                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          FEB 24 2004
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 NICOLETTE M. GONZALEZ,

           Plaintiff - Appellant,
                                                        No. 03-6047
 vs.                                              (D.C. No. CIV-02-629-A)
                                                        (W.D. Okla.)
 UNITED STATES AIR FORCE,

           Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, LUCERO, and O’BRIEN, Circuit Judges.



       Plaintiff-Appellant Nicolette M. Gonzalez appeals from the district court’s

judgment dismissing her complaint with prejudice. After raising the possibility of

lack of subject matter jurisdiction based upon Feres v. United States, 340 U.S.

135 (1950), and allowing the Plaintiff to respond, the district court dismissed

Plaintiff’s FTCA claims. Subsequently, the court granted the government’s

motion to dismiss the remaining claims. We exercise jurisdiction pursuant to 28



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 1291. Though this case involves tragic facts, we affirm.



                                    Background

      The events giving rise to this lawsuit took place in 1999, while Plaintiff

was an active duty member of the United States Air Force. In July of that year

Plaintiff was temporarily assigned to Altus Air Force Base, Oklahoma, for

training. On the afternoon of July 19, Plaintiff attended an on-base party which

was taking place in an open patio or “mod” area in the vicinity of the enlisted

barracks. Both military and civilian personnel were in attendance at the party.

Despite Plaintiff’s status as a minor, alcoholic beverages were readily available.

She had too much to drink and became ill. She was then assisted in returning to

her barracks by two service members including one Kerry Nazario, her would-be

attacker.

       Airman Nazario then was served alcohol at the E-Club on base. At some

point during the evening, while Plaintiff slept, Airman Nazario returned to

Plaintiff’s room and raped her. His access to Plaintiff’s room was facilitated by

the fact that the door to her assigned floor had been left unlocked, ostensibly

because it proved very difficult for authorized residents to unlock, even with the

appropriate key. Further, the door to Plaintiff’s room had been left ajar because

the air conditioning in the barracks was not functioning properly that evening.


                                         -2-
Airman Nazario was convicted by court martial of unlawful entry, rape, and

fraudulent enlistment.

      Thereafter, Plaintiff initiated this action seeking monetary relief in federal

court based upon various federal and state law theories. She sought relief under

the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 for negligence,

gross negligence, and violation of statutory duties, and under 42 U.S.C. § 1981

and Title VII, 42 U.S.C. § 2000e et. seq. for violation of civil rights. Aplt. App.

at 1. She also included supplemental state law claims for breach of contract and

fiduciary duties, and intrusion upon seclusion. Id. at 9. The district court

dismissed the FTCA claims for lack of subject matter jurisdiction based upon the

Feres doctrine. Id. at 31-41. It dismissed the civil rights claims for failing to state

a claim under Fed. R. Civ. P. 12(b)(6). Aplt. App. at 51-56. Thereafter, Plaintiff

sought the trial judge’s recusal under 28 U.S.C. § 455(a). The district court

declined to recuse and then dismissed Plaintiff’s breach of contract and fiduciary

duty claims based on lack of subject matter jurisdiction and failure to state a

claim, Fed. R. Civ. P. 12(b)(1) and (6). Aplt. App. at 95-98.

      On appeal, Plaintiff contends that the district court erred (1) in ruling that a

Dram Shop action based on Oklahoma public policy was barred by the Feres

doctrine, (2) in dismissing her breach of contract and breach of fiduciary duty

claims, (3) in dismissing her civil rights claims, and (4) in declining to recuse on


                                          -3-
the basis of perceived bias or partiality.



