Pringle v. U.S.

Decision Date08 April 1999
Docket NumberNo. Civ.A. 98-1085-MLB.,Civ.A. 98-1085-MLB.
Citation44 F.Supp.2d 1168
PartiesJulius PRINGLE, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Kansas

Paul F Elkin, U.S. Department of Justice, Civil Division, James F. McConnon, Special Attorney, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, for defendant.

Steven L. Hornbaker, Harper, Hornbaker, Altenhofen & Opat, Junction City, KS, for plaintiff.


BELOT, District Judge.

This matter is before the court pursuant to the government's motion to dismiss (Doc. 6) for lack of subject matter jurisdiction plaintiff's suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-80. The government argues the suit is barred by sovereign immunity pursuant to the Feres1 doctrine. In determining whether there is subject matter jurisdiction, the court considers all relevant documents including the government's motion and supporting memorandum (Doc. 6), plaintiff's response (Doc. 12 and 15), the government's reply (Doc. 19) and the parties' supplemental briefs (Doc. 29, 30 and 31).

There are some preliminary matters that need to be addressed in this case. First, plaintiff filed a motion for oral argument (Doc. 13) in relation to the government's motion. Requests for oral argument are granted only at the discretion of the court. See D.Kan.Rule 7.2. Oral argument on the motion would not aid the court in its disposition of the matter; thus, the motion is denied. Second, plaintiff also filed a motion (Doc. 14) requesting additional time to complete discovery on matters material to the court's jurisdiction. However, the motion was abandoned in a March 31, 1999 telephone conference call with the parties' attorneys.

Finally, a potential procedural error created by the court's February 12, 1999 memorandum and order (Doc. 28) must be corrected. In that order, the court informed the parties that the government's motion would be treated as a Rule 56 motion for summary judgment because both jurisdictional and merits issued were intertwined in determining whether the government's actions were excepted from the FTCA's waiver of sovereign immunity. Upon further review of the issue, however, the court concludes conversion would be improper.

Jurisdictional and merits issues are considered intertwined "[w]hen subject matter jurisdiction is dependent upon the same statute which provides the substantive claim in the case." Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987). In Bell v. United States, 127 F.3d 1226 (10th Cir. 1997), and Redmon v. United States, 934 F.2d 1151 (10th Cir.1991), the authority relied upon in the previous order, subject matter jurisdiction depended upon the discretionary function exception to the FTCA which is codified at 28 U.S.C. § 2680(a). In this matter, jurisdiction depends upon the Feres doctrine, a judicially created exception to the FTCA's waiver of sovereign immunity. Therefore, it would be improper for the court to treat the government's motion as one for summary judgment because jurisdiction is not dependent upon the FTCA; it is dependent upon whether Feres applies. See, e.g., Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995) (stating conversion was improper because resolution of the jurisdictional issue did not depend on the FTCA); Atkinson v. United States, 825 F.2d 202, 204 n. 2 (9th Cir.1987) (recognizing proper disposition when Feres applies is to dismiss for lack of subject matter jurisdiction, not grant summary judgment). For this reason, the court disposes of the government's motion as one under Rule 12(b)(1).


This action involves a claim for damages against the government for injuries plaintiff received at the Troopers Club (the "club") located on Fort Riley Military Reservation ("Fort Riley"). At all relevant times, plaintiff was a Private First Class on active duty in the United States Army and stationed at Fort Riley. (Doc. 6, Ex. B, line 22); see also 10 U.S.C. § 101(d)(1) ("active duty means full-time duty in the active military service of the United States"). The club is a nonappropriated fund instrumentality established and maintained "solely" under the Army's Morale Welfare, and Recreation ("MWR") System. See Army Regulations ("AR") 215-1 at §§ 1-1 and 1-4. The club is categorized as a "Business Activity" under Army regulations and is "considered less essential from the perspective of the military mission, but still highly desirable as a means of providing recreational activity, with the attendant morale benefit." AR 215-1 at § 2-12.

Plaintiff alleges he was in the club on September 17, 1995 when he had "words" with members of a Junction City, Kansas gang. Apparently, civilians are permitted to patronize the club without any limitations. (Doc. 1 at ¶ 7). Club employees intervened in the fray, and at some point following, ejected plaintiff from the club into the club parking lot among gang members with whom he previously had words. Thereafter, he claims the group beat and kicked him causing permanent brain damage and other physical injuries.

