Shoen v. US

• Decision Date: 23 March 1995
• Docket Number: No. 7:94-CV-110-D3.,7:94-CV-110-D3.
• Citation: 885 F. Supp. 827
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Shawn L. SHOEN, Plaintiff, v. UNITED STATES of America, Defendant.

885 F. Supp. 827

Shawn L. SHOEN, Plaintiff, v. UNITED STATES of America, Defendant.

No. 7:94-CV-110-D3.

United States District Court, E.D. North Carolina, Southern Division.

March 23, 1995.

John D. Warlick, Jr., Ellis, Hooper, Warlick, Morgan & Henry, Jacksonville, NC, for plaintiff.

Charles E. Hamilton, III, Asst. U.S. Atty., Raleigh, NC, for defendants.

MEMORANDUM OF DECISION

DUPREE, District Judge.

Plaintiff, Shawn L. Shoen, a former Lance Corporal with the United States Marine Corps (Corps) at Camp Lejeune, originally filed this action on November 1, 1993 in the Superior Court of Onslow County, North Carolina for injuries he sustained resulting from a motorcycle accident. Former Lance Corporals Steven Reddish and Bruce Pheasant were the driver and owner respectively of a vehicle involved in the collision. On October 20, 1994, the Attorney General, acting through the United States Attorney for the Eastern District of North Carolina, certified that Reddish and Pheasant were acting in the scope of their employment with the Corps at all relevant times. Consequently, the United States was substituted as the sole defendant pursuant to 28 U.S.C. § 2679(b)(1) and the action was removed to this court based on the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671-2680. The action is presently before the court on defendant's motion to dismiss under F.R.Civ.P. 12(b)(6) as being barred by the Feres doctrine.

Taken in the light most favorable to the plaintiff, the undisputed facts are as follows: On October 16, 1991, plaintiff, while traveling from his off-base housing to his unit located on the Camp Lejeune base, was struck by a vehicle driven by Reddish, a Marine stationed at Camp Lejeune. The collision occurred when the vehicle driven by Reddish suddenly crossed the center line of Sneads Ferry Road in Camp Lejeune and hit the 1990 Suzuki motorcycle driven by plaintiff which, at the time, was on the shoulder of the road. Plaintiff concedes that the "collision occurred on the base when he was approximately eight to ten miles away from his unit and approximately forty-five minutes before he was scheduled to report for duty." (Plaintiff's Memorandum at p. 2.) Plaintiff further concedes that Corporal Reddish was also on active duty with the Corps and was returning to his barracks to retrieve a weapon sling and a shooter's book at the time of the accident. Reddish had been given permission from his sergeant to retrieve these items.

The impact of the collision caused plaintiff to suffer severe permanent injuries which ultimately led to his discharge from the Corps. As a result, plaintiff initiated the present suit alleging negligence and infliction of severe emotional distress. The sole issue before the court is whether these claims based on the FTCA are barred by the Feres doctrine.

Although styled as a motion to dismiss under F.R.Civ.P. 12(b)(6), the defendant, in actuality, seeks dismissal of the action against them for want of subject matter jurisdiction. Because the applicability of the Feres doctrine directly relates to this court's subject matter jurisdiction under 28 U.S.C. § 1346(b), the better view is to treat the motion as one for dismissal under F.R.Civ.P. 12(b)(1). See Whitham v. United States, 765 F.Supp. 674, 676 (D.Kan.1991) (citing 10 C. Wright, A. Miller & Mary Kay Kane, Federal Practice and Procedure § 2713 (2d Ed.1983)). The court is under an obligation to dismiss the action if it appears that the court lacks subject matter jurisdiction. F.R.Civ.P. 12(h)(3). In any event, the court is convinced that the Feres doctrine applies here under either standard and, for the reasons to follow, will grant defendant's motion to dismiss.

