates to injuries sustained
incident to service by an on-duty crew member on board a Navy
ship then on military patrol, and since court inquiry into the
incident would plainly implicate all three of the concerns
that underlie the sovereign immunity protected by the
The motion to dismiss this action is granted in light of
Feres v. United States, supra, and its progeny.