Brown v. U.S., 97-1864

• Citation: 151 F.3d 800
• Decision Date: 07 October 1998
• Docket Number: No. 97-1864,97-1864
• Parties: Jonathan BROWN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 800

151 F.3d 800

Jonathan BROWN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 97-1864.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 19, 1997.

Decided Aug. 4, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 7, 1998.

Michael R. Dunbar, Waynesville, MO, argued (Tyce S. Smith, Sr., on the brief), for plaintiff-appellant.

Alleen S. VanBebber, U.S. Atty., Kansas City, MO, argued, for defendant-appellee.

Before FAGG and HANSEN, Circuit Judges, and PIERSOL, ¹ District Judge.

HANSEN, Circuit Judge.

Jonathan Brown appeals the dismissal of his medical negligence action against the United States of America. The district court ² dismissed his suit for failure to state a claim on which relief could be granted, see Fed.R.Civ.P. 12(b)(6), and this appeal followed. Because Brown's injury was sustained incident to military service, Brown's suit falls outside the Federal Tort Claims Act (FTCA). The district court therefore lacked subject matter jurisdiction over this action, and dismissal was appropriate. See Fed.R.Civ.P. 12(b)(1). Accordingly, we affirm.

I.

When this action accrued, Brown was a cadet in the United States Army Reserve Officers' Training Corps (ROTC) at the University of Missouri-Columbia. Brown did not receive an ROTC scholarship, but he did receive financial assistance ($5,000 per year) and a stipend ($100 per month) through his participation in the Department of the Army Scientific and Engineering ROTC Co-op Program. Brown also was enrolled in the United States Army's Senior ROTC advanced training program, through which he hoped to earn a commission as a second lieutenant in the United States Army upon his graduation from college. See 10 U.S.C. § 2106(a) (1994). Before he could enroll in the Senior ROTC advanced training program, Brown was required to enlist in a reserve component of the armed forces, swear an oath of loyalty, and bind himself to serve a term in the United States Army upon graduation. 10 U.S.C. § 2104(b). If for any reason he was disenrolled from the ROTC, Brown would be released to the control of his reserve unit. (See Appellant's App. at 66.) Brown agreed that if he breached his ROTC contract, the Secretary of the Army could immediately order him to perform 24 months of active service as an enlisted man, and that failure to honor his service obligations, whether as an officer or as an enlisted soldier, would subject him to disciplinary action under the Uniform Code of Military Justice. (Appellant's App. at 36.)

As a member of the advanced training program, Brown was required periodically to take and pass an Army Physical Fitness Test or risk disenrollment and an assignment to immediate active duty as an enlisted soldier. See 10 U.S.C. § 2105; Appellant's App. at 36. During one such test, taken with his ROTC unit, Brown experienced pain in his right hip. Despite the discomfort, Brown managed to complete and pass the test. During ROTC training exercises the next day, however, Brown again complained of pain in his right hip, and he was excused with instructions to report to a nearby civilian hospital to have it examined. There doctors diagnosed Brown with a muscle strain in his right quadriceps. When Brown returned the next day with a swollen thigh, he was again examined, and doctors then discovered that Brown had fractured his right femur.

Brown requested a transfer to the General Leonard Wood Army Community Hospital (Wood Hospital) at Fort Leonard Wood, Missouri, where Brown was entitled to medical care as the dependent of a retired United States Army member. Brown eventually underwent two orthopedic surgeries at Wood Hospital and a third at Fitzsimmons Army Medical Center in Aurora, Colorado.

As a result of his injury, Brown failed to complete the Senior ROTC advanced training program and was forced to take a leave of absence from the ROTC. As a result, he lost his stipend and his financial assistance. Brown's ROTC unit helped him apply for benefits under the Federal Employees' Compensation Act (FECA), which allows federal employees to petition the Department of Labor for the equivalent of workers' compensation. See 5 U.S.C. § 8101-8193. This application met with success, and Brown began receiving FECA benefits. Because Brown's injuries appeared to be both permanent and the result of service-related activities, the Office of Workers' Compensations Programs informed Brown that he should make a claim for benefits from the Department of Veterans Affairs (the VA). ³ Brown did so, and his application to the VA ultimately met with success. On April 1, 1991, Brown began receiving $1,620 per month from the VA for permanent disabilities resulting from service-connected activities. At this time, Brown ceased receiving FECA payments, because the Department of Labor does not pay FECA benefits where VA benefits have been awarded. ⁴

