United States Court of Appeals,
Fifth Circuit.
No. 94-20793
Summary Calendar.
Jens SCHOEMER and Shirre Schoemer, Plaintiffs-Appellants,
v.
UNITED STATES of America, et al., Defendants-Appellees.
July 25, 1995.
Appeal from the United States District Court for the Southern
District of Texas.
Before DUHÉ, WIENER and STEWART, Circuit Judges.
DUHÉ, Circuit Judge:
Jens and Shirre Schoemer appeal the district court's dismissal
of their suit against the United States. Jens Schoemer sought
recovery for alleged medical malpractice under the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1988), and his
wife Shirre Schoemer sought damages for loss of her husband's
income, support, and consortium. The court dismissed the case for
lack of subject matter jurisdiction based on Feres v. United
States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We
affirm.
BACKGROUND
Jens Schoemer enlisted in the United States Army in 1987 for
an eight year term. After serving four years on active duty,
Schoemer was assigned to the inactive reserves in August 1991. He
decided to serve out his term in the Louisiana National Guard,
which required him to undergo a preenlistment medical examination.
1
In December 1991, Schoemer reported to the U.S. Military
Entrance Processing Station in Houston for the examination. He
alleges that Dr. Schnur diagnosed him as having acromegaly, an
abnormality of the pituitary gland, and recommended that Schoemer
be referred to an internal medicine clinic. Instead, Dr. Magliolo,
the Chief Medical Officer, pronounced Schoemer eligible for duty
and did not recommend any treatment. Schoemer was diagnosed as
having acromegaly eleven months later. He alleges that the delay
in treatment has caused him significant injury.1
The Schoemers brought an FTCA suit against the United States
which moved to dismiss citing Feres. Initially, the court denied
the motion citing our decisions in Jones v. United States, 729 F.2d
326 (5th Cir.1984), and Adams v. United States, 728 F.2d 736 (5th
Cir.1984). On cross motions for summary judgment, however, the
court changed its mind and applied Feres. Consequently, the court
did not consider the summary judgment motions because it dismissed
the case for lack of subject matter jurisdiction.
DISCUSSION
The Supreme Court created a judicial exception to the FTCA
for injuries to servicemen that arise from the course of activity
incident to service. Feres, 340 U.S. at 146, 71 S.Ct. at 159.
Three rationales support the exception: (1) the "distinctively
federal" relationship between a serviceman and his superiors; (2)
the ability of servicemen to receive no-fault statutory disability
1
Schoemer underwent two operations, one of which was
intercranial. He has significant hormonal problems, loss of
function in one eye, and a permanent scar.
2
and death benefits; and (3) the need to preserve military
discipline and prevent judicial second guessing of military
decisions. United States v. Johnson, 481 U.S. 681, 688-91, 107
S.Ct. 2063, 2067-69, 95 L.Ed.2d 648 (1987). Whether Feres applies
to deprive a court of subject matter jurisdiction is a question of
law, which we review de novo. Miller v. United States, 42 F.3d
297, 300 (5th Cir.1995).
Feres applies if the serviceman's injury was incident to
military service. Johnson, 481 U.S. at 691, 107 S.Ct. at 2069. We
examine the totality of the circumstances to determine whether a
serviceman's injury was incident to military service. Parker v.
United States, 611 F.2d 1007, 1013 (5th Cir.1980). In particular,
we consider: (1) the serviceman's duty status; (2) the site of
his injury; and (3) the activity he was performing. Id. at 1013-
15.
We often treat the serviceman's duty status as the most
important factor because it indicates the nature of the nexus
between the serviceman and the Government at the time of injury.
Adams, 728 F.2d at 739. We view duty status as a continuum ranging
from active duty to discharge. Cortez v. United States, 854 F.2d
723, 725 (5th Cir.1988). Duty status may be dispositive; Feres
applies to a serviceman who is on active duty and has active status
but not to one who has been discharged. Jones, 729 F.2d at 328;
Adams, 728 F.2d at 739; see also United States v. Brown, 348 U.S.
110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954) (distinguishing
servicemen who are on active duty and subject to military
3
discipline from discharged servicemen who have civilian status).
Nevertheless, if the serviceman's duty status falls somewhere in
the middle of the continuum, then duty status is less important and
we look to the other factors. Kelly v. Panama Canal Comm'n, 26
F.3d 597, 600 (5th Cir.1994).2
At the time of Schoemer's examination, he had inactive status
in the Army and was preparing to enter the Louisiana National
Guard. Feres applies both to reservists and National Guardsmen.
Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.) cert. denied, 488
U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988); Estate of
Martinelli v. United States Dep't of the Army, 812 F.2d 872, 873
(3d Cir.), cert. denied, 484 U.S. 822, 108 S.Ct. 82, 98 L.Ed.2d 44
(1987); Anderson v. United States, 724 F.2d 608, 610 (8th
Cir.1983); Mattos v. United States, 412 F.2d 793, 794 (9th
Cir.1969). Although Schoemer was no longer on active duty, he was
still in the Army. Because Schoemer's duty status does not answer
the Feres question dispositively, we consider the other Parker
factors.