                                      Discussion

      A. Standard of Review

      The district court premised its dismissal of Plaintiff’s FTCA claims on a

lack of subject matter jurisdiction. In reaching this result, the district court

reasoned that pursuant to the Feres doctrine, the FTCA’s limited waiver of

sovereign immunity did not extend to her claims. The court therefore lacked

subject matter jurisdiction. Our cases, however, clearly hold that a dismissal of

claims on the basis of the Feres doctrine is not purely jurisdictional, but

implicates merits issues as well. See Pringle v. United States, 208 F.3d 1220,

1223-24 (10th Cir. 2000). Accordingly, this dismissal must be reviewed as would

a grant of summary judgment. See Bell v. United States, 127 F.3d 1226, 1228

(10th Cir. 1997). “Our summary judgment standard of review requires us to

determine de novo whether there is any genuine disputed issue of material fact

and whether the prevailing party was entitled to judgment as a matter of law.”

Pringle, 208 F.3d at 1223. Having reviewed the record and the briefs, we

conclude that there is no genuine issue of material fact. Thus we will review the

district court’s legal conclusions supporting dismissal of Plaintiff’s FTCA claims

de novo.


                                             -4-
      The district court dismissed Plaintiff’s claims for violation of 42 U.S.C. §

1981 and Title VII under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

Aplt. App. at 51-56. We review de novo dismissals for failure to state a claim

under Rule 12(b)(6). Colo. Envtl. Coalition v. Wenker, No. 02-1254, 2004 WL

34490, at *4 (10th Cir. Jan. 7, 2004). The district court dismissed Gonzalez’s

claims for breach of contract and breach of fiduciary duty under Fed. R. Civ. P.

12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a

claim. Aplt. App. at 95. Application of either of these standards is reviewed de

novo. Wenker, 2004 WL 34490, at *4.

      B.     FTCA Claims

      In her original complaint, Plaintiff asserted claims of common law

negligence based on the Air Force’s failure properly to supervise Airman Nazario,

its failure properly to maintain the barracks to which she was assigned, its failure

adequately to check Nazario’s criminal background prior to permitting his

enlistment, and its failure to prevent intrusion into her seclusion. She also alleged

violation of duties statutorily imposed by Oklahoma’s Dram Shop Act, Okla. Stat.

Ann. tit. 37, § 537. The district court found each of these claims barred by Feres.

On appeal, Plaintiff does not challenge the dismissal of her claims based on

common law tort, but does challenge the district court’s dismissal of her action

claiming violation of duties that she characterizes as expressly arising under


                                         -5-
statute.

       “Absent a waiver of sovereign immunity, the Federal Government is

immune from suit.” Loeffler v. Frank, 486 U.S. 549, 554 (1988). Congress has,

however, provided a limited statutory exception to the general rule of sovereign

immunity, allowing for recovery of monetary damages by those injured due to the

negligent actions of government employees. See 28 U.S.C. §§ 1346(b), 2671-80.

This waiver, contained in the Federal Tort Claims Act, grants the district courts

jurisdiction over claims “for injury or loss of property, or personal injury or death

caused by the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or employment.” 28

U.S.C. § 1346(b).

       In Feres, the Supreme Court held the FTCA’s waiver of sovereign immunity

inapplicable to suits “for injuries to servicemen where the injuries arise out of or

are in the course of activity incident to service.” 340 U.S. at 146. The primary

justifications advanced in support of this result were (1) a desire to see the

military regime governed exclusively by federal law rather than disparate state

laws which would make the availability of recovery depend upon the purely

coincidental location of one’s duty station; (2) a general hesitancy on the part of

the judiciary to second guess decisions regarding command and discipline within

the military structure; and (3) the ready availability of an alternative


                                          -6-
compensatory scheme for injured service personnel. See id. at 143-45.

      Later cases from this and other circuits concerning this doctrine generally

focus on the question whether a given injury was “incident to service.” In Dreier

v. United States, 106 F.3d 844, 848 (9th Cir. 1997), the Ninth Circuit set forth

four factors to be used as guides in determining whether a given injury was

incident to service and thus barred by Feres. The four factors are

      (1) the place where the negligent conduct occurred; (2) the duty
      status of the plaintiff 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 the
      negligent act occurred.

Id.

