Joshua Frankel v. United States

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 19-1113

JOSHUA E. FRANKEL,

Plaintiff – Appellant,

v.

UNITED STATES OF AMERICA; JAVEN EVONNE DAVIS, solely in her
capacity of an uninsured driver pursuant to Virginia Code § 38.2-2206, as amended
and provided,

Defendants – Appellees,

and

GOVERNMENT EMPLOYEES INSURANCE COMPANY,

Intervenor.

Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, Chief District Judge. (2:18-cv-00107-MSD)

Submitted: March 16, 2020 Decided: April 14, 2020

Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.
Michael Francis Imprevento, BREIT DRESCHER IMPREVENTO, PC, Virginia Beach,
Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Lauren A.
Wetzler, Chief, Civil Division, Alexandria, Virginia, Sean D. Jansen, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia;
Richard A. Saunders, FURNISS, DAVIS, RASHKIND & SAUNDERS, Norfolk, Virginia,
for Appellees

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

After Petty Officer Joshua Frankel, a U.S. Navy employee, was struck by a car

driven by a fellow officer on Naval Station Norfolk, he filed a complaint pursuant to the

Federal Tort Claims Act (the “FTCA”) against the Government and against the officer

solely in her capacity as an uninsured driver under Virginia law. The district court

dismissed the complaint for lack of subject matter jurisdiction under Feres v. United States,

340 U.S. 135 (1950). Frankel appeals. For the reasons that follow, we affirm the judgment

of the district court.

I.

At 7:37 a.m. on March 31, 2015, Frankel was in a designated crosswalk within

Naval Station Norfolk when he was hit by a car driven by Ensign Javen Evonne Davis. At

the time of the accident, Davis was driving her personal vehicle to purchase a birthday cake

for another officer, as instructed by her executive officer.

Although it is undisputed that Frankel was heading to the Naval Station gym at the

time he was hit, the parties contest his status at the time of the accident, and specifically

whether he was headed there of his own volition or under orders. Frankel asserts he was

heading to the gym of his own volition given that he was “not under any orders associated

with his employment with the Navy, he was not on an official Navy assignment, and he

was not on duty.” J.A. 8. Further, according to Frankel, physical training was not

mandatory for his job.

3
 Nonetheless, Frankel acknowledges that at the time of the accident, he was on active

duty status (as opposed to furlough). In addition, his supervisor averred that Frankel was

required to report to the Naval Station gym that day at 7:30 a.m. to begin mandatory

physical training for his job. Although Frankel disputes these specific facts, he agrees that

his employment required him to a pass a semi-annual physical fitness assessment and that

he had access to the Naval Station’s gym only by virtue of his status as a member of the

U.S. Navy. (Both the gym and Naval Station Norfolk restrict access to members of and

those affiliated with the U.S. Armed Forces.)

Frankel filed a state court complaint against Davis asserting negligence in the

operation of her motor vehicle. The Government removed the case to the district court and

filed a notice of substitution pursuant to the Federal Employees Liability Reform and Tort

Compensation Act of 1988 (the “Westfall Act”), 28 U.S.C. § 2679, which provides

immunity to federal employees from common law tort claims arising out of acts undertaken

as part of their official duties and substitutes the United States as the defendant in such

cases. 1

After Frankel’s initial complaint was dismissed for failure to exhaust administrative

remedies, 2 Frankel satisfied those prerequisites and then filed the instant two-count

1
Pursuant to § 2679(d)(1), the Government certified that Davis was acting within
the scope of her employment at the time of the incident.
2
Following removal, the Government filed a motion to dismiss for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), arguing that the proper
defendant was the United States and that the lawsuit was premature. Specifically, the
Government asserted that under the FTCA, Frankel could not bring a suit seeking damages
for personal injury stemming from the negligent or wrongful acts of any federal employee

4
complaint. The first count asserts a negligence claim against the Government under the

