Bartholomew; et al. vs. Burger King Corporation; et al.
Filing
220
ORDER DENYING DEFENDANT UNITED STATES ARMY AND AIR FORCE EXCHNAGE SERVICES' MOTION TO DISMISS, DOC NO. 207 . Signed by JUDGE J. MICHAEL SEABRIGHT on 5/13/2014. [Order follows hearing held 5/5/2014. Minutes of hearing: 218 . Re lated document: Declaration, 207 ] (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on May 14, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CLARK BARTHOLOMEW; TANYA
BARTHOLOMEW; and ARIC
BARTHOLOMEW, a Minor, By His
Next Friend CLARK
BARTHOLOMEW;
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
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BURGER KING CORPORATION; CTI )
FOODS HOLDING CO., LLC.;
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UNITED STATES ARMY AND AIR )
FORCE EXCHANGE SERVICES;
)
DOES 1-150,
)
)
Defendants.
)
________________________________ )
CIVIL NO. 11-00613 JMS/RLP
ORDER DENYING DEFENDANT
UNITED STATES ARMY AND AIR
FORCE EXCHANGE SERVICES’
MOTION TO DISMISS, DOC. NO.
207
ORDER DENYING DEFENDANT UNITED STATES ARMY AND AIR
FORCE EXCHANGE SERVICES’ MOTION TO DISMISS, DOC. NO. 207
I. INTRODUCTION
This tort action arises from an incident in which Plaintiff Clark
Bartholomew (“Bartholomew”) allegedly sustained injuries from eating a Triple
Whopper sandwich imbedded with two needle-shaped metal objects. The
sandwich was purchased from a Burger King Corporation (“Burger King”)
restaurant franchised to Defendant United States Army and Air Force Exchange
Service (“AAFES” or the “government”). At the time, Bartholomew was an active
duty soldier in the United States Army.
On October 12, 2011, Bartholomew, his wife, and his son
(collectively, “Plaintiffs”) filed this action alleging tortious conduct by Defendants
Burger King and CTI Foods Holding Company (“CTI”), the hamburger patty
supplier. (AAFES was later added as a Defendant in a First Amended Complaint.)
Currently before the court is AAFES’ March 10, 2014 Motion to Dismiss, arguing
that the court lacks subject matter jurisdiction because Plaintiffs’ claims are barred
under the “Feres doctrine,” which insulates the United States from liability for
injuries “incident to military service.” Feres v. United States, 340 U.S. 135, 144
(1950). Based on the following, the Court DENIES the Motion to Dismiss.
II. BACKGROUND
A.
Factual Background
1.
Bartholomew’s Military Service and Injury
Bartholomew was on active duty in the Army from 2007 to 2011.
Doc. No. 207-6, Def.’s Ex. A at 12-13,16. In April 2010, Bartholomew was
stationed at Schofield Barracks, a U.S. Army military installation, where he and his
family lived in on-base military housing. Id. His regular working schedule was
6:00 a.m. until “whenever we get done.” Id. at 34.
2
According to AAFES, on December 1, 2010, Bartholomew’s duty
status was “on quarters” because he was experiencing back pain and had not been
to work that day.1 Doc. No. 207-2, Def.’s Mot. at 3. AAFES clarified at the
hearing on the Motion that this status is similar to taking a “sick day.” That
evening, at approximately 6:30 p.m., Bartholomew’s wife went to a Burger King
restaurant located on Schofield Barracks to pick up dinner. Doc. No. 207-6, Def.’s
Ex. A at 24. It is undisputed that the Burger King at issue is not limited to use by
military personnel but, rather, is open to “non-service affiliated civilians” as well.