      In deciding whether Feres acts as a jurisdictional bar to recovery, this court

has used the four Dreier factors as general guideposts. We applied those factors

in Pringle, 208 F.3d at 1224. There the plaintiff, an active duty member of the

Army, sued the United States seeking monetary relief for injuries suffered when

he was severely beaten outside a social club operated by the Army and located on

a military base. Finding plaintiff’s claim barred by Feres, this court stressed that

plaintiff was an active duty member of the Army at the time of his injury, and that

his injury occurred on military property. Further, plaintiff was afforded access to

the club by virtue of his status as a member of the Army, and was “subject to

military discipline and control while at the club.” Id. at 1226. Subjecting these


                                         -7-
factors to a policy analysis, the court held that permitting liability would “result

in much second-guessing of military decisions and involve judicial inquiry into

military affairs which may impair military discipline and effectiveness.” Id. at

1227 (quoting Pringle v. United States, 44 F. Supp. 2d 1168, 1176 (D. Kan.

1999)).

      In Corey v. United States, No. 96-6409, 1997 WL 474521, at *3-5 (10th

Cir. Aug. 20, 1997), an unpublished order and judgment, this court applied the

same analytical framework to a factual scenario quite similar to that in the present

case. There the plaintiff, an active duty member of the Air Force, attended an on-

base party at which she was sexually assaulted by a senior officer. Finding her

suit against the Air Force barred by Feres, this court found that plaintiff’s

attendance at the party “was a consequence of her military status” because the

“party occurred on base and was organized and attended by military members.”

Id. at *5. As a supporting policy rationale, the court explained that “[a]llowing

[this] lawsuit to proceed . . . would be inviting the district court to second-guess

the military decisions made concerning the conduct that occurred at the on-base

party. . . . This is precisely the type of second-guessing and intrusion into

military affairs that the Feres doctrine was designed to prevent.” Id.

      Application of this analytical framework to the present case leads us to

conclude that Plaintiff’s claims are barred by Feres. Plaintiff’s injuries occurred


                                          -8-
on a military base while she was on active duty as a member of the Air Force and

while she was subject to military discipline and control, all of which counsel in

favor of finding this action barred by Feres. Plaintiff attempts to avoid

application of Feres by arguing that the activities giving rise to liability here are

not incident to military service. Neither “Plaintiff’s being served alcohol at the

open party” nor “sleeping while in an impaired condition” are “consequence[s] of

her military status []or her military activities.” Aplt. Br. at 17-18 (emphasis

omitted). Thus, she argues, deciding liability in this case would not “invit[e] the

court to second guess any military decision.” Id. at 17. We analyze each of these

activities in turn to determine whether they constitute activities incident to

service under Feres.

      In general, the applicable test for whether an activity is incident to service

is far broader than Plaintiff suggests, encompassing most recreational and social

opportunities afforded to service members by the military. See Bon v. United

States, 802 F.2d 1092, 1095-96 (9th Cir. 1986) (finding claims arising from

recreational boating accident barred by Feres). Plaintiff’s attendance at the party

which arguably gave rise to her injuries was a direct consequence of her military

status. See Pringle, 208 F.3d at 1226. The fact that the party was attended by

civilians as well as military personnel does not vitiate the fact that her attendance

at the party was a direct consequence of her enlisted status. Although the party


                                          -9-
here took place in an open “mod” area in the vicinity of barracks provided for

enlisted personnel, rather than in a social club as in Pringle, Plaintiff does not

allege that the “mod” area was essentially open to the public. See Dreier, 106

F.3d at 853 (finding Feres doctrine inapplicable when situs of soldier’s injury was

readily accessible by the general public). Plaintiff also was subject to military

discipline and control while at the party. Thus, contrary to Plaintiff’s suggestion,

imposition of liability here, as in Corey, would serve to second-guess military

policy concerning military discipline and training.

