Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2004 Decided November 23, 2004
No. 03-5270
JEFFREY S. SCHNITZER,
APPELLANT
v.
THOMAS E. WHITE, SECRETARY OF THE ARMY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01755)
David P. Sheldon argued the cause for the appellant.
R. Craig Lawrence, Assistant United States Attorney, ar-
gued the cause for the appellee. Kenneth L. Wainstein,
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
United States Attorney, and Michael J. Ryan and Gary
Corn, Assistant United States Attorneys were on brief.
Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Jeffrey Schnit-
zer appeals the district court’s dismissal of his tort claim
against the United States. Schnitzer was injured while serv-
ing a 29–year sentence at the United States Disciplinary
Barracks (USDB), Fort Leavenworth, Kansas, following his
court-martial convictions for kidnapping, rape and murder.
See United States v. Schnitzer, 44 M.J. 380 (C.A.A.F. 1996).
The complaint sought damages for the Army’s allegedly
negligent maintenance of the USDB facility. The district
court found the claim barred by the Feres doctrine and
dismissed for lack of subject-matter jurisdiction. We affirm.
I. Background
Schnitzer was injured on May 24, 1997 when a portion of a
ceiling at the USDB collapsed on him. His injury occurred
on a Saturday while Schnitzer was watching television in an
inmate common area. Schnitzer alleges that the collapse
caused permanent injuries, including headaches, nausea, vi-
sion problems, a loss of manual dexterity and chronic pain.
At the time he was injured, Schnitzer remained an active duty
member of the U.S. Army.
Schnitzer brought a suit for damages in federal district
court under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346(b)(1), 2671 et seq. The government defended by
asserting the Feres doctrine, which prohibits tort claims by
members of the military against the U.S. government for
injuries suffered ‘‘incident to service.’’ See Feres v. United
States, 340 U.S. 135, 146 (1950). The district court, applying
the ‘‘incident to service’’ test set forth in Verma v. U.S., 19
F.3d 646, 648 (D.C. Cir. 1994), found that Schnitzer’s injuries
occurred incident to his primary military duty of confinement
and thus were barred by Feres. Schnitzer then timely filed
this appeal.
3
II. Analysis
A motion to dismiss under the Feres doctrine is treated as
a motion to dismiss for lack of subject-matter jurisdiction.
See Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996);
Jones v. United States, 112 F.3d 299, 301 (7th Cir. 1997);
Walden v. Bartlett, 840 F.2d 771, 772–73 (10th Cir. 1988). In
reviewing the grant of a motion to dismiss for lack of subject-
matter jurisdiction, we accept the facts alleged by the plaintiff
as true; our review of issues of law is de novo. Cummings v.
Dep’t of Navy, 279 F.3d 1051, 1053 (D.C. Cir. 2002).
The FTCA effects a broad waiver of sovereign immunity
from lawsuits for money damages. The FTCA permits suits
‘‘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)(1). This
broad language is curtailed by several statutory exceptions,
including one that precludes FTCA suits ‘‘arising out of the
combatant activities of the military TTT during time of war.’’
Id. at § 2860(j). The United States Supreme Court carved
out an additional exception in Feres v. United States, 340 U.S.
135 (1950), holding 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.’’ Id. at 146. The Supreme Court reaf-
firmed this holding as recently as United States v. Johnson,
481 U.S. 681, 687–88 (1987).
Lower courts have interpreted the pivotal language of
Feres, ‘‘incident to service,’’ broadly. See, e.g., Ricks v.
Nickels, 295 F.3d 1124, 1128 (10th Cir. 2002) (‘‘Practically
any suit that implicates the military’s judgments and deci-
sions runs the risk of colliding with Feres.’’ (internal quota-
tion marks omitted; emphasis in original)); see also Major v.
United States, 835 F.2d 641, 644 (6th Cir. 1987) (Feres applies
‘‘at a minimum, [to] all injuries suffered by military personnel
that are even remotely related to the individual’s status as a
member of the military’’ (emphases in original)).
In determining whether a particular claim is Feres-barred,
this court applies the three-part ‘‘incident to service’’ test
4
discussed in Verma v. United States, 19 F.3d 646, 648 (D.C.