Doc. No. 207-2, Def.’s Mot. at 17; Doc. No. 219, Ching Decl. ¶ 7 (“There is no
restriction as to who can patronize the Burger King restaurant located on Schofield
Barracks.”). Further, at the time of the incident, Schofield Barracks was also not
restricted to military personnel -- civilians could enter the installation if they
obtained an appropriate pass. Doc. No. 219, Ching Decl. ¶ 5. Bartholomew’s wife
ordered a Triple Whopper meal and took it home for Bartholomew around 6:30
1
AAFES contends that a “quarters” duty status means that “he was released from
performing his ordinary duties due to temporary illness or injury, and he was not on pass or
leave,” Doc. No. 207-2, Def.’s Mot. at 3, although the record contains no official military
definition of a “quarters” status. To the extent this duty status is significant for possible
application of Feres, the court accepts that Bartholomew was not on leave, and was still subject
to military orders. As discussed below, however, the time of day (approximately 6:30 p.m.) and
location of this portion of the incident (at home, eating dinner) suggest that he was not “on
duty.” He was not, for example, in uniform, carrying a weapon, and at his post as a military
policeman.
3
p.m. Doc. No. 207-6, Def.’s Ex. A at 24.
While eating the sandwich, Bartholomew bit into a needle-like object,
which pierced his tongue. Id. at 26-27. After holding a napkin on his tongue to
stop the bleeding, he went to an urgent care clinic where he was instructed to place
ice on his tongue and monitor it. Id. at 27. Two days later, Bartholomew allegedly
experienced stomach pain and sought medical attention. Doc. No. 164, Am.
Compl. at 7. Apparently, another needle-like object was lodged in his small
intestine, requiring hospitalization. Id. He was placed on bed rest until December
9, 2010. Id. AAFES indicates that Bartholomew received health care from the
government for all of his medical injuries related to the Whopper incident and also
was given paid time off to recuperate. Doc. No. 207-2, Def.’s Mot. at 3, 17.
2.
The AAFES Burger King on Schofield Barracks
“AAFES is a Joint command of the Army and the Air Force and . . .
consists of all activities, personnel, property, and [nonappropriated fund
instrumentalities] that provide exchange services to the Army and the Air Force[.]”
Doc. No. 207-7, Def.’s Ex. B (Army Reg. 215-8 ¶ 1-9). It is “an instrumentality of
the United States . . . entitled to the immunities and privileges enjoyed by the
Federal Government.” Id. ¶ 1-11. Its mission is “to provide quality merchandise
and services to its customers at competitively low prices and to generate earnings
4
which provide a dividend to support morale, welfare, and recreation (MWR)
programs,” id. ¶ 1-6, and it is a “category C” MWR program. Doc. No. 207-8,
Def.’s Ex. C (Army Reg. 215-1 ¶ 3-2). The AAFES Burger King is such an MWR
program, established under the MWR’s food, beverage and entertainment program
to assist “in meeting the food service needs of [a military] installation’s assigned or
visiting peronnel.” Id. ¶ 8-24a. AAFES operates the Schofield Burger King
pursuant to a franchise agreement between Burger King and AAFES. Doc. No.
164, Am. Compl. at 2; Doc. No. 207-2, Def.’s Mot. at 6.
Although AAFES employees are federal civilian employees, Doc. No.
207-7, Def.’s Ex. B (Army Reg. 215-8 ¶ 4-1a), the military has authority over
certain of AAFES’ operations. See Doc. No. 207-4, Wynn Decl. at 3-4. “The
Hawaii Exchange, AAFES has a close working relationship with the US Army
Garrison Hawaii and the commander of each installation where [AAFES] services
are provided.” Id. ¶ 5. “AAFES takes very seriously the Garrison Command’s
input [and] [o]n certain issues, such as place and time limitations on the sale of
alcohol, the Garrison Commander has decision making authority[.] Id. ¶ 6. At the
time of Bartholomew’s injuries, the Garrison Commander, an active duty military
officer, worked closely with AAFES on ensuring its facilities met the needs and
requirements of Schofield Barracks. Id. ¶ 7. Further, “[b]oth Burger King and the
5
Department of the Army conduct periodic inspections” of the restaurant in
question, and the inspections “include[] examination of food temperature and water
quality and ensuring that the food product is within [the Army’s] standards.” Id.
