Scott A. Taber v. Robert S. Maine, and United States of America

Twenty-six years ago, in Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir.1968), this court held that the United States Government was vicariously liable for damage to a drydoek caused by a drunken sailor who was returning to ship from a night’s liberty. In his celebrated opinion, Judge Henry Friendly described the basis of respondeat superior as the “deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.” Id. at 171. Even though the sailor had become drunk while on liberty and far off base, we noted that drinking on leave was so common a part of naval life that the sailor’s drunken return to ship could fairly be deemed to be characteristic of the military enterprise and, hence, that the government should be held liable for the damage that he caused. See id. at 172.

In Bushey, we applied admiralty law. Today — in a case that again involves a seaman who had too much to drink — we must apply the law of Guam. This, in turn, points us to California decisions for guidance. As it happens, California has taken the lead in developing the modern law of respondeat superior even before Bushey. And, so, rounding out the circle, we now reach the same conclusion as did Judge Friendly, twenty-six years ago.

Although in Bushey the decision that the government was liable under respondeat superior pretty well disposed of all the issues in *1032 the case, a similar conclusion here offers no such closure. Instead, it forces us into that singular tangle of seemingly inconsistent rulings and rationales known as the Feres doctrine. In the end, we conclude that the most sensible reading of Feres and its progeny does not bar this suit. But we would be less than candid if we did not admit that the Feres doctrine has gone off in so many different directions that it is difficult to know precisely what the doctrine means today.

BACKGROUND

The facts are simple enough and not disputed. On the morning of April 13, 1985, Robert S. Maine, (“Maine”) a Navy serviceman on active duty at the U.S. Naval Ship Repair Facility on the island of Guam, went on liberty after having completed a grueling 24 hour duty shift. While on liberty he was free to leave the base as he pleased and travel up to 50 miles away. He could also be recalled for duty at any time.

Maine decided to have a good time. By noon, he was relaxing at an on-base beach party and drinking beer with Navy friends. Later that afternoon, he purchased two six-packs of beer at the base PX with his Navy comrade, Karin Conville (“Conville”), and returned with her to his barracks to drink several more cans. At dinnertime, Maine accompanied Mends to the enlisted men’s club, where he consumed two cocktails with his meal. After dinner, he attended a barracks party in the room of a superior officer, with several other superior officers present. There, Maine drank three or four more beers and — when he left to return to his own barracks at about 11:00 p.m. — Conville and another Navy comrade named Jean Buquet noticed that he seemed to be drunk. At around 11:30 p.m., Maine had difficulty sleeping and decided to drive off base to get something to eat. Feeling tired, he aborted his snack mission and tried to return to base. On the way back, he caused the accident that injured Scott A. Taber (“Taber”).

Taber was an enlisted Seabee — a construction worker in the United States Navy — and was stationed at Camp Covington, Guam. At 6:00 p.m. on Friday, April 12th, he too went on liberty. Accordingly, he was free to go off base at any time, to travel anywhere within 50 miles of his base and, unless he was recalled for duty, to do as he pleased until his liberty ended at 6:00 a.m. on the following Monday.

Around 2:00 p.m. on Saturday April 13, Taber’s civilian Mend, Estelita Stills (“Stills”), met Taber at his base in her car. They planned to spend the weekend together at her house, which was located off the base. Before going there, however, the two drove to her cousins’ home for dinner at the nearby U.S. Naval Station. There, Taber enjoyed a meal and, as a Mendly gesture in return, helped fix the cousins’ car. Shortly before midnight, Stills and Taber left for Stills’s house and their weekend of rest and recreation. As fate would have it, they never got there. While they were driving on the public roadway toward Stills’s house, Maine crashed into them, injuring Taber severely.

Two years later, Taber started this action for damages under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671, in the United States District Court for the Western District of New York, (David G. Larimer, Judge). Naming both Maine and the United States Government as defendants, Taber complained that he was injured as a result of Maine’s negligent driving and that, because Maine was acting within the scope of his Naval employment when he caused the accident, the government was hable on a theory of respondeat superior. The government moved for summary judgment on the grounds that, as a matter of law, Maine’s conduct fell outside the scope of his military service and that, therefore, the government was not liable for Taber’s injuries.

