Schnitzer v. Harvey, 03-5270.

• Decision Date: 23 November 2004
• Docket Number: No. 03-5270.,03-5270.
• Citation: 389 F.3d 200
• Parties: Jeffrey S. SCHNITZER, Appellant, v. Francis J. HARVEY, Secretary of the Army, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

389 F.3d 200

Jeffrey S. SCHNITZER, Appellant, v. Francis J. HARVEY, Secretary of the Army, Appellee.

No. 03-5270.

United States Court of Appeals, District of Columbia Circuit.

Argued September 14, 2004.

Decided November 23, 2004.

Appeal from the United States District Court for the District of Columbia (No. 02cv01755).

David P. Sheldon argued the cause for the appellant.

R. Craig Lawrence, Assistant United States Attorney, argued the cause for the appellee. Kenneth L. Wainstein, United States Attorney, and Michael J. Ryan and Gary Corn, Assistant United States Attorneys were on brief.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Jeffrey Schnitzer appeals the district court's dismissal of his tort claim against the United States. Schnitzer was injured while serving a 29-year sentence at the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas, following his court-martial convictions for, inter alia, kidnapping, rape and attempted murder. See United States v. Schnitzer, 44 M.J. 380 (U.S.A.F.1996). The complaint sought damages for the Army's allegedly negligent maintenance of the USDB facility. The district court found the claim barred by the Feres doctrine and dismissed for lack of subject-matter jurisdiction. We affirm.

I. Background

Schnitzer was injured on May 24, 1997 when a portion of a ceiling at the USDB collapsed on him. His injury occurred on a Saturday while Schnitzer was watching television in an inmate common area. Schnitzer alleges that the collapse caused permanent injuries, including headaches, nausea, vision problems, a loss of manual dexterity and chronic pain. At the time he was injured, Schnitzer remained an active duty member of the U.S. Army.

Schnitzer brought a suit for damages in federal district court under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671 et seq. The government defended by asserting the Feres doctrine, which prohibits tort claims by members of the military against the U.S. government for injuries suffered "incident to service." See Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The district court, applying the "incident to service" test set forth in Verma v. U.S., 19 F.3d 646, 648 (D.C.Cir.1994), found that Schnitzer's injuries occurred incident to his primary military duty of confinement and thus were barred by Feres. Schnitzer then timely filed this appeal.

II. Analysis

A motion to dismiss under the Feres doctrine is treated as a motion to dismiss for lack of subject-matter jurisdiction. See Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996); Jones v. United States, 112 F.3d 299, 301 (7th Cir.1997); Walden v. Bartlett, 840 F.2d 771, 772-73 (10th Cir.1988). In reviewing the grant of a motion to dismiss for lack of subject-matter jurisdiction, we accept the facts alleged by the plaintiff as true; our review of issues of law is de novo. Cummings v. Dep't of Navy, 279 F.3d 1051, 1053 (D.C.Cir.2002).

The FTCA effects a broad waiver of sovereign immunity from lawsuits for money damages. The FTCA permits suits "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). This broad language is curtailed by several statutory exceptions, including one that precludes FTCA suits "arising out of the combatant activities of the military ... during time of war." Id. at § 2860(j). The United States Supreme Court carved out an additional exception in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), holding 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." Id. at 146, 71 S.Ct. at 159. The Supreme Court reaffirmed this holding as recently as United States v. Johnson, 481 U.S. 681, 687-88, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987).

Lower courts have interpreted the pivotal language of Feres, "incident to service," broadly. See, e.g., Ricks v. Nickels, 295 F.3d 1124, 1128 (10th Cir.2002) ("Practically any suit that implicates the military's judgments and decisions runs the risk of colliding with Feres." (internal quotation marks omitted; emphasis in original)); see also Major v. United States, 835 F.2d 641, 644 (6th Cir.1987) (Feres applies "at a minimum, [to] all injuries suffered by military personnel that are even remotely related to the individual's status as a member of the military" (emphases in original)).

