89 F.3d 53 (2nd Cir. 1996), 1260, Wake v. United States

Docket Nº:1260, 1261, Dockets 95-6230, 95-6241.
Citation:89 F.3d 53
Party Name:Karen Kay WAKE, Plaintiff-Appellant, v. UNITED STATES of America; Sergeant Kenneth Jay Etringer, U.S.M.C.; Colonel E.A. Smyth, U.S.M.C., in both official and individual capacities; Commander Maynard Robinson, U.S.N., in both official and individual capacities; Colonel A.S. Weber, U.S.M.C., in both official and individual capacities; Lieutenant Timo
Case Date:July 09, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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89 F.3d 53 (2nd Cir. 1996)

Karen Kay WAKE, Plaintiff-Appellant,

v.

UNITED STATES of America; Sergeant Kenneth Jay Etringer,

U.S.M.C.; Colonel E.A. Smyth, U.S.M.C., in both official

and individual capacities; Commander Maynard Robinson,

U.S.N., in both official and individual capacities; Colonel

A.S. Weber, U.S.M.C., in both official and individual

capacities; Lieutenant Timothy B. Spratto, U.S.N., in both

official and individual capacities; and Other Unknown

Officers of the United States Navy, in both official and

individual capacities, Defendants-Appellees,

Norwich University, and Unknown Members of the Faculty of

Norwich University, in both official and

individual capacities, Defendants-Appellants.

Nos. 1260, 1261, Dockets 95-6230, 95-6241.

United States Court of Appeals, Second Circuit

July 9, 1996

Argued April 11, 1996.

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[Copyrighted Material Omitted]

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Jeffrey N. Gelfon, Roxbury, Vermont, for plaintiff-appellant.

Allan R. Keyes, Ryan Smith & Carbine, Ltd., Rutland, Vermont, for defendants-appellants.

Helen M. Toor, Assistant United States Attorney for District of Vermont, Burlington, Vermont (Charles R. Tetzlaff, United States Attorney for the District of Vermont, on the brief), for defendants-appellees.

Before: KEARSE and ALTIMARI, Circuit Judges, and MORAN, [*] District Judge.

ALTIMARI, Circuit Judge:

Plaintiff-appellant Karen Kay Wake ("Wake") appeals from a judgment of the United States District Court for the District of Vermont (Parker, C.J.), [**] dismissing all claims against the federal defendants-appellees--the United States, several members of the United States Navy and Marine Corps, and unknown officers of the United States Navy (the "federal defendants")--under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680. Wake sought damages from the federal defendants, as well as from Norwich University and members of the faculty of Norwich University (collectively "Norwich University"), under a combination of federal and state claims for injuries she suffered while a student at Norwich University and a member of the United States Navy Reserve Officers Training Corps (the "NROTC"). The district court granted the federal defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), dismissing all claims against them for lack of subject matter jurisdiction under the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (the "Feres doctrine"). In addition, defendants-appellants Norwich University appeal from a judgment of the United States District Court for the District of Vermont (Murtha, J.), (1) denying their motion to amend their answer and (2) granting federal defendants-appellees' motion for entry of partial judgment. For the reasons set forth below, we affirm.

BACKGROUND

This case arises from an automobile accident in which Wake sustained serious and permanent injuries while travelling as a passenger in a vehicle owned by the NROTC program at Norwich University and driven by defendant-appellee Marine Corps Sergeant Kenneth Jay Etringer ("Etringer"). At the time of the accident on February 20,

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1992, Wake was a third-year student and a member of the NROTC at Norwich University. While a member of the NROTC, Wake remained an enlisted, "inactive" member of the Navy Reserves, subject to reactivation in the event she withdrew from the NROTC. Wake was training to be an officer in the United States Navy.

The accident occurred on Interstate 89 in New Hampshire, as Wake and the other passengers were returning from the Naval Air Station in Brunswick, Maine, where she and other NROTC students had gone for a precommissioning physical examination. The physical examination was required to qualify as a flight navigator, a position Wake voluntarily sought.

For purposes of the trip, on February 5, 1992, Wake was issued a "Temporary Additional Duty Travel Order" by the Commanding Officer of the NROTC unit assigning her to temporary duty and authorizing her to travel to the military clinic in Brunswick, Maine. The order stated that the reason for travel was a "precommissioning physical" and served to detach Wake "from one duty station to another"--in this instance, from Norwich University to Brunswick Naval Air Station and back. The order itself explicitly stated that there would be no cost to the government in executing the order and no reimbursement to Wake for any expenses incurred in connection with the trip to Maine. On February 19, 1992, Wake travelled to Maine, and received the scheduled physical on the following day. On the return trip to Vermont, the accident in which Wake was seriously injured occurred.

