Petition for Writ of Certiorari — Joshua E. Frankel, Petitioner v. United States, et al.

No. ________

In The

Supreme Court of the United States

_______

JOSHUA E. FRANKEL,

Petitioner,

v.

UNITED STATES OF AMERICA, ET AL.,

Respondents.

_______

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

_______

APPENDIX

_______

Allen W. Beasley

Counsel of Record

Michael F. Imprevento

Breit Cantor Grana Buckner, PLLC

600 22nd Street, Suite 402

Virginia Beach, Virginia 23451

(757) 622-6000

abeasley@breitcantor.com

mimprevento@breitcantor.com

Counsel for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477

TABLE OF CONTENTS

Opinion of the United States Court of Appeals for

the Fourth Circuit, dated April 4, 2020 .................. A1

Opinion of the United States District Court for the

Eastern District of Virginia, Norfolk Division,

dated January 7, 2019 ........................................... A18

A1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-1113

JOSHUA E. FRANKEL,

Plaintiff – Appellant,

v.

UNITED STATES OF AMERICA; JAVEN EVONNE

DAVIS, solely in her capacity of an uninsured driver

pursuant to Virginia Code § 38.2-2206, as amended

and provided,

Defendants – Appellees,

and

GOVERNMENT EMPLOYEES INSURANCE

COMPANY,

Intervenor.

Appeal from the United States District Court for the

Eastern District of Virginia, at Norfolk. Mark S.

Davis, Chief District Judge. (2:18-cv-00107-MSD)

Submitted: March 16, 2020

Decided: April 14, 2020

Before NIEMEYER, MOTZ, and AGEE, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

Michael Francis Imprevento, BREIT DRESCHER

IMPREVENTO, PC, Virginia Beach, Virginia, for

Appellant. G. Zachary Terwilliger, United States

Attorney, Lauren A. Wetzler, Chief, Civil Division,

A2

Alexandria, Virginia, Sean D. Jansen, Assistant

United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Norfolk, Virginia; Richard A.

Saunders, FURNISS, DAVIS, RASHKIND &

SAUNDERS, Norfolk, Virginia, for Appellees

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

After Petty Officer Joshua Frankel, a U.S. Navy

employee, was struck by a car driven by a fellow

officer on Naval Station Norfolk, he filed a complaint

pursuant to the Federal Tort Claims Act (the

“FTCA”) against the Government and against the

officer solely in her capacity as an uninsured driver

under Virginia law. The district court dismissed the

complaint for lack of subject matter jurisdiction

under Feres v. United States, 340 U.S. 135 (1950).

Frankel appeals. For the reasons that follow, we

affirm the judgment of the district court.

I.

At 7:37 a.m. on March 31, 2015, Frankel was in

a designated crosswalk within Naval Station Norfolk

when he was hit by a car driven by Ensign Javen

Evonne Davis. At the time of the accident, Davis was

driving her personal vehicle to purchase a birthday

cake for another officer, as instructed by her

executive officer.

Although it is undisputed that Frankel was

heading to the Naval Station gym at the time he was

hit, the parties contest his status at the time of the

A3

accident, and specifically whether he was headed

there of his own volition or under orders. Frankel

asserts he was heading to the gym of his own

volition given that he was “not under any orders

associated with his employment with the Navy, he

was not on an official Navy assignment, and he was

not on duty.” J.A. 8. Further, according to Frankel,

physical training was not mandatory for his job.

Nonetheless, Frankel acknowledges that at the

time of the accident, he was on active duty status (as

opposed to furlough). In addition, his supervisor

averred that Frankel was required to report to the

Naval Station gym that day at 7:30 a.m. to begin

mandatory physical training for his job. Although

Frankel disputes these specific facts, he agrees that

his employment required him to a pass a semiannual physical fitness assessment and that he had

access to the Naval Station’s gym only by virtue of

his status as a member of the U.S. Navy. (Both the

gym and Naval Station Norfolk restrict access to

members of and those affiliated with the U.S. Armed

Forces.)

Frankel filed a state court complaint against

Davis asserting negligence in the operation of her

motor vehicle. The Government removed the case to

the district court and filed a notice of substitution

pursuant to the Federal Employees Liability Reform

and Tort Compensation Act of 1988 (the “Westfall

Act”), 28 U.S.C. § 2679, which provides immunity to

federal employees from common law tort claims

arising out of acts undertaken as part of their official

duties and substitutes the United States as the

defendant in such cases.1

1 Pursuant to § 2679(d)(1), the Government certified that

Davis was acting within the scope of her employment at the

time of the incident.

A4

After Frankel’s initial complaint was dismissed

for failure to exhaust administrative remedies,2

Frankel satisfied those prerequisites and then filed

the instant two-count complaint. The first count

asserts a negligence claim against the Government

under the FTCA, claiming that Davis, as a federal

employee, failed to exercise reasonable care in

operating her vehicle when she struck Frankel. The

second count asserts a claim under Virginia’s

uninsured motorist statute, Va. Code Ann. § 38.22206,3 which provides that a person injured in an

accident by an otherwise immune vehicle operator

may proceed against their own insurer. Specifically,

the complaint alleges that Frankel had purchased

uninsured motorist coverage from GEICO and that

he was entitled to compensation from GEICO under

this policy in the event that any named defendant

was deemed immune from liability. In turn, the

complaint named the Government and Davis as

nominal defendants as to this claim to satisfy § 38.22206’s requirements.

2 Following removal, the Government filed a motion to

dismiss for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1), arguing that the proper

defendant was the United States and that the lawsuit was

premature. Specifically, the Government asserted that under

the FTCA, Frankel could not bring a suit seeking damages for

personal injury stemming from the negligent or wrongful acts

of any federal employee acting within the scope of her

employment until: (1) Frankel had presented his claim to the

appropriate federal agency; and (2) the claim was denied by

that agency. The district court granted the motion, and the

Navy later denied Frankel’s notice of claim, thus satisfying

those prerequisites to suit. See 28 U.S.C. §§ 1346(b), 2401(b),

2671.

