                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

LAWRENCE RANDALL MCCONNELL;             
DEBORAH ELLEN MCCONNELL,
individually and as surviving
                                             No. 05-15025
parent of Joseph James
McConnell, deceased,
               Plaintiffs-Appellants,
                                              D.C. No.
                                            CV-03-01886-JAT
                 v.                            OPINION
UNITED STATES OF AMERICA,
               Defendant-Appellee.
                                        
        Appeal from the United States District Court
                 for the District of Arizona
        James A. Teilborg, District Judge, Presiding

                 Argued and Submitted
       December 7, 2006—San Francisco, California

                     Filed March 8, 2007

     Before: Thomas G. Nelson, Ronald M. Gould, and
          Consuelo M. Callahan, Circuit Judges.

                Opinion by Judge Callahan;
                Concurrence by Judge Gould




                             2717
2720             MCCONNELL v. UNITED STATES


                         COUNSEL

David L. Abney of Skousen, Skousen, Gulbrandsen &
Patience, P.C., Mesa, Arizona, for the plaintiffs-appellants.

Paul K. Charlton, United States Attorney, John Tuchi, Deputy
Chief, James C. Hair Jr., Assistant U.S. Attorney, and Peter
M. Lantka, Assistant U.S. Attorney (presented argument),
Phoenix, Arizona, for the defendant-appellee.


                         OPINION

CALLAHAN, Circuit Judge:

   The sole issue in this case is whether the Feres doctrine,
which prohibits suit against the government for injuries that
are incident to military service, bars appellants’ civil suit
against the United States for the tragic death of their son,
Lieutenant McConnell, in a waterskiing accident. We deter-
mine that under our precedent the facts that Lt. McConnell’s
use of the boat was a benefit of his status as a service member
and that the alleged negligence was subject to military orders
and regulations compel us to affirm the district court’s grant
of summary judgment to the government.
                 MCCONNELL v. UNITED STATES                 2721
                               I

   This case arises out of a fatal boating accident at Lake
Pleasant, Arizona on May 19, 2001. At the time of the acci-
dent, Lieutenants Joseph James McConnell, Steven Frod-
sham, Mark Donohue, and Matthew Crowell were F-16
student pilots in the United States Air Force (“USAF”),
assigned to Luke Air Force Base (“Luke AFB”), Arizona. On
May 18, the day before the accident, Lt. Crowell rented a
1990 USAF-owned boat from the Luke AFB Recreation Cen-
ter, located at Luke AFB. Lt. Crowell rented the boat because
his colleagues were busy in a meeting. Nevertheless, the
record indicates that Lts. McConnell, Frodsham, and Donohue
were subsequently briefed on the installation rules and regula-
tions governing the use of the boat, and were required to fol-
low them.

   On the morning of May 19, Lts. McConnell, Frodsham, and
Donohue transported the boat to Lake Pleasant using McCon-
nell’s truck. Lt. Crowell planned to join the group later. At
around 10:30 a.m., Lt. Frodsham was driving the boat, Lt.
Donohue was in the boat observing, and Lt. McConnell was
waterskiing behind the boat. Lt. McConnell then fell while
waterskiing, and Lt. Frodsham steered the boat back around
to bring the ski rope to Lt. McConnell, who was floating in
the water by use of a life jacket. At that point, Lt. Frodsham
attempted to slow the boat down but was unable to do so.
Instead, the boat surged out of control and struck Lt. McCon-
nell in the head, causing a fatal brain injury. The police inves-
tigation disclosed that the boat’s throttle cable had broken 14
feet, 7 inches from the motor. The broken cable kept the throt-
tle stuck at the same position set by the operator immediately
before the break and permitted the operator to slow the boat
only by turning off the ignition.