Cir. 1994) (per curiam). We use three factors — the injured
service member’s duty status, the site of the injury and the
nature of the activity engaged in by the service member at
the time of his injury — to determine whether a member of
the military may bring a claim against the government under
the FTCA. Id. at 648. Our approach is consistent with that
of several other circuits. See, e.g., Richards v. United States,
176 F.3d 652, 655 (3rd Cir. 1999); Speigner v. Alexander, 248
F.3d 1292, 1298 (11th Cir. 2001); Kelly v. Panama Canal
Comm’n, 26 F.3d 597, 600 (5th Cir. 1994). None of the three
factors is itself dispositive; each contributes to our assess-
ment of the totality of the circumstances in determining
whether the injury is properly understood as ‘‘incident to
service’’ within the meaning of Feres. See Richards, 176 F.3d
at 655 (employing ‘‘totality of the circumstances’’ approach);
see also Kelly, 26 F.3d at 600 (same).
Our Circuit has never reached the issue of whether and
how the Feres doctrine applies to military prisoners. Every
circuit to consider the issue, however, has found the doctrine
to apply without modification. See Shaw v. United States,
448 F.2d 1240 (4th Cir. 1971) (finding ‘‘no meaningful distinc-
tion’’ between military prisoners and other service members
under Feres); see also Dexheimer v. United States, 608 F.2d
765 (9th Cir. 1979) (applying Feres to military prisoner);
Walden v. Bartlett, 840 F.2d 771 (10th Cir. 1988) (same). The
Tenth Circuit, in which the USDB is located, has resolved
several cases involving military prisoners. It has established
a rule that ‘‘incarceration at the USDB is uniquely part of [a]
military relationship such that it is ‘incident’ to TTT military
service as established by Feres.’’ Walden, 840 F.2d at 774.
Accordingly, ‘‘being a military prisoner does not preclude a
finding that plaintiff’s status was that of a military service
member, but instead is evidence of such status.’’ Sargent v.
United States, 897 F. Supp. 524, 525–26 (D. Kan. 1995).
Our sister circuits’ precedent, while not binding, is ‘‘persua-
sive authority that should not be completely ignored.’’
Kreuzer v. Am. Acad. of Periodontology, 735 F.2d 1479, 1490
5
n.17 (D.C. Cir. 1984). The uniformity of precedent among the
other circuits is significant. In addition, Schnitzer himself
does not contest the general relevance of the Feres doctrine
to military prisoners but instead alleges that the district court
misapplied the Verma test in dismissing his case. Discerning
no reason that military prisoners should not be subject to the
same legal standards as non-incarcerated personnel, we adopt
the approach of our sister circuits and apply the Verma test
without modification to military prisoners.
The first two elements of the Verma test are not in dispute.
First, Schnitzer conceded below that he was on active duty
status at the time his injury occurred. Second, his injury
occurred within a military facility. Each of these facts sup-
ports a finding that Schnitzer’s injury was incident to his
military service. Thus, the viability of Schnitzer’s claim
depends entirely upon Verma’s third prong — the nature of
his activity at the time of his injury.
Schnitzer argues that, regardless of the Army regulations,
his activity of watching television was purely personal, analo-
gous to the personal activities of non-incarcerated military
personnel. We are unpersuaded by this argument. First, a
service member determined to be engaged in personal activi-
ty under Feres is ordinarily off-duty.1 See, e.g., Ordahl v.
United States, 601 F. Supp. 96, 100 (D. Mont. 1985) (claim of
1 In one of the cases Schnitzer relies on, Hall v. United States,
130 F. Supp.2d 825 (D. Miss 2000), the injured service member was
asleep at the time of his injury — a circumstance in which even a
military prisoner is deemed to be off-duty. See Army Regulation
(AR) 190–47 § 12–2. And even when a soldier was off-duty when
injured, Feres has barred recovery if the injury occurred during
military-sponsored leisure activities. See, e.g., Costo v. United
States, 248 F.3d 863 (9th Cir. 2001) (claim barred for wrongful
death resulting from Navy-sponsored recreational whitewater raft-
ing trip); Bon v. United States, 802 F.2d 1092 (9th Cir. 1986) (claim
barred for injuries from boating accident involving motorboats
rented from Navy-run recreation center); Hass ex rel. U.S. v.
United States, 518 F.2d 1138 (4th Cir. 1975) (claim barred for injury
sustained while riding horse rented from Marine Corps stable);
6
plaintiff socializing in his on-base apartment injured by fellow
airman while ‘‘off-duty’’ not barred by Feres); Johnson v.
