Miller v. U.S.

• Decision Date: 13 January 1995
• Docket Number: No. 93-3774,93-3774
• Citation: 42 F.3d 297
• Parties: Leonce J. MILLER, III, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 297

42 F.3d 297

1995 A.M.C. 1815

Leonce J. MILLER, III, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 93-3774.

United States Court of Appeals, Fifth Circuit.

Jan. 13, 1995.

R. Keith Jarrett, Carol L. Welborn, Liskow & Lewis, New Orleans, LA, for appellant.

Robert J. Boitmann, U.S. Atty., New Orleans, LA, Matthew A. Connelly, William T. Storz, David V. Hutchinson, Dept. of Justice, Torts Branch, Washington, DC, for appellee.

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 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 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. Secs. 1346(a), 2671-80 (the FTCA); the Suits in Admiralty Act, 46 U.S.C.App. Secs. 741-752; and the Public Vessels Act, 46 U.S.C.App. Secs. 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 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. Sec. 971(b).

The Government, on the other hand, argues that the sail 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. Sec. 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. Sec. 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 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.

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,...