  The boat was rented pursuant to an agreement with the
Luke AFB Recreation Center, which is operated by the Luke
AFB Recreation Program. Through the Recreation Center,
2722                  MCCONNELL v. UNITED STATES
boat rentals are available to “active duty members and their
family members” although civilian guests may use recre-
ational equipment if accompanied and supervised by military
personnel. The Recreation Center is part of the broader USAF
services programs supporting the Air Force mission.1 The
56th Services Squadron, Mission Support Group, and Fighter
Wing Commanders administer the USAF services program at
Luke AFB. Among the programs offered are Morale, Welfare,
and Recreation (“MWR”) Programs, including the Luke AFB
Outdoor Recreation Program.

   The appellants, Lt. McConnell’s parents, filed a complaint
against the United States for wrongful death and loss of con-
sortium under the Federal Tort Claims Act. Their complaint
is solely against the United States, and no other individuals.
They allege that the USAF failed to properly maintain, ser-
vice, and repair the boat, and failed to warn its users and the
public that the boat was defective and unreasonably danger-
ous.

  The district court granted the government’s motion for
summary judgment, holding that the Feres doctrine deprived
  1
   Air Force Instruction 34-262, Services Programs and Use Eligibility,
provides:
      1.1 Purpose. Services programs support the Air Force mission by
      contributing to readiness and improving productivity through
      programs promoting fitness, esprit-de-corps, and quality-of-life
      for authorized patrons or customers.
                                   *   *   *
      1.2 Importance. Services programs are vital to mission accom-
      plishment and form an integral part of the non-pay compensation
      system. . . . Services programs encourage positive individual val-
      ues and aid in recruitment and retention of personnel. They pro-
      vide for the physical, cultural, and social needs and general well-
      being of military members and their families, providing commu-
      nity support systems that make Air Force bases hometowns for
      a mobile military population.
                  MCCONNELL v. UNITED STATES                 2723
the court of subject matter jurisdiction. Lt. McConnell’s par-
ents filed a timely notice of appeal.

   We review a dismissal for lack of subject matter jurisdic-
tion pursuant to the Feres doctrine de novo. Wilkins v. United
States, 279 F.3d 782, 785 (9th Cir. 2002). “Factual findings
are reviewed de novo, with all disputed facts resolved in favor
of the non-moving party.” Costo v. United States, 248 F.3d
863, 866 (9th Cir. 2001), cert. denied, 534 U.S. 1078 (2002)
(citing Dreier v. United States, 106 F.3d 844, 847 (9th Cir.
1996)).

                               II

   [1] The Federal Tort Claims Act (“FTCA”) is a waiver of
the federal government’s sovereign immunity. See 28 U.S.C.
§§ 1346(b)(1) (2006), 2679 (2006). Under the FTCA, the
United States is liable “in the same manner and to the same
extent as a private individual under like circumstances . . . .”
28 U.S.C. § 2674 (2006). However, in Feres v. United States,
340 U.S. 135 (1950), the Supreme Court held that the United
States is not liable for injuries that “arise out of or are in the
course of activity incident to service” because the United
States did not intend to waive its immunity to such claims. Id.
at 146. “This broad exception has been labeled ‘the Feres
doctrine.’ ” Costo, 248 F.3d at 866.

   Subsequent Supreme Court decisions have identified three
policy rationales underlying the Feres doctrine: “(1) the dis-
tinctly federal nature of the relationship between the Govern-
ment and the members of its armed forces . . . , (2) a generous
compensation scheme for soldiers (the Veterans’ Benefits
Act) serves as an ample alternative to tort recovery, and (3)
permitting military personnel to sue the armed forces would
endanger discipline.” Id. at 866 (citing United States v. John-
son, 481 U.S. 681, 684 n.2 (1987)).
2724                MCCONNELL v. UNITED STATES
  The third policy rationale — preserving the integrity of
military discipline — is the most robust explanation for the
Feres doctrine and most critical to this case.2 The Supreme
Court has commented:

      The peculiar and special relationship of the soldier to
      his superiors, the effects of the maintenance of such
      suits on discipline, and the extreme results that might
      obtain if suits under the Torts Claims Act were
      allowed for negligent orders given or negligent acts
      committed in the course of military duty, led the
      [Feres] Court to read that Act as excluding claims of
      that character.