Taber opposed the government’s motion and cross-moved to amend his complaint. The proposed amended complaint claimed that the government was vicariously hable for the actions of the Navy personnel who ahegedly had neghgently allowed Maine to get drunk and to drive off base. In response, the government argued that the doctrine estabhshed by Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which held that “the Government is not hable under the Federal Tort Claims Act *1033 for injuries to servicemen where the injuries arise out of or in the course of activity incident to service,” id. at 146, 71 S.Ct. at 159, barred Taber’s new claims.

The district court agreed with the government in all respects. In his Decision and Order dated December 7,1993, Judge Larimer granted summary judgment to the government because “Maine’s drunk driving incident on April 13, 1985, was not in the line of duty and therefore the United States is not liable under the doctrine of respondeat superior.” He also denied Taber’s motion to amend his complaint holding that these claims would be barred by the Feres doctrine.

The action proceeded against Maine, however. After a bench trial in which Maine appeared pro se, the district court found Maine liable for negligence and assessed Ta-ber’s damages at $300,000. A final judgment was entered and Taber appealed.

In his appeal, Taber presses only his original claim that the government is vicariously liable for Maine’s negligence, and abandons his motion to amend his complaint. He argues that: (1) the district court erred in failing to apply the doctrine of respondeat superior to Maine’s drunk driving; and (2) the Feres doctrine does not bar this claim. We agree with both of Taber’s contentions. Accordingly, we reverse the district court’s judgment and remand the ease for further proceedings.

DISCUSSION

I. Respondeat Superior

The FTCA allows civil actions against the government based on the negligent acts or omissions of its employees, see 28 U.S.C. § 1346(b), including those of members of the Armed Services who are acting “in the line of duty.” 28 U.S.C. § 2671. The courts have uniformly equated the FTCA’s “line of duty” language with the phrase “scope of employment,” as that concept is defined by the respondeat superior law of the jurisdiction in which the accident occurred. See McHugh v. University of Vermont, 966 F.2d 67, 75 n. 9 (2d Cir.1992) (citing McCall v. United States, 338 F.2d 589 (9th Cir.), cert. denied, 380 U.S. 974, 85 S.Ct. 1334, 14 L.Ed.2d 269 (1965)); Merritt v. United States, 332 F.2d 397, 398 (1st Cir.1964). Because the accident in this case happened in Guam, we must follow Guam’s law of respondeat superior. Since the law of Guam is anything but certain, however, that is easier said than done.

Where the law of Guam is unclear, the Ninth Circuit, serving as Guam’s highest appellate court, see 48 U.S.C. § 1424-2 (investing the Ninth circuit with certiorari jurisdiction to review “all final decisions of the highest court of Guam”), has instructed courts to look to California law for guidance. Cf. People of the Territory of Guam v. Muna, 999 F.2d 397, 399 n. 1 (9th Cir.1993) (“As a general rule, we refer to California law in resolving unsettled questions of Guam law”). This is particularly true in cases, like this one, where the relevant Guam statute is identical to, and indeed derives from, the California Civil Code. See Concepcion v. United States, 374 F.Supp. 1391, 1395 (D.Guam 1974) (noting that the respondeat superior section of the Civil Code of Guam was “taken verbatim” from the California Civil Code and that “[t]he California cases construing the doctrine ... are persuasive in the construction of similar Guam laws”); cf. People of the Territory of Guam v. Iglesias, 839 F.2d 628, 629 (9th Cir.1988) (‘We should [be guided by California law] when California law forms the antecedent of a Guam statute and the intent of the Guam legislature is difficult to discern”). Indeed, on several occasions, the Ninth Circuit relied upon California cases in intuiting Guam’s law of respondeat superior. See Williams v. United States, 248 F.2d 492, 494-95 (9th Cir.1957), cert. denied, 355 U.S. 953, 78 S.Ct. 537, 2 L.Ed.2d 529 (1958); United States v. Johnson, 181 F.2d 577, 580-81 (9th Cir.1950) (“California decisions with respect to the tests for determining when the servant of a private employer is acting within the course of his employment supply a convenient starting point for a discussion”).

Nevertheless, we begin with Guam. We have found only one decision by a court sitting in Guam, which addresses Guam’s law of respondeat superior. See Concepcion, 374 *1034 F.Supp. at 1395. 1 That case held that an off-duty Navy petty officer was not acting in the line of duty when he drove a servicemember to a naval communications station so that the servicemember could make an emergency phone call to his family. Id. at 1393. If Concepcion properly defines Guam’s law of respondeat superior, we would agree with the district court that Taber’s claim must fail, for the links between the tortfeasor’s actions and the government are closer in that case than they are in the case before us. Consequently, the first question that we must ask is whether Concepcion is controlling today. We think it is not.

