1 United States Court of Appeals,

Fifth Circuit.

No. 94-20793

Summary Calendar.

Jens SCHOEMER and Shirre Schoemer, Plaintiffs-Appellants,

v.

UNITED STATES of America, et al., Defendants-Appellees.

July 25, 1995.

Appeal from the United States District Court for the Southern

District of Texas.

Before DUHÉ, WIENER and STEWART, Circuit Judges.

DUHÉ, Circuit Judge:

Jens and Shirre Schoemer appeal the district court's dismissal

of their suit against the United States. Jens Schoemer sought

recovery for alleged medical m alpractice under the Federal Tort

Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1988), and his

wife Shirre Schoemer sought damages for loss of her husband's

income, support, and consortium. The court dismissed the case for

lack of subject matter jurisdiction based o n Feres v. United

States, 340 U.S. 135, 7 1 S.Ct. 153, 95 L.Ed. 152 (1950). We

affirm.

BACKGROUND

Jens Schoemer enlisted in the United States Army in 1987 for

an eight year te rm. After serving four years on active duty,

Schoemer was assigned to the inactive reserves in August 1991. He

decided to serve out his term in the Louisiana National Guard,

which required him to undergo a preenlistment medical examination.1 Schoemer underwent two operations, one of which was

intercranial. He has significant hormonal problems, loss of

function in one eye, and a permanent scar.

2 In December 1991, Schoemer reported to the U.S. Military

Entrance Processing Station in Houston f or the examination. He

alleges that Dr. Schnur diagnosed him as having acromegaly, an

abnormality of the pituitary gland, and recommended that Schoemer

be referred to an internal medicine clinic. Instead, Dr. Magliolo,

the Chief Medical Officer, pronounced Schoeme r eligible for duty

and did not recommend any treatment. Schoemer was diagnosed as

having acromegaly eleven months later. He alleges that the delay

in treatment has caused him significant injury. 1

The Schoemers brought an FTCA suit against the United States

which moved to dismiss citing Feres. Initially, the court denied

the motion citing our decisions in Jones v. United States, 729 F.2d

326 (5th Cir.1984), and Adams v. United States, 728 F.2d 736 (5th

Cir.1984). On cross motions for summary judgment, however, the

court changed its mind and applied Feres. Consequently, the court

did not consider the summary judgment motions because it dismissed

the case for lack of subject matter jurisdiction.

DISCUSSION

The Supreme Court created a judicial exception to the FTCA

for injuries to servicemen that arise from the course of activity

incident to service. F eres, 340 U.S. at 146, 71 S.Ct. at 159.

Three rationales support the exception: (1) the "distinctively

federal" relationship between a serviceman and his superiors; (2)

the ability of servicemen to receive no-fault statutory disability3

and death benefits; and (3) the need to preserve military

discipline and prevent ju dicial second guessing of military

decisions. U

nited States v. Johnson, 481 U.S. 681, 688-91, 107

S.Ct. 2063, 2067-69, 95 L.Ed.2d 648 (1987). Whether F eres applies

to deprive a court of subject matter jurisdiction is a question of

law, which we review de novo. M iller v. United States, 42 F.3d

297, 300 (5th Cir.1995).

Feres applies if the serviceman's injury was incident to

military service. J ohnson, 481 U.S. at 691, 107 S.Ct. at 2069. We

e xamine the totality of the circumstances to determine whethe r a

serviceman's injury was incident to military service. P arker v.

United States, 611 F.2d 1007, 1013 (5th Cir.1980). In particular,

we consider: (1) the serviceman's duty status; (2) the site of

his injury; and (3) the activity he was performing. I d. at 1013-

15.

We often treat the serviceman's duty status as the most

important factor because it indicates the nature of the nexus

between the serviceman and the Government at the time of injury.

Adams, 728 F.2d at 739. We view duty status as a continuum ranging

from active duty to discharge. Cortez v. United States, 854 F.2d

723, 725 (5th Cir.1988). Duty status may be dispositive; F eres

applies to a serviceman who is on active duty and has active status

but not to one wh o has been discharged. J ones, 729 F.2d at 328;

Adams, 728 F.2d at 739; s ee also United States v. Brown, 348 U.S.

110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954) (distinguishing

servicemen who are on active duty and subject to military2 Feres can apply to a serviceman who is not on active duty

at the time of injury. Miller, 42 F.3d at 303. Jones and Adams

do not counsel otherwise. Rather, we require application of

Feres to medical malpractice cases when the serviceman is on

active duty at the time of the alleged malpractice. Scales v.

United States, 685 F.2d 970, 973 (5th Cir.1982), cert. denied,

460 U.S. 1082, 103 S.Ct. 1772, 76 L.Ed.2d 344 (1983).

4 discipline from discharged servicemen who have civilian s tatus).

Nevertheless, if the servicem an's duty status falls somewhere in

the middle of the continuum, then duty status is less important and

we look to the other factors. K elly v. Panama Canal Comm'n, 26

F.3d 597, 600 (5th Cir.1994). 2

At the time of Schoemer's examination, he had inactive status

in the Army and was preparing to enter the Louisiana National

Guard. F eres applies both to reservists and National Guardsmen.