United States v. Brown, 348 U.S. 110, 112 (1954); see also
Costo, 248 F.3d at 866 (“[T]he danger to discipline . . . has
been identified as the best explanation for Feres.”); cf. Zaputil
v. Cowgill, 335 F.3d 885, 887 (9th Cir. 2003) (“The Feres
doctrine is applicable whenever a legal action would require
a civilian court to examine decisions regarding management,
discipline, supervision, and control of members of the armed
forces of the United States.”) (internal quotation marks omit-
ted).

   [2] In determining whether a service member’s injury is
“incident to service” and therefore, barred under the Feres
doctrine, we have employed a case-by-case approach,
addressing four factors:

      (1) the place where the negligent act occurred, (2)
      the duty status of the plaintiff when the negligent act
      occurred, (3) the benefits accruing to the plaintiff
      because of the plaintiff’s status as a service member,
      and (4) the nature of the plaintiff’s activities at the
      time the negligent act occurred.
  2
   An outline of some of the criticism of the rationales is set forth in our
opinion in Costo. 248 F.3d at 866-67.
                    MCCONNELL v. UNITED STATES                        2725
Costo, 248 F.3d at 867 (citing Dreier, 106 F.3d at 848). More-
over, we have stated that none of these factors are dispositive.
Id. “Rather than seizing on any particular combination of fac-
tors, we have focused on ‘the totality of the circumstances.’ ”
Id. Furthermore, although the various cases applying the
Feres doctrine may defy reconciliation, we are bound by, and
seek to align our resolution of this particular case to, our prece-
dents.3

                                    III

   Our application of the four factors to the particular facts in
this case compels our determination that under our precedent,
particularly Costo and Bon v. United States, 802 F.2d 1092
(9th Cir. 1986), the Feres doctrine bars appellants’ suit
against the government.4

   [3] Although appellants stress that the accident occurred on
a public lake, the district court properly focused on the situs
of the negligence, not the location of the accident. Costo, 248
F.3d at 868 (“The appropriate consideration is the ‘situs of the
negligence,’ not the location of the accident.”); see also John-
  3
     In Costo, we noted that “we have reached the unhappy conclusion that
the cases applying the Feres doctrine are irreconcilable, and thus, compar-
ison of fact patterns to outcomes in cases that have applied the Feres doc-
trine is the most appropriate way to resolve Feres doctrine cases. Dreier
[v. United States], 106 F.3d [844,] 848 [(9th Cir. 1996)] (citing Estate of
McAllister [v. United States], 942 F.2d [1473,] 1477 [(9th Cir. 1991)]).”
Costo, 248 F.3d at 867 (internal quotation marks omitted).
   4
     Appellants have filed a motion for leave to supplement the record on
appeal with the underlying complaint in Bon as well as portions of the
government’s appellate brief in Bon. In the alternative, appellants ask that
we take judicial notice of “the public records presented from the Bon dis-
trict court and appellate files.” The government opposes the motion for
leave to supplement the record, and urges that judicial notice be limited
to the fact that the two documents contain certain allegations and not
extend to the veracity of those allegations.
 We hereby grant appellants’ motion for judicial notice and deny their
motion to supplement the record.
2726               MCCONNELL v. UNITED STATES
son v. United States, 704 F.2d 1431, 1436 (9th Cir. 1983)
(“[T]he place on the base where the negligent act was found
by the trial court to have occurred must be distinguished from
the place where the accident occurred.”);5 Monaco v. United
States, 661 F.2d 129, 132-33 (9th Cir. 1981) (holding that a
father’s claim for cancer that was diagnosed after he left the
service, and his daughter’s claim arising out of her birth
defect, were barred by the Feres doctrine because the alleged
negligence — the father’s exposure to radiation — occurred
when he was on active duty). Here, the appellants allege that
the USAF failed to service and repair the boat and do not dis-
pute that the boat was serviced and repaired, if at all, at Luke
AFB. Thus, unlike Costo, where much of the alleged negli-
gence occurred on base, here all the alleged negligence
occurred on base. However, the location of the negligence is
not dispositive, and we must also consider the other factors.
See Johnson, 704 F.2d at 1437.

