The Honorable Lawrence L. Piersol, United States District Judge for th e District 1 of South Dakota, sitting by designation.



## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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v. Western District of Missouri.

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Submitted: November 19, 1997

___________ District Judge.

___________The Honorable Scott O. Wright, United States District Judge for the Western 2 District of Missouri. -2- Jonatha n Brown appeals the dismissal of his medical negligence action against the United States of

America. The district court dismissed his suit for failure to state 2 a claim on which relie f could be granted, see Fed. R. Civ. P. 12(b)(6), and this appeal followed. Because Brown 's injury was sustained incident to military service, Brown's suit falls outside the Federal Tort Claims Act (FTCA). The district court therefor e lacked subject matter jurisdiction ov er this action, and dismissal was appropriate. See Fed. R. Civ. P. 12(b)(1). Accordingly, we affirm.

I.
When this action accrued, Brown was a cadet in the United States Army R eserve Officers' Training Corps (R OTC) at the University of Missouri-Columbia. Brown did
no t receive an ROTC scholarship, but he did receive financial assistance ($5,000 per year) and a stipend ($100 per month) through his particip ation in the Department of the Army Scientific an d Engineering ROTC Co-op Program. Brown also was enrolled in the United States Army's Senior ROTC advanced training program, through which he hoped to earn a commission as a second lieutenant in the United States Army upon his graduationfrom college. See 10 U.S.C. § 2106(a) (1994). Before he could enroll in the Senior ROTC advanced training program, Brown was required to enlist in a reserve component

of the armed forces, swear an oath of loyalty, and bind himself to serve a te rm in the United States Army upon graduation. 10 U.S.C. § 2104(b). If for an y reason he was disenrolled f rom the ROTC, Brown would be released to the control of his reser ve unit. ( See Appellant's App. at 66.) Brown agreed that if he breached hi s ROTC contract, the Secretary of the Armycould immediately order him to perform 24 months of active service as an enlisted man, and that failure to honor his service-3-

ons, whether as an officer or as an enlisted soldier, would subject him t disciplinar y t 36.)
s required periodically to take and pass an Army Physical Fitness Test or to immediate active duty as an enlisted soldier. See 2105; Appellant's App. at 36. During one such righthip.

. Durin ROTC training exercises the next day, however, Brown again complained o f excused with instructions to report to a nearby civilian hospital have it examined. There doctors diagnosed Brown with a muscle strain in his right qu again examined, and doctors t hen discovered that Brown had fractured his right femur.

Brown y Hospital (Wood Hospital) at For to n
eve underwent two orthopedic surgeries at Wood Hospital and a third a t

As a result of his injury, Brown failed to training prog a result, he lost hi appl y h allows federal employees to petition the Department of Labor for the equivalent o f

See5 U.S.C. § 8101-8193. This application me and Brown began receiving FECA benefits. Because Brown's injuriesT he Department of Veterans Affairs compensates veterans for service

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conne cted disabilities or death. 38 U.S.C. § 1131. Brown applied for and has bee n awarded benefits under § 1131 because the Secretary found that Brown is a v eteran and has suffered "service-connected" injuries resulting in disability.
A veteran is a person who has "served in the active military, naval, or ai r s e rvice," and who has been discharged under conditions other than dishonorable. 38 U.S.C. § 101(2). Senior ROTC training exercises constitute "active military, naval, or air s ervice." See id. § 101(22)(D) (Senior ROTC training programs of four weeks or greater duration co nstitute "active duty for training"); id. § 101(23)(C) (Senior ROTC training programs of fewer than four weeks' duration constitute "inactive duty fo r tra ining"); id. § 101(24) (the term "active military, naval or air service" includes both "act ive duty for training" and "inactive duty for training"). Brown's participation i n inactiv e duty training constituted "active military, naval or air service," and he i s therefore a veteran, having been discharged under honorable conditions.
Vetera ns receive benefits under § 1131 only for service-connecte d disabilities—i.e., disabiliti es incurred or aggravated "in [the] line of duty, in the active military, naval , or air service." 38 U.S.C. § 1131; see also id. § 101(16). Becaus e Brown's injury occurred during a mandatory ROTC Army Physical Fitness Test, th e Se cretary determined that it was service-connected, and correctly concluded tha t Brown is entitled to veterans benefits under § 1131. -4- appeared to be both permanent an d the result of service-related activities, the Office of Workers' Compensations Programs informed Brown that he should make a claim fo r benefits from the Department of Veterans Affairs (the VA). Brown did so, and hi s 3 application to the VA ultimately met with success. On April 1, 1991, Brown bega n receiving $1,620 per month from the VA for permanent disabilities resulting fro m service-connected activities. At this time, Brown ceased receiving FECA payments,Senior ROTC members are considered federal employees and are covered by 4 FECA if they suffer work-related injuri es. 5 U.S.C. § 8140(a). However, FECA does not apply when ROTC members are permanently disabled as the result of authorized, scheduled, and supervised Senior ROTC training. See Act of Oct. 14, 1982, Pub. L. 97-306, § 11 3(c), 96 Stat. 1432, 1432-33 (reproduced in note following 5 U.S.C. § 8140)

