                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-4-2006

Ruggiero v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1315




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                   ________

                                      NO. 05-1315
                                       _________

                                JOHN J. RUGGIERO;
                               CAROL A. RUGGIERO,
                       Individually and on behalf of the Estate of
                               John Paul Vito Ruggiero,
                                                            Appellants
                                           v.

                           UNITED STATES OF AMERICA
                                   _________

                    On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                             (D.C. Civil No. 04-cv-00500)
                     District Judge: Honorable A. Richard Caputo
                                      __________

                               Argued December 7, 2005

            Before: RENDELL, FISHER, and GREENBERG, Circuit Judges

                                 (Filed January 4, 2006)


David P. Tomaszewski [ARGUED]
Borland & Borland
69 Public Square, 11th Floor
Wilkes-Barre, PA 18701

Counsel for Appellants
John J. Ruggiero;
Carol A. Ruggiero,
Individually and on behalf of the Estate of John Paul Vito Ruggiero
Stephen R. Cerutti, II
Office of United States Attorney
228 Walnut Street
220 Federal Building and Courthouse
Harrisburg, PA 17108

Counsel for Appellee
 United States of America

Lowell V. Sturgill, Jr. [ARGUED]
U.S. Department of Justice
Civil Division, Appellate Staff
Room 9140-PHB
601 D Street, N.W.
Washington, DC 20530

Counsel for Appellee
 United States Department
  Of the Navy


                                        __________

                                OPINION OF THE COURT
                                      __________

RENDELL, Circuit Judge.

              This case requires us to apply the Supreme Court’s holding in Feres v.

United States, 340 U.S. 135, 137 (1950). The Feres doctrine, as it has come to be called,

bars suits by service members for injuries that “arise out of or are in the course of activity

incident to service.” Id. at 146. Though we have serious concerns about the analytical

underpinnings of the Feres doctrine and the wisdom of applying it as broadly as this




                                              2
Court has in the past, precedent requires that we affirm the District Court’s order

dismissing the instant suit.

                                             I.

       The facts of this case are not in dispute. Appellants John and Carol Ruggiero (the

“Ruggieros”) brought suit on behalf of the estate of their son, John Paul Ruggiero

(“MIDN Ruggiero”), who was entering his third year at the Naval Academy at the time

of his death. Like every other student at the Naval Academy, MIDN Ruggiero lived in

Bancroft Hall. Every midshipman is required to sign in and be accounted for at taps,

which were conducted at 1:00 a.m. on the night in question. Upperclassmen need not go

to bed at taps but, when they do sleep, they are required to do so in their own beds.

       On August 16, 2002, MIDN Ruggiero and his two roommates submitted a

“Bancroft Hall Berthing Check-In Sheet,” on which they listed as missing one window

screen from their dorm room. At 12:30 a.m. on August 18, 2002, MIDN Ruggiero

returned to the Academy intoxicated after a night on liberty. A classmate watched him

get into bed at 1:30 a.m., seemingly without incident. At 6:15 a.m., one of his

roommates noticed that MIDN Ruggiero was not in his bed. On or about 7:16 a.m., he

was found dead on the tennis court, fifty three feet below his fourth floor dorm room

window. It is unclear exactly when or how Ruggiero fell from the window.

       On May 16, 2003, the Ruggieros filed an administrative claim concerning their

son’s death. The Department of the Navy rejected the claim, and the Ruggieros timely


                                             3
filed a complaint in the District Court for the Western District of Pennsylvania against

the United States and the Navy. The complaint alleged that the Naval Officers

supervising MIDN Ruggiero’s company were aware of the missing screen in his dorm

room. The Ruggieros also alleged that supervising officers were aware that students

used window sills as a step up to the midshipmen’s beds. They claimed that the Navy

had breached its duty to ensure that the dormitory rooms in Bancroft Hall were safe for

habitation. The District Court dismissed their claim as barred by Feres.

                                             II.

       In Feres, the Supreme Court held that “the Government is not liable under the

Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are

in the course of activity incident to service.” Feres, 340 U.S. at 146. The Court has

adopted “three broad rationales” for this approach. United States vs. Johnson, 481 U.S.

681, 688 (1987). The first is that the distinctively federal relationship between soldiers

and the military requires a uniform federal remedy for service-related injuries. Id. at 689.