The government argues that we should follow Concepcion because we should pay particular' attention to the holdings of a federal district judge regarding the law of the jurisdiction in which that federal district court sits. This deference is certainly justified when a district judge — familiar with local law and customs — bases his or her decision on that familiarity. See Stevens v. Barnard, 512 F.2d 876, 880 (10th Cir.1975) (“The views of a federal judge, who is resident of the state where the controversy arose in a case involving interpretations of the law of the state, carry extraordinary persuasive force on appeal where there are no state decisions on point or none which provide clear precedent.”).

It is much less appropriate, however, when the district court does not rely on its “home grown” expertise, but, as in Concepcion, has simply interpreted a statute that, itself, originally comes from another jurisdiction, and has cited only cases from that other jurisdiction in support of its interpretation. Moreover, reliance on the local district court is least likely to be sound when, again as here, there exists a Court of Appeals (the Ninth Circuit), that hears both diversity cases from the state of the statute’s origination (California) and appeals from the local and federal courts of the jurisdiction in which the district court sits (Guam). This is especially so when that appellate court has spoken frequently on the issue.

For these reasons we conclude that Concepcion, a rather dated holding of an isolated district court in Guam, which cited a few lower court California eases and no Guam cases in interpreting a statute that is identical to California’s, is a weak guide to Guam law today. A better source of law would seem to be the many California and Ninth Circuit decisions that have given meaning to California’s respondeat superior statute, See, e.g., Mary M. v. City of Los Angeles, 54 Cal.3d 202, 208-09, 285 Cal.Rptr. 99, 101-02, 814 P.2d 1341 (1991); Perez v. Van Groningen & Sons, Inc., 41 Cal.3d 962, 967-68, 227 Cal.Rptr. 106, 108-09, 719 P.2d 676 (1986); Hinman v. Westinghouse Elec., Co., 2 Cal.3d 956, 959-60, 88 Cal.Rptr. 188, 190, 471 P.2d 988 (1970); Liu v. Republic of China, 892 F.2d 1419, 1427-28 (9th Cir.1989), cert. dismissed, 497 U.S. 1058, 111 S.Ct. 27, 111 L.Ed.2d 840 (1990); United States v. Romitti, 363 F.2d 662, 665 (9th Cir.1966), and, by derivation, the Guam statute as well. Roberto v. Aguon, 519 F.2d 754, 755 (9th Cir.1975) (“Appellate courts have consistently recognized that decisions of California courts ... subsequent to the adoption of the Guam codes while not binding, are persuasive.”).

It seems clear to us that California law (and by implication the law of Guam) would hold the government vicariously liable for Maine’s actions. California was one of the first states in the nation to adopt an expansive reading of the respondeat superior doctrine. As early as 1961, commentators noted that California had taken the lead in equating the scope of respondeat superior liability to the traditionally broader coverage mandated by workers’ compensation statutes. Thus, California employers were subject to liability for injuries to third parties caused by the behavior of their employees whenever the employees’ acts “arose out of or in the course of’ their employment relationship. See Guido Calabresi, Some Thoughts on Risk *1035 Distribution and the Law of Torts, 70 Yale L.J. 499, 545 (1961).

This approach to respondeat superior is even more evident in numerous California cases decided after Concepcion (which inevitably cast doubt on Concepcion itself). For example, in Rodgers v. Kemper Construction Co., 50 Cal.App.3d 608, 124 Cal.Rptr. 143 (4th Dist.1975), a subcontractor was held vicariously liable for an assault committed by two of its employees who had lounged around drinking for several hours in what was, ironically, called the “dry house” (a rest area/loeker room located on the job site). On a Friday night after their work shift had ended, the employees, though free to go home, stayed in the dry house and got drunk. Later they went outside and got in a fight with the plaintiffs. See Id at 615, 124 Cal.Rptr. at 146-47.