. In such cases, the Veterans' Benefits Act governs the compensation injure d cadets will receive, as discussed supra in note 3. -5- because the Department of Labor does not p ay FECA benefits where VA benefits have been awarded. 4

On F ebruary 2, 1996, Brown filed this action against the United State s government, a

lleging that his permanent disability is the direct and proximate result of the negligence of Wayne E. Janda, M.D., a United States Army surgeon. The United States moved to dismiss for lack of subj ect matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For reasons not explained in the record, the district court treated this motion as one to dismiss for failure to state a claim on which relief could be gran ted, see Fed. R. Civ. P. 12(b)(6), and dismissed Brown's action on this basis

. Brown appeals.

II.

A. The Federal Tort Claims Act and the Feres Doctrine
The FTCA represents the fed eral government's waiver of sovereign immunity as to claims for money damages for injuries caused by the torts of government employees
ac ting within the scope of their employment "under circumstances where the Unite d States, if a private person, would be liable to the claimant in accordance with the law-6-

the place where the act or omission occurred." 28 U.S.C. § 1346(b), 2 8 See § 2680.

At issue in this Feres doctrine, an exception to the FTCA's waiver of ved out in Feres v. United States U

. Feres , the Court held that notwithstanding the FTCA, the United States remains immune from suits "for injuries to servicemen where the in juries arise out of o r are in the course of activity incident to service." Id. at 146. An injury i s considered "incident to service" if it arises "bec ause of his military relationship with the Government." United States v. Johnson , 481 U.S. 681, 689 (1987). Where injuries are incurr ed incident to service, dismissal is required. Miller v. United States , 643 F.2 d 481, 491 (8th Cir. 1980) (en banc).

B. The Jurisdictional Nature of the Feres Doctrine
For reasons not stated in its opinion, the district court converted the Uni ted States' motion t o dismiss for lack of subject matter jurisdiction pursuant to Federal Rule o f Civil Procedure 12(b)(1) into a motion to dismiss for failure to state a claim under Rule 12(b) (6). This was procedurally incorrect. Sovereign immunity is a jurisdictiona l doctrine, and the terms of the United States' "consent to be sued in any court define that court's j urisdiction to entertain the suit." FDIC v. Meyer , 510 U.S. 471, 475 (1994 ) (internal quotations omitted). The Feres doctrine , which limits the scope of the FTCA's waiver of sovereign immunity, is likewise jurisdictional. See, e.g. , Selbe v. Unite d States , 130 F.3d 1265, 1266 (7th Cir. 1997); Wake v. United States , 89 F.3d 53, 57 (2d Cir. 1996) ("a question of whether an FTCA cla im is barred by Feres is necessarily one of jurisdiction"). Because the sole issue decided by the district court was whether or not the Feres doctrine bars this action—a jurisdictional question—the district court should have viewed the motion as a 12(b)(1) motion for dismissal for want of subject-7-

j urisdiction. Wake s which are material to the jurisdictional is Drevlow v. Lutheran Church

C. The Application of the Doctrine to Members of the Senior ROTC Advanced Training Program
Stencel Aero Eng'g Corp. v. United State s Court expl Feres doctrine. These rationale focus s and government, (2) the existence of the Veterans' Benefits Act's no-fault military
com scheme for service members, and (3) the negative effect on military ine which second-guessing military orders might produce. Id. last major doctrine case, the Court reaffirmed the importance of these thre e See , 481 U.S. at 688-91.

All rationales are implicated by Brown's suit, but the second is the mos t In denying servicemen the right to sue the government for injuries incurre d

Court in Feres a "simple, certain, and uniform" compens ation system for such injuries which is neither

nor "negligible." 340 U.S. at 144, 145. The Court reasoned that ha Con gress
- connected dis these two types of remedy to each other. at 144. The Supreme Court expanded on this analysis in , writing:
A compensati purpose: it not only provides a swift, efficient remedy for the injured-8-

serviceman, but it also clothes the Government in the "protective mantle of t he Act's limitation-of-liability provisions." Given the broad exposure of the Government, and the great variability in the potentially applicable tort l aw, the military compensation scheme provides an upper limit o f liability for the Government as to service-connected injuries. 431 U.S. at 673 (citations omitted). The Court stated that allowinga tort suit in the face of VA benefits would "circumvent this limitation" and "frustrat[e] one of the essential features of the Veterans' Benefits Act." Id. Moreover, in Johnson —the Suprem e Court's l ast word on the subject—the Court reiterated that the Feres doctrine does not
con template suits for tort damages in the face of VA benefits for service-connecte d disabilities or death. There the Court wrote:

