Appeal from the United States District Court for the District of Columbia (No. 02cv01755)
Before: Sentelle, Henderson and Tatel, Circuit Judges.
The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge
Argued September 14, 2004
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 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.
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 (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.
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 subjectmatter 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 (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 reaffirmed 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 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. 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 ...