United States Court of Appeals,
Fifth Circuit.
No. 93-3774.
Leonce J. MILLER, III, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
Jan. 13, 1995.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before JONES and DeMOSS, Circuit Judges, and BUNTON,* District
Judge:
BUNTON, District Judge.
Leonce Miller appeals the district court's dismissal of his
negligence action against the United States, claiming the court's
finding that his injuries arose during the course of activity
incident to his military service was erroneous as a matter of law.
Because we agree with the district court's conclusion that it
lacked subject matter jurisdiction over Miller's claims, we affirm
the dismissal.
I. Facts
Miller received an appointment to the United States Naval
Academy in Annapolis, Maryland, in March of 1991. As required, he
reported to the Academy on July 9, 1991, and began participation in
the Academy's orientation program as a "plebe," an incoming
freshman midshipman. The orientation program is called "plebe
*
District Judge of the Western District of Texas, sitting by
designation.
1
summer" and is the beginning of the process of training midshipmen
to become Navy officers. During the training, plebes are taught
basic skills in seamanship, navigation, sailing and small boat
handling, signaling, infantry drill, and small arms
familiarization. Plebes are subject to rigorous physical and
mental demands in an effort to develop their leadership ability,
motivation, integrity, and physical skills and strength.
During the course of the program, on July 23, Miller was
injured when the boom of a laser sailboat struck him in the back of
the head, knocking him unconscious. He was subsequently admitted
to the National Naval Medical Center in Bethesda, Maryland, where
he was diagnosed with "conversion disorder." In August of 1991,
Miller was categorized by a Navy neurologist at the Medical Center
as "not fit for full duty" and "unsuitable for military service."
In a Counsel and Guidance Interview Record, Miller was deemed
"unfit for naval service." He was ordered to the Medical Center's
psychiatric ward where he remained until November 4, 1991. Miller
alleges that during his hospitalization he suffered serious mental
and emotional injuries because of his doctors' wrongful diagnosis
and the inadequate medical treatment he received. During his stay
at the Medical Center, a Navy Medical Board recommended that he be
disenrolled from the Naval Academy. Miller was honorably
discharged from the United States Navy on February 21, 1992, for
"physical disability not existing prior to entry on active duty."
Miller filed an administrative claim with the United States
Navy on December 29, 1992, alleging the injuries he sustained as a
2
result of the sailing accident were caused by various acts of
negligence on the part of the United States. He also alleged a
separate claim of improper medical care by the United States based
on his treatment at the Medical Center. Both claims were rejected
by the United States. Miller subsequently sued the United States
under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(a), 2671-80
(the FTCA); the Suits in Admiralty Act, 46 U.S.C.App. §§ 741-752;
and the Public Vessels Act, 46 U.S.C.App. §§ 781-790. The United
States requested that the district court dismiss Miller's claims
for lack of subject matter jurisdiction. The court did so,
concluding that because Miller's injuries arose during the course
of activity incident to his military service as a midshipman at the
Academy, his claims fell within the Feres exception to the United
States' waiver of tort liability.
Miller appeals the court's conclusion his cause of action is
barred by the Feres doctrine claiming the court did not adequately
address his arguments that his injuries did not occur during
activities incident to military service. He argues that he was not
a member of the Navy and not engaged in military service and that,
even if he could be considered a service member, the Feres doctrine
is not applicable since he was not on active duty at the time his
injuries arose.
II. Discussion
The Feres doctrine is a judicially created exception to the
broad waiver of immunity established by the FTCA. The essence of
the doctrine is that "the Government is not liable under the
3
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 v. United States, 340 U.S. 135, 146, 71 S.Ct. 153,
159, 95 L.Ed. 152 (1950). The Feres doctrine applies with equal
force to bar actions by service members under the Suits in
Admiralty Act and the Public Vessels Act. Beaucoudray v. United
States, 490 F.2d 86 (5th Cir.1974).
"[T]he question of what activity invokes the Feres doctrine is
not a question of fact ... but an issue requiring de novo appellate
review." Adams v. United States, 728 F.2d 736, 738 n. 3 (5th
Cir.1984) (citing Parker v. United States, 611 F.2d 1007, 1008 n.