FTCA, claiming that Davis, as a federal employee, failed to exercise reasonable care in

operating her vehicle when she struck Frankel. The second count asserts a claim under

Virginia’s uninsured motorist statute, Va. Code Ann. § 38.2-2206, 3 which provides that a

person injured in an accident by an otherwise immune vehicle operator may proceed

against their own insurer. Specifically, the complaint alleges that Frankel had purchased

uninsured motorist coverage from GEICO and that he was entitled to compensation from

GEICO under this policy in the event that any named defendant was deemed immune from

liability. In turn, the complaint named the Government and Davis as nominal defendants

as to this claim to satisfy § 38.2-2206’s requirements.

The Government and Davis moved to dismiss for lack of subject matter jurisdiction

under Feres, which held that the Government is immune from FTCA claims arising from

activities “incident to service” of military personnel. 340 U.S. at 146.

The district court granted the motion. 4 First, the court considered whether Feres

barred Frankel’s claim against the Government. As an initial matter, it observed that the

acting within the scope of her employment until: (1) Frankel had presented his claim to the
appropriate federal agency; and (2) the claim was denied by that agency. The district court
granted the motion, and the Navy later denied Frankel’s notice of claim, thus satisfying
those prerequisites to suit. See 28 U.S.C. §§ 1346(b), 2401(b), 2671.
3
Although Va. Code Ann. § 38.2-2206 has been amended since 2015, the language
at issue in this case has not changed.
4
Before reaching the claims that are at issue on appeal, the court concluded that
Frankel’s other claims could not proceed against Davis because the prior lawsuit had
established that Davis was acting within the scope of her federal employment such that she
had absolute immunity. And because, the court concluded, this issue had already been
resolved, Frankel was precluded from relitigating it. Frankel does not appeal this ruling.
5
Government had presented a factual challenge to subject matter jurisdiction, arguing that

the jurisdictional facts—that is, those that bore upon whether Frankel’s injuries arose

“incident to service,” such as the purpose of his gym visit—alleged in the complaint were

incorrect. The court further observed that in ruling on a challenge to jurisdictional facts

that were not intertwined with the underlying merits of the negligence claim, it was not

required to assume those facts, as alleged in the complaint, were true. Rather, it could

resolve the jurisdictional facts by “weigh[ing] the evidence and satisfy[ing] itself as to the

existence of its power to hear the case.” Williams v. United States, 50 F.3d 299, 304 (4th

Cir. 1995) (internal quotation marks omitted); see also United States ex rel. Vuyyuru v.

Jadhav, 555 F.3d 337, 348 (4th Cir. 2009) (“Unless the jurisdictional facts are intertwined

with the facts central to the merits of the dispute, the district court may then go beyond the

allegations of the complaint and resolve the jurisdictional facts in dispute by considering

evidence outside the pleadings, such as affidavits.” (internal quotation marks omitted)). 5

Here, the evidence showed that Frankel was on duty, was on his way to a mandatory

training, was hit by a fellow servicemember, and was on a military base with restricted

access. As a result, the court ruled that Frankel’s claim “falls squarely within the heart of

the Feres bar.” J.A. 201 (internal quotation marks omitted). The court further determined

that, even if it did not resolve the jurisdictional facts and instead accepted Frankel’s version

5
The district court further determined that even assuming the facts relevant to the
Feres bar were intertwined with the merits of the negligence action, jurisdictional
discovery would be unnecessary “because the most relevant jurisdictional facts (the
location of the accident, [Frankel’s] duty status, the reason [Frankel] was walking to the
gym) [we]re all within [Frankel’s] own knowledge.” J.A. 200.
6
of the facts as true—that he was off duty and headed to the gym of his own volition, and

was hit by another off-duty servicemember—it would still find the claim barred by Feres

because Frankel conceded he was on active duty status rather than furlough status, his Navy

employment required him to pass a semi-annual physical fitness assessment, and he was

attempting to patronize a gym that he had access to only by virtue of his status as a Navy

servicemember.