      The same is true of Plaintiff’s claim that “sleeping in an impaired state” is

not an activity incident to service. Although this activity, like Plaintiff’s

attendance at the party, may not have been done in direct furtherance of a military

objective, it nonetheless occurred on a military base while she was subject to

military control and discipline. It implicates military experience and judgment.

      Plaintiff’s second argument against application of Feres here is that the

duties she claims the Air Force breached are not a product of the common law

tort, but rather arise expressly through statute. Accordingly, claims based upon

those duties are not barred by Feres. Her claim is that by permitting alcohol to be

served to her as well as her assailant, the Air Force violated a duty to minors

imposed by the Dram Shop Act in Oklahoma. See Okla. Stat. Ann. tit. 37, § 537.

      In support of her argument, Gonzalez cites Hallett v. United States


                                         - 10 -
Department of Navy, 850 F. Supp. 874 (D. Nev. 1994), for the proposition that a

duty imposed by state law precludes an exception to the waiver of liability

contained in the FTCA. The argument represents, to be charitable, an extreme

misreading of that case. There, plaintiffs, all non-military personnel, sought

recovery against the United States for sexual assaults which took place during the

1990 and 1991 Tailhook conventions in Las Vegas. The pertinent issue before

the court was whether the FTCA permitted governmental liability for any claims

arising out of an instance of assault and battery. Discussing the limitations of the

FTCA, the court explained that “the assault and battery exception does not bar

recovery when a negligence claim against the government arises out of an

incident of battery . . . when the government’s liability is based on its breach of a

duty owed the victim that is independent of its relationship . . . to the

perpetrator.” Id. at 878. The court thus explained that determining whether the

government could be held liable under the FTCA required a prior determination

of whether the government owed an independent duty to plaintiffs under Nevada

law. Id. Nowhere did the court state, or even imply, that state substantive law

could stretch the bounds of the FTCA. What is more, Hallett did not address the

preclusive effects of the Feres doctrine. As all plaintiffs were non-military

personnel, Feres was inapplicable. Plaintiff’s reliance on Hallett is therefore

misplaced.


                                         - 11 -
      Plaintiff’s distinction between claims based on common law and claims

based on statutorily imposed duties must fail as it is contrary to both the express

holding in Feres and the policy considerations supporting that decision. In Feres,

the Court made no distinction between claims based on the supporting legal

theory, holding only that “the Government is not liable under the [FTCA] for

injuries to servicemen where the injuries arise out of or are in the course of

activity incident to service.” 340 U.S. at 146. Such language clearly covers both

injuries sustained as a result of breach of common law, as well as statutory duties.

Furthermore, validating this distinction would only serve to realize an additional

problem that the Court in Feres sought to avoid, namely the subjection of a

traditionally federal institution to liability based on disparate state laws.

      C.     Breach of Contract and Breach of Fiduciary Duty

      Plaintiff also claimed damages under the Little Tucker Act, 28 U.S.C.

§ 1346(a)(2), for breach of an implied-in-fact contract between herself and the

Air Force. Specifically, Plaintiff states that as a matter of law, the Air Force is

required to follow its own internal regulations, and that these regulations

expressly incorporate state law as concerns the distribution of alcohol to minors.

Aplt. Br. at 20-21. This coupling of internal regulations with requirements of

state law, Plaintiff contends, gives rise to a contract implied-in-fact on which

Gonzalez was justified in relying. Consequently, she argues that breach of this


                                          - 12 -
contract gives rise to governmental liability under the Little Tucker Act, which

provides a jurisdictional grant for claims up to $10,000 founded “upon any

express or implied contract with the United States.” 28 U.S.C. § 1346(a)(2). 1

      Section 1346, however, “is itself only a jurisdictional statute; it does not

create any substantive right enforceable against the United States for money

damages.” United States v. Testan, 424 U.S. 392, 398 (1976). In order to

recover against the United States on the basis of an implied contract, Plaintiff

must couple her reliance on the Tucker Act with a statute or provision expressly

authorizing monetary damages. See Army & Air Force Exch. Serv. v. Sheehan,

456 U.S. 728, 739-40 (1982) (“As Testan makes clear, jurisdiction over

respondent’s complaint cannot be premised on the asserted violation of

regulations that do not specifically authorize awards of money damages.”).