1 (5th Cir.1980)).
Miller's first ground for disputing the district court's
finding that his accident was incident to his military service as
a midshipman at the Academy is that he was not, in fact, a member
of the military service at the time of the accident. Miller
characterizes his status at the Academy as merely that of a student
in training for future military service. He argues that because he
was only a freshman midshipman, he owed no obligation to the
military establishment at the time of his accident and that he was
under no compulsion to participate in the sail training exercise
but could have disenrolled from the Academy without penalty. He
also draws our attention to the fact that time spent in the
military academies is not counted in computing the length of active
military service. 10 U.S.C. § 971(b).
The Government, on the other hand, argues that the sail
4
training exercise was mandatory and an essential part of Miller's
training as a midshipman, that Miller was subject to the Uniform
Code of Military Justice at all times, and that, although
midshipmen during the first two years of enrollment at the Naval
Academy are under no obligation to remain at the Academy and may
voluntarily disenroll at any time without having to serve active
duty, Miller could have resigned his appointment only upon approval
of the Chief of Naval Personnel. A midshipman is a "member of the
naval service," 10 U.S.C. 5001(a)(3), and, as such, has committed
the crime of Absence Without Leave if he fails to go to his
appointed place of duty at the time prescribed, or absents himself
from the Academy without permission. 10 U.S.C. § 886.
The United States suggests we can find further evidence of
Miller's status as an active duty service member in that he was
appointed a Midshipman in the United States Navy by the President
of the United States, he executed an oath of office pursuant to the
appointment, and as a midshipman, Miller was entitled not only to
a free education but to midshipman pay at the rate of $543.90 per
month. He was covered by the Navy's Servicemen's Group Life
Insurance Policy. The Government also offers various textual
support for its argument. See, e.g., 10 U.S.C. § 101(d)(1).
We reject Miller's claims that, as a freshman midshipman, he
could not be considered engaged in military service. Midshipmen
are in training for future military service as officers, United
States v. Ellman, 26 C.M.R. 329, 330, 1958 WL 3370 (C.M.A.1958),
and attendance at the United States Naval Academy is expected to
5
lead to active military service as an officer. "[C]onduct in
combat inevitably reflects the training that precedes combat...."
Chappell v. Wallace, 462 U.S. 296, 300, 103 S.Ct. 2362, 2366, 76
L.Ed.2d 586 (1983). The purpose of the Academy is to train men and
women to hold positions as officers in future service to their
country, not merely to educate them so that they may later
participate successfully in civilian life. It is no surprise,
then, that "a cadet in the Military or Naval academies has always
been considered to be a member of the military forces of the United
States...." Travis v. United States, 146 F.Supp. 847, 850
(Ct.Cl.1956). "[W]hile the time spent as a cadet in the Military
Academy may not be counted in computing length of service, such
service is service in the military forces of the United States."
Id. at 851. Because Miller was in the military service when the
accident occurred, we must now decide whether the injuries he
claims arose out of or were in the course of activity incident to
that service.
Miller relies, ultimately, on his contention that he was not
on active duty military service at the time of the sailing accident
and, therefore, the accident was not "incident to service" and the
Feres doctrine does not apply. The United States, on the other
hand, claims Miller was "on duty" and "under instruction" at the
time of the accident and, thus, his injuries were sustained
incident to active duty military service. Although the United
States appears to accept the logic, if not the premise, of Miller's
argument, we do not.
6
We have previously stated we require "a case-by-case
assessment of the totality of the circumstances to determine
whether the injured service member's particular status at the time
of injury was such as to bring into play" the Government's interest
in regulating "the unique relationship of servicemen to the
[G]overnment." Adams, 728 F.2d at 738-39. To aid in that
assessment, we have articulated certain factors, embodied in what
we have called the Parker test, which should be considered in
determining whether a serviceman's injuries were "incident to
service:"
the duty status of the serviceman, the site of injury, and the
activity of the serviceman at the time of the injury. While
no single factor is necessarily dispositive, our applications
of the Parker test—and, indeed, the results of our cases
decided before Parker's exposition of it—demonstrate that the
duty status of the service member is usually considered the
most indicative of the nature of the nexus between him and the
[G]overnment at the time of injury and is therefore the most
important factor.
