Schnitzer, Jeffrey v. White, Thomas E.

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2004 Decided November 23, 2004

No. 03-5270

JEFFREY S. SCHNITZER,

APPELLANT

v.

THOMAS E. WHITE, SECRETARY OF THE ARMY,

APPELLEE

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, ar-

gued the cause for the appellee. Kenneth L. Wainstein,

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

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 Schnit-

zer appeals the district court’s dismissal of his tort claim

against the United States. Schnitzer was injured while serv-

ing a 29–year sentence at the United States Disciplinary

Barracks (USDB), Fort Leavenworth, Kansas, following his

court-martial convictions for kidnapping, rape and murder.

See United States v. Schnitzer, 44 M.J. 380 (C.A.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, vi-

sion 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 (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.

3

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 TTT 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 (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. The Supreme Court reaf-

firmed this holding as recently as United States v. Johnson,

481 U.S. 681, 687–88 (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 deci-

sions runs the risk of colliding with Feres.’’ (internal quota-

tion 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

4

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. 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 assess-

ment 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 distinc-

tion’’ 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 TTT 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 ‘‘persua-

sive authority that should not be completely ignored.’’

Kreuzer v. Am. Acad. of Periodontology, 735 F.2d 1479, 1490

5

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 sup-

ports 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, analo-

gous 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 activi-

ty under Feres is ordinarily off-duty.1 See, e.g., Ordahl v.

United States, 601 F. Supp. 96, 100 (D. Mont. 1985) (claim of

1 In one of the cases Schnitzer relies on, Hall v. United States,

130 F. Supp.2d 825 (D. Miss 2000), the injured service member was

asleep at the time of his injury — a circumstance in which even a

military prisoner is deemed to be off-duty. See Army Regulation

(AR) 190–47 § 12–2. And even when a soldier was off-duty when

injured, Feres has barred recovery if the injury occurred during

military-sponsored leisure activities. See, e.g., Costo v. United

States, 248 F.3d 863 (9th Cir. 2001) (claim barred for wrongful

death resulting from Navy-sponsored recreational whitewater raft-

ing trip); Bon v. United States, 802 F.2d 1092 (9th Cir. 1986) (claim

barred for injuries from boating accident involving motorboats

rented from Navy-run recreation center); Hass ex rel. U.S. v.

United States, 518 F.2d 1138 (4th Cir. 1975) (claim barred for injury

sustained while riding horse rented from Marine Corps stable);

6

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 consid-

ered 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 recre-

ational 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 furloughed. See, e.g., Persons v.

United States, 925 F.2d 292, 296 n.6 (9th Cir. 1991) (‘‘The

relevant distinction TTT runs between servicepersons who are

Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) (claim for

wrongful death involving on-base swimming pool barred).

2 AR 190–47 § 5–9, entitled ‘‘Prisoner welfare activities,’’ provides

in pertinent part: (a) ‘‘Well planned recreation and welfare pro-

grams will be provided within ACS facilities;’’ and (d) ‘‘Recreational

programs and activities will be established which are sufficiently

diversified to attract maximum participation. The prisoner’s sched-

ule will be considered to avoid unnecessary conflict with work,

training, and education activities. The prisoner recreation program

may include sporting events, hobby shops, radio, television, indoor

games, motion pictures, video cassettes, creative writing, painting,

and other appropriate activities.’’

7

on ‘active duty’ and those who have been discharged or are on

furlough, not between ‘off-duty’ and ‘on-duty’ serviceper-

sons.’’); Skees v. United States, 107 F.3d 421, 424 (6th Cir.

1997) (same); see also Pierce v. United States, 813 F.2d 349,

353 (11th Cir. 1987) (distinguishing between active duty and

furlough but noting that, under certain circumstances, ‘‘pass’’

granting discretionary time off ‘‘akin’’ to furlough for duty

status inquiry). But see Dreier v. United States, 106 F.3d

844, 853 n.8 (9th Cir. 1996) (referring to passage in Persons,

supra, as dictum but noting that off-duty status remains

relevant to Feres inquiry as a whole); Parker v. United

States, 611 F.2d 1007, 1012 (5th Cir. 1980) (treating duty

status inquiry as spectrum between active, on-duty status on

one end to discharged status on other). Whether an active

duty service member is on- or off-duty when injured is not

relevant to the ‘‘duty status’’ inquiry. Instead, it is more

properly considered under the activity prong of Verma: ‘‘on-

duty’’ status increases the likelihood that an active duty

soldier’s activity is incident to his military duties.

