Filed: Oct. 30, 1998
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 97-5987 FILED Non-Argument Calendar U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT D.C. Docket No. 96-880-CV-SH 10/30/98 THOMAS K. KAHN CARLOS JIMENEZ, CLERK Plaintiff-Appellant, versus UNITED STATES OF AMERICA, Defendant-Appellee. - Appeal from the United States District Court for the Southern District of Florida - (October 30, 1998) Before BIRCH and MARCUS, Circuit Judges, and HENDERSON, Senior Circuit Judge. PER CURIAM: Ca
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 97-5987 FILED Non-Argument Calendar U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT D.C. Docket No. 96-880-CV-SH 10/30/98 THOMAS K. KAHN CARLOS JIMENEZ, CLERK Plaintiff-Appellant, versus UNITED STATES OF AMERICA, Defendant-Appellee. - Appeal from the United States District Court for the Southern District of Florida - (October 30, 1998) Before BIRCH and MARCUS, Circuit Judges, and HENDERSON, Senior Circuit Judge. PER CURIAM: Car..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________
No. 97-5987
FILED
Non-Argument Calendar U.S. COURT OF APPEALS
___________________ ELEVENTH CIRCUIT
D.C. Docket No. 96-880-CV-SH 10/30/98
THOMAS K. KAHN
CARLOS JIMENEZ, CLERK
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
--------------------------
Appeal from the United States District Court
for the Southern District of Florida
--------------------------
(October 30, 1998)
Before BIRCH and MARCUS, Circuit Judges, and HENDERSON, Senior Circuit Judge.
PER CURIAM:
Carlos Jimenez filed this action against the United States pursuant to the Federal Tort
Claims Act, 28 U.S.C. § 2671 et seq. (“FTCA”), seeking damages for alleged medical
malpractice. The United States District Court for the Southern District of Florida granted the
government’s motion to dismiss the case. Jimenez appeals from the final judgment. For the
reasons that follow, we affirm the judgment of the district court.
FACTS AND PROCEEDINGS IN THE DISTRICT COURT
Jimenez was a seaman recruit in the United States Navy. He was found guilty of
violating Article 121 (Larceny) of the Uniform Code of Military Justice at a court-martial on
August 21, 1991. At his sentencing hearing, he received a bad-conduct discharge, three months
of confinement, and forfeiture of two-thirds of his pay for two months. His conviction was
ultimately affirmed on appeal, and he was separated from active duty on May 4, 1993. While his
case was on appeal, Jimenez sought medical treatment for his left hip at the Department of
Veteran Affairs Medical Center in Miami. He was admitted to the hospital with an active duty
identification card stamped “APPELLATE LEAVE.” Doctors at the facility performed hip
surgery on Jimenez on February 1, 1993. He was discharged on February 17, 1993, but returned
for several post-operative visits, including several after his separation from the service.
In June 1995, Jimenez filed an administrative claim with the Department of Veterans’
Affairs (“Department”) seeking $2,000,000 in damages for an improper or unnecessary hip
fusion at the Miami hospital. The administrative claim did not allege any negligent medical care
after his discharge from the Navy. The Department denied the claim in May 1996. Jimenez
filed this suit in the district court in April 1996 seeking to receive damages under the FTCA.
The government moved to dismiss the case on the ground that it was barred by the doctrine
promulgated by the Supreme Court in Feres v. United States, 340 U.S. 135,
71 S. Ct. 153,
95
L. Ed. 152 (1950), that denied relief under the FTCA because that act did not waive the United
States’ sovereign immunity for injuries to servicemen which arise out of or are incident to
military service. The district court concluded that Jimenez was a member of the military at the
time of the allegedly negligent medical conduct and that the treatment was incident to service
within the meaning of Feres. The court also held that Jimenez’ claims for negligent medical care
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following his discharge were also barred by the doctrine because they were “inextricably
intertwined” with the treatment he received while on active duty. Accordingly, the court granted
the government’s motion to dismiss.
DISCUSSION
In general, the FTCA waives the sovereign immunity of the United States for negligent
injury to persons or property. In a series of decisions rendered shortly after enactment of the
statute, however, the Supreme Court established what is now referred to as the Feres doctrine,
which holds that, under the FTCA, no action lies for a serviceman’s injury which is incident to
military service. In a leading opinion, the former Fifth Circuit Court of Appeals held that the
serviceman’s duty status was the most important criterion in determining whether an injury was
incident to military service. Parker v. United States, 611 F.2d 1007 (5th Cir. 1980). Therefore, as
the district court noted, this case requires us to determine Jimenez’ status with the United States
Navy at the time he received the allegedly negligent medical care at issue. If Jimenez is found to
have been on active duty status, any injury he received as a result of medical care by the
government is “incident to his military service,” and a tort claim is precluded by Feres. See
Rayner v. United States,
760 F.2d 1217 (11th Cir.), cert. denied,
474 U.S. 851 (1985).
Jimenez urges that the district court erred in concluding that he was an active duty
member of the Navy at the time of his medical treatment. There is no case from our circuit
court of appeals which addresses this precise question. The Fourth Circuit Court of Appeals has
held, however, in a factually similar case, that a serviceman on excess leave following a court-
martial and bad-conduct discharge was on active duty for Feres doctrine purposes. Appelhans v.
United States, 877 F.2d 309 (4th Cir. 1989). Furthermore, this court has held that a serviceman
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on a permanent disability retired list retained his status as a member of the service, such that a
tort claim was barred by Feres. Ricks v. United States, 842 F.2d 300 (11th Cir. 1988)(per
curiam).
Jimenez relies principally on a decision from the Fifth Circuit Court of Appeals in Adams
v. United States, 728 F.2d 736 (5th Cir. 1984), but that case is clearly distinguishable. In Adams,
the court determined that the Feres doctrine was not a bar to a suit brought by the survivors of a
former serviceman because his court-martial had been affirmed on appeal and his discharge had
been completed to the extent of the Army’s ability to do so at the time of his medical treatment
and death at a public health service hospital.
Id. at 738-40. In other words, the survivors’
lawsuit was not barred because he had been finally discharged and was no longer under military
care for FTCA liability purposes. By contrast, in this case, Jimenez’ court-martial had not been
affirmed on appeal or his discharge completed at the time of the allegedly negligent hip
operation and subsequent treatment.
For the reasons stated in this opinion, the district court correctly granted the
government’s motion to dismiss his FTCA action, and its judgment is AFFIRMED.
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