R. Keith Jarrett, Carol L. Welborn, Liskow & Lewis, New Orleans, LA, for appellant.

Robert J. Boitmann, U.S. Atty., New Orleans, LA, Matthew A. Connelly, William T. Storz, David V. Hutchinson, Dept. of Justice, Torts Branch, Washington, DC, for appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JONES and DeMOSS, Circuit Judges, and BUNTON,* District Judge:

BUNTON, District Judge.

Leonce Miller appeals the district court's dismissal of his negligence action against the United States, claiming the court's finding that his injuries arose during the course of activity incident to his military service was erroneous as a matter of law. Because we agree with the district court's conclusion that it lacked subject matter jurisdiction over Miller's claims, we affirm the dismissal.

I. Facts

Miller received an appointment to the United States Naval Academy in Annapolis, Maryland, in March of 1991. As required, he reported to the Academy on July 9, 1991, and began participation in the Academy's orientation program as a "plebe," an incoming freshman midshipman. The orientation program is called "plebe summer" and is the beginning of the process of training midshipmen to become Navy officers. During the training, plebes are taught basic skills in seamanship, navigation, sailing and small boat handling, signaling, infantry drill, and small arms familiarization. Plebes are subject to rigorous physical and mental demands in an effort to develop their leadership ability, motivation, integrity, and physical skills and strength.

During the course of the program, on July 23, Miller was injured when the boom of a laser sailboat struck him in the back of the head, knocking him unconscious. He was subsequently admitted to the National Naval Medical Center in Bethesda, Maryland, where he was diagnosed with "conversion disorder." In August of 1991, Miller was categorized by a Navy neurologist at the Medical Center as "not fit for full duty" and "unsuitable for military service." In a Counsel and Guidance Interview Record, Miller was deemed "unfit for naval service." He was ordered to the Medical Center's psychiatric ward where he remained until November 4, 1991. Miller alleges that during his hospitalization he suffered serious mental and emotional injuries because of his doctors' wrongful diagnosis and the inadequate medical treatment he received. During his stay at the Medical Center, a Navy Medical Board recommended that he be disenrolled from the Naval Academy. Miller was honorably discharged from the United States Navy on February 21, 1992, for "physical disability not existing prior to entry on active duty."

Miller filed an administrative claim with the United States Navy on December 29, 1992, alleging the injuries he sustained as a result of the sailing accident were caused by various acts of negligence on the part of the United States. He also alleged a separate claim of improper medical care by the United States based on his treatment at the Medical Center. Both claims were rejected by the United States. Miller subsequently sued the United States under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(a), 2671-80 (the FTCA); the Suits in Admiralty Act, 46 U.S.C.App. Secs. 741-752; and the Public Vessels Act, 46 U.S.C.App. Secs. 781-790. The United States requested that the district court dismiss Miller's claims for lack of subject matter jurisdiction. The court did so, concluding that because Miller's injuries arose during the course of activity incident to his military service as a midshipman at the Academy, his claims fell within the Feres exception to the United States' waiver of tort liability.

Miller appeals the court's conclusion his cause of action is barred by the Feres doctrine claiming the court did not adequately address his arguments that his injuries did not occur during activities incident to military service. He argues that he was not a member of the Navy and not engaged in military service and that, even if he could be considered a service member, the Feres doctrine is not applicable since he was not on active duty at the time his injuries arose.

II. Discussion

The Feres doctrine is a judicially created exception to the broad waiver of immunity established by the FTCA. The essence of the doctrine is 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." Feres v. United States, 340 U.S. 135, 146, 71 S. Ct. 153, 159, 95 L. Ed. 152 (1950). The Feres doctrine applies with equal force to bar actions by service members under the Suits in Admiralty Act and the Public Vessels Act. Beaucoudray v. United States, 490 F.2d 86 (5th Cir.1974).

"[T]he question of what activity invokes the Feres doctrine is not a question of fact ... but an issue requiring de novo appellate review." Adams v. United States, 728 F.2d 736, 738 n. 3 (5th Cir.1984) (citing Parker v. United States, 611 F.2d 1007, 1008 n. 1 (5th Cir.1980)).

Miller's first ground for disputing the district court's finding that his accident was incident to his military service as a midshipman at the Academy is that he was not, in fact, a member of the military service at the time of the accident. Miller characterizes his status at the Academy as merely that of a student in training for future military service. He argues that because he was only a freshman midshipman, he owed no obligation to the military establishment at the time of his accident and that he was under no compulsion to participate in the sail training exercise but could have disenrolled from the Academy without penalty. He also draws our attention to the fact that time spent in the military academies is not counted in computing the length of active military service. 10 U.S.C. Sec. 971(b).