United States, 704 F.2d 1431, 1439–40 (9th Cir. 1983) (claim of
‘‘off-duty’’ plaintiff ‘‘not under military control’’ not barred by
Feres); cf. Hodge v. Dalton, 107 F.3d 705, 711 (9th Cir. 1997)
(claim barred because plaintiff ‘‘subject to direct military
control and discipline’’). A military prisoner, however, is
always subject to direct control and is on-duty except in
extremely limited circumstances. Under Army Regulation
(AR) 190–47 § 12–2 (Aug. 15, 1996), ‘‘[a] prisoner is consid-
ered in an on-duty status except for periods of mandatory
sleep and meals, and during reasonable periods of voluntary
religious observations.’’ Thus, Schnitzer was on-duty while
he was watching television. Second, his assertion that recre-
ational activity furthers no military purpose is belied by AR
190–47 § 5–9 which includes a military prisoner’s recreational
and leisure time as part of the Army’s plan to enhance his
welfare.2 Recreational activity serves the military purpose of
assisting ‘‘to develop productive attitudes and enhanced living
skills among post-trial prisoners.’’ Id. at § 5–1.
Schnitzer further argues that the district court conflated
the duty status inquiry with the ‘‘activity’’ prong of the Verma
test. As other courts have held, the proper inquiry regarding
duty status is whether a service member is on active duty
status or is discharged or furloughed. See, e.g., Persons v.
United States, 925 F.2d 292, 296 n.6 (9th Cir. 1991) (‘‘The
relevant distinction TTT runs between servicepersons who are
Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) (claim for
wrongful death involving on-base swimming pool barred).
2 AR 190–47 § 5–9, entitled ‘‘Prisoner welfare activities,’’ provides
in pertinent part: (a) ‘‘Well planned recreation and welfare pro-
grams will be provided within ACS facilities;’’ and (d) ‘‘Recreational
programs and activities will be established which are sufficiently
diversified to attract maximum participation. The prisoner’s sched-
ule will be considered to avoid unnecessary conflict with work,
training, and education activities. The prisoner recreation program
may include sporting events, hobby shops, radio, television, indoor
games, motion pictures, video cassettes, creative writing, painting,
and other appropriate activities.’’
7
on ‘active duty’ and those who have been discharged or are on
furlough, not between ‘off-duty’ and ‘on-duty’ serviceper-
sons.’’); Skees v. United States, 107 F.3d 421, 424 (6th Cir.
1997) (same); see also Pierce v. United States, 813 F.2d 349,
353 (11th Cir. 1987) (distinguishing between active duty and
furlough but noting that, under certain circumstances, ‘‘pass’’
granting discretionary time off ‘‘akin’’ to furlough for duty
status inquiry). But see Dreier v. United States, 106 F.3d
844, 853 n.8 (9th Cir. 1996) (referring to passage in Persons,
supra, as dictum but noting that off-duty status remains
relevant to Feres inquiry as a whole); Parker v. United
States, 611 F.2d 1007, 1012 (5th Cir. 1980) (treating duty
status inquiry as spectrum between active, on-duty status on
one end to discharged status on other). Whether an active
duty service member is on- or off-duty when injured is not
relevant to the ‘‘duty status’’ inquiry. Instead, it is more
properly considered under the activity prong of Verma: ‘‘on-
duty’’ status increases the likelihood that an active duty
soldier’s activity is incident to his military duties.