Because of Wake's previous service in the Navy, the Department of Veterans Affairs ("VA") assigned Wake a 100% disability rating, resulting in monthly VA "service-connected compensation benefits" of $2,000 per month on January 5, 1993. The VA determined that the injury occurred "while on active duty for training status." Wake also receives free medical care from the VA.

In January 1993, Wake filed a claim for federal Workers' Compensation under the Federal Employee Compensation Act ("FECA"), 5 U.S.C. §§ 8101-8193. The Department of Labor awarded Wake workers' compensation for her injuries, pursuant to FECA, on the ground that she was injured in the line of duty. Wake later learned that her award of benefits under FECA barred her right to proceed with an FTCA claim due to FECA's exclusive remedy provisions, see 5 U.S.C. § 8116(c). Accordingly, Wake appealed the award of benefits under FECA, arguing that the benefits were improperly awarded under the circumstances. On June 3, 1994, the Department of Labor agreed with Wake and reversed its earlier decision awarding her FECA benefits. The Department concluded that Wake's travel for a physical did not constitute travel to or from training as required by statute. As a result, Wake was no longer barred from pursuing her FTCA claim.

On January 11, 1994, Wake commenced an action in the United States District Court for the District of Vermont against the United States, members of the United States Navy and Marines, Norwich University, unknown officers of the United States Navy, and members of the faculty of Norwich University under a combination of federal and state claims. For purposes of this action, there are two different groups of defendants: Norwich University and the federal defendants.

Count I alleged that Etringer, acting in his official capacity, drove the Navy vehicle in a negligent and reckless manner. Wake sought damages for Etringer's alleged negligence directly from the United States under the FTCA. Count II alleged that because the Navy sponsored the NROTC program jointly with Norwich University, Norwich University was negligent in failing to adequately train and supervise Etringer. Wake sought damages against Norwich University under Vermont law.

Counts III and IV alleged that Norwich University and the federal defendants violated Wake's constitutional right to due process under the Fifth Amendment pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and that they were negligent and breached their fiduciary duty to Wake in advising her how to pursue

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compensation for her injuries. Wake sought monetary damages of ten million dollars on each count, as well as certain injunctive relief, costs and attorney's fees.

On March 13, 1995, the district court dismissed all claims against the federal defendants on the authority of Feres. Wake's claims in Counts II, III, and IV, insofar as they implicate Norwich University and unknown members of the Norwich University faculty, remain pending in the district court. Norwich University moved to amend its answer principally to assert a cross-claim against the federal defendants on March 21, 1995, seeking indemnification for any vicarious liability imposed on the University as a result of Etringer's negligence. Thereafter, the federal defendants moved for entry of partial judgment pursuant to Fed.R.Civ.P. 54(b). On July 21, 1995, the district court denied the University's motion to amend its answer, but granted the federal defendants' motion for entry of partial judgment.

This appeal followed.

DISCUSSION

On appeal, Wake contends principally that the district court erred in granting the federal defendants' motion under Fed.R.Civ.P. 12(b)(6) and dismissing all claims for relief against the federal defendants under the FTCA for lack of subject matter jurisdiction under the Feres doctrine. In addition, Norwich University contends principally that the district court erred in denying its motion to amend its answer to assert an indemnification claim against the federal defendants.

As an initial matter, we believe that the proper vehicle for dismissing a Feres-barred FTCA claim is a dismissal for lack of subject-matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). The FTCA was intended as a partial waiver of sovereign immunity. Feres, 340 U.S. at 140, 71 S.Ct. at 156. " 'Absent a waiver, sovereign immunity shields the federal Government and its agencies from suit.... [Thus, s]overeign immunity is jurisdictional in nature.' " Dorking Genetics v. United States, 76 F.3d 1261, 1264 (2d Cir.1996) (quoting FDIC v. Meyer, 510 U.S. 471, ----, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994)). Because the Feres doctrine concerns the waiver of sovereign immunity, see Feres, 340 U.S. at 146, 71 S.Ct. at 159, a question of whether a FTCA claim is barred by Feres is necessarily one of jurisdiction. See Sanchez v. United States, 878 F.2d 633, 634 (2d Cir.1989) ("Sanchez III") (Feres dismissal for lack of jurisdiction). Accordingly, because of the importance of the jurisdictional issue, see Fed R. Civ. P. 12(h)(3), we will treat the Government's Rule 12(b)(6) motion as a...

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