The Government, on the other hand, argues that the sail training exercise was mandatory and an essential part of Miller's training as a midshipman, that Miller was subject to the Uniform Code of Military Justice at all times, and that, although midshipmen during the first two years of enrollment at the Naval Academy are under no obligation to remain at the Academy and may voluntarily disenroll at any time without having to serve active duty, Miller could have resigned his appointment only upon approval of the Chief of Naval Personnel. A midshipman is a "member of the naval service," 10 U.S.C. 5001(a)(3), and, as such, has committed the crime of Absence Without Leave if he fails to go to his appointed place of duty at the time prescribed, or absents himself from the Academy without permission. 10 U.S.C. Sec. 886.

The United States suggests we can find further evidence of Miller's status as an active duty service member in that he was appointed a Midshipman in the United States Navy by the President of the United States, he executed an oath of office pursuant to the appointment, and as a midshipman, Miller was entitled not only to a free education but to midshipman pay at the rate of $543.90 per month. He was covered by the Navy's Servicemen's Group Life Insurance Policy. The Government also offers various textual support for its argument. See, e.g., 10 U.S.C. Sec. 101(d)(1).

We reject Miller's claims that, as a freshman midshipman, he could not be considered engaged in military service. Midshipmen are in training for future military service as officers, United States v. Ellman, 26 C.M.R. 329, 330, 1958 WL 3370 (C.M.A.1958), and attendance at the United States Naval Academy is expected to lead to active military service as an officer. "[C]onduct in combat inevitably reflects the training that precedes combat...." Chappell v. Wallace, 462 U.S. 296, 300, 103 S. Ct. 2362, 2366, 76 L. Ed. 2d 586 (1983). The purpose of the Academy is to train men and women to hold positions as officers in future service to their country, not merely to educate them so that they may later participate successfully in civilian life. It is no surprise, then, that "a cadet in the Military or Naval academies has always been considered to be a member of the military forces of the United States...." Travis v. United States, 146 F. Supp. 847, 850 (Ct.Cl.1956). "[W]hile the time spent as a cadet in the Military Academy may not be counted in computing length of service, such service is service in the military forces of the United States." Id. at 851. Because Miller was in the military service when the accident occurred, we must now decide whether the injuries he claims arose out of or were in the course of activity incident to that service.

Miller relies, ultimately, on his contention that he was not on active duty military service at the time of the sailing accident and, therefore, the accident was not "incident to service" and the Feres doctrine does not apply. The United States, on the other hand, claims Miller was "on duty" and "under instruction" at the time of the accident and, thus, his injuries were sustained incident to active duty military service. Although the United States appears to accept the logic, if not the premise, of Miller's argument, we do not.

We have previously stated we require "a case-by-case assessment of the totality of the circumstances to determine whether the injured service member's particular status at the time of injury was such as to bring into play" the Government's interest in regulating "the unique relationship of servicemen to the [G]overnment." Adams, 728 F.2d at 738-39. To aid in that assessment, we have articulated certain factors, embodied in what we have called the Parker test, which should be considered in determining whether a serviceman's injuries were "incident to service:"

the duty status of the serviceman, the site of injury, and the activity of the serviceman at the time of the injury. While no single factor is necessarily dispositive, our applications of the Parker test--and, indeed, the results of our cases decided before Parker's exposition of it--demonstrate that the duty status of the service member is usually considered the most indicative of the nature of the nexus between him and the [G]overnment at the time of injury and is therefore the most important factor.

Adams, 728 F.2d at 739 (citing Parker, 611 F.2d at 1013-15). While we do not deny the importance of the service member's duty status, we believe the parties' almost exclusive focus on whether or not Miller was on active military duty at the time of his injuries is entirely too narrow and does not adequately address the most important rationale for the doctrine--the need to exercise a great deal of caution before requiring or allowing the civilian bench and bar to analyze and, in the end, judge military decisions. That rationale is incorporated in the Parker test's concentration on the relationship between the service member and the military expressed in the consideration of the three factors: the status of the service member, the site of the injury, and the activity of the service member at the time of the injury. In the end, a court must determine whether an activity is incident to service by "examining the totality of circumstances...." Id. at 1013. This examination should address not only Parker's three factors but should take into account the rationale behind the Parker test.