¶ 9.
B.
Procedural Background
On October 12, 2011, Plaintiffs filed this action alleging that Burger
King and CTI acted negligently in exercising their duty of care owed to Plaintiffs.
Doc. No. 1, Compl. On February 19, 2013, Burger King filed a third-party
complaint against AAFES, Doc. No. 147, and AAFES filed a crossclaim against
CTI and a counterclaim against Burger King on August 9, 2013. Doc. No. 153.
On September 17, 2013, Plaintiffs filed an Amended Complaint against Burger
King, CTI, and AAFES. Doc. No. 164.
On March 10, 2014, AAFES filed its Motion to Dismiss. Doc. No.
207. On April 10, 2014, Plaintiffs filed their Opposition, Doc. No. 213, and
AAFES filed its Reply on April 18, 2014. Doc. No. 216. On March 26, 2014, CTI
filed a Statement of No Position, Doc. No. 201, and on April 11, 2014, Burger
King filed a Statement of No Opposition. Doc. No. 214. The court heard the
Motion on May 6, 2014. AAFES supplemented the record on May 12, 2014 with a
declaration setting forth an unopposed and uncontradicted proffer of facts
6
regarding access to the Burger King on Schofield Barracks. Doc. No. 219.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss
claims over which it lacks proper subject matter jurisdiction. “A motion to dismiss
pursuant to the Feres doctrine is properly treated as a [Rule]12(b)(1) motion to
dismiss for lack of subject matter jurisdiction, rather than as a motion for summary
judgment.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1997).
Under Rule 12(b)(1), a defendant may challenge the plaintiff’s
jurisdictional allegations in one of two ways, “facial” or “factual.” Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A “facial” attack accepts
the truth of the plaintiff’s allegations but asserts that they “are insufficient on their
face to invoke federal jurisdiction.” Id. The district court resolves a facial attack
as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff’s
allegations as true and drawing all reasonable inferences in the plaintiff’s favor, the
court determines whether the allegations are sufficient invoke the court’s
jurisdiction. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013).
But, “[i]n resolving a factual attack on jurisdiction, the district court
may review evidence beyond the complaint without converting the motion to
dismiss into a motion for summary judgment.” Safe Air for Everyone, 373 F.3d at
7
1039 (citation omitted). “The court need not presume the truthfulness of the
plaintiff’s allegations.” Id. “Once the moving party has converted the motion to
dismiss into a factual motion by presenting affidavits or other evidence properly
brought before the court, the party opposing the motion must furnish affidavits or
other evidence necessary to satisfy its burden of establishing subject matter
jurisdiction.” Id.
“With one caveat, if the existence of jurisdiction turns on disputed
factual issues, the district court may resolve those factual disputes itself.” Leite v.
Crane Co., --- F.3d ----, 2014 WL 1646924, at *2 (9th Cir. Apr. 25, 2014)
(citations omitted). “The caveat is that a court must leave the resolution of material
factual disputes to the trier of fact when the issue of subject-matter jurisdiction is
intertwined with an element of the merits of the plaintiff’s claim.” Id. at *2 n.3
(citing Safe Air for Everyone, 373 F.3d at 1039-40). In that situation, the moving
party “should prevail [on a motion to dismiss] only if the material jurisdictional
facts are not in dispute and the moving party is entitled to prevail as a matter of
law.” Casumpang v. Int’l Longshoremen’s & Warehousemen’s Union Local 142,
269 F.3d 1042, 1060 (9th Cir. 2001) (citation and quotation signals omitted).2
2
The court treats the present Motion as a “factual” attack on jurisdiction -- the parties
have submitted and rely on evidence beyond the Complaint. Where not contested, the court also
relies on allegations of the Amended Complaint to establish certain background facts.
