APPENDIX B Sample Office Memorandum

This office memo analyzes a rule with factors. Can you tell how the discussions organization differs from the organization of the memo in Appendix A (analyzing a rule with elements)? In addition to rule-based reasoning, this analysis uses primarily analogies and disanalogies. Can you locate all of these case comparisons? What is their function? This memo covers the first factor in four paragraphs, the second factor in two paragraphs, and the third factor in one paragraph. If the writer had more to say about these factors, the writer might have chosen to organize by explaining and applying each factor before going on to the next factor. In that case, subheadings would have helped a busy reader navigate through the analysis. Here, for this shorter analysis, notice how the signposts at the beginning of most paragraphs function much like subheadings. A lawtrained reader looks for these signposts. Do they work here? When a memo addresses only one issue, some lawyers omit a formal point heading. Notice that this writer has made that choice. This writer has chosen to forego a formal section labeled Conclusion, probably because that section essentially would repeat the last paragraph of the Discussion section. Another option would have been simply to label the last paragraph Conclusion. A conclusion serves an important summarizing function. Would this memo be easier to read if the writer had added a Conclusion section? MEMORANDUM To: Rebecca Cuellar

From: Phil Brown Date: May 5, 2005 Re: Sgt. Joseph Jackson; tort claim against Air Force; whether Jacksons FTCA claim is barred under the Feres doctrine because he was acting incident to service. QUESTION PRESENTED Whether Jackson was acting incident to service and, therefore, will be barred by the Feres doctrine from bringing an action under the Federal Tort Claims Act (FTCA) when, at the time of his injury, (1) he was off-duty for the weekend but not on a leave, pass, furlough, or any other kind of leave status requiring special permission; (2) he was on the base; and (3) he was returning to his on-base residence after bowling in a civilian league.

BRIEF ANSWER Probably yes. The FTCA waives the governments sovereign immunity for some kinds of tort liability. Under the Feres doctrine, however, immunity is not waived where the plaintiff is a member of the military acting incident to service. To decide whether a plaintiff was acting incident to service, the court will examine three factors: (a) the plaintiffs duty status at the time of the accident; (b) the location of the accident; and (c) the activity in which the plaintiff was engaged. At the time of the accident, Jackson was on liberty, meaning that he was not scheduled to work but had been granted no formal absence status. Further, the accident occurred on the base. Finally, although Jackson was returning from bowling at a civilian-owned lane, his team was composed entirely of members of his squadron, and they bowled at the civilian-owned alley primarily as practice for a military bowling tournament they hoped to win. Given the combination of these factors, a court likely would conclude that at the time of the accident, Jackson was acting incident to service. FACTS On Friday, February 14, 2005, Staff Sergeant Joseph Jackson was on active duty as a member of the Air Force, stationed at Robins Air Force Base. He had completed his normal work shift for the week and was not scheduled to work until the following Monday morning. He was on the base and driving to his on-base residence when his vehicle was struck by an Air Force truck. It is undisputed that the accident was caused by the driver of the truck. At the time of the accident, Jackson was returning from bowling in a league that included both military and civilian teams. His team was composed entirely of members of his squadron, who paid their own expenses and bowled during their free time. They planned to compete for the base championship that year, and for practice, they bowled both on base and at the civilian-owned lanes. Every year, the Air Force sends the base championship team to represent the base in a national military tournament. Jacksons team hoped to win that honor. To recover for his injuries, Jackson would like to file suit against the Air Force under the FTCA. His action will be barred, however, if he was acting incident to his military service. DISCUSSION The Federal Tort Claims Act (FTCA) waives sovereign immunity for certain kinds of negligence actions brought against the United States. 28 U.S.C. 1346(b)(1) (2001). The United States Supreme Court created an exception to the FTCA, however, when it held that a claim is barred if it is deemed incident to military service. Feres v. U.S., 340 U.S. 135, 146 (1950). The Feres exception recognizes that service members have an alternate remedy (veterans benefits) for injuries related to their military service. The exception also recognizes that fear of possible civil liability might impair discipline and,