In finding respondeat superior liability, the court stated that “the inquiry should be whether the risk was one ‘that may be fairly regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer.” Id. at 619, 124 Cal.Rptr. at 149 (citations omitted). The court further noted that under California law,

where social or recreational pursuits on the employer’s premises after hours are endorsed by the express or implied permission of the employer and are ‘conceivably’ of some benefit to the employer or, even in the absence of proof of benefit, if such activities have become ‘a customary incident of the employment relationship,’ an employee engaged in such pursuits after hours is still acting within the scope of his employment.

Id. at 620, 124 Cal.Rptr. at 150. 2

In Rodgers, the subcontractor “customarily permitted employees to remain on the premises in or about the dry house long after their work shift had ended” and it was also “customary, particularly on Friday evenings, for employees to sit around the dry house after their work shift and talk and drink beer, often ... joined by their supervisors.” Id. at 619-20, 124 Cal.Rptr. at 149. Because it “was neither unusual nor unreasonable” for the assailants to be on the job site drinking before the assault, and because such drinking in the dry house “was a customary incident of the employment relationship,” the court ruled that their related tortious actions fell within the scope of their employment. Id. Not surprisingly, the court in Rodgers relied heavily on our decision in Bushey. See id. at 618, 124 Cal.Rptr. at 148-49.

Similarly, in Childers v. Shasta Livestock Auction Yard Inc., 190 Cal.App.3d 792, 235 Cal.Rptr. 641 (3d Dist.1987), Shasta’s foreman gave Childers and Abbott (both Shasta employees) the keys to his office at the end of the day and told them to go have a beer. The two employees were later joined by a customer, and the three of them drank both beer and hard liquor for several hours, getting quite drunk. Id. at 799, 235 Cal.Rptr. at 642-43. At around 10:00 p.m., Abbott suggested to Childers that they drive off to feed Abbott’s horses. Abbott drove her truck off the road, killing herself and injuring Child-ers. Id.

In addressing Childers’s claim against Shasta, the court made clear that the fact that Childers’s injuries occurred away from the work site did not bar the employer’s vicarious liability for Abbott’s drunk driving. The court said:

respondeat superior liability is properly applied where an employee undertakes activities within his or her scope of employment that cause the employee to become an instrumentality of danger to others even where the danger may manifest itself *1036 at times and locations remote from the ordinary workplace.

Id. at 804-05, 235 Cal.Rptr. at 647. The court also explicitly linked the scope of liability under respondeat superior to that which would make an employer liable to an employee under the workers’ compensation laws. Id. at 801, 235 Cal.Rptr. at 644.

Consistently with these eases, the Ninth Circuit has, itself, read California’s law of respondeat superior broadly. See Liu, 892 F.2d at 1427-28 (citing both Rodgers and Childers); Romitti, 363 F.2d at 665-66 (adopting “scope of enterprise analysis” as respondeat superior standard under California law). In fact, the Ninth Circuit took specific note of both Rodgers and Childers when, in a ease very close to ours, it stated in dictum that California law would likely impose liability on the government for the actions of an off-duty servicemember who becomes drunk while on a military base, and then drives off base and injures someone. See Doggett v. United States, 875 F.2d 684, 687 (9th Cir.1988).

The district court below tried to distinguish these authorities on the ground that the drinking in Rodgers and Childers took place at the work site while Maine’s supposedly did not. We disagree. The drinking in both Rodgers and Childers occurred at work-site rest areas (the “dry house” and the business office, respectively) — not on the assembly line. Similarly, although Maine did not drink while working at the Naval Ship Repair Facility, he drank at an on-base beach party, at the enlisted men’s club, and in the barracks — all of which were located on his base. These places were as much on-site rest areas as the ones involved in both Rodgers and Childers. 3

The government understandably seeks to rely on an older conception of respondeat superior. This view of the doctrine required a close link between the acts of the “agent” and “profit” accruing to the master before vicarious liability attaches to the latter. See Restatement (Second) of Agency § 228 (1984). But today this position is in hasty retreat, if not rout. Thus Rodgers and Childers held that the employer-benefit requirement is met whenever broad potential effects on morale and customer relations exist, or where the employer has implicitly permitted or endorsed the recreational practices that led to the harm. See Rodgers, 50 Cal.App.3d at 618-21, 124 Cal.Rptr. at 149-50; Childers, 190 Cal.App.3d at 805-06, 285 Cal.Rptr. at 647-48. The decline of this profit requirement, in a direct sense, can also be seen in the wholesale abandonment of the charitable immunity exception to respondeat superior. See W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on Torts, § 133 (5th ed. 1984) (hereinafter, “Prosser & Keeton”); Restatement (Second) of Torts § 895E (1977).