Following his injuries, plaintiff received many months of treatment at military medical facilities but was unable to fully recover from his injuries. (Doc. 6, Ex. E, "Medical Evaluation Board" report). On January 26, 1998 an Army Physical Evaluation Board determined he was 40% permanently disabled and recommended permanent retirement. (Doc. 6, Ex. F, "Physical Evaluation Board (PEB) Proceedings"). Plaintiff concurred with the board's finding, see id., and was relieved from active duty on March 11, 1998 with military retirement pay based on a 40% disability, doc. 6, Ex. G.

Plaintiff claims club employees negligently ejected him from the club and failed to provide him adequate safety. In addition, he maintains the club had a reputation for violence, and the government failed to take protective measures to ensure the safety of club patrons from violent incidents such as those that occurred to him. Consequently, he seeks monetary damages pursuant to the FTCA for the alleged breach of this duty. As required by 28 U.S.C. § 2675(a), plaintiff filed a notice of his claim with the Department of the Army which was denied. Following the denial, plaintiff filed this suit seeking to invoke the court's jurisdiction under the jurisdictional component of the FTCA, 28 U.S.C. § 1346(b).


Federal courts are courts of limited jurisdiction empowered by the Constitution only to hear cases authorized under a jurisdictional grant by Congress. See Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994). Congress's power to confer or withhold federal court jurisdiction is plenary. See id. "The party seeking to invoke the jurisdiction of a federal court must prove that the case is within the court's subject matter jurisdiction." Id. at 512. When the court's jurisdiction is challenged, the plaintiff bears the burden of showing a basis for the court's subject matter jurisdiction. See Whayne v. City of Topeka, 959 F.Supp. 1370, 1371 (D.Kan.1997).

In general, Rule 12(b)(1) motions take two forms: 1) a facial attack on the sufficiency of subject matter jurisdiction allegations contained in the complaint; and 2) a challenge to the facts upon which subject matter jurisdiction depends. See Holt v. United States, 46 F.3d at 1002-03. The current motion falls within the second category because the government claims the facts surrounding plaintiff's FTCA suit implicate the Feres doctrine which, if applicable, bars federal court jurisdiction on the basis of sovereign immunity.

In a factual attack on subject matter jurisdiction, "a district court may not presume the truthfulness of the complaint's factual allegations ... and has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. at 1003. Doing so does not require the court to convert the motion to a Rule 56 motion for summary judgment. See id. When, as in this case, a court resolves a motion to dismiss for lack of subject matter jurisdiction without an evidentiary hearing, the plaintiff is only required to make a prima facie showing of subject matter jurisdiction. See Federal Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir.1992). However, to the extent that facts outside the complaint have been considered, all disputes have been resolved in favor of plaintiff.


In Feres, the Supreme Court held "that service members cannot bring tort suits against the Government for injuries that `arise out of or are in the course of activity incident to service.'" United States v. Johnson, 481 U.S. 681, 686, 107 S.Ct. 2063, 2066, 95 L.Ed.2d 648 (1987) (quoting Feres, 340 U.S. at 146, 71 S.Ct. at 159). This judicially created exception to service members' FTCA suits is generally referred to as the Feres doctrine. See Shaw v. United States, 854 F.2d 360, 362 (10th Cir.1988). "[T]he Feres doctrine has been applied consistently to bar all suits on behalf of service members against the Government based upon service-related injuries." Johnson, 481 U.S. at 687, 107 S.Ct. at 2067. The issue involved in this case is whether plaintiff's injuries arose out of activity incident to his service. If so, the Feres doctrine applies, and the court is barred from exercising subject matter jurisdiction over plaintiff's FTCA suit.


The Supreme Court has never specifically defined the "incident to service" test. Rather, the Court focuses on three underlying rationales which support the Feres doctrine to determine its applicability.2 The first is that "[t]he relationship between the Government and members of its armed forces is `distinctly federal in character.'" Id. at 689, 107 S.Ct. 2063 (quoting Feres, 340 U.S. at 143, 71 S.Ct. at 158) (brackets in original). The nature of military service...

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  • Pringle v. U.S.A.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 5, 2000 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 c......

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