Costo

Opinion by Judge McKEOWN; Dissent by Judge FERGUSON.

This tort case is a suit stemming from a personal tragedy. Nollie Costo and Christopher Graham drowned during an employer-sponsored rafting trip, and their estates sued their employer for negligence. But their employer is not an ordinary one. It is the United States Navy. Thus, the suit is barred unless the United States has waived its sovereign immunity. To determine whether the suit can properly proceed, we must confront — yet again — the Feres doctrine, which limits the United States’ waiver of sovereign immunity. We conclude that this suit falls within the doctrine’s ever-expanding reach. We reach this conclusion only reluctantly, bound by circuit precedent to apply this doctrine to yet another case that seems far removed from its original purposes.

I. Factual and Procedural Background

Nollie Costo and Christopher Graham were sailors in the United States Navy, stationed at Naval Air Station Whidbey Island, in Oak Harbor, Washington. On July 1, 1995, they participated in a Navy-led recreational rafting trip on the Nook-sack River in Whatcom County, Washington. Both were off duty and on liberty 1 at the time. The trip,…

dissenting:

I begin this dissent with the understanding that I and this Court of Appeals must abide by the decisions of the Supreme Court. I write to demonstrate that the Feres doctrine is unconstitutional and to present the Supreme Court with a case and controversy in order for it to be able to review the doctrine. See United States v. Johnson, 481 U.S. 681, 692 , 107 S.Ct. 2063 , 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting).

I believe that the Feres doctrine'violates the equal protection rights of military service men and women. I also believe that Feres violates our constitutional separation of powers.

In passing the Federal Tort Claims Act (FTCA), Congress chose to place all Americans on an equal footing in litigating the civil liability of the federal government for claims of tort injuries. 28 U.S.C. § 1346 . From this unprecedented, albeit limited, waiver of sovereign immunity, Congress excluded claims arising out of a number of government activities, including “[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.” 28 U.S.C. § 2680 (j). This exception of liability for injuries in times of war was…