Second, the court concluded that Frankel’s uninsured motorist claim was barred. As

the court observed, to proceed against an otherwise-immune defendant, Virginia law first

required entry of judgment against that defendant. But because Feres prevented Frankel

from obtaining that judgment, his uninsured motorist claim could not meet this threshold

requirement. Further, the court concluded, because Virginia law did not permit Frankel to

pursue his claim directly against his insurance company, it had to be dismissed.

Frankel appeals, arguing that the district court erred in ruling that his claims were

barred by Feres and deciding this jurisdictional issue without further discovery. He also

asserts that the court misapplied Feres to dismiss his uninsured motorist claim.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We first consider whether the district court erred in concluding Feres deprived it of

subject matter jurisdiction. The existence of subject matter jurisdiction under Rule 12(b)(1)

is a question of law that this Court reviews de novo. Balfour Beatty Infrastructure, Inc. v.

Mayor & City Council of Balt., 855 F.3d 247, 251 (4th Cir. 2017).

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 The FTCA provides a limited waiver of the Government’s sovereign immunity,

authorizing lawsuits against the United States for certain tort claims against federal

employees acting within the scope of their duties in circumstances “where the United

States, if a private person, would be liable to the claimant in accordance with the law of

the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). But in Feres, the

Supreme Court held that servicemembers cannot bring tort suits against the Government

for injuries they incur that “arise out of or are in the course of activity incident to service.”

Feres, 340 U.S. at 146. Feres has since been applied “consistently to bar all suits on behalf

of service members against the Government based upon service-related injuries.” United

States v. Johnson, 481 U.S. 681, 687–88 (1987).

Here, the district court concluded that Frankel’s injuries arose “incident to service”

because at the time of the accident Frankel was on active duty status and “his status as a

Navy employee both gave him access to the on-base gym and required him to maintain a

level of fitness.” Frankel v. United States, 358 F. Supp. 3d 537, 543 (E.D. Va. 2019).

Therefore, “his on-base injury occurring while he was traveling to a military exercise

facility was directly connected to his military service, even if his workout was intended to

be recreational.” Id. (internal quotation marks omitted).

A.

On review, we conclude that the district court correctly determined that Feres barred

Frankel’s claim against the Government because the injury was a service-related one. We

have previously concluded that “incident to service” is a broad term, encompassing more

than just “actual military operations such as field maneuvers or small arms instruction.”

8
Hass ex rel. United States v. United States, 518 F.2d 1138, 1141 (4th Cir. 1975). Rather, it

is wide-reaching enough to “encompass, at a minimum, all injuries suffered by military

personnel that are even remotely related to the individual’s status as a member of the

military.” Stewart v. United States, 90 F.3d 102, 105 (4th Cir. 1996).

In this vein, we have determined that injuries that occur in the course of engaging

in benefits or recreation stemming from or related to servicemember status arise “incident

to service.” For example, in Hass, this Court held that Feres barred the suit of an active-

duty serviceman who, while temporarily on off-duty status, was injured while riding a

horse he had rented from a military base Marine Corps stable. 518 F.2d at 1139. In reaching

this conclusion, we observed that the stable was owned and operated by the Government;

that a Marine officer was in charge of it; and that servicemembers could be disciplined for

misconduct while using it. Id. at 1141–42. Ultimately, because “[r]ecreational activity

provided by the military can reinforce both morale and health and thus serve the overall

military purpose,” id. at 1141, “an active-duty serviceman, temporarily in off-duty status

and engaged in recreational activity on a military base, cannot sue the United States for the

alleged negligence of another serviceman or civilian employee of the military,” id. at 1142.

Under the same rationale, courts have determined that a member of the military “is engaged

in activity incident to his military service when he is enjoying a drink in a

noncommissioned officers club, and when he is riding a donkey during a ballgame

sponsored by the Special Services division of a naval air station, and while swimming in a

swimming pool at an airbase.” Id. (internal citations omitted); see also Mariano v. United

States, 605 F.2d 721, 722–23 (4th Cir. 1979) (concluding injury arose “incident to service”

9
when off-duty officer was struck by a glass thrown by a fellow officer at a Naval Station

club).