[T]he existence of these generous statutory disability and death bene fits is an independent reason why the Feres doctrine bars suit fo r service-r elatedinjuries. In Feres , the Court observed that the primary pu rpose of the FTCA was to extend a remedy to those who had bee n withou t; if it incidentally benefited those already well provided for, i t appears to have been unintentional. Those injured during the course o f act ivity incident to service not only receive benefits that compar e extremely favorably with those provided by most workmen's com pensation sta tutes, but the recovery of benefits is swift and efficient, normall y requiring no litigation. The Court in Feres found it difficult to believe that Cong ress would have provided such a comprehensive system of benefits while at the same time cont emplating recovery for service-related injuries underth e FTCA. Particularly persuasive was the fact that Congres s omitted any provision to adjust these two types of remedy to each other. Congress still has not amended the Veterans' Benefits Act or the FTCA to make any such provision for injuries incurred during the course of activity incident to service. We thus find no reason to modify what the Court has previously found to be the law: the statutory veterans' benefits provide an upper limit of liability for the Government as to service -connected injuries.-9-

481 .S. at 689-90 (internal citations, quotations marks, footnote, and alteration s

language, along with the Court's decisions in Stencel Feres , makes that the scope of the Feres t which qualifies servicemen for disability and death benefits from the VA.
As discussed above, Brown applied for (and was awarded) VA benef its, claiming in the line of duty and was thus service-connected. See

, claiming in this action that his injuries did not arise "incident to service" because he was technically a civ injury and was admitted to the hospital as a military dependent rather than as an ROTC John son See 481 U.S.

Br own Feres bars suits b ROTC d Circuit has so held, see Wake , 89 F.3d at 58-62, and we find its analysis persuasive See als Morse v. West Feres doctrin barred suit by ROTC cadet where harm occurred "incident to service"). Senior ROTC e component of an armed force, and agree both to complete the course a term of service in the military following training. 10 U.S.C. § 2104(b). Breach of this ent may result in immediate assignment to active duty without a commission See10 U.S.C. § 2105; App mandatory and supervised, and are defined as "active military service" by the Veterans Act. supra C members a service" for purposes of the Feres-10-

Furthermore, as the Second Circuit noted in Wake , several courts have held that Feres b ars cadets at military academies and reservists from suing the government fo r
serv ice-relatedinjuries. See Wake , 89 F.3d at 58-59 (listing relevant cases). Th e Eight h Circuit has never been faced with a case involving cadets, but in United States v. Carroll , 369 F.2d 618 , 620 (8th Cir. 1966), it held that the Feres doctrine extends to suits by reservists. Furthermore, in so doing, the court relied heavily on Archer v

. United States , 217 F.2 d 548 (9th Cir. 1954), cert. denied , 348 U.S. 953 (1955), a case in which the Ninth Circuit held that the Feres doctrine barred an FTCA action brought by a West Point cadet. See Carroll , 369 F.2d at 621-22.
The Army Physical Fitness Test in which Brown was en gaged when he sustained his injury was expressly required by his ROTC contract, (Appellant's App. at 36), and was supervised and directed by the military. But for his military status, Brown clearly would not have b een engaged in the physical fitness test and would therefore not have been injured. Carroll and Archer make clear that Feres bars reservists and cadets a t milit ary academies from suing under the FTCA for injuries sustained during suc h activities , and we discern no principled reason why Senior ROTC members should be treated differently. In short, we ho ld that Brown's initial injury was sustained "because of hi s military relationship with the government." See Johnson , 481 U.S. at 689

. Accordingly, the injury occurred in th e course of an activity incident to military service and a suit under the

FTCA is barred by the Feres doctrine. Id. at 686, 689; Feres , 340 U.S. at 146.

D. The Application of the Feres Doctrine to Medical Negligence Suits
Brown argues that the Feres bar should not apply because his sui t alleges medical negligence by the military doctors who treated the initial injury, citing, inter-11-

, 38 U.S.C. § 1151, , 348 U.S. 110 (1954), and United States , 426 F.2d 1324 (6th Cir. 1970). We disagree.