      Plaintiff recognizes this line of authority and readily admits her inability to

find a statute mandating monetary compensation for this type of violation.

Instead, she relies upon Air Force regulations incorporating the Oklahoma Dram

Shop Act and argues that, by incorporating this state statute into its regulations,



      1
        As an additional basis for rejection of Plaintiff’s claims here, we note that
the relationship between a member of the armed forces and the government
“do[es] not turn on contract doctrines but are matters of legal status even where
compacts are made.” Kania v. United States, 650 F.2d 264, 268 (Ct. Cl. 1981).
Thus, her reliance on contract principles as a basis for her claims against the
military is misplaced.

                                        - 13 -
the Air Force also incorporated the liability provisions. See Aplt. Br. at 23.

      Despite the fact that Oklahoma courts have read the Dram Shop Act as

giving rise to a private right of action for its violation, see Brigance v. Velvet

Dove Rest, Inc., 725 P.2d 300, 301 (Okla. 1986), no express or implied mandate

for compensation by the federal government contemplated in Testan and Sheehan

exists. See also United States v. Mitchell, 463 U.S. 206, 216-17 (1983). It goes

without saying that the presence of a private right of action grounded in state law

does not explicitly authorize the assessment of monetary damages against the

federal government, particularly given the need for an express waiver of

sovereign immunity.

      D.     Section 1981 and Title VII Claims

      Plaintiff claims that the district court erred in dismissing her claims under

42 U.S.C. § 1981 and Title VII. Although the legal arguments on appeal are

lacking in detail, these claims fail as a matter of law. Section 1981 and Title VII

are both statutes designed to eliminate invidious discrimination by state and

private actors. Section 1981, therefore, is limited in its applicability to actions

taken “under color of State law.” 42 U.S.C. § 1981(c); see Davis-Warren

Auctioneers v. FDIC, 215 F.3d 1159, 1161 (10th Cir. 2000). The military acts

under color of federal rather than state law, rendering § 1981 inapplicable here.

Further, a viable § 1981 claim requires that Plaintiff allege discrimination on the


                                         - 14 -
basis of race. Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1532 (10th Cir. 1995).

Nowhere does her complaint allege that she was discriminated against on the

basis of her race. For these basic reasons, the § 1981 claim fails.

      As to her claim for relief under Title VII, this court has clearly held Title

VII inapplicable to members of the armed forces. See Salazar v. Heckler, 787

F.2d 527, 530 (10th Cir. 1986); Randall v. United States, 95 F.3d 339, 344 (4th

Cir. 1996) (same). Plaintiff’s Title VII claims were, therefore, properly

dismissed.

      E. Motion for Recusal

      Plaintiff moved to have the district judge recuse himself from further

participation in the case due to perceived bias. The district court denied

Plaintiff’s motion. Plaintiff now appeals that denial, but only insofar as it might

apply to subsequent proceedings in the district court. Plaintiff does not seek to

have the dismissal of her complaint vacated on this basis. Though this unusual

request for relief detracts somewhat from the overall force of Plaintiff’s

argument, the issue was raised below and we review the denial of a motion to

recuse for abuse of discretion. Higganbotham v. Oklahoma ex rel. Okla. Transp.

Comm’n., 328 F.3d 638, 645 (10th Cir. 2003).