We have also concluded that a servicemember’s injuries stemming from a car

accident occur “incident to service” when they implicate his or her military status. As one

example, in Stewart we concluded that a suit arising out of a servicemember’s automobile

accident injuries was barred by Feres when (1) he was on active-duty status at the time of

the accident, rather than on furlough or any leave temporarily excusing him from his duties;

(2) the collision occurred on the grounds of a military base; and (3) he “was engaged in

activity directly related to the performance of military obligations” (specifically, “leaving

one duty station to return to his residence [to shower and change clothes] in preparation for

his next assignment”). 90 F.3d at 104–05; see also Warner v. United States, 720 F.2d 837,

839 (5th Cir. 1983) (per curiam) (observing that where an off-duty servicemember was on

base and running a personal errand when a car accident occurred, his “presence on the

military base was by virtue of his military status” and therefore militated in favor of finding

a Feres bar); Stansberry v. Middendorf, 567 F.2d 617, 618 (4th Cir. 1978) (per curiam)

(applying the rationale of Hass to an off-base car accident involving a servicemember

because “the plaintiff was on active duty and not on furlough, and sustained injury due to

the negligence of others in the armed forces”).

10
 Here, even accepting Frankel’s version of the facts as true, his claims are barred by

Feres. 6 According to his complaint, at the time of the accident, Frankel was (1) an active

duty officer temporarily on off-duty status; (2) on a military base; and (3) heading to the

base’s gym in his free time. Under our precedent, these facts—limited off-duty status and

presence on a military base by virtue of his military status—easily establish a connection

between Frankel’s injuries and his status as a member of the Navy. Further, as in Hass,

Frankel was taking advantage of a benefit—access to the Navy gym—that he only enjoyed

by virtue of his status as a servicemember, as well as engaging in an activity that arguably

amounted to a “[r]ecreational activity provided by the military [to] reinforce both morale

6
Frankel’s central argument to the contrary arises from the Feres bar’s underlying
rationales. The Supreme Court has emphasized three reasons for the bar: (1) “the
‘distinctively federal’ relationship between the government and its soldiers[, which] would
be undermined by holding military personnel accountable under the variations in state tort
law according to the situs of the alleged tort”; (2) “the comprehensive system of statutory
benefits granted to service members” intended by Congress “to be the sole remedy for
service related injuries”; and (3) “the fear that frequent judicial inquiry into military
decision making would have a deleterious impact on military discipline and effectiveness.”
Appelhans v. United States, 877 F.2d 309, 311 (4th Cir. 1989).
Frankel asserts that none of these rationales apply to his situation such that Feres
does not prohibit his suit. As an initial matter, he asserts that the first two rationales are no
longer viable as a matter of law and policy—a proposition which has been rejected by the
Supreme Court. See id. (Further, given that Frankel was on active-duty status and engaging
in a benefit tied to boosting servicemember “morale and health,” Hass, 518 F.2d at 1141,
we agree that the “distinctively federal” rationale was implicated.) In turn, although
Frankel argues that while the military discipline rationale was not implicated because there
was no military relationship between Frankel and Davis, we note that this Court has
previously considered and rejected a similar argument. See Stewart, 90 F.3d at 106
(observing that this rationale would apply if the plaintiff’s claims were of the type that
would involve an “assessment of military traffic, vehicle, and other regulations” and
potentially require “the service members involved, any eyewitnesses, and military medical
personnel . . . to testify in court as to each other’s decisions and actions” (internal quotation
marks omitted)).
11
and health and thus serve the overall military purpose.” 518 F.2d at 1141. In sum, Frankel’s

situation appears to be materially indistinguishable from the one in Hass and other cases

warranting application of the Feres bar. See id. at 1141–42. Therefore, we conclude the

district court did not err in determining that it lacked subject matter jurisdiction under

Feres.

