Pringle v. U.S.A.

Decision Date05 April 2000
Docket NumberNo. 99-3139,99-3139
Citation208 F.3d 1220
Parties(10th Cir. 2000) JULIUS PRINGLE, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee
CourtU.S. Court of Appeals — Tenth Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 98-CV-1085-B)

Steven Hornbaker of Harper, Hornbaker, Altenhofen & Opat, Chartered, Junction City, Kansas, for Plaintiff-Appellant.

David W. Ogden, Acting Assistant Attorney General; Jackie N. Williams, United States Attorney; Robert S. Greenspan and Daniel L. Kaplan, Attorneys, Appellate Staff, Washington, D.C., for Defendant-Appellee.

Before BALDOCK, HENRY, and MURPHY, Circuit Judges.

PER CURIAM.

Plaintiff-appellant Julius Pringle appeals from the district court's order dismissing his complaint brought pursuant to the Federal Tort Claims Act, 28 U.S.C. 2671-80 (FTCA). The district court determined that it lacked jurisdiction under the rule in Feres v. United States, 340 U.S. 135 (1950). We agree and affirm.1

1. Relevant Facts

At the time of the events giving rise to his complaint, appellant was on active duty in the United States Army. He was seriously injured while on the premises of Club Troopers, a club located on the Fort Riley Military Reservation. Club Troopers is operated by the United States out of non-allocated funds as part of its Morale, Welfare and Recreation (MWR) system. Civilians as well as military personnel are allowed on the premises, and Club Troopers employs military personnel as bartenders and bouncers.

Appellant alleges that while he was in Club Troopers on September 17, 1995, he had "words" with members of a Junction City, Kansas gang, and club employees intervened. They later ejected appellant from the club into the parking lot among gang members involved in the earlier altercation. There, he was severely beaten by the gang members, causing him permanent brain damage and other physical injuries.

In his complaint, appellant claimed the club employees negligently ejected him from the club and failed to provide him with adequate safety. He also maintained that the club had a reputation for violence and that the United States failed to take protective measures to ensure the safety of club patrons.

2. Standard of Review

We begin by considering the procedural posture of this case. In granting the motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), the district court considered materials outside the pleadings and made factual findings.

When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's references to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

However, a court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case. The jurisdictional question is intertwined with the merits of the case if subject matter jurisdiction is dependent on the same statute which provides the substantive claim in the case.

Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citations omitted).

In treating the motion as one to dismiss rather than for summary judgment, the district court determined that the jurisdictional question was not intertwined with the merits of the case. It reasoned that since the outcome of the jurisdictional issue depended on Feres, a judicially-created doctrine and not a provision of the FTCA, it was not intertwined with merits issues arising under the FTCA, the statute which creates the claim. See Pringle v. United States, 44 F. Supp. 2d 1168, 1169 (D. Kan. 1999).

Although Feres is judge-made law, in deriving the rule the Supreme Court stated that its task was one of statutory construction of the FTCA. See Feres, 340 U.S. at 138 ("There are few guiding materials for our task of statutory construction."). The fact that Feres was promulgated by a court, rather than enacted as part of the FTCA, is therefore not dispositive of the conversion issue.

The district court relied on language in Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1987), stating that the court examines whether the jurisdictional issue arises from the same statute that provides the substantive claim. Under Wheeler, however, the focus of the inquiry is not merely on whether the merits and the jurisdictional issue arise under the same statute. Rather, the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim. Wheeler, 825 F.2d at 259; see also generally 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1350, at 235 (1990).2

We have stated, in a number of cases involving the discretionary function exception to the FTCA, that "the determination of whether the FTCA excepts the government's actions from its waiver of sovereign immunity involves both jurisdictional and merits issues." Bell v. United States, 127 F.3d 1226, 1228 (10th Cir. 1997) (quotation omitted). The Feres doctrine, which also determines whether the FTCA acts to except the government's actions from its waiver of sovereign immunity, likewise implicates merits issues.

Accordingly, this case should have been decided on summary judgment rather than as a 12(b)(1) motion to dismiss.3 We will therefore exercise our plenary power to treat the government's motion to dismiss as a motion for summary judgment. See Bell, 127 F.3d at 1228. Our summary judgment standard of review requires us to determine de novo whether there is any genuine disputed issue of material fact and whether the prevailing party was entitled to judgment as a matter of law. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998).

3. The Feres Doctrine

As mentioned, Feres is a judicially-created exception to the FTCA's waiver of sovereign immunity barring FTCA claims when they are brought "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146. The doctrine rests on three basic grounds: "(1) the distinctly federal nature of the relationship between the government and members of its armed forces; (2) the availability of alternative compensation systems; and (3) the fear of damaging the military disciplinary structure." Madsen v. United States ex rel. United States Army Corps of Engineers, 841 F.2d 1011, 1013 (10th Cir. 1987) (quotation omitted).

In recent years, the Supreme Court has broadened Feres, to the point where it now "encompass[es], at a minimum, all injuries suffered by military personnel that are even remotely related to the individual's status as a member of the military." Persons v. United States, 925 F.2d 292, 296 n.7 (9th Cir. 1991) (quotation omitted); see also Shaw v. United States, 854 F.2d 360, 364 (10th Cir. 1988).

[C]ourts applying the Feres doctrine have given a broad reach to Feres' "incident to service" test and have barred recovery by members of the armed services for injuries that at first blush may not have appeared to be closely related to their military service or status. Practically any suit that implicates the military['s] judgments and decisions runs the risk of colliding with Feres.

Dreier v. United States, 106 F.3d 844, 848 (9th Cir. 1997) (quotations omitted; emphasis added).

In applying Feres, we are mindful that the doctrine "cannot be reduced to a few bright-line rules; each case must be examined in light of the statute as it has been construed in Feres and subsequent cases." United States v. Shearer, 473 U.S. 52, 57 (1985). The Ninth Circuit has established guidelines for the application of Feres, however, that we find useful to our analysis. That circuit looks to four factors to determine whether an activity is incident to military service:

(1) the place where the negligent act occurred;

(2) the duty status of the plaintiff when the negligent act occurred;

(3) the benefits accruing to the plaintiff because of his status as a service member; and

(4) the nature of the plaintiff's activities at the time the negligent act occurred.

Dreier, 106 F.3d at 848.

In order to apply these four factors properly in this case, we begin by examining prior cases that are factually analogous to the present case. See id. at 849. As the district court noted, most Tenth Circuit cases dealing with the issue of whether injuries were "incident to service" are not particularly close to this fact pattern or helpful to our analysis. There is one recent unpublished case from this circuit which bears on this issue, however.

In Corey v. United States, No. 96-6409, 1997 WL 474521 (10th Cir. Aug. 20, 1997) (unpublished), the plaintiff was a former member of the United States Air Force who attended a party at Incirlik Air Base in Turkey. During the party, an Air Force colonel became intoxicated and assaulted her by grabbing her buttocks. The plaintiff's complaint charged that the Air Force had established a system which discouraged complaints against its senior officers, and that it had failed to adequately supervise, train, investigate and discipline its members regarding sexual harassment. We affirmed the district court's dismissal of the complaint pursuant to Feres:

Ms. Corey's participation in the party at which her injuries occurred was a consequence of her military status. The party occurred on base and was organized and attended by military members. Those participating in the partyincluding Ms. Corey and the individual defendantswere subject to military discipline and control. Thus, we believe the injuries suffered by Ms. Corey were at least "remotely...

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