      “Any justice, judge, or magistrate of the United States shall disqualify

himself in any proceeding in which his impartiality might be questioned.” 28


                                        - 15 -
U.S.C. § 455. Plaintiff contends that the district judge’s background as a career

military lawyer combined with his raising the jurisdictional issue concerning

Plaintiff’s negligence claims render his actions susceptible to a perception of

partiality. Our cases make clear, however, that adverse rulings alone do not

constitute a basis for recusal. Sac & Fox Nation v. Cuomo, 193 F.3d 1162, 1168

(10th Cir. 1999). Clearly, it was not improper for the district judge to raise the

issue of subject matter jurisdiction. Jurisdiction is an essential prerequisite to the

existence of a justiciable controversy and it is the duty of the court to ensure its

own jurisdiction even if the parties fail to raise the issue. Okla. Tpk. Auth. v.

Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001). Finally, there is no evidence

supporting Plaintiff’s suggestion that the district judge’s career as a military

lawyer creates an appearance or risk of partiality.

      The judgment of the district court dismissing the complaint is therefore

AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




                                         - 16 -
No. 03-6047, Gonzalez v. United States Air Force

LUCERO, J., concurring.

      Neither disagreement with the result reached, nor the analysis pursued by

the majority prompt me to write separately in this case. I thus join the majority

opinion. What does prompt me to write separately is my concern that the Feres

doctrine, Feres v. United States, 340 U.S. 135 (1950), used here to bar claims

arising from sexual assault, has grown far afield from the unremarkable facts that

led to its pronouncement by the Court in 1950.

      Our circuit’s holding in Pringle, interpreting Feres’ “incident to service”

language to apply to “all injuries suffered by military personnel that are even

remotely related to the individual’s status as a member of the military,” Pringle,

208 F.3d 1220, 1223–24 (10th Cir. 2000) (citations omitted), compels the result

we reach today. So broad is that language that, remarkably, we now consider

sexual assault as “incident to service.” As noted in the majority opinion, a case

factually similar to this one—barring recovery for sexual assault of a female

airman—was not considered precedential. See, e.g., Corey v. United States, No.

96-6409, 1997 WL 474521 (10th Cir. Aug. 20, 1997) (unpublished). Nor under

the broad Feres-Pringle standard, is this case precedential.

      Because neither the facts nor the holding in Feres suggest that the Supreme

Court intended such an expansive reach, it is my belief that such an interpretation

should be reconsidered. Notably, the year before Feres was decided, the Supreme
Court heard Brooks v. United States, 337 U.S. 49 (1949). 1 In Brooks, the Court

held that two service members, who were injured while off-base and on leave by a

negligently driven Army truck, were not barred from recovering under the FTCA

because the accident “had nothing to do with [their] army careers” and their

“injuries [were] not caused by their service except in the sense that all human

events depend upon what has already transpired.” Id. at 52.

          In contrast, Feres involved three consolidated cases, all of which

considered injuries that “ar[ose] out of or in the course of military duty.” 340

U.S. at 146. Justice Jackson, speaking for the court in Feres, was careful to

distinguish the plaintiffs in Brooks from the plaintiffs in Feres, observing that the

plaintiffs in Brooks were not on duty, under no orders, and not on a mission;

therefore, their “relationship while on leave was not analogous to that of a soldier

injured while performing duties under orders.” Id.

      As in Brooks, the sexual assault of Airman Gonzalez cannot be compared

to injuries received while performing duties under orders. Surely, no one should

suggest that when young Americans sign up for military service, they can expect

that potential sexual assaults upon them will be routinely considered “incident” to

that service. The only link between the sexual assault of Airman Gonzalez and


      1
         Brooks has neither been overruled nor expressly disapproved of by the
Court. See United States v. Johnson, 481 U.S. 681, 698 (1987) (Scalia, J.,
dissenting).

                                           -2-
her military service is attenuated at best, in the same sense as considered and

rejected in Brooks. Brooks, 337 U.S. at 52.

      Thus it seems to me that were we deciding this case under the authoritative

holding of Brooks, rather than the tangential interpretation of Feres, which our

circuit and other circuits have followed, the result today would be different. It is

my hope that the expansive reach of Feres will be revisited.




                                         -3-
