# Larry Pierce v. United States

> Court of Appeals for the Eleventh Circuit · March 27, 1987 · 813 F.2d 349

URL: https://www.frixlaw.com/law-library/cases/9475896

## Case

- **Full name:** Larry PIERCE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** March 27, 1987
- **Citations:** 813 F.2d 349; 1987 U.S. App. LEXIS 3980
- **Precedential status:** Published
- **Opinion:** Dissent by Hill
- **Judges:** Hill, Hatchett, Henderson
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475896

## How later opinions describe it (automated extraction)

- holding that a serviceman injured while on a requested and authorized “pass” akin to a furlough or leave could bring suit under the FTCA
- finding that Feres did not bar a suit for injuries sustained on a public road in Fort Stewart

## Opinion text

*355 HILL, Circuit Judge,
dissenting:
As this court has previously stated, “[rjegardless of the ‘widespread, almost universal criticism of Feres by the lower federal courts and commentators,’ ... it nonetheless ‘is beyond question that it is the law.’ ” Johnson v. United States, 749 F.2d 1530, 1535 (11th Cir.1985) (citations omitted), reinstating panel opinion, 779 F.2d 1492 (11th Cir.1986) (en banc), cert. granted, — U.S. -, 107 S.Ct. 59 , 93 L.Ed.2d 19 (1986). The panel majority holds, however, based upon its interpretation of the three-factor analysis in Parker v. United States, 611 F.2d 1007, 1013-15 (5th Cir.1980), that Feres should not apply in this case because the appellant serviceman’s injuries were not incurred from activities “incident to service.” Because I believe the Feres doctrine should apply to bar appellant’s Federal Tort Claims Act (FTCA) suit, I respectfully dissent.
The first factor in the Parker analysis is a consideration of the serviceman’s duty status at the time of his injury. Duty status is, in my view, the most meaningful element of the Parker test. In analyzing the Parker factors, the new Fifth Circuit has reached a similar conclusion:
While no single factor is necessarily dis-positive, our applications of the Parker test — and, indeed, the results of our cases decided before Parker’s exposition of it — demonstrate that the duty status of the service member is usually considered the most indicative of the nature of the nexus between him and the government at the time of injury and is therefore the most important factor.
Adams v. United States, 728 F.2d 736, 739 (5th Cir.1984); see also Warner v. United States, 720 F.2d 837, 838 (5th Cir.1983) (nature of serviceman’s duty status at time of injury is primary factor).
In the present case, the majority concludes by analogy to the facts of Parker that although Pierce was technically neither on furlough nor on leave, he nevertheless received more than a “mere release from the days duties.” Parker, 611 F.2d at 1014 (footnote omitted). But in my view, that is exactly what Pierce received, and nothing more. The serviceman in Parker had received the right to be absent from his regular duties for four days and five nights at the time he was injured; therefore the court properly held that his status was more akin to being on furlough. 611 F.2d at 1013-14 . Pierce, however, had only received permission to be absent from his regular duties for the afternoon. This scenario appears to fit exactly the characterization of a “mere release from the day’s duties,” which the Parker court implied would warrant the application of Feres. See Parker, 611 F.2d at 1013-14 .
The other two factors are not sufficiently compelling to override the fact that at the time of the accident appellant was on active duty and had merely been released for the day. Although the collision in this case occurred off the military reservation, the Parker court noted that “rote application of a ‘baseline’ rule ... is illogical and abrogates the responsibility to look at all the circumstances to see if the activity was ‘incident to service.’ ” 611 F.2d at 1014 . In fact numerous cases have applied Feres to bar recovery under the FTCA even though the injuries occurred while the serviceman was off the military base. E.g., Woodside v. United States, 606 F.2d 134 (6th Cir.1979) (serviceman killed while receiving instruction toward commercial pilot’s license at aero club affiliated with base), cert. denied, 445 U.S. 904 , 100 S.Ct. 1080 , 63 L.Ed.2d 320 (1980); Stansberry v. Middendorf, 567 F.2d 617 (4th Cir.1978) (serviceman injured while being transported to hospital in Navy ambulance); Callaway v. Garber, 289 F.2d 171 (9th Cir.1961) (serviceman killed in automobile accident while riding in a private car to special military training school). These cases, although not directly analogous to the facts here, indicate that Feres is not inapplicable merely because Pierce’s injuries occurred off base.
As for the activity appellant was engaged in at the time he was injured, we must keep in mind that “incident to service” does not mean that a strict “but for” test applies. Parker, 611 F.2d at 1014 . Neither the Supreme Court nor this circuit *356 has ever imposed a requirement that the serviceman must be engaged in a distinctly military activity at the time of his injury before the Feres doctrine will apply. Feres itself involved the claim of a serviceman who was killed while sleeping in the barracks. 340 U.S. at 137, 71 S.Ct. at 155. On several occasions this court has invoked the Feres doctrine to bar the claims of military personnel injured while engaging in purely personal errands or business. See Flowers v. United States, 764 F.2d 759 (11th Cir.1985) (serviceman injured while driving civilian automobile home from personal errand to grocery store during off-duty hours); Mason v. United States, 568 F.2d 1135 (5th Cir.1978) (active duty serviceman who had been relieved from duties for the day injured while tending to personal business on his way home); Zoula v. United States, 217 F.2d 81 (5th Cir.1954) (serviceman injured while engaging in personal business in preparation for weekend pass); Watkins v. United States, 462 F.Supp. 980 (S.D.Ga.1977) (serviceman fatally injured in collision with post bus while engaging in undisclosed personal business), aff'd, 587 F.2d 279 (5th Cir.1979); cf. Parker, 611 F.2d at 1014 (“Parker was not even attending to personal affairs, such as shopping, or engaging in other activities arising from life on the base....”). Thus, the nature of Pierce’s activity at the time of his injury, although personal, does not preclude the application of the Feres doctrine.
As an additional justification for its decision, the majority states that appellant’s claim poses no threat to the military disciplinary structure. Regardless of whether the majority is correct in this assertion, our precedent counsels that impact on the military disciplinary structure is not a proper factor to be considered in this type of case. The present case involves what this circuit has termed “the typical Feres factual paradigm — an FTCA suit for injuries or death allegedly caused by the negligence of a serviceman or an employee of the armed forces.” Johnson, 749 F.2d at 1537 (citations omitted). When the Feres factual paradigm is present, as in this case, “the issue is whether the injury arose out of or during the course of an activity incident to service,” id., not whether “the allowance of the suit would implicate any of the Feres doctrine rationales____” Id.
Admittedly, most cases involving the Feres doctrine cannot be neatly compartmentalized; thus we must analyze the facts of each case individually according to the Parker test. At the time of his injury, Pierce was on active duty status and had received merely a release from his duties for the day. The other two Parker factors do not weigh sufficiently in appellant’s favor to override his active duty status. Therefore, I would hold that the Feres doctrine applies in this case to bar Pierce’s FTCA suit.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475896. Public record. Not legal advice.