It is not clear whether the district court maintained the

distinction between duty status under the first prong of

Verma and on- versus off-duty status under Verma’s third

prong. It noted that Schnitzer conceded the first two prongs

of the Verma test, adding that Schnitzer ‘‘was on active duty

status at the time of the injury, and the injury took place at

USDB, a military facility.’’ Dist. Ct. Mem. Op. 8/11/2003 at 7

(emphasis added). The district court, however, then cited to

AR 190–47 § 12–2, which involves a prisoner’s on- or off-duty

status, not his active duty status.3 Id. Nevertheless, any

confusion created by the district court’s citation is without

effect in view of Schnitzer’s concession. Moreover, the trial

court’s conclusion as to Schnitzer’s duty status is correct

without regard to Schnitzer’s concession: it is undisputed

that Schnitzer was on active duty status at the time of his

injury.4

3 See discussion of AR 190–47 § 12–2(a), supra, at 6.

4 The Tenth Circuit has held that Feres applies even when the

prisoner has been discharged from active duty. As that circuit

8

Schnitzer further argues that AR 190–47 § 12–2 relates

only to the duty status inquiry and therefore should not be

used to determine the nature of the activity he was engaged

in when injured. This is incorrect. As discussed above,

§ 12–2 controls on- and off-duty status, which is relevant to

the activity inquiry. Moreover, the district court’s conclusion

is supported by other provisions of AR 190–47. Section 5–2

of AR 190–47 requires that a military prisoner’s on-duty

routine include ‘‘useful employment supplemented by TTT

welfare activities,’’ as well as other supplemental programs.5

Section 5–9(d) expressly provides that television is included

among the ‘‘welfare activities.’’6 Some of the supplemental

activities are mandatory while others are voluntary.7 A

prisoner has some choice about which of the supplemental

activities he participates in but participation of some sort

remains part of a prisoner’s military duties. Thus, the dis-

noted in Ricks v. Nickels, 295 F.3d 1124 (10th Cir. 2002), a

‘‘complete discharge TTT does not automatically transform a service-

member into a civilian for purposes of Feres analysis. The para-

mount inquiry is whether the alleged constitutional violations are

incident to the plaintiff’s military service.’’ Id. at 1131.

5 AR 190–47 § 5–2 provides:

All prisoners, unless precluded because of disciplinary,

medical, or other reason determined appropriate by the

facility commander, will engage in useful employment sup-

plemented by appropriate supervision, mental health pro-

grams, professional evaluation, education, training and

welfare activities. However, activities established and re-

sources allocated are not to be less arduous or more

generous than for military personnel not incarcerated.

6 See AR 190–47 § 5–9(d) (television included in ‘‘welfare activi-

ties’’).

7 Cf. AR 190–47 § 5–5(b): ‘‘All physically qualified prisoners TTT

will participate in supervised recreational and physical training

activities for a minimum of 5 hours per week;’’ AR 190–47 § 5–8:

‘‘All prisoners without a high school education TTT will be afforded

the opportunity to complete the General Equivalency Diploma

(GED) Program.’’

9

trict court made proper use of AR 190–47 § 12–2 in deciding

that Schnitzer’s injury while watching television was incurred

during an activity incident to military service.

That a broader range of activities is incident to a prisoner’s

military service under Feres than for a non-incarcerated

service member is neither surprising nor problematic. Upon

conviction, a military prisoner loses a host of freedoms en-

joyed by non-incarcerated personnel and is subject to con-

stant regulation of his activities. Most activities engaged in

by prisoners are deemed to serve either discipline or rehabili-

tation purposes. A prisoner’s leisure activities are considered

beneficial to the overall program of incarceration.8

Schnitzer also asserts that, regardless whether his injury

was ‘‘incident to service’’ under Feres, the district court, in

creating a class of service members (military prisoners) who

are unable to recover under the FTCA, ran afoul of the equal

protection component of the due process clause of the Fifth

Amendment. His argument fails for two reasons. First, he

is plainly wrong that the district court in effect banned any

FTCA claim by a military prisoner. As the district court

noted, under AR 190–47 a military prisoner is considered off-

duty during mandatory periods of eating and sleeping as well

as during periods of voluntary religious observance. Id. at

§ 12–2. While these exceptions are admittedly narrow, they

derive from the difference between a prisoner’s military

duties as compared with those of a non-incarcerated service

member and therefore do not deny the prisoner equal protec-

tion.

Second, Schnitzer’s argument is more properly directed to

a reconsideration of the Feres doctrine itself, not to the

doctrine’s applicability to his case. He notes that the legisla-

tive history of the FTCA may not support the Supreme

Court’s holding in Feres, see Rayonier, Inc. v. United States,

8 Cf. AR 190–47 § 5–1 (‘‘The ACS [Army Corrections System]

provides the environment, opportunities, and assistance to develop

productive attitudes and enhanced living skills among post-trial

prisonersTTT’’), with AR 190–47 § 5–2 and AR 190–47 § 5–9 (de-

scribing prisoner’s activities to include welfare activities).

10

352 U.S. 315, 320 (1957) (declaring, in non-Feres case, ‘‘There

is no justification for this Court to read exemptions into the

[FTCA] beyond those provided by Congress. If the Act is to

be altered that is a function for the same body that adopted

it.’’); that the various rationales used to justify Feres do not

withstand scrutiny in light of the inconsistent results pro-

duced, see Johnson v. United States, 481 U.S. 681, 692–703

(1987) (Scalia, J., dissenting); and that academic commentary

critical of Feres is widespread, see, e.g., Jonathan Turley, Pax

Militaris: The Feres Doctrine and the Retention of Sover-

eign Immunity in the Military System of Governance, 71

Geo. Wash. L. Rev. 1 (2003). Irrespective of their merits,

none speaks to the equal protection claim made here.

For the foregoing reasons, the judgment of the district

court is affirmed.

So ordered.