B.

Next, Frankel argues that the district court further erred by denying his requests for

jurisdictional discovery and thereby failing to develop a necessary factual record. The

denial of a request for jurisdictional discovery is reviewed for an abuse of discretion.

Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003).

“[W]hen the jurisdictional facts are inextricably intertwined with those central to the

merits, the court should resolve the relevant factual disputes only after appropriate

discovery, unless the jurisdictional allegations are clearly immaterial or wholly

unsubstantial and frivolous.” Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).

We conclude the district court’s decision not to engage in further jurisdictional

discovery did not constitute an abuse of discretion. As discussed in the prior section, even

if the Court were to accept Frankel’s version of the facts as true—that he was off duty and

going to the Navy gym on his own time, that Davis was running a personal errand, and that

the Naval Base was accessed by members of the public—we agree with the district court

that his claims would still be barred by Feres. At bottom, Frankel, an active-duty officer,

was on a military base heading to the base’s gym in his free time when he was struck by

Davis’s car. These facts clearly establish a connection between Frankel’s injuries and his

12
status as a member of the Navy. In turn, the applicability of the Feres bar—which

concerned whether the injury arose incident to Frankel’s military service—did not require

the district court to determine any issue central to the merits of his tort claim, which would

presumably turn on the alleged breach of Davis’s duty as a motorist to safely operate her

car.

III.

Finally, we turn to Frankel’s uninsured motorist claim. Virginia’s uninsured

motorist statute 7 provides that a plaintiff injured in an automobile accident in which the

owner or operator of the vehicle is deemed otherwise immune from suit 8 may proceed to

recover damages against his or her insurer:

[T]he immunity from liability for negligence of the owner or operator of a
motor vehicle shall not be a bar to the insured obtaining a judgment
enforceable against the insurer for the negligence of the immune owner or
operator, and shall not be a defense available to the insurer to the action
brought by the insured, which shall proceed against the named defendant
although any judgment obtained against an immune defendant shall be
entered in the name of “Immune Defendant[.]”

Va. Code Ann. § 38.2-2206(F) (emphasis added). In turn, Virginia courts have interpreted

this statute to require that a plaintiff seeking recovery under his uninsured motorist policy

7
Virginia Code § 38.2-2206(A) generally requires insurance companies to provide
uninsured motorist coverage: no insurance policy “relating to the ownership, maintenance,
or use of a motor vehicle shall be issued or delivered” in Virginia “unless it contains an
endorsement or provisions undertaking to pay the insured all sums that he is legally entitled
to recover as damages from the owner or operator of an uninsured motor vehicle[.]”
8
“[U]ninsured motor vehicle[s]” include ones for which “the owner or operator of
the motor vehicle is immune from liability for negligence under the laws of the
Commonwealth or the United States.” Va. Code Ann. § 38.2-2206(B).
13
against an otherwise immune defendant must first procure a judgment against that immune

defendant. Only after obtaining such a judgment may the plaintiff then enforce it against

his insurer. As the Virginia Supreme Court has elaborated, “Virginia precedent indicates

that the duty owed by [an uninsured motorist] carrier to its insured [under § 38.2-2206(A)]

is to pay its insured the damages he or she is ‘legally entitled to recover’[.]” Manu v.