On February 2, 1996, Brown filed this action against the United States government, alleging that his permanent disability is the direct and proximate result of the negligence of Wayne E. Janda, M.D., a United States Army surgeon. The United States moved to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For reasons not explained in the record, the district court treated this motion as one to dismiss for failure to state a claim on which relief could be granted, see Fed.R.Civ.P. 12(b)(6), and dismissed Brown's action on this basis. Brown appeals.

II.

A. The Federal Tort Claims Act and the Feres Doctrine

The FTCA represents the federal government's waiver of sovereign immunity as to claims for money damages for injuries caused by the torts of government employees acting within the scope of their employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b), see also 28 U.S.C. § 2674. This general waiver is subject to various exceptions. See id. § 2680.

At issue in this case is the Feres doctrine, an exception to the FTCA's waiver of sovereign immunity which the Supreme Court carved out in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In Feres, the Court held that notwithstanding the FTCA, the United States remains immune from suits "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. 153. An injury is considered "incident to service" if it arises "because of his military relationship with the Government." United States v. Johnson, 481 U.S. 681, 689, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987). Where injuries are incurred incident to service, dismissal is required. Miller v. United States, 643 F.2d 481, 491 (8th Cir.1980) (en banc).

B. The Jurisdictional Nature of the Feres Doctrine

For reasons not stated in its opinion, the district court converted the United States' motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) into a motion to dismiss for failure to state a claim under Rule 12(b)(6). This was procedurally incorrect. Sovereign immunity is a jurisdictional doctrine, and the terms of the United States' "consent to be sued in any court define that court's jurisdiction to entertain the suit." FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (internal quotations omitted). The Feres doctrine, which limits the scope of the FTCA's waiver of sovereign immunity, is likewise jurisdictional. See, e.g., Selbe v. United States, 130 F.3d 1265, 1266 (7th Cir.1997); Wake v. United States, 89 F.3d 53, 57 (2d Cir.1996) ("a question of whether an FTCA claim is barred by Feres is necessarily one of jurisdiction"). Because the sole issue decided by the district court was whether or not the Feres doctrine bars this action--a jurisdictional question--the district court should have viewed the motion as a 12(b)(1) motion for dismissal for want of subject matter jurisdiction. See Wake, 89 F.3d at 53. Because there are no disputed facts which are material to the jurisdictional issue, we review de novo. Drevlow v. Lutheran Church, 991 F.2d 468, 470 (8th Cir.1993).

C. The Application of the Feres Doctrine to Members of the Senior ROTC Advanced Training Program

In Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), the Supreme Court explained that three rationales undergird the Feres doctrine. These rationales focus respectively on (1) the distinctly federal relationship between service members and the government, (2) the existence of the Veterans' Benefits Act's no-fault military compensation scheme for service members, and (3) the negative effect on military discipline which second-guessing military orders might produce. Id. at 671-72, 97 S.Ct. 2054. In its last major Feres doctrine case, the Court reaffirmed the importance of these three factors. See Johnson, 481 U.S. at 688-91, 107 S.Ct. 2063.

All three rationales are implicated by Brown's suit, but the second is the most salient. In denying servicemen the right to sue the government for injuries incurred "incident to service," the Court in Feres relied heavily on the fact that the VA provides a "simple, certain, and uniform" compensation system for such injuries which is neither "niggardly" nor "negligible." 340 U.S. at 144, 145, 71 S.Ct. 153. The Court reasoned that had Congress intended the FTCA to allow tort suits where VA benefits for service-connected disabling injuries are available, it would have enacted a provision adjusting these two types of remedy to each other. Id. at 144, 71 S.Ct. 153. The Supreme Court expanded on this analysis in Stencel Aero Eng'g, writing:

A compensation scheme such as the Veterans' Benefits Act serves a dual purpose: it not only provides a swift, efficient remedy for the injured serviceman, but it...