In medical malpractice cases, however, the duty status
inquiry subsumes the inquiry concerning the serviceman's activity
at the time of injury. Adams, 728 F.2d at 741. In place of Parker
's third factor we inquire whether the serviceman's treatment was
2
Feres can apply to a serviceman who is not on active duty
at the time of injury. Miller, 42 F.3d at 303. Jones and Adams
do not counsel otherwise. Rather, we require application of
Feres to medical malpractice cases when the serviceman is on
active duty at the time of the alleged malpractice. Scales v.
United States, 685 F.2d 970, 973 (5th Cir.1982), cert. denied,
460 U.S. 1082, 103 S.Ct. 1772, 76 L.Ed.2d 344 (1983).
4
intended to return him to military service. Id. Because the
purpose of Schoemer's medical examination was to allow him to
enlist in the Louisiana National Guard, the examination was a
prerequisite to his return to military service.3
One court has applied Feres to bar an FTCA claim arising from
a National Guard preenlistment medical examination. Hall v. United
States, 528 F.Supp. 963, 967-68 (D.N.J.1981), aff'd, 688 F.2d 821
(3d Cir.1982). Other courts have reached the same result for
medical examinations that are a prerequisite to active duty. See
Bowers v. United States, 904 F.2d 450, 452 (8th Cir.1990); West v.
United States, 729 F.2d 1120, 1122-23 (7th Cir.), aff'd en banc,
744 F.2d 1317 (7th Cir.1984), cert. denied, 471 U.S. 1053, 105
S.Ct. 2113, 85 L.Ed.2d 478 (1985); Yolken v. United States, 590
F.2d 1303, 1303 (4th Cir.1979) (per curiam); Calhoun v. United
States, 475 F.Supp. 1, 3-4 (S.D.Cal.1977), aff'd, 604 F.2d 647 (9th
Cir.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d
761 (1980).
In Bowers, after a medical examination Bowers was to serve
five months in the Air Force Reserve and then go on active duty.
The Eighth Circuit considered the three rationales supporting Feres
3
Because Parker 's third factor supports the application of
Feres to this case, we distinguish two separate lines of cases
that have allowed FTCA claims to proceed. First, when an active
duty serviceman sustains an injury on leave or furlough, we focus
on the serviceman's activity to show that he was not acting
incident to military service. See, e.g., Parker, 611 F.2d at
1015. Second, when a serviceman alleges medical malpractice at a
time when he has not yet been discharged, we focus on the purpose
of his treatment to show that his injury was not incident to
military service. See, e.g., Cortez, 854 F.2d at 725; Adams,
728 F.2d at 741.
5
in the context of the pre-induction medical examination. Bowers
was not entitled to any statutory benefits because he had not
served any time on active duty. Id. at 451. Nevertheless, the
court noted that Bower's relationship with the Air Force was
distinctively federal, and that a negligence action would have a
direct effect on military judgments and decisions. Bowers, 904
F.2d at 452. Since two of the three rationales were relevant, the
Eighth Circuit applied Feres because "there is no question that
pre-induction physicals are activities incident to service." Id.
at 452.
In this case, although Schoemer's enlistment into the
Louisiana National Guard adds a state flavor to his relationship
with his superiors,4 he is entitled to veteran's benefits because
of his stint on active duty. Furthermore, the availability of a
negligence action would require the military to allocate its
resources to prevent and compensate mistakes in pre-induction
medical examinations. Bowers, 904 F.2d at 452. This third
rationale is the overriding consideration in any single case.
Scales, 685 F.2d at 973.
Applying the three Parker factors, we conclude that
Schoemer's preenlistment medical examination was incident to
military service. Furthermore, the policies behind Feres support
its application to this case. Having considered the totality of
4
State National Guard members serve the state and the nation
in a dual capacity. See Perpich v. Department of Defense, 496
U.S. 334, 345-46, 110 S.Ct. 2418, 2425-26, 110 L.Ed.2d 312
(1990).
6
the circumstances, we conclude that the district court properly
applied Feres and dismissed the Schoemers' suit for lack of subject
matter jurisdiction.5
CONCLUSION
For the foregoing reasons, the district court's dismissal of
Appellants' FTCA suit for lack of subject matter jurisdiction is
AFFIRMED.
5
Feres bars Shirre Schoemer's derivative claims as well.
See Gaspard v. United States, 713 F.2d 1097, 1101-02 (5th
Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2354, 80 L.Ed.2d
826 (1984). The Schoemers ask us either to overrule Feres or to
hold its judicially created FTCA exception unconstitutional by
separation of powers. We leave these arguments for the Supreme
Court.
7