Adams, 728 F.2d at 739 (citing Parker, 611 F.2d at 1013-15). While
we do not deny the importance of the service member's duty status,
we believe the parties' almost exclusive focus on whether or not
Miller was on active military duty at the time of his injuries is
entirely too narrow and does not adequately address the most
important rationale for the doctrine—the need to exercise a great
deal of caution before requiring or allowing the civilian bench and
bar to analyze and, in the end, judge military decisions. That
rationale is incorporated in the Parker test's concentration on the
relationship between the service member and the military expressed
in the consideration of the three factors: the status of the
7
service member, the site of the injury, and the activity of the
service member at the time of the injury. In the end, a court must
determine whether an activity is incident to service by "examining
the totality of circumstances...." Id. at 1013. This examination
should address not only Parker's three factors but should take into
account the rationale behind the Parker test.
A review of the various rationale advanced over the years
supports our decision to reject an approach which overemphasizes
the duty status prong of the Parker test and to re-focus the
inquiry on whether or not Miller's injuries "ar[ose] out of or
[were] in the course of activity incident to service." Feres, 340
U.S. at 146, 71 S.Ct. at 159 (emphasis added). The history of the
doctrine reveals that the question of what activities are "incident
to service" has undergone "a rather complex evolution" but that the
"overall trend [of the evolution] is unmistakable." Jackson v.
Brigle, 17 F.3d 280, 282 (9th Cir.), cert. denied, --- U.S. ----,
115 S.Ct. 187, 130 L.Ed.2d 121 (1994). "The test has been broadly
construed to immunize the United States and members of the military
from any suit which may "intrude in military affairs,'
"second-guess[ ] military decisions,' or "impair[ ] military
discipline.' " Id. (quoting Stauber v. Cline, 837 F.2d 395, 398
(9th Cir.), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d
33 (1988). Although this Court discussed the evolution of the
Feres doctrine in Parker, a synopsis of that evolution is useful to
our analysis of its application to Miller's claims.
The doctrine had its roots in the Supreme Court's decision in
8
Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200
(1949), in which the Court held that a soldier on furlough,
although in the armed services, is not precluded from bringing suit
under the FTCA. In Brooks, the Court was dealing with a service
member whose injuries had nothing to do with his military career
and were not caused by his service in the military. The Court
expressed its opinion that "[w]ere the accident incident to the
[service member's] service, a wholly different case would be
presented." Id. at 52, 69 S.Ct. at 920. One year later, Feres
presented that wholly different case. The Court in Feres found
service members who were not on furlough but were on active duty at
the time of their injury were injured incident to their military
service and thus precluded from suing the Government under the
FTCA. In Feres itself and in cases following that decision, the
Court re-emphasized, explained, contracted, and expanded upon
various rationales for the doctrine.
First, in formulating the doctrine, the Court reasoned that
the "parallel private liability required by the FTCA"1 was lacking
in suits by service members against the Government for injuries
sustained incident to their military service. Feres, 340 U.S. at
141-142, 71 S.Ct. at 156-157. However, this "parallel private
liability" rationale was explicitly rejected by the Court in later
decisions. Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77
S.Ct. 374, 376-377, 1 L.Ed.2d 354 (1957); Indian Towing Co. v.
1
The FTCA makes the United States liable "in the same manner
and to the same extent as a private individual under like
circumstances." 28 U.S.C. § 2674.
9
United States, 350 U.S. 61, 66-69, 76 S.Ct. 122, 125-27, 100 L.Ed.
48 (1955). Second, the Court reasoned that because of the
"distinctively federal"2 character of the relationship between the
United States and its armed forces, allowing "the law of the place
where the [negligent] act or omission occurred"3 to affect the
liability of the United States to individual service members would
be inconsistent with the uniformity for which the military strives.
Feres, 340 U.S. at 142-144, 71 S.Ct. at 157-158; United States v.
Johnson, 481 U.S. 681, 689, 107 S.Ct. 2063, 2068, 95 L.Ed.2d 648
(1987). This ground for the doctrine was later recognized as "no
longer controlling." United States v. Shearer, 473 U.S. 52, 58, n.
