                                  United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 97-5987

                                      Non-Argument Calendar.

                              Carlos JIMENEZ, Plaintiff-Appellant,

                                                 v.

                       UNITED STATES of America, Defendant-Appellee.

                                          Oct. 30, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 96-880-CV-
SH), Shelby Highsmith, Judge.

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 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


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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, 106 S.Ct. 149, 88 L.Ed.2d 123 (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 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


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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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