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

The FTCA makes the United States liable for negligent acts of service members acting “in the line of duty,” a phrase courts treat as equivalent to scope of employment under the law of the place where the accident occurred. Because the accident occurred in Guam, Guam law governed. Guam's respondeat superior statute derives directly from California law, and Guam and Ninth Circuit precedent treat California decisions as persuasive guidance where Guam law is unsettled.

The court declined to treat an older Guam federal district court decision, Concepcion v. United States, as controlling. Concepcion had relied on older California authorities and did not reflect California's later, broader approach to respondeat superior. More current California and Ninth Circuit decisions therefore provided the better guide to Guam law.

California law asks whether the employee's conduct created a risk that may fairly be regarded as typical of, or broadly incidental to, the employer's enterprise. The focus is not narrowly on whether the employee was presently performing assigned work or directly producing a profit for the employer. Rather, respondeat superior allocates to the enterprise the costs of risks that the enterprise predictably generates.

Cases such as Rodgers and Childers treated after-hours drinking at employer-controlled premises as within the employment relationship where drinking was permitted or customary, even though the resulting injury occurred after work or away from the immediate worksite. The court found Maine's on-base beach party, barracks drinking, and drinking at the enlisted club materially comparable to those worksite recreational settings.

Drinking by service members on base during off-duty hours was a commonplace and customary incident of Maine's relationship with the Navy. Given the military's pervasive control over personnel and facilities on base, an intoxicated service member leaving the base and causing an accident was a foreseeable cost of the military enterprise. The government therefore could not fairly disclaim responsibility merely because Maine's precise accident occurred off base while he was on liberty.

Feres bars FTCA claims by service members for injuries arising out of or in the course of activity incident to service. The doctrine has acquired several stated rationales: preserving military discipline, maintaining a uniform federal system for military injuries, and treating military benefits as the exclusive remedy for service-connected injuries. The court acknowledged that the Supreme Court's Feres cases are difficult to reconcile, but sought a reading consistent with both Feres and Brooks v. United States, which allowed an FTCA recovery by service members injured while on furlough.

The court understood Feres through its original workers' compensation analogy. Military benefits function like workers' compensation, and therefore displace tort remedies, when an injury is employment-related. But military benefits also cover many injuries entirely unrelated to service. For those non-work-related injuries, the benefits resemble general employee health or disability coverage, which ordinarily does not bar a tort action. At most, such benefits may offset a tort recovery.

Accordingly, the central inquiry is whether the service member was engaged in activity within the scope of military employment when injured—the same basic inquiry that would determine entitlement to ordinary workers' compensation. If the injury arose from the service member's military employment or a military-created zone of special danger, Feres generally applies. If it did not, Feres generally does not apply unless unusually serious military-discipline concerns are present.

Taber was on liberty, traveling in a private car on a public road with his civilian companion after visiting her relatives, helping repair their car, and heading to spend the rest of the weekend at her home. These were private pursuits, not activities characteristic of military service. Taber's military status was only a background fact; it did not create the risk that caused his injury.

The court distinguished prior Second Circuit cases applying Feres because those claims had a much closer connection to military facilities, benefits, or employment. In Bozeman, for example, the injured service member's drinking at an NCO club was tied directly to his military status, and in Sanchez the alleged negligence occurred at a military-only automobile repair facility. Taber's private travel and personal weekend plans lacked a comparable service connection.

The court also found that the suit rested solely on Maine's negligent driving, not on claims that would require a court to supervise military staffing, discipline, or command decisions. The Supreme Court had specifically distinguished ordinary negligent vehicle operation from the extraordinary military-management allegations at issue in United States v. Shearer. Any minimal discipline concerns associated with Maine's status did not outweigh the absence of a meaningful military connection to Taber's own injury.