4, 105 S.Ct. 3039, 3043, n. 4, 87 L.Ed.2d 38 (1985). Third, the
Court found that "the existence of ... generous statutory
disability and death benefits" for service members obviated the
need for application of the FTCA whose primary purpose " "was to
extend a remedy to those who had been without.' " Johnson, 481
U.S. at 689-90, 107 S.Ct. at 2068 (quoting Feres, 340 U.S. at 140,
71 S.Ct. at 156). Although this ground for barring recovery under
the FTCA by service members is also "no longer controlling,"
Shearer, 473 U.S. at 58 n. 4, 105 S.Ct. at 3043 n. 4, it is still
a factor taken into consideration by courts when addressing the
question of whether or not Feres bars a service member's cause of
action. This Court has cautioned that "[t]he existence and
2
United States v. Standard Oil Co., 332 U.S. 301, 305, 67
S.Ct. 1604, 1607, 91 L.Ed. 2067 (1947).
3
28 U.S.C. § 1346(b).
10
acceptance of ... benefits is not, however, an accurate barometer
for the threshold question of whether the activity is "incident to
service.' " Parker, 611 F.2d at 1012.
Finally, but most importantly, the Supreme Court has explained
that
Feres and its progeny indicate that suits brought by service
members against the Government for injuries incurred incident
to service are barred by the Feres doctrine because they are
the "type[s] of claims that, if generally permitted, would
involve the judiciary in sensitive military affairs at the
expense of military discipline and effectiveness.'
Johnson, 481 U.S. at 690, 107 S.Ct. at 2069 (quoting United States
v. Shearer, 473 U.S. at 59, 105 S.Ct. at 3043-44 (emphasis in
original)); see also United States v. Brown, 348 U.S. 110, 112, 75
S.Ct. 141, 143, 99 L.Ed. 139 (1954). In recent times, courts seem
to have found greatest support for the Feres doctrine in this
reasoning that "a suit based upon service-related activity
necessarily implicates the military judgments and decisions that
are inextricably intertwined with the conduct of the military
mission." Johnson, 481 U.S. at 691, 107 S.Ct. at 2069. Commitment
to military service, grounded as it is in obedience to orders and
duty and loyalty to one's country, could be undermined by allowing
suits against the Government for service-related injuries. Id.
The Supreme Court has stressed that "whether the suit requires the
civilian court to second-guess military decisions" or "goes
directly to the "management' of the military" and "whether the suit
might impair essential military discipline" is the "best
explanation" for the Feres doctrine. Shearer, 473 U.S. at 57-58,
105 S.Ct. at 3042-43 (citing Stencel Aero Engineering Corp. v.
11
United States, 431 U.S. 666, 673, 97 S.Ct. 2054, 2058-59, 52
L.Ed.2d 665 (1977) and Chappell, 462 U.S. at 299-300, 103 S.Ct. at
2365-66); see also United States v. Muniz, 374 U.S. 150, 162, 83
S.Ct. 1850, 1857-58, 10 L.Ed.2d 805 (1963). This Court has
recognized that this concern for preserving military discipline is
"the most important consideration in any single case." Scales v.
United States, 685 F.2d 970, 973 (5th Cir.1982). Suits in which
"commanding officers would have to stand prepared to convince a
civilian court of the wisdom of a wide range of military and
disciplinary decisions" are an improper interference by the
judiciary in the management of the armed forces. Shearer, 473 U.S.
at 58, 105 S.Ct. at 3043. "[C]omplex, subtle, and professional
decisions as to the composition, training, ... and control of a
military force are essentially professional military judgments" and
are best committed to the legislative and executive branches of the
Government and not to civilian courts. Chappell v. Wallace, 462
U.S. at 302, 103 S.Ct. at 2366-67 (quoting Gilligan v. Morgan, 413
U.S. 1, 10, 93 S.Ct. 2440, 2445-46, 37 L.Ed.2d 407 (1973)). See
also Morey v. United States, 903 F.2d 880, 882 (1st Cir.1990)
(adjudicating plaintiff's claims would "require the court to delve
into questions of military decision making.").