3 Although Va. Code Ann. § 38.2-2206 has been amended

since 2015, the language at issue in this case has not changed.

A5

The Government and Davis moved to dismiss for

lack of subject matter jurisdiction under Feres,

which held that the Government is immune from

FTCA claims arising from activities “incident to

service” of military personnel. 340 U.S. at 146.

The district court granted the motion.4 First, the

court considered whether Feres barred Frankel’s

claim against the Government. As an initial matter,

it observed that the Government had presented a

factual challenge to subject matter jurisdiction,

arguing that the jurisdictional facts—that is, those

that bore upon whether Frankel’s injuries arose

“incident to service,” such as the purpose of his gym

visit—alleged in the complaint were incorrect. The

court further observed that in ruling on a challenge

to jurisdictional facts that were not intertwined with

the underlying merits of the negligence claim, it was

not required to assume those facts, as alleged in the

complaint, were true. Rather, it could resolve the

jurisdictional facts by “weigh[ing] the evidence and

satisfy[ing] itself as to the existence of its power to

hear the case.” Williams v. United States, 50 F.3d

299, 304 (4th Cir. 1995) (internal quotation marks

omitted); see also United States ex rel. Vuyyuru v.

Jadhav, 555 F.3d 337, 348 (4th Cir. 2009) (“Unless

the jurisdictional facts are intertwined with the facts

central to the merits of the dispute, the district court

may then go beyond the allegations of the complaint

4 Before reaching the claims that are at issue on appeal, the

court concluded that Frankel’s other claims could not proceed

against Davis because the prior lawsuit had established that

Davis was acting within the scope of her federal employment

such that she had absolute immunity. And because, the court

concluded, this issue had already been resolved, Frankel was

precluded from relitigating it. Frankel does not appeal this

ruling.

A6

and resolve the jurisdictional facts in dispute by

considering evidence outside the pleadings, such as

affidavits.” (internal quotation marks omitted)).5

Here, the evidence showed that Frankel was on

duty, was on his way to a mandatory training, was

hit by a fellow servicemember, and was on a military

base with restricted access. As a result, the court

ruled that Frankel’s claim “falls squarely within the

heart of the Feres bar.” J.A. 201 (internal quotation

marks omitted). The court further determined that,

even if it did not resolve the jurisdictional facts and

instead accepted Frankel’s version of the facts as

true—that he was off duty and headed to the gym of

his own volition, and was hit by another off-duty

servicemember—it would still find the claim barred

by Feres because Frankel conceded he was on active

duty status rather than furlough status, his Navy

employment required him to pass a semi-annual

physical fitness assessment, and he was attempting

to patronize a gym that he had access to only by

virtue of his status as a Navy servicemember.

Second, the court concluded that Frankel’s

uninsured motorist claim was barred. As the court

observed, to proceed against an otherwise-immune

defendant, Virginia law first required entry of

judgment against that defendant. But because Feres

prevented Frankel from obtaining that judgment, his

uninsured motorist claim could not meet this

5 The district court further determined that even assuming the

facts relevant to the Feres bar were intertwined with the merits

of the negligence action, jurisdictional discovery would be

unnecessary “because the most relevant jurisdictional facts (the

location of the accident, [Frankel’s] duty status, the reason

[Frankel] was walking to the gym) [we]re all within [Frankel’s]

own knowledge.” J.A. 200.

A7

threshold requirement. Further, the court concluded,

because Virginia law did not permit Frankel to

pursue his claim directly against his insurance

company, it had to be dismissed.

Frankel appeals, arguing that the district court

erred in ruling that his claims were barred by Feres

and deciding this jurisdictional issue without further

discovery. He also asserts that the court misapplied

Feres to dismiss his uninsured motorist claim.

This Court has jurisdiction pursuant to 28

U.S.C. § 1291.

II.

We first consider whether the district court erred

in concluding Feres deprived it of subject matter

jurisdiction. The existence of subject matter

jurisdiction under Rule 12(b)(1) is a question of law

that this Court reviews de novo. Balfour Beatty

Infrastructure, Inc. v. Mayor & City Council of Balt.,

855 F.3d 247, 251 (4th Cir. 2017).

The FTCA provides a limited waiver of the

Government’s sovereign immunity, authorizing

lawsuits against the United States for certain tort

claims against federal employees acting within the

scope of their duties in circumstances “where the

United States, if a private person, would be liable to

the claimant in accordance with the law of the place

where the act or omission occurred.” 28 U.S.C. §

1346(b)(1). But in Feres, the Supreme Court held

that servicemembers cannot bring tort suits against

the Government for injuries they incur that “arise

out of or are in the course of activity incident to

service.” Feres, 340 U.S. at 146. Feres has since been

applied “consistently to bar all suits on behalf of

A8

service members against the Government based

upon service-related injuries.” United States v.

Johnson, 481 U.S. 681, 687–88 (1987).

Here, the district court concluded that Frankel’s

injuries arose “incident to service” because at the

time of the accident Frankel was on active duty

status and “his status as a Navy employee both gave

him access to the on-base gym and required him to

maintain a level of fitness.” Frankel v. United States,

358 F. Supp. 3d 537, 543 (E.D. Va. 2019). Therefore,

“his on-base injury occurring while he was traveling

to a military exercise facility was directly connected

to his military service, even if his workout was

intended to be recreational.” Id. (internal quotation

marks omitted).

A.

On review, we conclude that the district court

correctly determined that Feres barred Frankel’s

claim against the Government because the injury

was a service-related one. We have previously

concluded that “incident to service” is a broad term,

encompassing more than just “actual military

operations such as field maneuvers or small arms

instruction.” Hass ex rel. United States v. United

States, 518 F.2d 1138, 1141 (4th Cir. 1975). Rather,

it is wide-reaching enough to “encompass, 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.” Stewart v.

United States, 90 F.3d 102, 105 (4th Cir. 1996).