8
IV. DISCUSSION
A.
The Federal Tort Claims Act and the Feres Doctrine
The Federal Tort Claims Act (“FTCA”) waives the United States’
sovereign immunity for “tort claims, in the same manner and to the same extent as
a private individual under like circumstances.” 28 U.S.C. § 2674. The FTCA,
however, does not apply (among other exceptions) to “[a]ny claim arising out of
the combatant activities of the military or naval forces, or the Coast Guard, during
time of war.” 18 U.S.C. § 2680(j). Although this statutory military exception is
narrow, Feres carved out a broader exception, holding that the government is not
liable for injuries that “arise out of or are in the course of activity incident to
service.” 340 U.S. at 146; see also Schoenfeld v. Quamme, 492 F.3d 1016, 1019
(9th Cir. 2007).
Feres held that the FTCA did not waive sovereign immunity from
actions arising from the tortious conduct of U.S. military personnel causing injuries
to other military personnel engaged in non-combat activities. 340 U.S. at 145-46.
The Supreme Court emphasized the “distinctively federal [] character” of “[t]he
relationship between the Government and members of its armed forces.” Id. at
143. It also noted the “extremely favorabl[e]” military benefits already awarded to
the plaintiffs for the injuries. Id. at 145. These policy considerations persuaded
9
the Supreme Court that Congress could not have intended the FTCA to expose the
government to liability to injuries arising “in the course of activity incident to
[military] service.” Id. at 146. United States v. Shearer, 473 U.S. 52 (1985),
subsequently reasoned that the key inquiry in determining whether an injury was
sustained “incident to service” is “whether the suit requires the civilian court to
second-guess military decisions, and whether the suit might impair essential
military discipline.” Id. at 57 (internal citations omitted).
United States v. Johnson, 481 U.S. 681 (1987), extended the Feres
doctrine to cases in which federal civilian employees’ negligence caused the
injuries -- provided that those injuries were suffered “incident to service.” Id. at
686 (“[T]his Court has never suggested that the military status of the alleged
tortfeasor is crucial to the application of the doctrine.”). Further, Johnson
identified three principles underlying the Feres doctrine: 1) the “distinctively
federal” nature of “the relationship between the Government and members of its
armed forces,” 2) the “generous statutory disability and death benefits” provided to
military personnel and their families, and 3) the potential interference of “the
judiciary in sensitive military affairs at the expense of military discipline and
effectiveness.” Id. at 689-90 (citations omitted). This third factor is considered
“‘the most persuasive justification’ for the [Feres] doctrine.” Schoenfeld, 492 F.3d
10
at 1019 (quoting Dreier, 106 F.3d at 849, and stating that Ninth Circuit “cases have
focused mainly on whether the serviceman’s activities implicate that interest”); see
also Bon v. United States, 802 F.2d 1092, 1094 (9th Cir. 1986) (“[T]he
determination of whether an activity is incident to service must focus on the
potential impact of a civil action on military discipline.”).
But “[d]espite this framework, [the Ninth Circuit’s] Feres
jurisprudence is something of a muddle,” Schoenfeld, 492 F.3d at 1019, calling for
a “comparison of fact patterns to outcomes in cases that have applied the Feres
doctrine” as the best method of analysis. Id. In this regard, as discussed below,
there are several analogous, recreation-based, Feres decisions in the Ninth Circuit
such that the court is able to conduct a meaningful case-specific analysis here.
The Ninth Circuit applies four non-exclusive factors in assessing
whether to apply the Feres doctrine:
1) the place where the negligent act occurred;
2) the plaintiff’s duty status when the negligent act occurred;
3) the benefits accruing to the plaintiff because of his status as a
service member; and
4) the nature of the plaintiff’s activities at the time of the negligent
act.