The fact that an injured service member is not on active duty
when the injury occurs does not preclude application of the Feres
doctrine as the parties suggest. Scales, 685 F.2d at 973. Keeping
in mind that "duty status is to be viewed as a continuum from
actual active duty at one extreme to discharge at the other,"
12
Adams, 728 F.2d at 739, we are not persuaded that "incident to
service" necessarily denotes an "active duty" status or even that
the service member is currently "in service" in the sense that he
or she is actively pursuing the military duties of a soldier at the
time of injury. We therefore reject the parties' attempts to make
the dispositive question on this issue whether or not Miller was on
active duty.
If we view the continuum in light of the best rationale for
the Feres doctrine—that the propriety of military decisions and
actions are committed to the military and not to the courts—it
becomes apparent that injuries are "incident to service" if an
inquiry into the Government's liability for those injuries would
require civilian courts to second-guess military decisionmaking.
Stencel, 431 U.S. at 671-672, 97 S.Ct. at 2057-2058.
This test should not be given as constricted a scope as the
parties imply. The Ninth Circuit has recognized that "practically
any suit that "implicates ... military judgments and decisions'
runs the risk of colliding with Feres." Persons v. United States,
925 F.2d 292, 295 (9th Cir.1991) (emphasis added) (quoting Johnson,
481 U.S. at 691, 107 S.Ct. at 2069); see also Jackson v. Brigle,
17 F.3d at 282. The Seventh Circuit has "consistently found that
a servicemember's injury is incident to military service whenever
the injury is incurred while the individual is on active duty or
subject to military discipline." Stephenson v. Stone, 21 F.3d 159,
162 (7th Cir.1994) (emphasis added) (citing Collins v. United
States, 642 F.2d 217, 219 (7th Cir.), cert. denied, 452 U.S. 964,
13
101 S.Ct. 3115, 69 L.Ed.2d 975 (1981)). Justice Scalia's analysis
in United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97
L.Ed.2d 550 (1987), underscores the breadth of the "incident to
service" test:
A test for liability that depends on the extent to which
particular suits would call into question military discipline
and decisionmaking would itself require judicial inquiry into,
and hence intrusion upon, military matters. Whether a case
implicates those concerns would often be problematic, raising
the prospect of compelled depositions and trial testimony by
military officers concerning the details of their military
commands. Even putting aside the risk of erroneous judicial
conclusions (which would becloud military decision making),
the mere process of arriving at correct conclusions would
dispute the military regime. The "incident to service" test,
by contrast, provides a line that is relatively clear and that
can be discerned with less extensive inquiry into military
matters.
Id. at 682-683, 107 S.Ct. at 3063 (emphasis added).
As we noted earlier, attendance at the United States Naval
Academy is expected to lead to active military service as an
officer and the purpose of the Academy is to train men and women to
hold positions as officers in the military services. We believe
that is all that is required to find that their non-discretionary
activities at these institutions—activities which are conducted
under the auspices of the military establishment and during which
the midshipman or cadet is subject to military discipline—are
"incident to service." A finding that Miller was on active duty at
the time of his accident is not necessary to a determination that
his injury occurred during activities that were incident to his
military service.
Miller relies on Brooks and Brown to support his argument that
one who is not on active duty is permitted to avail himself of the
14
benefits of the FTCA. We find little in these cases to recommend
them for this proposition. In Brooks, as we have said, the Court
was dealing with a service member whose injuries had nothing to do
with his military career and were not caused by his service in the
military. In Brown, the injury sued upon was "not incurred while
[the serviceman] was on active duty or subject to military
discipline" but while his status was that of a civilian. Brown,
348 U.S. at 112, 75 S.Ct. at 143 (emphasis added). Consequently,
in neither of those cases would the factfinder have been required
to scrutinize the orders or decisions of the military establishment
in order to determine the Government's liability. In later
commenting on the Brown decision, the Supreme Court concluded that
"[a]lthough [Brown ] noted the military status of the tortfeasors,
it did not rely on that fact." Johnson, 481 U.S. at 686 n. 7, 107
S.Ct. at 2066 n. 7. The Court concluded that it was the broad
language of Feres and its progeny that was controlling. "[T]he
language of the opinion, viewed as a whole is broad: "We know of
no American law which ever has permitted a soldier to recover for
negligence, against either his superior officers or the Government
he is serving.' " Id. (quoting Feres, 340 U.S. at 141, 71 S.Ct. at
156-57 (emphasis added)). We think Miller's argument that these
cases were decided in favor of the service members because they
were not on active duty fails to take into account the significance
of the fact that allowing these cases to go forward in civilian
courts would not have implicated military decision-making.