In this vein, we have determined that injuries

that occur in the course of engaging in benefits or

recreation stemming from or related to service-

A9

member status arise “incident to service.” For

example, in Hass, this Court held that Feres barred

the suit of an active-duty serviceman who, while

temporarily on off-duty status, was injured while

riding a horse he had rented from a military base

Marine Corps stable. 518 F.2d at 1139. In reaching

this conclusion, we observed that the stable was

owned and operated by the Government; that a

Marine officer was in charge of it; and that

servicemembers could be disciplined for misconduct

while using it. Id. at 1141–42. Ultimately, because

“[r]ecreational activity provided by the military can

reinforce both morale and health and thus serve the

overall military purpose,” id. at 1141, “an activeduty serviceman, temporarily in off-duty status and

engaged in recreational activity on a military base,

cannot sue the United States for the alleged

negligence of another serviceman or civilian

employee of the military,” id. at 1142. Under the

same rationale, courts have determined that a

member of the military “is engaged in activity

incident to his military service when he is enjoying a

drink in a noncommissioned officers club, and when

he is riding a donkey during a ballgame sponsored

by the Special Services division of a naval air

station, and while swimming in a swimming pool at

an airbase.” Id. (internal citations omitted); see also

Mariano v. United States, 605 F.2d 721, 722–23 (4th

Cir. 1979) (concluding injury arose “incident to

service” when off-duty officer was struck by a glass

thrown by a fellow officer at a Naval Station club).

We have also concluded that a servicemember’s

injuries stemming from a car accident occur

“incident to service” when they implicate his or her

military status. As one example, in Stewart we

A10

concluded that a suit arising out of a servicemember’s automobile accident injuries was barred by

Feres when (1) he was on active-duty status at the

time of the accident, rather than on furlough or any

leave temporarily excusing him from his duties; (2)

the collision occurred on the grounds of a military

base; and (3) he “was engaged in activity directly

related to the performance of military obligations”

(specifically, “leaving one duty station to return to

his residence [to shower and change clothes] in

preparation for his next assignment”). 90 F.3d at

104–05; see also Warner v. United States, 720 F.2d

837, 839 (5th Cir. 1983) (per curiam) (observing that

where an off-duty servicemember was on base and

running a personal errand when a car accident

occurred, his “presence on the military base was by

virtue of his military status” and therefore militated

in favor of finding a Feres bar); Stansberry v.

Middendorf, 567 F.2d 617, 618 (4th Cir. 1978) (per

curiam) (applying the rationale of Hass to an offbase car accident involving a servicemember because

“the plaintiff was on active duty and not on furlough,

and sustained injury due to the negligence of others

in the armed forces”).

Here, even accepting Frankel’s version of the

facts as true, his claims are barred by Feres.6

6 Frankel’s central argument to the contrary arises from the

Feres bar’s underlying rationales. The Supreme Court has

emphasized three reasons for the bar: (1) “the ‘distinctively

federal’ relationship between the government and its soldiers[,

which] would be undermined by holding military personnel

accountable under the variations in state tort law according to

the situs of the alleged tort”; (2) “the comprehensive system of

statutory benefits granted to service members” intended by

Congress “to be the sole remedy for service related injuries”;

and (3) “the fear that frequent judicial inquiry into military

A11

According to his complaint, at the time of the

accident, Frankel was (1) an active duty officer

temporarily on off-duty status; (2) on a military base;

and (3) heading to the base’s gym in his free time.

Under our precedent, these facts—limited off-duty

status and presence on a military base by virtue of

his military status—easily establish a connection

between Frankel’s injuries and his status as a

member of the Navy. Further, as in Hass, Frankel

was taking advantage of a benefit—access to the

Navy gym—that he only enjoyed by virtue of his

status as a servicemember, as well as engaging in an

activity that arguably amounted to a “[r]ecreational

activity provided by the military [to] reinforce both

morale and health and thus serve the overall

decision making would have a deleterious impact on military

discipline and effectiveness.” Appelhans v. United States, 877

F.2d 309, 311 (4th Cir. 1989).

Frankel asserts that none of these rationales apply to his

situation such that Feres does not prohibit his suit. As an

initial matter, he asserts that the first two rationales are no

longer viable as a matter of law and policy—a proposition

which has been rejected by the Supreme Court. See id.

(Further, given that Frankel was on active-duty status and

engaging in a benefit tied to boosting servicemember “morale

and health,” Hass, 518 F.2d at 1141, we agree that the

“distinctively federal” rationale was implicated.) In turn,

although Frankel argues that while the military discipline

rationale was not implicated because there was no military

relationship between Frankel and Davis, we note that this

Court has previously considered and rejected a similar

argument. See Stewart, 90 F.3d at 106 (observing that this

rationale would apply if the plaintiff’s claims were of the type

that would involve an “assessment of military traffic, vehicle,

and other regulations” and potentially require “the service

members involved, any eyewitnesses, and military medical

personnel . . . to testify in court as to each other’s decisions and

actions” (internal quotation marks omitted)).

A12

military purpose.” 518 F.2d at 1141. In sum,

Frankel’s situation appears to be materially

indistinguishable from the one in Hass and other

cases warranting application of the Feres bar. See id.

at 1141–42. Therefore, we conclude the district court

did not err in determining that it lacked subject

matter jurisdiction under Feres.

B.

Next, Frankel argues that the district court

further erred by denying his requests for

jurisdictional discovery and thereby failing to

develop a necessary factual record. The denial of a

request for jurisdictional discovery is reviewed for an

abuse of discretion. Carefirst of Md., Inc. v. Carefirst

Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.

2003). “[W]hen the jurisdictional facts are

inextricably intertwined with those central to the

merits, the court should resolve the relevant factual

disputes only after appropriate discovery, unless the

jurisdictional allegations are clearly immaterial or

wholly unsubstantial and frivolous.” Kerns v. United

States, 585 F.3d 187, 193 (4th Cir. 2009).

