### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 3079

J OHN L EE F UTRELL

, Plaintiff

‐ Appellant

,

v.

U NITED S TATES OF A MERICA

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:14

‐ cv

‐ 02089

— Tanya Walton Pratt

, Judge

.

____________________

A RGUED A PRIL 7, 2017

— D ECIDED J UNE 8, 2017

____________________

Before P OSNER

, R IPPLE

, and S YKES

, Circuit Judges

.

P OSNER

, Circuit Judge

. The plaintiff began a military ca

‐

reer in 1983, serving variously in the Indiana National

Guard, the United States Army, and finally the United States

Army Reserve, from which he retired, ending his military

career, in 2014, by which time he had reached the rank of

Captain and served in combat in Iraq. Between July 2007 and

October 2011 he had sustained several injuries and, more

ominously, had been diagnosed with Type 2 (adult

‐ onset)2 No. 16

‐ 3079

diabetes. His blood

‐ glucose levels had risen so high as to

sow doubt about his ability to continue performing his mili

‐

tary duties. And sure enough in October he was released

from active duty and placed on reserve status while a Physi

‐

cal Evaluation Board evaluated his fitness for continued mil

‐ itary service.

When finally retired from the army on grounds of physi

‐

cal disability in November 2014, Futrell became eligible to

receive a monthly pension from the government. And had

his medical paperwork gone through he would have re

‐

ceived in addition incapacitation payments to cover the gap

between his release from duty and his retirement. But as a

result of some mix

‐ up he received no money from the gov

‐

ernment between December 2011 and January 2013, a depri

‐

vation that he claims without contradiction inflicted severe

financial and emotional distress on him. In the following

month the government did pay him a lump sum that cov

‐

ered the incapacitation payments that he should have re

‐

ceived, but the government failed (he claims, again without

contradiction) to compensate him for the distress he’d expe

‐

rienced when because of the government’s confusion or in

‐

competence he had received no salary.

Having thus incurred damages as a result of the govern

‐

ment’s negligence in failing to pay him his salary for more

than a year, he filed this suit against the United States under

the Federal Tort Claims Act, which makes the government

subject to tort claims “in the same manner and to the same

extent as a private individual under like circumstances.” 28

U.S.C. § 2674. (Actually, the claim might better have been

interpreted as a contract claim governed by the Tucker Act,No. 16

‐ 3079 3

28 U.S.C. § 1346(a)(2), but as neither side has briefed the is

‐

sue we’ll not address it.)

Coming to the heart of the case before us, we note that

the district court dismissed Futrell’s suit as barred by Feres v.

United States

, 340 U.S. 135 (1950), where in Justice Robert

Jackson’s majority opinion, which despite its age has not

been overruled, superseded, recast, or ignored, the Court

ruled the Federal Tort Claims Act unavailable to a member

of the armed forces who “while on active duty and not on

furlough, sustained injury due to negligence of others in the

armed forces.” Id. at 138. That describes the present case. The

Court further noted that the Act made “‘the law of the place

where the [negligent] act or omission occurred’ govern any

consequent liability,” id. at 142, quoting 28 U.S.C. § 1346(b),

and since a soldier has no choice of where he’s assigned, that

“the geography of an injury should select the law to be ap

‐ plied to his [a soldier’s] tort claims makes no sense.

... It

would hardly be a rational plan of providing for those disa

‐

bled in service by others in service to leave them dependent

upon geographic considerations over which they have no

control and to laws which fluctuate in existence and value.”

Id. at 143. The Court pointed out that the military had its

own compensation system comparable to the common law

tort system embodied in the Federal Tort Claims Act, see id.

at 145, and “conclude[d] that the Government is not liable

under the

... Act for injuries to servicemen where the inju

‐

ries arise out of or are in the course of activity incident to

service.” Id. at 146.

Feres remains the law, but the plaintiff argues that his

claim falls outside its scope. He points out that the negligent

acts for which he seeks redress were not the injuries (includ

‐4 No. 16

‐ 3079

ing his contracting diabetes) that he suffered while he was in

active military service, but rather the financial and emotional

damages that he incurred while an Army reservist because

of the Army’s delays in paying him the disability benefits to

which he was entitled as a result of the injuries. Had he in

‐

curred those damages after his retirement, the Feres doctrine

might well have not applied, see, e.g., United States v. Brown

,

348 U.S. 110, 112 (1954), because the claim would have ac

‐

crued when he was no longer a member of the armed forces.

But he was not retired until November 5, 2014, and all the

delays and other harms of which he complains occurred

much earlier, between December 6, 2011, and January 13,

2013; for that was the period in which he was not paid and it

was his not being paid that gave rise to the damages he

seeks under the Federal Tort Claims Act. Furthermore the

alleged harms all relate to Futrell’s military benefits and

were committed by staff working on the military base. See

Jones v. United States

, 112 F.3d 299, 301–02 (7th Cir. 1997).

That he was on reserve status is irrelevant, because the Feres

doctrine applies to reservists and not just to active military.

See, e.g., Duffy v. United States

, 966 F.2d 307, 312 (7th Cir.

1992); Herreman v. United States

, 476 F.2d 234, 236–37 (7th

Cir. 1973).

What is puzzling is Futrell’s passivity during the 13

‐

month period in which as a result of the errors or incompe

‐

tence of the military paymasters he was receiving no pay.

We are not told whether he made any efforts to light a fire

under the paymasters, for example by filing grievances up

the chain of command or complaining to his senator or rep

‐

resentative, who probably would have been aggressive in

pressing the paymasters on behalf of a constituent who had

served in combat, been injured, and contracted a serious dis

‐No. 16

‐ 3079 5

ease, all while in service. But whether the delay in his receiv

‐ ing money due to him from the government was purely the

fault of the government or compounded by laxity in his pur

‐

suit of his rights is irrelevant; all that matters is that Feres

renders the Federal Tort Claims Act inapplicable to a ser

‐

viceman who incurs injuries that exist only because of his

military employment.

The judgment of the district court is

AFFIRMED

.