It is not clear whether the district court maintained the
distinction between duty status under the first prong of
Verma and on- versus off-duty status under Verma’s third
prong. It noted that Schnitzer conceded the first two prongs
of the Verma test, adding that Schnitzer ‘‘was on active duty
status at the time of the injury, and the injury took place at
USDB, a military facility.’’ Dist. Ct. Mem. Op. 8/11/2003 at 7
(emphasis added). The district court, however, then cited to
AR 190–47 § 12–2, which involves a prisoner’s on- or off-duty
status, not his active duty status.3 Id. Nevertheless, any
confusion created by the district court’s citation is without
effect in view of Schnitzer’s concession. Moreover, the trial
court’s conclusion as to Schnitzer’s duty status is correct
without regard to Schnitzer’s concession: it is undisputed
that Schnitzer was on active duty status at the time of his
injury.4
3 See discussion of AR 190–47 § 12–2(a), supra, at 6.
4 The Tenth Circuit has held that Feres applies even when the
prisoner has been discharged from active duty. As that circuit
8
Schnitzer further argues that AR 190–47 § 12–2 relates
only to the duty status inquiry and therefore should not be
used to determine the nature of the activity he was engaged
in when injured. This is incorrect. As discussed above,
§ 12–2 controls on- and off-duty status, which is relevant to
the activity inquiry. Moreover, the district court’s conclusion
is supported by other provisions of AR 190–47. Section 5–2
of AR 190–47 requires that a military prisoner’s on-duty
routine include ‘‘useful employment supplemented by TTT
welfare activities,’’ as well as other supplemental programs.5
Section 5–9(d) expressly provides that television is included
among the ‘‘welfare activities.’’6 Some of the supplemental
activities are mandatory while others are voluntary.7 A
prisoner has some choice about which of the supplemental
activities he participates in but participation of some sort
remains part of a prisoner’s military duties. Thus, the dis-
noted in Ricks v. Nickels, 295 F.3d 1124 (10th Cir. 2002), a
‘‘complete discharge TTT does not automatically transform a service-
member into a civilian for purposes of Feres analysis. The para-
mount inquiry is whether the alleged constitutional violations are
incident to the plaintiff’s military service.’’ Id. at 1131.
5 AR 190–47 § 5–2 provides:
All prisoners, unless precluded because of disciplinary,
medical, or other reason determined appropriate by the
facility commander, will engage in useful employment sup-
plemented by appropriate supervision, mental health pro-
grams, professional evaluation, education, training and
welfare activities. However, activities established and re-
sources allocated are not to be less arduous or more
generous than for military personnel not incarcerated.
6 See AR 190–47 § 5–9(d) (television included in ‘‘welfare activi-
ties’’).
7 Cf. AR 190–47 § 5–5(b): ‘‘All physically qualified prisoners TTT
will participate in supervised recreational and physical training
activities for a minimum of 5 hours per week;’’ AR 190–47 § 5–8:
‘‘All prisoners without a high school education TTT will be afforded
the opportunity to complete the General Equivalency Diploma
(GED) Program.’’
9
trict court made proper use of AR 190–47 § 12–2 in deciding
that Schnitzer’s injury while watching television was incurred
during an activity incident to military service.
That a broader range of activities is incident to a prisoner’s
military service under Feres than for a non-incarcerated
service member is neither surprising nor problematic. Upon
conviction, a military prisoner loses a host of freedoms en-
joyed by non-incarcerated personnel and is subject to con-
stant regulation of his activities. Most activities engaged in
by prisoners are deemed to serve either discipline or rehabili-
tation purposes. A prisoner’s leisure activities are considered
beneficial to the overall program of incarceration.8
Schnitzer also asserts that, regardless whether his injury
was ‘‘incident to service’’ under Feres, the district court, in
creating a class of service members (military prisoners) who
are unable to recover under the FTCA, ran afoul of the equal
protection component of the due process clause of the Fifth
Amendment. His argument fails for two reasons. First, he
is plainly wrong that the district court in effect banned any
FTCA claim by a military prisoner. As the district court
noted, under AR 190–47 a military prisoner is considered off-
duty during mandatory periods of eating and sleeping as well
as during periods of voluntary religious observance. Id. at
§ 12–2. While these exceptions are admittedly narrow, they
derive from the difference between a prisoner’s military
duties as compared with those of a non-incarcerated service
member and therefore do not deny the prisoner equal protec-
tion.
Second, Schnitzer’s argument is more properly directed to
a reconsideration of the Feres doctrine itself, not to the
doctrine’s applicability to his case. He notes that the legisla-
tive history of the FTCA may not support the Supreme
Court’s holding in Feres, see Rayonier, Inc. v. United States,
8 Cf. AR 190–47 § 5–1 (‘‘The ACS [Army Corrections System]
provides the environment, opportunities, and assistance to develop
productive attitudes and enhanced living skills among post-trial
prisonersTTT’’), with AR 190–47 § 5–2 and AR 190–47 § 5–9 (de-
scribing prisoner’s activities to include welfare activities).
10
352 U.S. 315, 320 (1957) (declaring, in non-Feres case, ‘‘There
is no justification for this Court to read exemptions into the
[FTCA] beyond those provided by Congress. If the Act is to
be altered that is a function for the same body that adopted
it.’’); that the various rationales used to justify Feres do not
withstand scrutiny in light of the inconsistent results pro-
duced, see Johnson v. United States, 481 U.S. 681, 692–703
(1987) (Scalia, J., dissenting); and that academic commentary
critical of Feres is widespread, see, e.g., Jonathan Turley, Pax
Militaris: The Feres Doctrine and the Retention of Sover-
eign Immunity in the Military System of Governance, 71
Geo. Wash. L. Rev. 1 (2003). Irrespective of their merits,
none speaks to the equal protection claim made here.
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.