We conclude the district court’s decision not to

engage in further jurisdictional discovery did not

constitute an abuse of discretion. As discussed in the

prior section, even if the Court were to accept

Frankel’s version of the facts as true—that he was

off duty and going to the Navy gym on his own time,

that Davis was running a personal errand, and that

the Naval Base was accessed by members of the

public—we agree with the district court that his

claims would still be barred by Feres. At bottom,

Frankel, an active-duty officer, was on a military

A13

base heading to the base’s gym in his free time when

he was struck by Davis’s car. These facts clearly

establish a connection between Frankel’s injuries

and his status as a member of the Navy. In turn, the

applicability of the Feres bar—which concerned

whether the injury arose incident to Frankel’s

military service—did not require the district court to

determine any issue central to the merits of his tort

claim, which would presumably turn on the alleged

breach of Davis’s duty as a motorist to safely operate

her car.

III.

Finally, we turn to Frankel’s uninsured motorist

claim. Virginia’s uninsured motorist statute7

provides that a plaintiff injured in an automobile

accident in which the owner or operator of the

vehicle is deemed otherwise immune from suit8 may

proceed to recover damages against his or her

insurer:

[T]he immunity from liability for negligence

of the owner or operator of a motor vehicle

7 Virginia Code § 38.2-2206(A) generally requires

insurance companies to provide uninsured motorist coverage:

no insurance policy “relating to the ownership, maintenance, or

use of a motor vehicle shall be issued or delivered” in Virginia

“unless it contains an endorsement or provisions undertaking

to pay the insured all sums that he is legally entitled to recover

as damages from the owner or operator of an uninsured motor

vehicle[.]”

8 “[U]ninsured motor vehicle[s]” include ones for which

“the owner or operator of the motor vehicle is immune from

liability for negligence under the laws of the Commonwealth or

the United States.” Va. Code Ann. § 38.2-2206(B).

A14

shall not be a bar to the insured obtaining a

judgment enforceable against the insurer for

the negligence of the immune owner or

operator, and shall not be a defense available

to the insurer to the action brought by the

insured, which shall proceed against the

named defendant although any judgment

obtained against an immune defendant shall

be entered in the name of “Immune

Defendant[.]”

Va. Code Ann. § 38.2-2206(F) (emphasis added). In

turn, Virginia courts have interpreted this statute to

require that a plaintiff seeking recovery under his

uninsured motorist policy against an otherwise

immune defendant must first procure a judgment

against that immune defendant. Only after

obtaining such a judgment may the plaintiff then

enforce it against his insurer. As the Virginia

Supreme Court has elaborated, “Virginia precedent

indicates that the duty owed by [an uninsured

motorist] carrier to its insured [under § 38.22206(A)] is to pay its insured the damages he or she

is ‘legally entitled to recover’[.]” Manu v. GEICO Cas.

Co., 798 S.E.2d 598, 603 (Va. 2017) (emphasis

added). “[T]he phrase ‘legally entitled to recover’

imposes as a condition precedent to [an uninsured

motor] carrier’s obligation to pay its insured[] that

the insured obtain a judgment against the uninsured

tortfeasor whose actions come within the purview of

the [uninsured motorist] policy.” Id. at 605.9

9 Indeed, courts interpreting § 38.2-2206 have consistently

found that judgment is the event which determines legal

entitlement to recovery. E.g., Nationwide Mut. Ins. Co. v.

Hylton, 530 S.E.2d 421, 423 (Va. 2000); United Servs. Auto.

A15

The district court thus concluded that to have

proceeded with an uninsured motorist claim against

Davis or the Government, Frankel would have first

been required to obtain a judgment. But because

Feres would bar such a lawsuit (to say nothing of a

judgment) against the United States, and the

Westfall Act would similarly bar any such lawsuit

against Davis, Frankel could not proceed with his

uninsured motorist claim. On appeal, Frankel

argues the district court erred in reaching this

conclusion, contending that: (1) by naming Davis as

the nominal defendant, Frankel was only seeking to

fulfill § 38.2-2206(F)’s requirements, not hold her or

the Government liable; (2) nothing in § 38.22206(F)’s language requires that the plaintiff first

obtain a judgment against the named defendant; and

(3) to interpret the statute in this manner would

deny Frankel the contractual benefit of an insurance

policy that he purchased for his protection.

We disagree. Feres provides that the United

States is immune not merely from liability but also

Ass’n v. Nationwide Mut. Ins. Co., 241 S.E.2d 784, 787 (Va.

1978); Midwest Mut. Ins. Co. v. Aetna Cas. & Sur. Co., 223

S.E.2d 901, 904 (Va. 1976); see also O'Brien v. Gov’t Emps. Ins.

Co., 372 F.2d 335, 341 (3d Cir. 1967) (interpreting Virginia’s

predecessor statute to § 38.2-2206); Satterfield v. Gov’t Emps.

Ins. Co., 287 F. Supp. 3d 1285, 1295 & n.16 (W.D. Okla. 2018)

(interpreting § 38.2-2206); Ryan v. 21st Century Centennial Ins.

Co., No. TDC-15-3052, 2016 WL 3647612, at *5–6 (D. Md. June

30, 2016) (same); Boggs-Wilkerson v. Anderson, No. 2:10cv518,

2011 WL 6934598, at *2 (E.D. Va. Nov. 17, 2011)(“In uninsured

motorist cases, Virginia is among a small minority of states

that requires the plaintiff first obtain judgment against the

alleged tortfeasor before bringing direct action against the

insurer.”), report and recommendation adopted by 2011 WL

6934596, at *1 (E.D. Va. Dec. 30, 2011).

A16

from suit.10 See Al Shimari v. CACI Int’l, Inc., 679

F.3d 205, 218 (4th Cir. 2012) (“[I]mmunity has

consistently been administered as a protection

against the burden of litigation altogether.”). The

Westfall Act provides the same as to Davis. Osborn

v. Haley, 549 U.S. 225, 238 (2007) (observing that 28

U.S.C. § 2679 is “designed to immunize covered

federal employees not simply from liability, but from

suit”). Thus, any argument that the Government or

Davis could serve purely as nominal defendants is

unavailing. Further, the plain language of § 38.22206(F) provides that the suit “shall proceed against

the named defendant.” But given that Feres bars

Frankel’s suit against the Government— and the

Westfall Act bars any suit against Davis—under the

FTCA, there is no named defendant against whom

judgment can be entered for purposes of § 38.22206(F). Therefore, Frankel’s uninsured motorist

claim cannot clear this initial statutory hurdle.