In determining whether a particular claim is Feres-barred, this court applies the three-part "incident to service" test discussed in Verma v. United States, 19 F.3d 646, 648 (D.C.Cir.1994) (per curiam). We use three factors — the injured service member's duty status, the site of the injury and the nature of the activity engaged in by the service member at the time of his injury — to determine whether a member of the military may bring a claim against the government under the FTCA. Id. at 648, 19 F.3d 646. Our approach is consistent with that of several other circuits. See, e.g., Richards v. United States, 176 F.3d 652, 655 (3rd Cir.1999); Speigner v. Alexander, 248 F.3d 1292, 1298 (11th Cir.2001); Kelly v. Panama Canal Comm'n, 26 F.3d 597, 600 (5th Cir.1994). None of the three factors is itself dispositive; each contributes to our assessment of the totality of the circumstances in determining whether the injury is properly understood as "incident to service" within the meaning of Feres. See Richards, 176 F.3d at 655 (employing "totality of the circumstances" approach); see also Kelly, 26 F.3d at 600 (same).

Our Circuit has never reached the issue of whether and how the Feres doctrine applies to military prisoners. Every circuit to consider the issue, however, has found the doctrine to apply without modification. See Shaw v. United States, 448 F.2d 1240 (4th Cir.1971) (finding "no meaningful distinction" between military prisoners and other service members under Feres); see also Dexheimer v. United States, 608 F.2d 765 (9th Cir.1979) (applying Feres to military prisoner); Walden v. Bartlett, 840 F.2d 771 (10th Cir.1988) (same). The Tenth Circuit, in which the USDB is located, has resolved several cases involving military prisoners. It has established a rule that "incarceration at the USDB is uniquely part of [a] military relationship such that it is `incident' to ... military service as established by Feres." Walden, 840 F.2d at 774. Accordingly, "being a military prisoner does not preclude a finding that plaintiff's status was that of a military service member, but instead is evidence of such status." Sargent v. United States, 897 F.Supp. 524, 525-26 (D.Kan.1995).

Our sister circuits' precedent, while not binding, is "persuasive authority that should not be completely ignored." Kreuzer v. Am. Acad. of Periodontology, 735 F.2d 1479, 1490 n. 17 (D.C.Cir.1984). The uniformity of precedent among the other circuits is significant. In addition, Schnitzer himself does not contest the general relevance of the Feres doctrine to military prisoners but instead alleges that the district court misapplied the Verma test in dismissing his case. Discerning no reason that military prisoners should not be subject to the same legal standards as non-incarcerated personnel, we adopt the approach of our sister circuits and apply the Verma test without modification to military prisoners.

The first two elements of the Verma test are not in dispute. First, Schnitzer conceded below that he was on active duty status at the time his injury occurred. Second, his injury occurred within a military facility. Each of these facts supports a finding that Schnitzer's injury was incident to his military service. Thus, the viability of Schnitzer's claim depends entirely upon Verma's third prong — the nature of his activity at the time of his injury.

Schnitzer argues that, regardless of the Army regulations, his activity of watching television was purely personal, analogous to the personal activities of non-incarcerated military personnel. We are unpersuaded by this argument. First, a service member determined to be engaged in personal activity under Feres is ordinarily off-duty.¹ See, e.g., Ordahl v. United States, 601 F.Supp. 96, 100 (D.Mont.1985) (claim of plaintiff socializing in his on-base apartment injured by fellow airman while "off-duty" not barred by Feres); Johnson v. United States, 704 F.2d 1431, 1439-40 (9th Cir.1983) (claim of "off-duty" plaintiff "not under military control" not barred by Feres); cf. Hodge v. Dalton, 107 F.3d 705, 711 (9th Cir.1997) (claim barred because plaintiff "subject to direct military control and discipline"). A military prisoner, however, is always subject to direct control and is on-duty except in extremely limited circumstances. Under Army Regulation (AR) 190-47 § 12-2 (Aug. 15, 1996), "[a] prisoner is considered in an on-duty status except for periods of mandatory sleep and meals, and during reasonable periods of voluntary religious observations." Thus, Schnitzer was on-duty while he was watching television. Second, his assertion that recreational activity furthers no military purpose is belied by AR 190-47 § 5-9 which includes a military prisoner's recreational and leisure time as part of the Army's plan to enhance his welfare.² Recreational activity serves the military purpose of assisting "to develop productive attitudes and enhanced living skills among post-trial prisoners." Id. at § 5-1.

Schnitzer further argues that the district court conflated the duty status inquiry with the "activity" prong of the Verma test. As other courts have held, the proper inquiry regarding duty status is whether a service member is on active duty status or is discharged or...