Of course drinking by servicemembers can be viewed as important to military morale, just as drinking was apparently instrumental to good employee morale and customer relations in Rodgers and Childers. Hence, “employer-benefit” can be adduced in all these cases. But in the end, “employer-benefit” is significant only because it is one way of showing that the harm that drinking causes can properly be considered a cost of the employer’s enterprise.

California courts have said that the doctrine of respondeat superior is “concerned with the allocation of the cost of industrial injury.” Childers, 190 Cal.App.3d at 801, 235 Cal.Rptr. at 644 (emphasis added). The issue is simply whether the employee’s “conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” Rodgers, 50 Cal.App.3d at *1037 619, 124 Cal.Rptr. at 149 (emphasis added). Thus, our focus must be on the relationship between the servicemember’s behavior and the costs of the military enterprise.

Here, it is undisputed that drinking on base during off-duty hours was a commonplace, if not an officially condoned activity. It certainly was a customary incident of Maine’s employment relationship with the Navy, as that element is described in Rodgers. See 50 Cal.App.3d at 620, 124 Cal.Rptr. at 150. And in the context of the military mission, an occasional drunken servicemem-ber who leaves government premises and causes damage is a completely foreseeable event, in the sense that it is a reasonably obvious risk of the general enterprise. As such, we do not think that it would be either “unfair” or the slightest bit unreasonable to impose that cost on the government. To the contrary, given the pervasive control that the military exercises over its personnel while they are on a base, it is totally in keeping with the doctrine of respondeat superior to allocate the costs of base operations to the government. See William M. Landes & Richard A. Posner, The Positive Economic Theory of Tort Law, 15 Ga.L.Rev. 851, 914-15 (1981) (discussing respondeat superior as an incentive for employers to exert their control over employees to induce careful conduct). And this is so quite apart from whether or not the military benefits from the boost in morale achieved through fairly lenient on-base drinking policies. 4

As the leading Torts treatise has put it, “the integrating principle” of respondeat superior is “that the employer should be liable for those faults that may be fairly regarded as risks of his business, whether they are committed in furthering it or not.” Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, The Law of Torts § 26.8 (2d ed., 1986) [hereinafter, “Harper & James”]. Judge Friendly made the same point most elegantly in Bushey. “The proclivity of seamen to find solicitude by copious resort to the bottle,” he wrote, “has been noted in opinions too numerous to warrant citation. Once all this is granted, it is immaterial that [the eoastguardsman’s] precise action was not to be foreseen.” 398 F.2d at 172. After all, the government “cannot 'justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.” Id. at 171.

We believe the law of Guam reaches the same conclusion. Accordingly, we hold that the government is vicariously liable for Maine’s conduct.

II. The Feres Doctrine

Unfortunately, this does not end our analysis. Although the government may be responsible for Maine’s actions under respon-deat superior, it may not be liable to Taber because of the Feres doctrine. The district court did not reach this issue since it held that the government was not vicariously liable in the first place. It did, however, conduct a Feres analysis of the proposed claims contained in Taber’s cross-motion to amend his complaint. The court concluded that these claims, which sought to impose liability upon the government for the actions of Navy personnel other than Maine, were barred by the Feres doctrine.

It is not clear whether the district judge would have also ruled that the Feres doctrine barred Taber’s original claim based on Maine’s conduct. In denying Taber’s cross-motion to amend his complaint on Feres grounds, the district court emphasized the nature of the relationship between the allegedly negligent Navy personnel (i.e., the injurers) and the government. The district court did not focus on the nature of the *1038 relationship between Taber (i.e., the plaintiff) and the government at the time of his injury — a consideration that is, in almost all cases, of much greater relevance to the Feres analysis.

A fair reading of the district judge’s opinion suggests, however, that he would have concluded that Feres also barred Taber’s current suit, although we cannot be sure. In any event, rather than remanding the case to the district court for further consideration on this point, we choose to address the Feres question directly. We do this because both parties have briefed and argued Feres at length, and because we believe we should try to clarify what has become an extremely confused and confusing area of law. 5

A. The History of Feres

The Feres doctrine started lucidly enough as a rule that barred servicemember’s claims under the FTCA for injuries that “arise out of or are [sustained] in the course of activity incident to service.” Feres, 340 U.S. at 146,