With the promulgation of the expansive FTCA, the sovereign immunity once afforded the United States against actions for its wrongful conduct was abrogated. However, in 1950 the Supreme Court carved out an exception to claims against the United States based on "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). In that case, which was decided along with two companion cases, the Court stated that "the common fact underlying the three cases is that each claimant, while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces." Id. See also Hass v. United States, 518 F.2d 1138, 1140 (4th Cir. 1975) (holding that the "correct test is the relatively mechanical one derived from the Feres language"). This doctrine, which is now commonly known as the Feres doctrine, provides that service members are barred from recovering damages for injuries sustained "incident to service." United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 3042, 87 L.Ed.2d 38 (1985). Moreover, the "incident to service" rule enunciated in Feres has broad application. Oram v. Alsip, 39 F.3d 1192, 1994 WL 596853, *2 (10th Cir. 1994) (unpublished) (citing United States v. Johnson, 481 U.S. 681, 688-91, 107 S.Ct. 2063, 2067-69, 95 L.Ed.2d 648 (1987)); Wright v. Park, 5 F.3d 586, 590 (1st Cir.1993) (discussing wide scope of the rule); Appelhans v. United States, 877 F.2d 309, 310 (4th Cir.1989) (Supreme Court has sharply limited the ability of a serviceman to recover for injuries under the FTCA).

The Supreme Court has emphasized three rationales in establishing this doctrine: first, the distinctive federal nature of the relationship between the government and members of the armed forces; second, the availability of existing alternative compensation schemes for retirement and disability of service members; and third, the fear that allowing suits by service members against the United States may have a negative impact on the military discipline system. Feres, 340 U.S. at 144-45, 71 S.Ct. at 158-59. While the vitality of the first and second rationale have been questioned in the past, more recently the Supreme Court in Johnson, 481 U.S. 681, 107 S.Ct. 2063 (1987), reaffirmed the importance of all three. "It is not necessary, however, that all three rationale be present in support of a given instance of a service-related injury." Whitham, 765 F.Supp. at 676.

In determining whether certain injuries arise from activities incident to service, courts generally look to the three rationales stated above. In addition, a popular test has been developed for determining whether the activity of a serviceman is incident to military service. See Parker v. United States, 611 F.2d 1007, 1013 (5th Cir.1980), rehearing denied, 615 F.2d 919 (5th Cir.1980). The factors to be considered are: (1) the duty status of the service member; (2) the situs of the injury especially with vehicular collisions; and (3) the activity the service member was engaged in at the time of the injury. Id. Upon examining the totality of the circumstances and evaluating the relative weight of the factors combined, the court determines whether the activity was, in fact, incident to service. Id.

"Incident to Service" Factors

1. Duty Status

In addressing this first factor, courts have generally distinguished a serviceman's status between being on furlough or leave as compared to being released from one's duties for the day. Warner v. United States, 720 F.2d 837, 839 (5th Cir.1983). Typically, a service member injured while on furlough or leave has an action under the FTCA. Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949) (serviceman injured in vehicle collision while on furlough and off base was allowed to recover for injuries sustained). In contrast, however, one who is only off duty for the day is generally held to be acting incident to service. See Shaw v. United States, 854 F.2d 360, 363 (10th Cir.1988) (motor vehicle accident while returning to duty); Mason v. United States, 568 F.2d 1135 (5th Cir.1978) (motorcycle accident while returning home); Watkins v. United States, 462 F.Supp. 980 (S.D.Ga.1977) (motorcycle accident while leaving a recreational event on base), aff'd per curiam, 587 F.2d 279 (5th Cir.1979).

In the present case, plaintiff concedes that he was an active duty member of the Corps at the time of his injury. His normal workday was from 6:30 a.m. until 4:30 p.m. Although plaintiff argues that he was in a "liberty status" at the time of the accident, his military status prior to the accident more closely resembles one being released from duties for the day and not on furlough or leave. "The fact that plaintiff had been relieved of duty for the rest of the day does not mean that he was in off-duty status as were the servicemen in Brooks (furlough) or Parker (four-day leave)." Warner, 720 F.2d at 838. Cf. Downes v. United States, 249 F.Supp. 626 (E.D.N.C.1965) (serviceman's injuries resulting from automobile collision were not incident to service where he had received pass and was proceeding to his off-base residence for personal matters).

2. Situs of Injury

It is undisputed that the accident in question occurred on the Camp Lejeune military base approximately eight to ten miles from plaintiff's unit. (Plaintiff's Opposition Brief p. 2.) While the situs of the injury may not be determinative, when an injury occurs on a military base "it is more likely that it was the result of activity incident to military service." Parker, 611 F.2d at 1014.

3. Activity of Serviceman

It is also undisputed that at the time of plaintiffs injury, he was reporting to his military unit. Plaintiff cannot seriously contest the fact that he was under the compulsion of military orders in reporting to an assigned duty station with his Second Assault Amphibious Battalion at a scheduled time. More importantly, his failure to report to this unit in a timely manner would certainly subject him to military discipline. "The fact that plaintiff was on the base and on his way to work was directly connected to plaintiff's military service and the...