We find support for this in later cases. For example, in
15
applying the Feres doctrine in Bivens actions, the Ninth Circuit
has emphasized that the activities of both the service member and
the alleged tortfeasor were "always under the direct command of
active-duty military officers, that the parties' conduct was
subject to military discipline and that the parties shared the same
direct military relationships whether on civilian or military
status." Jackson v. Brigle, 17 F.3d at 283 (citing Stauber, 837
F.2d 395). The Court concluded that addressing a plaintiffs'
claims under those circumstances would "result in an impermissible
intrusion upon military matters." Id. (quoting Stauber, 837 F.2d
at 400). In Stephenson, the Seventh Circuit found it significant
that the injuries occurred not only while the service member was on
active duty, but while he was on military property, because of his
relationship with the Government, and because of the "negligence of
military personnel in the performance of official, military
duties." 21 F.3d at 164. In Parker, this Court inquired into what
the service member was doing at the time he was injured in an
effort to determine whether his injuries were "incident to
service." In finding that the plaintiff in that case was not
engaged in activity incident to service, we found it relevant that
he was not under military orders, not engaged in the performance of
a military mission, and "not even attending to personal affairs,
such as shopping, or engaging in activities arising from life on
the base, such as recreational activities." 611 F.2d at 1014.
Although Miller opines that the United States' argument on
this issue is "vague," we find a great deal of merit to the
16
Government's argument that the discovery and trial process would,
were this case allowed to move forward in the district court,
involve the court in military policy and decisions concerning the
appropriate method of training the future commissioned officer
corps of the Navy. It is highly conceivable that discovery and
trial could require other service members to publicly question and
disagree with the orders and policies of their superiors. This
state of affairs would be inimical to the discipline which is so
much a part of our armed forces. Our courts have consistently
recognized that "no military organization can function without
strict discipline and regulation that would be unacceptable in a
civilian setting." Chappell, 462 U.S. at 300, 103 S.Ct. at 2365
(citing Parker v. Levy, 417 U.S. 733, 743-744, 94 S.Ct. 2547, 2555-
2556, 41 L.Ed.2d 439 (1974) and Orloff v. Willoughby, 345 U.S. 83,
73 S.Ct. 534, 97 L.Ed. 842 (1953)).
Miller calls attention to our decision in Cortez v. United
States, 854 F.2d 723 (5th Cir.1988) for an example of this Court's
willingness to read the "incident to service" test narrowly and to
allow "numerous categories" of armed service members to file claims
under the FTCA. However, Cortez had been placed on Temporary
Disability Retired List,4 relieved of military duty, and allowed to
return home. His alleged improper medical treatment by military
personnel "was not intended or likely to result in his return to
4
"The nature of this status is a type of "limbo.' A
serviceman who is on the List is separated from the Army, but his
final status is deferred pending additional medical evidence."
Craft v. United States, 544 F.2d 468, 471 (1976).
17
active duty." Id. at 725. His "only military obligation was to
report for the periodic reevaluations [of his medical condition]."
Id. at 726. "Cortez was not hospitalized at the army medical
center pursuant to a military order or mission, direct or
indirect." Id. at 727. For these reasons, Cortez' injury was not
connected with his military service.
Similarly, in Harvey v. United States, 884 F.2d 857 (5th
Cir.1989), another medical malpractice case involving a service
member who had been relieved of duty and had returned to civilian
life but was not yet formally separated from the service, this
court found that "neither the federal structure of the military nor
the concern over military discipline" was implicated and that
"Harvey's suit would not involve any issue pertaining to the
command structure of the Air Force nor require us to second-guess
any military order." Id. at 861.
It cannot be gainsaid that military discipline is the hallmark
of the military academies. Plebe summer for midshipmen can be
likened to basic training or boot camp for enlisted men—one of its
main purposes to instill a sense of discipline in the midshipman
and train the midshipman to subject himself to the commands of
others, possibly in contravention of his own instincts. The
Seventh Circuit placed great emphasis on the fact that an Air Force
Academy cadet was subject to military discipline at the time of his
injury and held that those injuries were incident to his military
service. Collins, 642 F.2d at 220-221. Other courts have assumed
that injuries to service members in the military academies arose
18
"incident to service" for purposes of application of the Feres
doctrine. See Archer v. United States, 217 F.2d 548, 551 (9th
Cir.), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99 L.Ed. 745
(1955) (a cadet being transported in a military airplane operated
by military personnel "indicate[s] the usual transportation of a
soldier in military service in line of duty").
Collins also found significant that the Air Force Academy
cadet received veteran's benefits for his injuries. Although as a
midshipman Miller is also entitled to certain military benefits5
and may be treated at military hospitals, he argues that because he
does not receive retirement or separation benefits for physical
disability or retirement annuities, the Feres doctrine should not
preclude him from attempting to recover damages under the FTCA.
The Government relies heavily on the Seventh Circuit's reasoning
that "the fact that cadets are subject to military discipline and
are eligible for certain veterans' benefits strongly supports the
finding that cadets, like other service personnel, are barred from
bringing FTCA actions for service-related injuries." Collins, 642
F.2d at 220. The plaintiff-cadet in that case was receiving
disability compensation and vocational rehabilitation payments. We
reiterate that, although the receipt of veteran's benefits may be
indicative of the duty status of a service member, it is not
dispositive of the question whether the disability for which the
5
Miller is presently receiving disability compensation at
the rate of $240 per month under the Department of Veterans'
Affairs Codification Act, 38 U.S.C. § 101 et seq., and will
probably continue to collect compensation under the Act for the
remainder of his life.
19
service member is receiving benefits was sustained "incident to
service." We believe a proper determination of the question must
rely more heavily, as we have said, on the effect of the lawsuit on
military discipline.
Like the Air Force Academy cadet in Collins, Miller is
considered a member of the armed forces. And, as in Collins, there
is no dispute Miller's injury was incident to his service as a
midshipman, regardless whether or not he was on active duty. We
therefore find that the injuries Miller sustained as a result of
the sailing accident were sustained "incident to service" and that
he is precluded from suing the Government for these injuries by
Feres.
Miller argues that even if we should find his sailing
injuries were incurred "incident to service," the injuries he
allegedly sustained as a result of improper medical care at the
hands of the Government could not be considered "incident to
service" since he had been deemed unfit for service at the time the
injuries arose. The United States argues Miller remained on active
duty until he was honorably discharged in February of 1992. We
believe, again, the parties place too much emphasis on whether or
not Miller was on active duty and that an analysis of this claim
must also be grounded on the effect the claim would have on
military discipline. In the context of claims of improper medical
treatment by service members, this court has stated that "[i]f the
[district] court must second-guess the judgment of military
officers in assessing their treatment of a member of the armed
20
services, the claim will be deemed to have a disruptive effect on
discipline and will be dismissed." Scales, 685 F.2d at 973. In
these inquiries, as well, the district court's focus is not only on
the duty status of the service member, but on the "type of
examination that will be demanded of the district court." Id.
We agree with the Government that Miller's subsequent medical
care and hospitalization at the Medical Center flowed directly from
his training accident and occurred before any significant change in
the status of his relationship to the Government. Although Miller
was categorized as "unfit for naval service" on August 12, 1991,
prior to his admission to the NNMC's psychiatric ward on August 22,
1991, he was not discharged from service until February 21, 1992.
Although his duty status at the time of his admission to the
psychiatric ward is undoubtedly a closer question, these claims
must also be considered to have occurred incident to his military
service as a midshipman. Once again, we must look not only to
Miller's duty status, but at the totality of the circumstances.
Any trial of the issues raised by the diagnosis of his injuries and
his subsequent hospitalization would necessarily raise the same
problems of intrusion on military affairs, second-guessing military
medical policy concerning the treatment of midshipmen, and
impairing military discipline.