Stauber v. Cline, 837 F.2 d 395, 399 (9th Cir.) c ert. denied, 488

U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988); E st ate of

Martinelli v. United States Dep't of the Army, 812 F.2d 872, 873

(3d Cir.), cert. denied, 484 U.S. 822, 108 S.Ct. 82, 98 L.Ed.2d 44

(1987); A nderson v. United States, 724 F.2d 608, 610 (8th

Cir.1983); M attos v. United States, 412 F.2d 793, 794 (9th

Cir.1969). Although Schoemer was no longer on active duty, he was

still in the Army. Because Schoemer's duty status does not answer

t he F eres question dispositively, we consider the other Parker

factors.

In medical m alpractice cases, however, the duty status

inquiry subsumes the inquiry concerning the serviceman's activity

at the time of injury. A dams, 728 F.2d at 741. In place of P arker

's third factor we inquire whether the serviceman's treatment was3 Because Parker 's third factor supports the application of

Feres to this case, we distinguish two separate lines of cases

that have allowed FTCA claims to proceed. First, when an active

duty serviceman sustains an injury on leave or furlough, we focus

on the serviceman's activity to show that he was not acting

incident to military service. See, e.g., Parker, 611 F.2d at

1015. Second, when a serviceman alleges medical malpractice at a

time when he has not yet been discharged, we focus on the purpose

of his treatment to show that his injury was not incident to

military service. See, e.g., Cortez, 854 F.2d at 725; Adams,

728 F.2d at 741.

5 intended to return himto military service. I d. Because the

p urpose of Schoemer's medical examination was to allow him to

enlist in the Louisiana National Guard, the examination was a

prerequisite to his return to military service. 3

One court has applied Feres to bar an FTCA claim arising from

a National Guard preenlistment medical examination. H all v. United

States, 528 F.Supp. 963, 967-68 (D.N.J.1981), aff'd, 688 F.2d 821

(3d Cir.1982). Other courts have reached the same result for

medical examinations that are a prerequisite to active duty. See

Bowers v. United States, 904 F.2d 450, 452 (8th Cir.1990); W est v.

United States, 729 F.2d 1120, 1122-23 (7th Cir.), aff'd en banc,

744 F.2d 1317 (7th Cir.1984), cert. denied, 471 U.S. 1053, 105

S.Ct. 2113, 85 L.Ed.2d 478 (1985); Y olke n v. United States, 590

F.2d 1303, 1303 (4th Cir.1979) (per curiam); C alhoun v. United

States, 475 F.Supp. 1, 3-4 (S.D.Cal.1977), aff'd, 604 F.2d 647 (9th

Cir.1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d

761 (1980).

In Bowers, af ter a medical examination Bowers was to serve

f ive months in the Air Force Reserve and then go on active duty.

The Eighth Circuit considered the three rationales supporting Feres4 State National Guard members serve the state and the nation

in a dual capacity. See Perpich v. Department of Defense, 496

U.S. 334, 345-46, 110 S.Ct. 2418, 2425-26, 110 L.Ed.2d 312

(1990).

6 in the context of the pre-induction medical examination. Bowers

was not entitled to any statutory benefits because he had not

served any time on active duty. I d. at 451. Nevertheless, the

court noted that Bower's relation ship with the Air Force was

distincti vely federal, and that a negligence action would have a

direct effect on military judgments and decisions. B owers, 90 4

F.2d at 452. Since two of the three rationales were relevant, the

Eighth Cir cuit applied F eres because "there is no question that

pre-induction physicals are activities incident to service." Id.

at 452.

In this case, although Schoemer's enlistment into the

Louis iana National Guard adds a state flavor to his relationship

with his supe riors, 4 he is entitled to veteran's benefits because

of his stint on active duty. Furthermore, the availability of a

negligence action would require the military to alloc ate its

resources to prevent and compensate mistakes in pre-inducti o n

medical examinations. B owers, 904 F.2d at 452. This third

rationale is the overriding consideration in any single case.

Scales, 685 F.2d at 973.

Applying the three Parker factors, we conclude that

Schoemer's preenlistment medical examination was incident to

military service. Furthermore, the policies behind Feres support

its application to this case. Having considered the totality of5 Feres bars Shirre Schoemer's derivative claims as well.

See Gaspard v. United States, 713 F.2d 1097, 1101-02 (5th

Cir.1983), cert. denied, 466 U.S. 975, 104 S.Ct. 2354, 80 L.Ed.2d

826 (1984). The Schoemers ask us either to overrule Feres or to

hold its judicially created FTCA exception unconstitutional by

separation of powers. We leave these arguments for the Supreme

Court.

7 the circumstances, we conclude that the district court properly

applied Feres and dismissed the Schoemers' suit for lack of subject

matter jurisdiction. 5

CONCLUSION

For the foregoing reasons, the district court's dismissal of

Appellants' FTCA suit for lack of subject matter jurisdiction is

AFFIRMED.