Joseph M. Collins, Plaintiff-appellee, v. United States of America, Defendant-appellant, 642 F.2d 217 (7th Cir. 1981)

Plaintiff, a former United States Air Force Academy (Academy) cadet, brought this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., for injuries caused by medical malpractice which occurred while plaintiff was enrolled at the Academy. After a bench trial, the district court entered judgment for plaintiff in the amount of $200,000. The United States appeals, claiming that plaintiff's action is barred by the Supreme Court decision in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950). Feres bars FTCA suits by servicemen for injuries incident to military service. The question before us is whether Feres applies to cadets at a United States military academy. We hold that the Feres doctrine applies and, therefore, we reverse the judgment entered by the district court.

* Plaintiff entered the Academy in July, 1972. After several days of basic training, he noticed a blind spot and blurred vision in his left eye. His condition was diagnosed as a central serous retinopathy (CSR). During the following weeks, plaintiff's condition worsened. Based upon his condition, plaintiff was released from the Academy on August 8, 1972. He was honorably discharged from the Air Force in September, 1972.

On April 5, 1974, plaintiff filed his complaint alleging medical malpractice. Defendant's motions to dismiss based upon the Feres doctrine were denied.¹  After trial in December, 1979, the district court found that plaintiff's condition had been exacerbated by negligence on the part of Air Force personnel and entered judgment for plaintiff. Since defendant has not appealed the district court's findings of negligence, we accept the district court's findings, as follows.

The district court found that in keeping with good medical practice, treatment of CSR required (1) "advice to (plaintiff) concerning the desirability of minimizing emotional or mental and physical stress" and (2) "action by the Air Force to take some steps to minimize or reduce the stress that accompanied the type of physical and mental activity which the Air Force had him undergoing at that time." Tr. 263-64. The district court found that the Air Force neither advised plaintiff that he should reduce his exposure to mental and physical stress nor took steps to reduce plaintiff's exposure to stress. The court concluded that "(t)herefore, the Air Force negligently failed to do what they were clearly obligated to do for Mr. Collins and this negligent failure was the proximate cause of his present permanent vision impairment in one eye." Tr. 267.

Defendant appeals the district court's judgment for plaintiff solely on the ground that under Feres the United States is immune to FTCA actions by servicemen injured incident to military service. First, we will examine the Feres rule, and then we will determine whether the rule applies to cadets in the military academies.

II

The Feres rule actually stems from a trio of Supreme Court cases. United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954); Feres; Brooks v. United States, 337 U.S. 49, 69 S. Ct. 918, 93 L. Ed. 1200 (1949). In Brooks, the Court held that members of the armed forces could recover against the United States under the FTCA for injuries not incident to their service. 337 U.S. at 52-53, 69 S. Ct. at 920. The Court noted that the FTCA does not forbid suits by military personnel. The Court also held that an FTCA action is not precluded even if plaintiff receives veterans' benefits, since neither the FTCA nor the veterans' benefits laws in Title 38 of the United States Code provide for exclusiveness of remedy. 337 U.S. at 53, 69 S. Ct. at 920.²  The Court specifically reserved judgment on the issue of injuries incident to service. 337 U.S. at 52, 69 S. Ct. at 920.

In Feres, the Supreme Court faced the question left open in Brooks : injuries incident to service. Three servicemen on active duty and not on furlough sustained injuries due to the negligence of others in the armed services. Two of those cases, like this case, were medical malpractice actions brought pursuant to the FTCA. The Court concluded that the United States is not liable under the FTCA "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S. Ct. at 159. The Court continued:

Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law. We do not think that Congress, in drafting this Act (FTCA), created a new cause of action dependent on local law for service-connected injuries or death due to negligence.

340 U.S. at 146, 71 S. Ct. at 159.

In Brown, the Supreme Court elaborated on the "incident to service" bar. The Court held that the controlling factor in deciding whether a member of the armed forces may bring an FTCA suit against the United States is whether the injury was incurred while the person was "on active duty or subject to military discipline." 348 U.S. at 112, 75 S. Ct. at 143. In Brown, plaintiff was injured by negligent treatment in a Veterans' Administration hospital after his discharge from the armed services. Since the injury was not incurred incident to military service, the Court held that Brooks, rather than Feres, governed. Therefore, plaintiff could sue under the FTCA.³ 

In the thirty years since the Feres decision, Congress has not seen fit to legislatively modify the judicial exception to the FTCA. Furthermore, the Supreme Court recently confirmed the vitality of the Feres doctrine in Stencel Aero Eng'r Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977). Stencel Aero held that Feres bars an indemnity action by a third party for money paid to a serviceman who could not recover directly from the United States. 431 U.S. at 673-74, 97 S. Ct. at 2058-59.

This court has consistently applied Feres in holding that FTCA suits are barred if plaintiff was injured incident to military service. Joseph v. United States, 505 F.2d 525 (7th Cir. 1974) (pre-existing infirmity became aggravated during military service); Herreman v. United States, 476 F.2d 234 (7th Cir. 1973) (death of Army National Guard member, not on active duty, flying on military aircraft was "incident to military service"); Layne v. United States, 295 F.2d 433 (7th Cir. 1961), cert. denied, 368 U.S. 990, 82 S. Ct. 605, 7 L. Ed. 2d 527 (1962) (death of Air National Guard pilot on training flight was "incident to military service"). See also Citizens National Bank v. United States, 594 F.2d 1154 (7th Cir. 1979) (Feres bar applied to intentional torts).

III

We now turn to the specific question of whether plaintiff's injury was "incident to military service." Air Force Academy cadets are considered members of the Air Force. 10 U.S.C. § 8075(b) (2). There is no dispute that plaintiff's injury was incident to his service as a cadet at the Academy. Thus, the sole question we must decide is whether the Feres rule covers cadets.

In Archer v. United States, 217 F.2d 548 (9th Cir. 1954), cert. denied, 348 U.S. 953, 75 S. Ct. 441, 99 L. Ed. 745 (1955), a cadet from the United States Military Academy was killed in the crash of a military airplane. The cadet was on leave and rode gratuitously in the plane. His parents claimed that the plane was operated negligently and sued for damages under the FTCA. The court held that since a cadet on a military plane is under military discipline even while on leave and riding voluntarily, he has no FTCA claim for injuries. Therefore, the parents' death action was barred.

Plaintiff argues that Archer does not support defendant's position here because the court never decided the question of whether cadets are covered by the Feres rule. Plaintiff argues that the Archer court merely assumed that cadets fell within the terms of Feres and decided only the question of whether riding gratuitously in a military airplane was an activity "incident to service." But, although the Archer court did not explicitly discuss the significance of cadet status, the conclusion that a cadet is subject to the Feres rule is implicit in the court's holding. Indeed, the court stated that the allegations in the complaint "indicate the usual transportation of a soldier in military service in line of duty," 217 F.2d at 551.

The significance of cadet status recently was specifically addressed in Fischer v. United States, No. 77 C 830 (E.D.N.Y. June 14, 1979), vacating 451 F. Supp. 918 (E.D.N.Y. 1978). In Fischer, an Air Force Academy cadet brought suit under the FTCA alleging negligent medical treatment of injuries received while he was a member of the Academy's varsity football team. The court initially had denied the government's motion for summary judgment and had held that Feres did not apply to cadets. The court had based its initial decision on erroneous statements by the government that cadets were not subject to military discipline and were not entitled to disability benefits for service-connected injuries. The government later provided correct information regarding cadet discipline and benefits. Based on the correct information, the court held that the Feres bar must apply. Therefore, the court vacated its earlier order and dismissed plaintiff's complaint.

Plaintiff argues that Fischer was wrongly decided. We find, however, that the fact that cadets are subject to military discipline and are eligible for certain veterans' benefits strongly supports the finding that cadets, like other service personnel, are barred from bringing FTCA actions for service-related injuries.

First, cadets are subject to military discipline pursuant to the Uniform Code of Military Justice. 10 U.S.C. § 802(2). For example, a cadet can be court martialed for "conduct unbecoming an officer." 10 U.S.C. § 933.

Second, cadets who are discharged under conditions other than dishonorable are considered "veterans" for purposes of eligibility for veterans' benefits. 38 U.S.C. § 101(2), (21) (D). They, therefore, are eligible for disability and vocational rehabilitation benefits. 38 U.S.C. §§ 331, 1502. Indeed, plaintiff here receives disability compensation and received vocational rehabilitation payments while he was in medical school. In addition, a cadet's family can recover death benefits if a cadet is killed incident to his service as a cadet. Archer, 217 F.2d at 550.⁴ 

Plaintiff argues that since cadets are not eligible for all of the benefits available to some members of the armed forces, cadets should not be precluded from bringing FTCA suits. For example, cadets are specifically excluded from chapter 61 of the Armed Forces Act, 10 U.S.C. §§ 1201-1221, entitled "Retirement or Separation for Physical Disability." 10 U.S.C. § 1217. But chapter 61 is for the benefit of members of the armed forces "entitled to basic pay;" the payments are computed according to the claimant's pay and eligibility depends on length of service and degree of disability. See 10 U.S.C. § 1201(3). This type of pay-based benefit plainly is not relevant to service academy cadets.⁵ 

Furthermore, not only cadets, but other servicemen who are excluded from disability retirement benefits because they do not meet the length of service or degree of disability requirements of chapter 61 are precluded from bringing FTCA suits for service-related injuries. Exclusion from a particular type of benefit does not govern the application of Feres to these members of the armed forces. We find no reason to allow an FTCA remedy for cadets that is denied to other members of the armed forces regardless of the level of benefits for which they are eligible.

Plaintiff misconstrues the significance that receipt of benefits has to the question of whether Feres applies to cadets. Such indicia of military status as being subject to military discipline and being entitled to veterans' benefits show that cadets are, indeed, members of the military. The availability of benefits in any individual case is irrelevant. While the receipt of benefits does not preclude an FTCA suit if a serviceman's injury is not incurred incident to service,⁶  the denial of veterans' benefits does not mean that an FTCA remedy must be available. In fact, in Joseph v. United States, 505 F.2d 525 (7th Cir. 1974), this court held that the Veterans Administration's finding that plaintiff was not entitled to disability compensation because his injury was not service-connected did not preclude the district court's dismissal of his FTCA claim on the ground that the injury was service-connected. An FTCA claim is barred as a matter of law if the injury is service-connected. 505 F.2d at 527.

Finally, plaintiff argues that Feres should be construed narrowly since it is an exception to the FTCA's general waiver of sovereign immunity, 28 U.S.C. § 2674. But, this court has applied Feres uniformly to those who are considered members of the armed forces. In Herreman and Layne⁷  this court applied Feres to National Guard members who, like cadets, are distinguishable from regular armed service members in some respects. We find no reason to carve out an exception to the Feres bar for cadets. To allow plaintiff's FTCA award to stand would be to seriously erode a Supreme Court precedent which neither Congress nor the Supreme Court has seen fit to modify.

The judgment of the district court is, therefore,

Reversed.