Finally, as the district court observed, although such

a result “may seem inequitable,” “unless and until

the Virginia legislature modifies the statutory

procedure set forth in Va. Code § 38.2-2206(F) to

allow a [p]laintiff to proceed directly against an

insurer” in circumstances such as this one, “such

‘perceived unfairness’ cannot be avoided.” 358 F.

Supp. 3d at 544. We therefore agree that Frankel’s

claim cannot proceed.

10 And under the federal Constitution’s Supremacy Clause,

Virginia law cannot provide otherwise. See U.S. Const. art. VI,

cl. 2 (“This Constitution, and the Laws of the United States . . .

shall be the supreme Law of the Land[.]”).

A17

IV.

For the foregoing reasons, the judgment of the

district court is affirmed. We dispense with oral

argument because the facts and legal contentions are

adequately presented in the materials before this

court and argument would not aid the decisional

process.

AFFIRMED

A18

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

Civil No. 2:18cv107

JOSHUA E. FRANKEL,

Plaintiff,

V.

UNITED STATES OF AMERICA,

and

JAVEN EVONNE DAVIS, solely in

her capacity of an uninsured

driver pursuant to Virginia

Code § 38•2-2206, as amended.

Defendants.

OPINION AND ORDER

This matter is before the Court on a motion to

dismiss for lack of subject matter jurisdiction, filed

by the United States of America (“United States” or

“the Government”), and Javen Evonne Davis

(“Davis,” and collectively with the United States,

“Defendants”), pursuant to Federal Rule of Civil

Procedure 12(b)(1). ECF No. 6. Plaintiff opposes

dismissal, asserting that this action was properly

filed in this Court.

A19

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual Background

On March 31, 2015, at approximately 7:37 a.m.,

Plaintiff, an employee of the United States Navy,

was injured by a vehicle negligently operated by

Davis, who is also an employee of the Navy. Compl.

¶¶ 17-18, ECF No. 1. Plaintiff was struck by Davis’

vehicle while he was walking in a crosswalk within

Naval Station Norfolk, a military base in Norfolk,

Virginia. Id. Plaintiff asserts that he was “on his way

to the gym on his own volition” when he was hit, and

that he was “not under any orders associated with

his employment with the Navy,” was not “on an

official Navy assignment,” and “was not on duty.” Id.

¶ 19.

In addition to, and/or in contradiction to, such

facts, Defendants support their dismissal motion by

providing a sworn affidavit from Suly Diaz,

Plaintiff’s Navy Supervisor.1 ECF No. 7-1, ¶ 2. Diaz

asserts, under oath, that on the morning of the

accident. Plaintiff was required to report to the onbase sports center to participate in mandatory

physical training scheduled to begin at 7:30 a.m. Id.

¶ 5. Diaz further indicates that such training was

“the beginning of the workday” for Plaintiff. Id.

Although Plaintiff’s responsive brief denies that he

1 As discussed below in Part II of this Opinion, when ruling on

a motion challenging the accuracy of jurisdictional allegations

that are not intertwined with the merits, the Court “may

consider exhibits outside the pleadings” and “is free to weigh

the evidence and satisfy itself as to the existence of its power to

hear the case.” Williams v. United States, 50 F.3d 299, 304 (4th

Cir. 1995) (citation omitted).

A20

was on his way to mandatory physical training.

Plaintiff provides no affidavit or other evidence to

support such contrary factual statement made in his

brief. ECF No. 11, at 4; see Kulhawik v. Holder, 571

F.3d 296, 298 (2d Cir. 2009) (“An attorney’s unsworn

statements in a brief are not evidence”).

In addition to the disagreement over Plaintiff’s

reason for going to the on-base gym, the parties’

briefs dispute the degree to which Naval Station

Norfolk is open to the public. Defendants advance

two additional sworn affidavits seeking to

demonstrate that: (1) access to the base was

restricted to those with an employment, familial, or

other connection to the military, ECF No. 7-2; and

(2) the gym that Plaintiff was walking to on the day

of the accident is located on the base, is operated for

the benefit of servicemembers, and may only be

patronized by military personnel and other

authorized individuals, ECF No. 7-3. Plaintiff does

not counter such affidavits with any evidence, but

again advances unsworn assertions referencing the

vast number of “civilians” that have daily access to

the base. ECF No. 11, at 4.

B. Procedural History

Plaintiff unsuccessfully pursued an

administrative claim with the Navy for his injuries

resulting from the accident, and he thereafter filed

the instant action in this Court. Compl. ¶ 15-16. In

an apparent effort to recover damages through

Plaintiff’s “uninsured motorist” auto insurance

A21

coverage, Plaintiff’s lawsuit names both the United

States and Davis as defendants.2 ECF No. 1.

Defendants subsequently moved to dismiss this

case on jurisdictional grounds, claiming that; (1) the

suit cannot proceed against Davis based on this

Court’s ruling in a prior federal case filed by

Plaintiff;3 and (2) that the case cannot proceed

against the United States due to the doctrine of

sovereign immunity. ECF No. 7. Defendants further

argue that an uninsured motorist claim cannot

proceed because Va. Code § 38.2-2206(F) requires

that a Plaintiff first secure a judgment against the

owner or operator of the uninsured vehicle, and here.

Plaintiff cannot obtain a judgment against either

Defendant. ECF No. 7.

2 As argued in Defendants’ motion to dismiss, the United

States asserts that it is immune from suit, which is why

Plaintiff seeks to recover under his own auto insurance policy.

Plaintiff is insured through Government Employees Insurance

Company (“GEICO”), and Plaintiff served GEICO with a copy

of the complaint in this case. GEICO thereafter filed, as an

“interested party,” a memorandum adopting the arguments

advanced in Defendants’ brief seeking dismissal. ECF No. 10.