A review of the various rationale advanced over the years supports our decision to reject an approach which overemphasizes the duty status prong of the Parker test and to re-focus the inquiry on whether or not Miller's injuries "ar[ose] out of or [were] in the course of activity incident to service." Feres, 340 U.S. at 146, 71 S.Ct. at 159 (emphasis added). The history of the doctrine reveals that the question of what activities are "incident to service" has undergone "a rather complex evolution" but that the "overall trend [of the evolution] is unmistakable." Jackson v. Brigle, 17 F.3d 280, 282 (9th Cir.), cert. denied, --- U.S. ----, 115 S. Ct. 187, 130 L. Ed. 2d 121 (1994). "The test has been broadly construed to immunize the United States and members of the military from any suit which may 'intrude in military affairs,' 'second-guess[ ] military decisions,' or 'impair[ ] military discipline.' " Id. (quoting Stauber v. Cline, 837 F.2d 395, 398 (9th Cir.), cert. denied, 488 U.S. 817, 109 S. Ct. 55, 102 L. Ed. 2d 33 (1988). Although this Court discussed the evolution of the Feres doctrine in Parker, a synopsis of that evolution is useful to our analysis of its application to Miller's claims.

The doctrine had its roots in the Supreme Court's decision in Brooks v. United States, 337 U.S. 49, 69 S. Ct. 918, 93 L. Ed. 1200 (1949), in which the Court held that a soldier on furlough, although in the armed services, is not precluded from bringing suit under the FTCA. In Brooks, the Court was dealing with a service member whose injuries had nothing to do with his military career and were not caused by his service in the military. The Court expressed its opinion that "[w]ere the accident incident to the [service member's] service, a wholly different case would be presented." Id. at 52, 69 S.Ct. at 920. One year later, Feres presented that wholly different case. The Court in Feres found service members who were not on furlough but were on active duty at the time of their injury were injured incident to their military service and thus precluded from suing the Government under the FTCA. In Feres itself and in cases following that decision, the Court re-emphasized, explained, contracted, and expanded upon various rationales for the doctrine.

First, in formulating the doctrine, the Court reasoned that the "parallel private liability required by the FTCA"1 was lacking in suits by service members against the Government for injuries sustained incident to their military service. Feres, 340 U.S. at 141-42, 71 S.Ct. at 156-57. However, this "parallel private liability" rationale was explicitly rejected by the Court in later decisions. Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S. Ct. 374, 376-77, 1 L. Ed. 2d 354 (1957); Indian Towing Co. v. United States, 350 U.S. 61, 66-69, 76 S. Ct. 122, 125-27, 100 L. Ed. 48 (1955). Second, the Court reasoned that because of the "distinctively federal"2 character of the relationship between the United States and its armed forces, allowing "the law of the place where the [negligent] act or omission occurred"3 to affect the liability of the United States to individual service members would be inconsistent with the uniformity for which the military strives. Feres, 340 U.S. at 142-44, 71 S.Ct. at 157-58; United States v. Johnson, 481 U.S. 681, 689, 107 S. Ct. 2063, 2068, 95 L. Ed. 2d 648 (1987). This ground for the doctrine was later recognized as "no longer controlling." United States v. Shearer, 473 U.S. 52, 58, n. 4, 105 S. Ct. 3039, 3043, n. 4, 87 L. Ed. 2d 38 (1985). Third, the Court found that "the existence of ... generous statutory disability and death benefits" for service members obviated the need for application of the FTCA whose primary purpose " 'was to extend a remedy to those who had been without.' " Johnson, 481 U.S. at 689-90, 107 S.Ct. at 2068 (quoting Feres, 340 U.S. at 140, 71 S.Ct. at 156). Although this ground for barring recovery under the FTCA by service members is also "no longer controlling," Shearer, 473 U.S. at 58 n. 4, 105 S. Ct. at 3043 n. 4, it is still a factor taken into consideration by courts when addressing the question of whether or not Feres bars a service member's cause of action. This Court has cautioned that "[t]he existence and acceptance of ... benefits is not, however, an accurate barometer for the threshold question of whether the activity is 'incident to service.' " Parker, 611 F.2d at 1012.

Finally, but most importantly, the Supreme Court has explained that

Feres and its progeny indicate that suits brought by service members against the Government for injuries incurred incident to service are barred by the Feres doctrine because they are the 'type[s] of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.'