therefore, limit military effectiveness. Stencel Aero Engg Corp. v. U.S., 431 U.S. 666, 671-72 (1977). To determine whether a particular claim is barred under Feres, the Eleventh Circuit considers three factors: (1) the plaintiffs duty status at the time of the accident; (2) the location of the accident; and (3) the activity in which the plaintiff was engaged. Whitley v. U.S., 170 F.3d 1061, 1070 (11th Cir. 1999). No one factor will be determinative; the court will examine the totality of the circumstances in each case. Pierce v. U.S., 813 F.2d 349, 354 (11th Cir. 1987). Under the first factor, the court examines the plaintiffs duty status at the time of the accident. Whitley, 170 F.3d at 1070. The length of the time off-duty is not the operative question. Compare Watkins v. U.S., 462 F. Supp. 980, 988 (S.D. Ga. 1977) (off for weekend; claim barred) with Hand v. U.S., 260 F. Supp. 38, 41 (off for 24 hours; claim permitted) and Pierce, 813 F.2d 349, 350 (off for several hours; claim permitted). Rather, the critical question is whether the time off-duty was part of the service members normal work schedule, as opposed to a specially requested time away from work. See Parker v. U.S., 611 F.2d 1007, 1011 (5th Cir. 1980). For instance, in Parker, the service member had sought and been granted four days off to move his family to a new residence. 611 F.2d at 1008. While he was on his way home for this four-day period, his car was struck by a military vehicle. Id. The court held that the service members status was closer to being on a pass or a furlough than tomerely being off-duty for the day. Therefore, the court held that the first factor weighed against finding the accident incident to service. Id. at 1013-14. Similarly, in Pierce, 813 F.2d at 350, the service member had requested and received permission to leave his normal work duties that day to run personal errands. He was expected to return in several hours to complete the rest of the work day. Although he was technically not on either furlough or leave, he had been granted the right to be absent from regular duty, and the court equated that status with being on furlough. Id. at 353. The court, therefore, held that the duty status factor weighed against finding the accident incident to service. Id. In contrast, a service member who is merely off-duty for the day, in the normal course of the work schedule, usually is found to be acting incident to service. Parker, 611 F.2d at 1013; see also Flowers v. U.S., 764 F.2d at 760 (11th Cir. 1985). For instance, in Flowers, the service member was injured while he was off-duty for the day and driving home from the grocery store. 764 F.2d at 760. In Watkins, the service member had completed his normal weeks work schedule and was off-duty for the weekend. 462 F. Supp. 980, 986. In both cases, the courts held that the duty status factor indicated that the activity was incident to service. Flowers, 764 F.2d at 761; Watkins, 462 F. Supp. at 988. The second factor a court considers is the location of the accident. If an accident occurs on the base, the location factor weighs in favor of finding the activity incident to service. Parker, 611 F.2d at 1014. In Flowers, for example, the location factor weighed

toward finding the accident incident to service where the service member was on-base, driving from the grocery store to his on-base home. 764 F.2d at 761. In Watkins, the onbase location weighed toward finding the accident incident to service where the service member was leaving recreational softball practice at an army field. 462 F. Supp. at 986. Occurrence on-base does not automatically make an activity incident to service, however. Parker, 611 F.2d at 1014; see also Hand, 260 F. Supp. at 42. In both Parker and Hand, claims for on-base accidents were permitted. In Parker, the plaintiff had been dismissed from work and was driving to his off-base residence. He had not yet left the base when the accident occurred. 611 F.2d at 1008. In Hand, the plaintiff was driving from his off-base residence to the location where he planned to hunt. The most direct path between the two points took him through the base, and the accident occurred there. 260 F. Supp. at 39. In both cases, despite the on-base location, the court looked to the other two factors and found the accident not incident to service. Hand, 260 F. Supp. at 42; Parker, 611 F.2d at 1015. If the accident occurred on-base, however, and the service member was on a normal duty status, the combination of these two factors will almost surely bar the claim. Watkins, 462 F. Supp. at 987 (Where the claimant is injured on base while on active duty,Feres applies virtually as a matter of law.). Finally, a court examines the link between the activity and the service members military service. The court will consider the degree to which the service member was directly subject to military control or was performing a military task. Parker, 611 F.2d at 1014-15. In evaluating the service members activity, however, a court will consider that a service member is subject to military control at all times and especially when on the base. See Watkins, 462 F. Supp. at 988. Assessing the activity factor, then, will necessarily require gauging the relative degree of the relationship to the plaintiffs military service. Here, Jacksons claim would probably be barred. First, Jackson was on liberty, that is, on a routinely authorized absence. He had completed his work shift for the week and was not scheduled to report for work until the following Monday. This time off occurred as part of his normal work schedule, however, and not as a result of a request for a special leave. Thus, his duty status facts are identical to those in Watkins, where the accident occurred on a Friday evening, after the service member had completed his normal work week and while he was on his regularly scheduled weekend break. 462 F. Supp. at 986. There, the court concluded that the duty status factor pointed toward a finding that the plaintiff was acting incident to service. Id. at 988. A court likely would conclude the same about Jacksons duty status. Second, Jacksons injuries occurred on the base, as he was returning to his on-base housing. These facts are most similar to those in Flowers, where the accident also occurred on-base while the plaintiff was returning to on-base housing. Flowers, 764 F.2d at 761 (claim barred); see also Watkins, 462 F. Supp. 980 (claim for on-base accident barred). A court would, therefore, hold that the second factor points toward a finding that Jackson was injured while acting incident to service.

Third, Jacksons activity was partly personal and partly military-related. Jackson certainly can argue that he was returning from a voluntary recreational activity, undertaken on his time off, held at a civilian-owned facility, and done in conjunction with civilians. However, the activity was not utterly unrelated to his military life. Jacksons team was composed entirely of service members from his squadron, and together they were practicing to compete in the on-base tournament sponsored by the Air Force. The purpose of the on-base tournament was to select the championship team that, at Air Force expense, would represent Robins Air Force Base in competition against teams from other bases. Under these circumstances, a court would probably conclude that participation in the civilian league was at least partly related to Jacksons military service. Thus, weighing all three factors together, a court is likely to conclude that Jacksons claim is barred under the Feres doctrine. The accident occurred on Robins Air Force Base at a time when Jackson was on liberty but not on any kind of a special leave, pass, or furlough. Because both the duty status factor and the location factor weighagainst Jacksons claim, it is almost certain that a court would find his injuries incident to service. See Watkins, 462 F. Supp. at 986. The analysis of the third factorthe activity factorprobably does not yield a result compelling enough to overcome the first two factors here. The activity itself, while not sponsored by the military, was undertaken together with other squadron members as practice for an on-base Air Force event. Even if a court could be persuaded to give some significance to the civilian aspects of the activity, the first two factors weigh so clearly against Jackson that his claim most likely will be barred.