3 In late 2016, Plaintiff filed a lawsuit in Norfolk Circuit

Court against Davis, and such case was removed to this Court

by the United States pursuant to a “Notice of Substitution” and

“Certification” asserting that the United States was the only

proper defendant. 2:16cv674, ECF No. 1-2. On June 26, 2017,

after receiving evidence, another Judge of this Court issued an

Order concluding that Davis was acting “within the scope of her

employment” at the time of the accident and that the United

States was therefore the proper defendant. 2:16cv674, ECF No.

18, at 8. Based on such ruling. Plaintiff conceded that his

federal case should be dismissed, without prejudice, due to his

failure to exhaust administrative remedies available through

the Department of the Navy. Id. at 1. Now that Plaintiff has

exhausted such remedies, he has returned to this Court.

A22

II. STANDARD OF REVIEW

The party asserting subject matter jurisdiction

bears the burden of proving that such jurisdiction

exists. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.

1982). When an individual sues the United States for

damages, he or she also bears the burden to

demonstrate that the Government unequivocally

waived its sovereign immunity. Williams v. United

States, 50 F.3d 299, 304 (4th Cir. 1995); see

Anderson v. United States, 669 F.3d 161, 164 (4th

Cir. 2011) (‘‘Where the United States has not waived

its sovereign immunity, a plaintiff’s claim against

the United States should be dismissed for lack of

subject matter jurisdiction under Federal Rule of

Civil Procedure 12(b)(1).”).

Subject matter jurisdiction may be challenged

facially or factually. Adams, 697 F.2d at 1219. A

facial challenge contends that a “complaint simply

fails to allege facts upon which subject matter

jurisdiction can be based.” Id. In ruling on such a

challenge, the court assumes that all facts alleged in

the complaint are true. Id. In contrast, a factual

challenge to subject matter jurisdiction relies on the

assertion that “the jurisdictional allegations of the

complaint [a]re not true.” Id. In ruling on a factual

challenge that is not intertwined with the merits of

the underlying action, the court is “free to weigh the

evidence and satisfy itself as to the existence of its

power to hear the case.” Williams, 50 F.3d at 304

(quoting Mortensen v. First Fed. Sav. and Loan

Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)); see U.S. ex

rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir.

2009) (“Unless the jurisdictional facts are

intertwined with the facts central to the merits of

A23

the dispute, the district court may . . . resolve the

jurisdictional facts in dispute by considering

evidence outside the pleadings, such as affidavits.”).

When evaluating the jurisdictional evidence, the

court may consider ‘‘evidence by affidavit,

depositions or live testimony.” Adams, 697 F.2d at

1219; see Al Shimari v. CACI Premier Tech., Inc.,

840 F.3d 147, 154 (4th Cir. 2016) (“The district court

is authorized to resolve factual disputes in

evaluating its subject matter jurisdiction.”).

III. DISCUSSION

Here, Plaintiff seeks a judgment against the

United States as the party substituted for the driver

(Davis) that struck him with her car. Compl. ¶ 2.

Alternatively, to the extent that the Government is

immune from Plaintiff’s suit. Plaintiff names Davis

as a defendant in an effort to obtain a ruling by this

Court that would allow Plaintiff to proceed against

GEICO under Plaintiff’s own uninsured motorist

policy. Compl. ¶¶ 3-4. However, as discussed below.

Plaintiff is barred from proceeding against either

party.

A. Plaintiff Cannot Proceed Against Davis

First, Plaintiff cannot maintain a claim directly

against Davis because another judge of this Court, in

dismissing Plaintiff’s prior suit arising out of the

same incident, held that Davis was acting within the

scope of her federal employment at the time of the

accident. Case No. 2:16cv674, ECF No. 18; cf. Compl.

¶ 2. Although the dismissal of Plaintiff’s earlier

action was without prejudice to Plaintiff’s right to

A24

refile the instant case. Plaintiff may not relitigate

the scope of employment question because the

doctrine of ‘‘issue preclusion” prevents further

litigation of this previously decided issue. See

Wright & Miller 18 Federal Practice & Procedure

Jurisdiction § 4418 (3d ed.) (explaining that when “a

first action is decided on grounds that do not

preclude a second action” asserting the same claim,

the plaintiff retains the ability to file such second

action, but “direct estoppel” precludes “reargument

of the grounds decided in the first action”); Capitol

Envtl. Servs., Inc. v. N. River Ins. Co., 778 F. Supp.

2d 623, 633 (E.D. Va. 2011), aff’d, 484 F. App’x 770

(4th Cir. 2012) (“[E]ven a judgment not on the merits

will generally have preclusive effect at least as to the

same issue for which dismissal was ordered.”).

Consequently, here, the United States must be

substituted as the proper defendant, and Davis has

absolute immunity “not simply from liability, but

from suit.” Boggs-Wilkerson v. Anderson, No.

2:10cv518, 2011 WL 6934598, at *2 (E.D. Va. Nov.

17, 2011) adopted by 2011 WL 6934596 (E.D. Va.

Dec. 30, 2011) (quoting Osborn v. Haley, 549 U.S.

225, 238 (2007)); see Maron v. United States, 126

F.3d 317, 321-22 (4th Cir. 1997) (‘‘[E]ven in cases

where the United States has not waived its

immunity, the United States must still be

substituted and the individual defendant still

remains immune from suit if the tort occurred

within the scope of employment”). Because Davis is

immune from suit, an action against her cannot

proceed.

A25

B. Plaintiff Cannot Proceed Against the

United States

Having determined that the United States is the

only proper defendant, the Court next concludes that

Plaintiff’s suit cannot proceed against the United

States based on the doctrine of sovereign immunity.

Although the United States has consented to a

waiver of its immunity through the Federal Tort

Claims Act (“FTCA”), United States v. S.A. Empresa

de Viacao Aerea Rio Grandense (Varig Airlines), 467

U.S. 797, 807-08 (1984), the Supreme Court has

expressly held that the FTCA does not waive the

Government’s immunity ‘‘for 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 (1950).

The Fourth Circuit has consistently held that the

Feres doctrine is not “restricted to actual military

operations such as field maneuvers or small arms

instruction.” Hass v. United States, 518 F.2d 1138,

1141 (4th Cir. 1975). Instead, the applicability of the

doctrine considers, among other factors, “the

plaintiff’s duty status and the location of the tort.”