Johnson, 481 U.S. at 690, 107 S.Ct. at 2069 (quoting United States v. Shearer, 473 U.S. at 59, 105 S.Ct. at 3043-44 (emphasis in original)); see also United States v. Brown, 348 U.S. 110, 112, 75 S. Ct. 141, 143, 99 L. Ed. 139 (1954). In recent times, courts seem to have found greatest support for the Feres doctrine in this reasoning that "a suit based upon service-related activity necessarily implicates the military judgments and decisions that are inextricably intertwined with the conduct of the military mission." Johnson, 481 U.S. at 691, 107 S.Ct. at 2069. Commitment to military service, grounded as it is in obedience to orders and duty and loyalty to one's country, could be undermined by allowing suits against the Government for service-related injuries. Id. The Supreme Court has stressed that "whether the suit requires the civilian court to second-guess military decisions" or "goes directly to the 'management' of the military" and "whether the suit might impair essential military discipline" is the "best explanation" for the Feres doctrine. Shearer, 473 U.S. at 57-58, 105 S.Ct. at 3042-43 (citing Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673, 97 S. Ct. 2054, 2058-59, 52 L. Ed. 2d 665 (1977) and Chappell, 462 U.S. at 299-300, 103 S.Ct. at 2365-66); see also United States v. Muniz, 374 U.S. 150, 162, 83 S. Ct. 1850, 1857-58, 10 L. Ed. 2d 805 (1963). This Court has recognized that this concern for preserving military discipline is "the most important consideration in any single case." Scales v. United States, 685 F.2d 970, 973 (5th Cir.1982). Suits in which "commanding officers would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions" are an improper interference by the judiciary in the management of the armed forces. Shearer, 473 U.S. at 58, 105 S.Ct. at 3043. "[C]omplex, subtle, and professional decisions as to the composition, training, ... and control of a military force are essentially professional military judgments" and are best committed to the legislative and executive branches of the Government and not to civilian courts. Chappell v. Wallace, 462 U.S. at 302, 103 S.Ct. at 2366-67 (quoting Gilligan v. Morgan, 413 U.S. 1, 10, 93 S. Ct. 2440, 2445-46, 37 L. Ed. 2d 407 (1973)). See also Morey v. United States, 903 F.2d 880, 882 (1st Cir.1990) (adjudicating plaintiff's claims would "require the court to delve into questions of military decision making.").

The fact that an injured service member is not on active duty when the injury occurs does not preclude application of the Feres doctrine as the parties suggest. Scales, 685 F.2d at 973. Keeping in mind that "duty status is to be viewed as a continuum from actual active duty at one extreme to discharge at the other," Adams, 728 F.2d at 739, we are not persuaded that "incident to service" necessarily denotes an "active duty" status or even that the service member is currently "in service" in the sense that he or she is actively pursuing the military duties of a soldier at the time of injury. We therefore reject the parties' attempts to make the dispositive question on this issue whether or not Miller was on active duty.

If we view the continuum in light of the best rationale for the Feres doctrine--that the propriety of military decisions and actions are committed to the military and not to the courts--it becomes apparent that injuries are "incident to service" if an inquiry into the Government's liability for those injuries would require civilian courts to second-guess military decisionmaking. Stencel, 431 U.S. at 671-72, 97 S.Ct. at 2057-58.

This test should not be given as constricted a scope as the parties imply. The Ninth Circuit has recognized that "practically any suit that 'implicates ... military judgments and decisions' runs the risk of colliding with Feres." Persons v. United States, 925 F.2d 292, 295 (9th Cir.1991) (emphasis added) (quoting Johnson, 481 U.S. at 691, 107 S.Ct. at 2069); see also Jackson v. Brigle, 17 F.3d at 282. The Seventh Circuit has "consistently found that a servicemember's injury is incident to military service whenever the injury is incurred while the individual is on active duty or subject to military discipline." Stephenson v. Stone, 21 F.3d 159, 162 (7th Cir.1994) (emphasis added) (citing Collins v. United States, 642 F.2d 217, 219 (7th Cir.), cert. denied, 452 U.S. 964, 101 S. Ct. 3115, 69 L. Ed. 2d 975 (1981)). Justice Scalia's analysis in United States v. Stanley, 483 U.S. 669, 107 S. Ct. 3054, 97 L. Ed. 2d 550 (1987), underscores the breadth of the "incident to service" test: