Miller v. United States

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