   [4] The parties agree that Lt. McConnell was on leave but
on active duty at the time of the accident. The plaintiffs in
Bon and Costo were “on liberty” at the time of the accidents,
but also on active duty. Costo, 248 F.3d at 867. Similar to the
plaintiffs in Bon and Costo, the record indicates that Lt.
McConnell was still subject to military orders and discipline
though on leave. Cf. Charland v. United States, 615 F.2d 508,
509 (9th Cir. 1980) (“Although on furlough he remained on
active duty and was subject to military orders and discipline
at all times while on board the Navy vessel.”). Nevertheless,
Lt. McConnell was not on duty at the time of the accident.
Accordingly, this factor, although not dispositive, may weigh
against the application of the Feres doctrine.

 The district court found that Lt. McConnell’s use of the
motorboat was a benefit of his position as a USAF service-
  5
   The Supreme Court’s decision in United States v. Johnson, 481 U.S.
681 (1987) is not related to the Ninth Circuit’s case, Johnson v. United
States, 704 F.2d 1431 (9th Cir. 1983).
                  MCCONNELL v. UNITED STATES                 2727
man. Appellants, however, argue that because Lt. McConnell
did not rent the boat, he was more similarly situated to a civil-
ian, like the service members in Dreier, 106 F.3d at 844, and
Johnson, 704 F.2d at 1431. These cases can be distinguished.
In Dreier, we held that because there was evidence that any-
one 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. The Dreier court distinguished Bon as
an instance where “use of the Center was restricted to mem-
bers of the military and employees of the Department of
Defense and their guests and dependents.” Dreier, 106 F.3d
at 851 (quoting Bon, 802 F.2d at 1095) (internal quotation
marks and brackets omitted).

   Similarly, in Johnson, the court identified Johnson’s after-
hours employment at the non-commissioned officers club
with work routinely performed by civilian bartenders, and
stated that the employment could not “logically be distin-
guished from second jobs held by other off-duty military per-
sonnel.” 704 F.2d at 1439. The court distinguished Johnson’s
situation from instances where “the plaintiffs had access to
the various recreational and medical benefits only because of
their status as military personnel.” Id. at 1438.