Schoenfeld, 492 F.3d at 1019 (citing Bon, 802 F.2d at 1094). None of the factors is
11
dispositive -- “the totality of the circumstances” controls whether Feres bars the
action. Id. The court now turns to these four factors, keeping in mind a
comparison of cases with similar fact patterns.
B.
Applicability of the Feres Doctrine to Plaintiffs’ Claims
1.
Place Where the Negligent Act Occurred
For purposes of this Motion, the court assumes a negligent act
occurred at the Schofield Burger King.3 Although not determinative, this fact
generally cuts in favor of a Feres bar. Schoenfeld, 492 F.3d at 1023. But where
the nature of a plaintiff’s activities are minimally related to military service, this
factor is given little weight. Id. Here, where Bartholomew was at home, eating a
sandwich at 6:30 p.m., any connection between the location of the negligent act
and Bartholomew’s military service is “tenuous” at best because he was
“essentially acting in a civilian capacity.” Id. at 1020. Overall, the location of the
negligent act weighs slightly, if at all, in favor of applying a Feres bar.
2.
Bartholomew’s Duty Status When the Negligent Act Occurred
Although “the duty status of the plaintiff when the negligence
occurred is often considered, . . . active duty status of a serviceman who is off-duty
3
For purposes of this Motion, the court assumes that the allegedly negligent act occurred
at the Schofield Burger King, and not, for example, the place where the beef patties were
manufactured.
12
at the time of the negligence is only relevant insofar as it may indicate that the
serviceman ‘was engaging in an activity that is related in some relevant way to his
military duties.’” Dreier, 106 F.3d at 849 (quoting Johnson v. United States, 704
F.2d 1431, 1438 (9th Cir. 1983)). Schoenfeld, for example, reasoned that because
the plaintiff was on “liberty,” his active duty status was “at best marginally
relevant to the Feres analysis.” 492 F.3d at 1023.4 Because the plaintiff was “offduty for the day,” it eliminated “any relevant links between his activities and his
military service.” Id. (citing Johnson, 704 F.2d at 1438).
Here, Bartholomew was on active duty, but his specific status for the
day was on “quarters.” Although the record does not disclose specific limitations
(if any) placed on military personnel on such status, Bartholomew was clearly not
engaged in military activity. That he was not working and was eating dinner at
home at about 6:30 p.m. weighs against application of the Feres doctrine. See
McConnell v. United States, 478 F.3d 1092, 1096 (9th Cir. 2007) (reasoning that
the fact that plaintiff was “not on duty . . . weigh[ed] against the application of the
Feres doctrine).
4
“‘Liberty’ is a short period during which servicemen are permitted to leave the base at
will. They are not required to seek permission in their comings and goings, or to report on their
whereabouts. Liberty status is subject to immediate cancellation. Soldiers on liberty are still
subject to the Uniform Code of Military Justice[.]” Schoenfeld, 492 F.3d at 1017.
13
3.
Benefits Accruing to Bartholomew Because of His Status As a
Service Member
The third factor -- benefits accruing to the plaintiff because of the
plaintiff’s status as a service-member -- involves two types of benefits: 1) benefits
associated with the activity that led to the injury, and 2) benefits received as a
result of the injury. See Schoenfeld, 492 F.3d at 1024.
a.
Benefits associated with the use of the Schofield Burger King
Under the circumstances of this case, eating a Burger King sandwich
was not a benefit of Bartholomew’s military service.5 Even if AAFES’ mission is,
in part, to provide convenient food choices for service-members, civilians were
equally welcome at the Schofield Burger King. See, e.g., Doc. No. 219, Ching
Decl. ¶ 7 (“There is no restriction as to who can patronize the Burger King
restaurant located on Schofield Barracks.”). In contrast, in Bon, the Feres doctrine
precluded an action against the government where the plaintiff was using a
recreational canoe while “taking part in an activity provided [by the Navy] for the
benefit of their military service.” 802 F.2d at 1095. That is,
Bon enjoyed the use of the Special Services Center solely
5
AAFES suggests that Bartholomew benefits from the revenues generated by the Burger
King because such revenues are reinvested into military MWR programs. Doc. No. 207-2,
Def.’s Mot. at 16. Although there may be some indirect benefit to Bartholomew because of this
reinvestment program, the benefit at issue is his consumption of the Triple Whopper -- not some
tangential and unspecified future benefit.