Second, “the existence of . . . generous statutory disability and death benefits” for

soldiers suggests that Congress did not intend to waive the United States’ sovereign

immunity with respect to injuries arising out of service. Id. at 690. Finally, judicial

review of military decisions that lead to service-related injuries would undermine the

discipline and loyalty the armed forces need to fulfill their mission. Id. at 690-91.




                                              4
       Two cases control the factual situation before us. The first is Feres itself.

Rudolph Feres, an active-duty service member, was killed in a fire while sleeping in his

barracks. His executrix claimed that the United States was negligent “in quartering him

in barracks known or which should have been known to be unsafe because of a defective

heating plant, and in failing to maintain an adequate fire watch.” Feres v. United States,

340 U.S. 135, 137 (1950). The Court held that Feres’ death occurred incident to his

service in the military and was therefore not actionable under the Federal Tort Claims

Act. Id. at 144.

       The similarities between Feres’ death and Ruggiero’s are clear. Both deaths

occurred on a military installation and in a military residence. Both Feres and Ruggiero

were service members, but neither appear to have been actively performing any military

duties at the time of their deaths. In both cases, the plaintiffs alleged that the military’s

negligence in maintaining the residence caused the service member’s death. Given the

factual similarities between the two cases, Feres should bar Ruggiero’s claim.

       The second precedent that controls here is Richards v. United States, 176 F.3d

652 (3d Cir. 1999). To assist the inquiry into whether a service member’s injury is

“incident to service,” we adopted a three-part analysis that considers “(1) the service

member’s duty status; (2) the site of the accident; and (3) the nature of the service

member’s activity at the time of injury.” Id. at 655. Weighing these factors in light of

the totality of the circumstances, and viewing no one factor as dispositive, we held in


                                               5
Richards that Feres divested the district court of jurisdiction over the plaintiff’s claim.

Id. at 655-56.

       The same factors all weigh in favor of applying Feres to the instant case.

Ruggiero was a midshipman at the Naval Academy at the time of his death. His accident

occurred at the Academy dorm, where every midshipman is required to reside.

Ruggiero’s military service was the but-for cause of his presence in the dorm on the night

of his death. Richards demonstrates that it is not the activity a service member is

performing when injured that is important for purposes of Feres, but rather the reason

the service member is doing the activity. See id. at 656. In this case, MIDN Ruggiero

returned to his dorm room drunk before 1:00 a.m. and slept in his own bed in order to

comply with standing military orders that we may not second guess. Under these

circumstances, we are compelled by Richards to find that MIDN Ruggiero’s death was

incident to his service and therefore barred by Feres.

                                             III.

       The Ruggieros cite several cases from the Ninth and Eleventh Circuits that

suggest a different conclusion. See Dreier v. United States, 106 F.3d 844 (9th Cir.

1997); Elliot v. United States, 13 F.3d 1555 (11th Cir. 1994); Green v. Hall, 8 F.3d 695

(3d Cir. 1993); Johnson v. United States, 704 F.2d 1431 (9th Cir. 1983). Relying in

large part on Brooks v. United States, 337 U.S. 49 (1949), these cases prescribe




                                              6
reasonable limits to the Feres doctrine; unfortunately, they are not the limits that we have

adopted.

       For thirty years, members of this Court have repeatedly stated their opposition to

applying the Feres doctrine broadly. See Richards, 180 F.3d at 564 (Rendell, J.,

dissenting from denial of petition for rehearing); Richards, 176 F.3d at 657; O’Neill v.

United States, 140 F.3d 564, 565 (3d Cir. 1998) (Becker, J., dissenting from denial of

petition for rehearing); Hinkie v. United States, 715 F.2d 96, 97 (3d Cir. 1983);

Thomason v. Sanchez, 539 F.3d 955, 957 (3d Cir. 1976). In addition, several members

of the Supreme Court have argued that Feres should be overruled because the decision

lacks any textual support. Johnson, 481 U.S. at 692 (Scalia, J., dissenting). We share

these concerns, however, “attempts by members of this [C]ourt to limit the Feres

doctrine have been consistently unsuccessful.” Martinelli v. United States, 812 F.2d 872,

874 (3d Cir. 1987). We have no choice but to apply Feres to the instant case, despite the

harshness of the result and our concern about the doctrine’s analytical foundations. We

will, therefore, AFFIRM the District Court’s order.

___________________________




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