Fer es the Supreme Court: , Jefferson v. United States Feres v

. United States . Two of these actions ( Jefferson and Grigg ) sought r

ecovery for negligent treatment by m

ilitary surgeons of injuries incurred during active military service. See Fe res , 340 U.S. at 137. The Court did not hesitate in holding that both of these suit s were completely barred by sovereign immu nity. Id. at 146. This result clearly implies that where a soldier is injured incident to service and requires medical care, Feres treats the initial injury and the medical care as two segments of a single episode. Because the initial in jury "occur[red] in the course of activity" incident to military service , aggravations to the injury sustained during treatment "arise out of" that same servicerelated activity. See id. at 146 (both injuries "in the course of" and injuries "arising out of" activit y incident to service are excluded from FTCA coverage); cf. Laswell v

. Brown , 683 F.2d 261, 267 (8th Cir. 1982) (affirming district court's determination that postdi scharge failure to treat service-related injuries constituted continuations of th e initial tort and therefore fell within the Feres bar), cert. denied , 459 U.S. 1210 (1983).
Brown argues, in effect, that Grigg and Jefferson are no longer good law, citing 38 U.S.C. § 1 151. Brown argues that section 1151 evidences a general congressional intentto allow claims for medical negligence brought by veterans against military doctors. We disagree for several reasons. First, section 1151 is only applicable where
a v eteran is treated in a VA facility. At the time of treatment, Brown was not yet a veteran, and he was treated in a military hospital rather than a VA facility. Mor e fundamentally, section 1151 is cl early intended to extend VA benefits, not to authorize tort suits against the government. Because veterans who have suffered non-service--12-

related injuries may sue under the FTCA, section 1151 provides that VA benefits shall be abated in such cases to reflect tort d amages received by the patient. It says nothing, however, about the applicability of the FTCA in the context of service-re lated activities.
Finally, s ection 1151 originated in 1958 and has not been substantially altere d since 1962. See Act of Oct. 15, 1962, Pub. L. 87-825, § 3, 76 Stat. 950; Act of Sept. 2, 1958, Pub. L . 85-857, § 351, 72 Stat. 1124. In 1987, the Supreme Court wrote , "Congress has recently considered, but not enacted, legis lation that would allow service members to bring medical malpractice suits against the Government." Johnson , 48 1 U.S. at 686 n.6 (citing H.R. 1161, 99th Cong., 1st Sess. (1985) ; H.R. 1942, 98th Cong., 1st Sess. (1983)). If section 1151 had already accomplished this resu lt, Congress would not h ave needed to consider such legislation, and the Supreme Court would not hav e stated in Johnson

that "Congress [has not] changed this standard in the close to 40 years since it was articulated[.]" 481 U.S. at 686. We note that Congress still has no t changed this standard in the now close to 50 years since Feres

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Allison v. United States , 426 F.2d 1 324 (6th Cir. 1970), is similarly irrelevant to Brown's action. The "sole issue" in that ca se was whether an ROTC cadet was eligible forcontr actual benefits under certain group life insurance policies. Id. at 1324. Th e decision does not so much as mention Feres or the FTCA.
Finally, Brown relies on United States v. Brown , 348 U.S. 110 (1954 ) (hereinafter Brown I ), holding clarified , United States v. Johnson , 481 U.S. 681, 68 7 n.7 (1987) . In Brown I , the Supreme Court refrained from applying the Feres bar to a veteran's suit against the government for medi cal negligence. The Court acknowledged that th e veteran's service-related injury was aggravated during an operation at a V A hospital, but because the veteran had been completely discharged from service seven-13-

yea rs before the operation, the Court found that the causal relationship was to o attenuated for the Court to conclude that the subsequent harm caused by the allege d medical negligence arose out of activity incident to military service. See Brown I , 348 U.S. at 112.

The case at ha nd is very different from Brown I . We are not faced with th e follow- up treatment of a veteran in a VA hospital many years after he has left th e servic e, but rather with the initial treatment by Army doctors in a military hospital o f injuries sust ained during active military service. See 38 U.S.C. § 101(23)(C). Brown was still a member of the Senior ROTC advanced training program wh en he was treated forthe injury he had sustained during required ROTC activities, while the plaintiff i n Brown I had been discharged seven year s before the allegedly negligent treatment took place. The causal nexus between the initial injury and the alleged aggravation is thus much stronger in the case at hand. Additionally, because Brown's service obligations had not been discharged at the time of the alleged medical negligence, there is a signi ficant likelihood that Brown's suit, if allowed to go forward, would interfere with the mili tary's disciplinary structure. This concern, which has been central to th e Supreme Court's an alysis in other Feres doctrine cases, see, e.g. , Johnson , 481 U.S. at 690-91, was wholly absent in Brown I

. Brown relies heavily on the fact tha t he was admitted to the Army hospital in his capa city as a military dependant rather than in his capacity as an ROTC cadet. W e agree with the district court that, in this case, "this fact is not enough to lift the Fere s bar." (Appellant's App. at 166). Any harm caused by medical negligence in this case
arose out of Brown's service activities, and Brown is therefore jurisdictionally barred from bringing suit to recover in tort for these injuries.-14- III.

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