14
by virtue of her status as a member of the military. She
did not occupy a status similar to that of any civilian with
respect to her presence on and use of the Special Services
Center’s facilities. The record clearly indicates that use
of the Special Service Center was restricted to members
of the military and employees of the Department of
Defense and their guests and dependents.
Id. (internal citation omitted).
Similarly, Millang v. United States , 817 F.2d 533 (9th Cir. 1987),
applied Feres in an action brought by a Marine Corps police officer injured while
attending a picnic at an on-base park. 817 F.2d at 534. Relying on Bon, Millang
emphasized that “Millang enjoyed the use of the picnic area solely by virtue of his
status as a serviceman.” Id. at 535. “[A]ll the participants (including civilians)
were subject to military statutes, regulations and orders.” Id. Likewise,
McConnell applied Feres to bar an action by the family of an Air Force officer
who was injured in a waterskiing accident -- emphasizing that the boat rental was a
“benefit” to the plaintiff because it was
provided through the Luke AFB Recreation Center to
“active duty members and their family members” and
guests had to be supervised and accompanied by military
personnel. . . . Moreover, Lts. McConnell, Donohue, and
Frodsham took possession of and transported the boat,
indicating that they were exercising their privileges as
service members rather than as civilian guests[.]
478 F.3d at 1097.
15
On the other hand, where activities are open equally to the public and
the military, the third prong clearly falls against application of a Feres bar. For
example, in concluding that Feres did not bar a claim by an active-duty Marine
injured because of a defective guardrail on base, Schoenfeld reasoned:
With respect to the third factor -- benefits accruing to the
plaintiff because of his status as a service member -- [the
Ninth Circuit] drew a clear line between cases where the
“plaintiffs had access to the [activity in question] only
because of their status as military personnel,” and those
where civilians might also have access.
492 F.3d. at 1020 (citing Johnson, 704 F.2d at 1438-39) (noting that Feres applies
in cases where “the plaintiffs would not have been privileged to take advantage of
the benefits but for their military status”)) (emphasis added). Schoenfeld
distinguished Bon by reasoning, in part, that “[in Bon] the government offered
canoe rentals as a benefit of military service, and that unlike in Johnson, only
servicemen could take advantage of that benefit.” Id. at 1022. In Schoenfeld, the
injured Marine was traveling on an on-base road accessible to members of the
general public “between 8 a.m. and sunset every day, but they [had to] first enter
their names into the base’s Visitor Control Log.” Id. at 1018.
For the same reason, Dreier found the third Feres prong inapplicable.
In Dreier, the decedent soldier was at an on-base beach that was “limited to
members of the military community and civilians who acquire use permits.” 106
16
F.3d at 846. “In Dreier, [the Ninth Circuit] held that because there was evidence
that anyone could access the Solo Point area -- even civilians without a permit -Dreier’s presence at Solo Point was not a benefit of his military status.”
McConnell, 478 F.3d at 1097.
Here, any benefit of patronizing the Burger King was not a benefit
Bartholomew enjoyed “solely by virtue of [his] status as a member of the military.”
Bon, 802 F.2d at 1095. Rather, Bartholomew “was doing what any member of the
public could have done,” Schoenfeld, 492 F.3d at 1024 -- eating a Triple Whopper
from the Schofield Burger King. In sum, this aspect of the third prong weighs
strongly against applying a Feres bar.
b.