Kessler v. United States, 514 F. Supp. 1320, 1322

(D.S.C. 1981). The Fourth Circuit has thus broadly

recognized that the Feres doctrine encompasses “all

injuries suffered by military personnel that are even

remotely related to the individual’s status as a

member of the military.” Stewart v. United States,

90 F.3d 102, 105 (4th Cir. 1996) (quotation marks

and citation omitted); see Aikens v. Ingram, 811 F.3d

643, 651 (4th Cir. 2016).

In Stewart, the Fourth Circuit held that the

Feres doctrine barred a suit against the United

A26

States arising from an on-base car accident that

occurred while a servicemember was driving back to

his on-base residence to shower and prepare for his

next military responsibility. Id. at 104. Even though

the injury did not occur on route to a scheduled

military activity, the court held that such case “lies

at the heart of the Feres bar.” Id. Similarly, the

Fourth Circuit has held that an off-duty serviceman

injured while riding a military-provided horse could

not sue the United States because recreational

activity benefits the military by boasting morale and

health. Hass, 518 F.2d at 1141-42; see Mariano v.

United States, 444 F. Supp. 316, 320 (E.D. Va. 1977),

aff’d, 605 F.2d 721 (4th Cir. 1979) (rejecting the

plaintiff’s contention that ‘‘for an injury to be

incident to service the serviceman must have been

receiving direct benefits from the military at the

time of the injuries”); see also Chambers v. United

States, 357 F.2d 224, 229 (8th Cir. 1966) (noting that

even if the plaintiff “had a furlough order in his

pocket or might have been engaged in swimming for

recreation,” his claim was barred by Feres because

his “use of the pool, which was a part of the base,

was related to and dependent upon his military

service; otherwise, he would not have been

privileged to use it”).

Here, because the jurisdictional dispute involves

facts wholly separate from the facts Plaintiff must

establish in support of his FTCA negligence claim,

the jurisdictional facts are not “intertwined” with the

merits, thus allowing this Court to “resolve the

jurisdictional facts.” U.S. ex rel. Vuyyuru, 555 F.3d

at 348.4 As noted above. Rule 12(b)(1) permits a

4 Alternatively, assuming, arguendo, that the facts

relevant to the Feres dispute were “intertwined” with the

A27

defendant to mount a factual challenge to

jurisdictional allegations through the presentation of

evidence, and Defendants have done precisely that

in this case. Plaintiff, however, offers no evidence in

response, instead offering only unsworn facts

advanced in a brief in opposition.

Accepting as true Defendant’s affidavits that

have not been refuted through conflicting evidence,

Plaintiff was both ‘‘on duty” and on base at the time

of the accident, as he was hit by a fellow

servicemember on his way to mandatory military

fitness training at the on-base gym. ECF No. 7-1, ¶

5. The general public was not only restricted from

accessing the base, but also the gym, absent

permission to do so. ECF Nos. 7-2, 7-3. On such

facts, it cannot reasonably be disputed that this case

falls squarely within the “heart of the Feres bar.”

Stewart, 90 F.3d at 104.

Alternatively, the Court finds that even if it does

not “resolve” jurisdictional facts, but instead accepts

as true Plaintiff’s unsubstantiated factual

allegations, Plaintiff’s claims are still barred by

Feres. Feres bars Plaintiff’s claim for injuries

sustained while traveling on base toward an on-base

fitness facility to participate in “recreational”

merits of Plaintiff’s case, the Court would typically not resolve

such an issue without first affording the parties the

opportunity to perform jurisdictional discovery. Kerns v.

United States, 585 F.3d 187, 193 (4th Cir. 2009) . However, the

instant record, to include Plaintiff’s admissions and arguments

in his brief, illustrates the absence of a need for discovery prior

to the resolution of the Feres dispute because the most relevant

jurisdictional facts (the location of the accident, Plaintiff’s duty

status, the reason Plaintiff was walking to the gym) are all

within Plaintiff’s own knowledge. See Rich V. United States,

811 F.3d 140, 146 (4th Cir. 2015).

A28

exercise utilizing a military fitness facility even if, as

Plaintiff asserts, he was “not on duty” and “scores” of

civilians access Norfolk Naval Base on a daily basis.5

Notably, Plaintiff does not contest Defendants’

assertion that Plaintiff was on “active duty” status

with the military at the time of the incident (as

contrasted with a “furlough status”)6 even assuming

that he was “off duty” at the moment the accident

occurred because his workday had not yet begun. See

Aikens, 811 F.3d at 651 (discussing the breadth of

the Feres doctrine and noting that “a plaintiff need

not be on duty” for it to apply). Plaintiff also fails to

call into question the fact that: (1) his employment

with the Navy required him to pass a semi-annual

“Physical Fitness Assessment”; or (2) that he had

access to the on-base gym as a result of his status as

a member of the Navy. As explained by the Fourth

Circuit, “an active-duty serviceman temporarily in

5 Plaintiff’s assertion that “scores of civilians . . . are

permitted entry [to the base] on a routine basis,” ECF No. 11,

at 4, fails to effectively undercut Defendants’ factual contention

that access to the base is restricted from the general public

because the sheer number of civilians that have authorization

to access such a large military facility says nothing about

whether authorization to be present is required.

6 The Government states in its brief that Plaintiff was on

“active duty” and cites the sworn assertion from Plaintiff’s

Navy supervisor that Plaintiff “was employed by the U.S. Navy,

held the rank of Petty Officer Second Class, and was . . .

assigned to the [Electronic Warfare Database] Division.” ECF

No. 7-1, ¶ 2. To the extent such evidentiary statement does not

specifically use the term “active duty,” the Court notes that

Plaintiff has never contested such fact in any filing before this

Court despite the fact that he bears the burden of

demonstrating that the Government unequivocally waived its

sovereign immunity. Adams, 697 at 1219. Therefore, the weight

of the evidence supports the conclusion that Plaintiff was on

active duty status at the time of the accident.