GEICO Cas. Co., 798 S.E.2d 598, 603 (Va. 2017) (emphasis added). “[T]he phrase ‘legally

entitled to recover’ imposes as a condition precedent to [an uninsured motor] carrier’s

obligation to pay its insured[] that the insured obtain a judgment against the uninsured

tortfeasor whose actions come within the purview of the [uninsured motorist] policy.” Id.

at 605. 9

The district court thus concluded that to have proceeded with an uninsured motorist

claim against Davis or the Government, Frankel would have first been required to obtain a

judgment. But because Feres would bar such a lawsuit (to say nothing of a judgment)

against the United States, and the Westfall Act would similarly bar any such lawsuit against

9
Indeed, courts interpreting § 38.2-2206 have consistently found that judgment is
the event which determines legal entitlement to recovery. E.g., Nationwide Mut. Ins. Co.
v. Hylton, 530 S.E.2d 421, 423 (Va. 2000); United Servs. Auto. Ass’n v. Nationwide Mut.
Ins. Co., 241 S.E.2d 784, 787 (Va. 1978); Midwest Mut. Ins. Co. v. Aetna Cas. & Sur. Co.,
223 S.E.2d 901, 904 (Va. 1976); see also O'Brien v. Gov’t Emps. Ins. Co., 372 F.2d 335,
341 (3d Cir. 1967) (interpreting Virginia’s predecessor statute to § 38.2-2206); Satterfield
v. Gov’t Emps. Ins. Co., 287 F. Supp. 3d 1285, 1295 & n.16 (W.D. Okla. 2018) (interpreting
§ 38.2-2206); Ryan v. 21st Century Centennial Ins. Co., No. TDC-15-3052, 2016 WL
3647612, at *5–6 (D. Md. June 30, 2016) (same); Boggs-Wilkerson v. Anderson, No.
2:10cv518, 2011 WL 6934598, at *2 (E.D. Va. Nov. 17, 2011) (“In uninsured motorist
cases, Virginia is among a small minority of states that requires the plaintiff first obtain
judgment against the alleged tortfeasor before bringing direct action against the insurer.”),
report and recommendation adopted by 2011 WL 6934596, at *1 (E.D. Va. Dec. 30, 2011).
14
Davis, Frankel could not proceed with his uninsured motorist claim. On appeal, Frankel

argues the district court erred in reaching this conclusion, contending that: (1) by naming

Davis as the nominal defendant, Frankel was only seeking to fulfill § 38.2-2206(F)’s

requirements, not hold her or the Government liable; (2) nothing in § 38.2-2206(F)’s

language requires that the plaintiff first obtain a judgment against the named defendant;

and (3) to interpret the statute in this manner would deny Frankel the contractual benefit of

an insurance policy that he purchased for his protection.

We disagree. Feres provides that the United States is immune not merely from

liability but also from suit. 10 See Al Shimari v. CACI Int’l, Inc., 679 F.3d 205, 218 (4th Cir.

2012) (“[I]mmunity has consistently been administered as a protection against the burden

of litigation altogether.”). The Westfall Act provides the same as to Davis. Osborn v. Haley,

549 U.S. 225, 238 (2007) (observing that 28 U.S.C. § 2679 is “designed to immunize

covered federal employees not simply from liability, but from suit”). Thus, any argument

that the Government or Davis could serve purely as nominal defendants is unavailing.

Further, the plain language of § 38.2-2206(F) provides that the suit “shall proceed against

the named defendant.” But given that Feres bars Frankel’s suit against the Government—

and the Westfall Act bars any suit against Davis—under the FTCA, there is no named

defendant against whom judgment can be entered for purposes of § 38.2-2206(F).

Therefore, Frankel’s uninsured motorist claim cannot clear this initial statutory hurdle.

10
And under the federal Constitution’s Supremacy Clause, Virginia law cannot
provide otherwise. See U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the
United States . . . shall be the supreme Law of the Land[.]”).
15
Finally, as the district court observed, although such a result “may seem inequitable,”

“unless and until the Virginia legislature modifies the statutory procedure set forth in Va.

Code § 38.2-2206(F) to allow a [p]laintiff to proceed directly against an insurer” in

circumstances such as this one, “such ‘perceived unfairness’ cannot be avoided.” 358 F.

Supp. 3d at 544. We therefore agree that Frankel’s claim cannot proceed.

IV.

For the foregoing reasons, the judgment of the district court is affirmed. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

AFFIRMED

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