Benefits awarded as a result of Bartholomew’s injury
The government points out that Bartholomew received paid time off
and free medical treatment for all injuries he may have suffered from eating the
Triple Whopper, benefits provided solely because Bartholomew was in the
military. This fact cuts slightly in favor of applying the Feres doctrine. See id.
(“Schoenfeld has received substantial disability benefits from the military, a fact
that weighs in favor of applying Feres.”). But it is certainly not controlling. See
id. (“[N]either [Jackson v. United States, 110 F.3d 1484 (9th Cir. 1997)], Dreier,
nor any of our other cases holds that the receipt of disability and medical benefits
17
is a dispositive factor in the Feres analysis.”).
AAFES also points out that Bartholomew also receives medical
retirement from the military for injuries he sustained while deployed in Iraq. Doc.
No. 216, Gov’t Reply at 6. But those benefits are being paid for an entirely
different injury and are irrelevant to his recovery for any injury from eating the
Burger King sandwich. See Schoenfeld, 192 F.3d at 1024 (defining benefits
awarded for purposes of this prong as the “compensation received on account of
the resulting injury”).
4.
Nature of Bartholomew’s Activities at the Time of the Negligent Act
The final and most relevant inquiry is whether Bartholomew’s
activities at the time of the negligent act “are of the sort that could harm the
[military] disciplinary system if litigated in a civil action.” Johnson, 704 F.2d at
1439. See, e.g., Costo v. United States, 248 F.3d 864, 866 (9th Cir. 2001) (“[T]he
danger to discipline . . . has been identified as the best explanation for Feres.”).
And, here, this factor clearly weighs against application of Feres. The
consumption of a fast-food hamburger prepared by civilian employees at a
restaurant open to the public hardly amounts to a “sensitive military affair[]” into
which the judiciary should avoid interfering. See Johnson, 481 U.S. at 690-91.
Indeed, Bartholomew’s activities leading up to his injury “are not meaningfully
18
distinguishable from those of a civilian.” Schoenfeld, 492 F.3d at 1025. When
Bartholomew ate the Burger King sandwich, he was not “subject to military orders
and regulations for the particular activity in which [he] was engaged,” Bon, 802
F.2d at 1096, nor was he “performing a [] mission.” Johnson, 481 U.S. at 691.
Further, the exercise of jurisdiction over this action would hardly undermine the
“‘obedience, unity, commitment, and esprit de corps’” necessary within the U.S.
military. See id. at 690 (quoting Goldman v. Weinberger, 475 U.S. 503, 507
(1986)).
In part, Feres protects against “not only those suits that directly call
into question military decisions, but also ‘the type of claims that, if generally
permitted, would involve the judiciary in sensitive military affairs at the expense of
military discipline and effectiveness.’” Millang, 817 F.2d at 535 (quoting Shearer,
473 U.S. at 59). But even this justification (“sensitive military affairs”) for Feres
does not apply here. Although it is possible that some decisions of the Garrison
Commander regarding management of an AAFES Burger King could conceivably
become implicated if Feres did not bar this type of suit brought by Bartholomew,
such “military decisions” could be questioned in a suit brought by a civilian -- a
possibility under the FTCA that necessarily exists precisely because the Schofield
Burger King was open equally to civilians and military personnel. That is, barring
19
this suit by Bartholomew could not further this Feres justification. The same types
of “military decisions” could be questioned in a different suit (not “incident to
service”) by a civilian.
V. CONCLUSION
Three of the four primary factors weigh against application of the
Feres doctrine -- including the most important factor, the impact on military
discipline. Eating a Burger King Triple Whopper (equally available to the military
or general public) while at home on a sick day simply does not implicate military
command or discipline. Accordingly, the court DENIES Defendant United States
Army and Air Force Exchange Services’ Motion to Dismiss.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 13, 2014.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Bartholomew v. Burger King Corp., Civ. No. 11-00613 JMS/RLP, Order Denying Defendant
United States Army and Air Force Exchange Services’ Motion to Dismiss, Doc. No. 207.
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