   [5] This case falls into the latter category. Boat rentals were
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. Thus,
Lt. McConnell’s use of the USAF-owned boat on Lake Pleas-
ant is more like the situation in Bon than in Dreier. 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 of Lt. Crowell or each other. Accordingly, neither
Dreier nor Johnson preclude the panel from holding that the
benefit accruing to Lt. McConnell — his use of the boat —
was due to his status as a service member.
2728                MCCONNELL v. UNITED STATES
   [6] It is true that Lt. McConnell’s activities were purely
recreational on May 19, 2001, but this does not mean that
they were unrelated to his military status. The plaintiffs in
both Bon and Costo were similarly engaged in purely recre-
ational activities. In Costo, we stated that “it has long been
recognized — in our court, at least — that military-sponsored
activities fall within the Feres doctrine, regardless of whether
they are related to military duties.” 248 F.3d at 868. Further-
more, the government here argues that the recreational activi-
ties are part of the military mission.6 Accordingly, the fact that
Lt. McConnell was engaged in a military-sponsored recre-
ational activity weighs in favor of the application of the Feres
doctrine.7
  6
   The government asserts that
      [r]ecreational programs help reduce the stress caused by the ardu-
      ous training and lifestyle members of the military are required to
      endure and provide opportunities for relaxation that otherwise are
      unavailable because of the location of military bases and the
      demands of military services. These are core military functions,
      no less than combat training and military medical care.
   7
     As we noted in Costo, 248 F.3d at 868, cases from outside the Ninth
Circuit support this conclusion. See, e.g., Pringle v. United States, 208
F.3d 1220, 1227 (10th Cir. 2000) (soldier beaten by gang members after
being ejected from military MWR club; “The relationship between the
Army and service personnel engaged in recreational activities under the
Army’s MWR program is ‘distinctively federal’ in character.”); Walls v.
United States, 832 F.2d 93 (7th Cir. 1987) (crash of airplane belonging to
recreational Aero Club); Bozeman v. United States, 780 F.2d 198, 201 (2d
Cir. 1985) (patron of Non-Commissioned Officers Club injured when
ejected by bouncer; “Johnny Bozeman was only entitled to be in the NCO
club because he had an appropriate rank, was a member of the Army and
was on active duty status.”); Woodside v. United States, 606 F.2d 134 (6th
Cir. 1979) (crash of airplane belonging to recreational Aero Club); Hass
ex rel. United States v. United States, 518 F.2d 1138, 1141 (4th Cir. 1975)
(injury while riding a horse rented from a Marine Corps-operated stable;
“Recreational activity provided by the military can reinforce both morale
and health and thus serve the overall military purpose.”); Chambers v.
United States, 357 F.2d 224, 229 (8th Cir. 1966) (death in on-base swim-
ming pool; “As a matter of fact, Airman Chambers’ use of the pool, which
was a part of the base, was related to and dependent upon his military ser-
vice; otherwise, he would not have been privileged to use it.”).
                    MCCONNELL v. UNITED STATES                       2729
   [7] Our review of the four factors reveals that appellants’
claims implicate the third rationale of Feres — protection of
military discipline. Because the situs of the alleged negligence
is Luke AFB, allowing the suit to proceed would inherently
require discovery of, and evaluation of, the command struc-
ture and regulations for inspecting and maintaining motor-
boats on the military base. Because Lt. McConnell and his
colleagues were briefed on the Air Force’s installation rules
and regulations governing the use of the boat and were
required to follow them, allowing the suit to proceed would
inherently require discovery of, and evaluation of, the ade-
quacy of the instructions, whether they were properly con-
veyed to Lt. McConnell and his colleagues, and whether they,
as military officers, properly complied with the instructions.
Because the government claims that Lt. McConnell’s recre-
ational use of the motorboat was related to his overall military
mission, allowing the suit to go forward might well require a
civilian court to evaluate whether the recreational use was so
related and whether the recreational program met some stan-
dard of care. Our prior cases, particularly our decisions in Bon
and Costo, hold that the Feres doctrine bars suit in a case like
this because the concept of protecting military discipline is
implicated.

                                   IV

   [8] Finally, as in Costo we note that we apply the Feres
doctrine “without relish.” 248 F.3d at 869. We remain aware
of the criticism that has been rightly leveled at the doctrine,
but in light of the Supreme Court’s failure to address the
expansion of the Feres doctrine,8 as a three-judge panel we
remain constrained to follow our “well-worn path” of inter-
preting the Feres doctrine “to include military-sponsored rec-
reational programs.” Id. Accordingly, the district court’s grant
  8
   The Supreme Court denied the petition for certiorari filed in Costo. 534
U.S. 1078 (2002).
2730             MCCONNELL v. UNITED STATES
of summary judgment in favor of the government and against
the appellants is AFFIRMED.



GOULD, Circuit Judge, concurring:

   I concur in Judge Callahan’s opinion which accurately
reflects our prior circuit precedent and its application here.
However, I am left with the concern that our precedent inter-
preting the scope of the Feres doctrine creates an injustice.
The justifications for the doctrine as applied to the death of
Lieutenant McConnell seem slim to me, for it is unrealistic
for our precedent to suggest that dismissal of the claim here
is needed to foster military discipline. In my view, and
respectfully, it would be appropriate for our court en banc to
reassess the scope of the Feres doctrine. Also, many might
welcome the Supreme Court’s clarification of the doctrine’s
application in the case of military-sponsored recreational pro-
grams.