Finally, Miller advances a policy argument for finding that
the Feres doctrine should not bar his claims. He argues that
because he is not receiving the same compensation, in the form of
benefits, that is available to other service members, he should be
21
allowed to seek a greater recovery under the FTCA. The fact that
Miller is not receiving the compensation to which he believes he is
entitled is not reason enough to circumvent the Feres bar to these
types of lawsuits. We agree with the Seventh Circuit that
"[a]lthough they do not receive certain benefits, cadets [and
midshipmen] enjoy the benefits of attendance at the service
academies that are unavailable to regular members of the armed
forces. These and other differences between cadets and some other
members of the military show only that the benefits provided by the
armed services are available to those for whom they are
appropriate." Collins, 642 F.2d at 221.
The Supreme Court, although recognizing that the line drawn by
the Feres doctrine—whether an injury is "incident to service"—may
not be "fair" in terms of the compensation ultimately available to
service members, has found "fairness" to be an inadequate
justification "for changing the interpretation of a congressional
statute, when Congress has failed to do so for almost 40 years."
Johnson, 481 U.S. at 689 n. 9, 107 S.Ct. at 2068 n. 9. The Feres
doctrine has been reaffirmed by the Supreme Court many times since
its inception in the face of strong criticism of the equity of the
rule.6
6
In Johnson, Justice Scalia expressed his strong opinion
that "Feres was wrongly decided and heartily deserves the
"widespread, almost universal criticism' it has received." 481
U.S. 681, 700-701, 107 S.Ct. 2063, 2074, (1987) (Scalia, J.,
joined by Brennan, Marshall, and Stevens, JJ., dissenting)
(quoting In re "Agent Orange" Product Liability Litigation, 580
F.Supp. 1242, 1246 (E.D.N.Y.), appeal dism'd, 745 F.2d 161 (2d
Cir.1984). In Bowers v. U.S., the Eighth Circuit held, "with a
pronounced lack of enthusiasm," that pre-induction physicals are
22
We take this opportunity to remind Appellant that, although
the benefits he receives may not be as much as those received by
other service members, the recovery of those benefits is "swift
[and] efficient," usually obviating the necessity for litigation
Stencel at 673, 97 S.Ct. at 2058-59; Feres, 340 U.S. at 145, 71
S.Ct. at 158-59. In addition, we must not forget that "predicting
the outcome of any damages suit—both with respect to liability and
the amount of damages—is hazardous, whereas veterans' benefits are
guaranteed by law." Johnson, 481 U.S. at 689 n. 9, 107 S.Ct. at
2068 n. 9. The law is often unfair when viewed from the
perspective of any one individual. Unfairness, however, must often
be tolerated if we are to devise, implement, and maintain a system
of laws whose application is certain and just in the grand scheme
of things. Whether the Feres doctrine can be described as such is,
we feel, open to question in certain cases. However, any final
determination of its justness must be left to a higher authority
activities incident to service, basing its decision on the fact
that the relationship existing between the Government and the
potential service member resulting from the pre-induction
physical was "distinctively federal" and that the availability of
a negligence action arising from a pre-induction physical would
"involve the Judiciary in sensitive military judgments." 904
F.2d 450, 451-52 (8th Cir.1990). The Court reached this decision
in spite of the fact that the plaintiff was not a member of the
service at the time of the alleged injury, much less on active
duty, and would receive no benefits or treatment from the
Government. In Hinkie v. United States, 715 F.2d 96, 97 (3d
Cir.), cert. denied, 465 U.S. 1023, 104 S.Ct. 1276, 79 L.Ed.2d
680 (1984), the Third Circuit reluctantly applied the doctrine
because it had "no legal authority, as an intermediate appellate
court, to decide the case differently." This Court has felt
"compelled, however reluctantly, to ... dismiss ... claim[s] as
barred by Feres." Scales v. United States, 685 F.2d 970, 974
(5th Cir.), cert. denied, 460 U.S. 1082, 103 S.Ct. 1772, 76
L.Ed.2d 344 (1983).
23
than this Court. We therefore AFFIRM the district court's
dismissal of Appellant's cause of action.
24
Miller v. United States
Court: Court of Appeals for the Fifth Circuit
Date filed: 1995-01-13
Citations: 42 F.3d 297
Copy CitationsCombined Opinion