A29

off-duty status and engaged in recreational activity

on a military base, cannot sue the United States for

the alleged negligence of another serviceman or

civilian employee of the military.” Hass, 518 F.2d at

1142; see Kessler, 514 F. Supp. at 1322-23. While

Plaintiff’s version of events presents a closer

question, because his status as a Navy employee

both gave him access to the on-base gym and

required him to maintain a level of fitness, his onbase injury occurring while he was traveling to a

military exercise facility was directly connected to

his military service, even if his workout was

intended to be ‘‘recreational.” Hass, 518 F.2d at

1141-42; Stewart, 90 F.3d at 105. Accordingly, the

Feres doctrine bars Plaintiff’s suit against the

United States, and Plaintiff’s claims must be

dismissed for lack of subject matter jurisdiction.”7

C. Plaintiff’s Uninsured Motorist Claim

Cannot Proceed

The Court separately finds that Plaintiff’s

uninsured motorist claim alleged in Count Two of

the complaint fails because an uninsured motorist

claim under Virginia law cannot proceed until the

plaintiff first secures entry of judgment against a

7 To the extent Plaintiff seeks to focus the Court’s analysis on

precedent that discusses the several identified “rationales”

behind the Feres doctrine, this Court finds that such analysis

leads to the same result in this case, as best illustrated by the

Fourth Circuit’s analysis in Stewart, a case involving an onbase car accident. Cf. Aikens, 811 F.3d at 651 (“[T]he situs of

the injury is not as important as ‘whether the suit requires the

civilian court to second-guess military decisions . . . and

whether the suit might impair essential military discipline.’”

(quoting United States v. Shearer, 473 U.S. 52, 57 (1985))).

A30

tortfeasor. Boggs-WiIkerson, 2011 WL 6934598, at

*2; Mutual Ins. Co. v. Hylton, 260 Va. 56, 61, 530

S.E.2d 421, 423 (2000). Pursuant to Virginia statute,

even in cases involving immune defendants, a

“plaintiff must obtain a judgment against the named

defendant” before the plaintiff is authorized to

pursue relief from his or her own insurer. BoggsWiIkerson, 2011 WL 6934 598, at *2 (citing Va. Code

§ 38.2-2206 (F)); see Erie Ins. Co. v. McKinley

Chiropractic Ctr., P.O., 294 Va. 138, 139, 803 S.E.2d

741, 742 (2017) (‘‘An injured party possesses no right

to recover tort damages from the tortfeasor’s insurer

until reducing to a judgment his claim against the

tortfeasor”) (citations omitted).

In Mutual Insurance v. Hylton, the Supreme

Court of Virginia held that even though Virginia

Code § 38.2-2206(F) gives an automobile insurer “the

right to file pleadings” and take other legal action in

its own name or in the name of the uninsured

motorist, the fact that the insurer has such rights

does not allow an injured plaintiff to obtain a

judgment directly against the insurer in a tort

proceeding. Hylton, 260 Va. at 61, 530 S.E.2d at 423.

Although Virginia’s requirement that a plaintiff first

obtain a judgment against the tortfeasor leads to an

obvious remedy gap if the tortfeasor is immune from

suit, Virginia statute endeavors to eliminate such

gap by creating a statutory process allowing an

injured party to obtain a judgment against an

otherwise immune defendant. Va. Code § 38.22206(3), (F). However, while the Virginia legislature

has the power to modify the immunity enjoyed by

state actors that are named in a lawsuit in order to

eliminate such remedy “gap,” the Supremacy Clause

of the United States Constitution prevents such

A31

state legislative body from modifying the scope of the

federal Government’s sovereign immunity, to include

the United States’ immunity from suit. See BoggsWilkerson, 2011 WL 6934598, at *5-*7 (analyzing

the Virginia statute, in detail, as well as its interplay

with the Supremacy Clause of the United States

Constitution); see also Johnson v. Puckett, 80 Va.

Cir. 310, 313 (2010) (finding that the City of

Roanoke, Virginia, although immune, “should

remain a party in this action for the sole purpose of

[the plaintiff] obtaining a judgment that can be

enforced against the insurers).

Here, because the United States properly

substituted itself for Davis, federal law precludes

Plaintiff’s suit from proceeding against Davis, either

directly, or as a “nominal defendant.” Id. Similarly,

the Feres doctrine precludes Plaintiff’s suit from

proceeding against the United States, either directly,

or as a “nominal defendant.” Id. at *7; see also

United States v. Bormes, 568 U.S. 6, 9 (2012)).

Because Plaintiff has not named a valid defendant

against whom a judgment may be entered. Plaintiff’s

uninsured motorist claim cannot proceed.8

Having made such finding, this Court notes its

agreement with the observation in Boggs-Wilkerson

that such result ‘‘may seem inequitable.” BoggsWiIkerson, 2011 WL 6934598, at *5. However,

unless and until the Virginia legislature modifies the

8 The Court has fully considered the discussion in Boggs-

Wilkerson regarding the apparent ambiguity in the interplay

between subsections (B) and (F) of Va. Code § 38.2-2206 and

agrees with the resolution of such ambiguity in BoggsWilkerson in light of Johnson, Hylton and other longstanding

Virginia precedent establishing that entry of judgment against

a tortfeasor is a necessary prerequisite to securing a judgment

against an insurer.

A32

statutory procedure set forth in Va. Code § 38.22206(F) to allow a Plaintiff to proceed directly

against an insurer in the circumstances now before

this Court, such “perceived unfairness” cannot be

avoided. Id. Stated differently, this Court both lacks

the authority to rewrite a Virginia statute and lacks

the authority to elevate a sound equitable argument

over the United States’ authorized invocation of its

sovereign immunity from suit.

IV. CONCLUSION

For the reasons set forth herein, the Court

GRANTS Defendants’ motion to dismiss the

complaint for lack of subject matter jurisdiction.

ECF No. 6. The Clerk is REQUESTED to send a

copy of this Opinion and Order to all counsel of

record.

IT IS SO ORDERED.

/s/ Mark S. Davis

CHIEF UNITED STATES DISTRICT JUDGE

Norfolk, Virginia

January 7, 2019