                     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.
                                    ___________




        1
       The Honorable Lawrence L. Piersol, United States District Judge for the District
of South Dakota, sitting by designation.
       Jonathan Brown appeals the dismissal of his medical negligence action against
the United States of America. The district court2 dismissed his suit for failure to state
a claim on which relief 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 therefore
lacked subject matter jurisdiction over 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 Reserve
Officers' Training Corps (ROTC) at the University of Missouri-Columbia. Brown did
not receive an ROTC scholarship, but he did receive financial assistance ($5,000 per
year) and a stipend ($100 per month) through his participation in the Department of the
Army Scientific and 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
graduation from 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
term in the United States Army upon graduation. 10 U.S.C. § 2104(b). If for any
reason he was disenrolled from the ROTC, Brown would be released to the control of
his reserve unit. (See Appellant's App. at 66.) Brown agreed that if he breached his
ROTC contract, the Secretary of the Army could immediately order him to perform 24
months of active service as an enlisted man, and that failure to honor his service



      2
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.

                                          -2-
        ons, whether as an officer or as an enlisted soldier, would subject him t
disciplinary                                                                      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
right hip.                                                                             .
Durin ROTC training exercises the next day, however, Brown again complained of
                                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 then 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 at



        As a result of his injury, Brown failed to
training prog                                                                    a
result, he lost hi
apply                                                                            h
allows federal employees to petition the Department of Labor for the equivalent of
                          See 5 U.S.C. § 8101-8193. This application me
and Brown began receiving FECA benefits. Because Brown's injuries


                                          -3-
appeared to be both permanent and the result of service-related activities, the Office of
Workers' Compensations Programs informed Brown that he should make a claim for
benefits from the Department of Veterans Affairs (the VA).3 Brown did so, and his
application to the VA ultimately met with success. On April 1, 1991, Brown began
receiving $1,620 per month from the VA for permanent disabilities resulting from
service-connected activities. At this time, Brown ceased receiving FECA payments,




       3
       The Department of Veterans Affairs compensates veterans for service-
connected disabilities or death. 38 U.S.C. § 1131. Brown applied for and has been
awarded benefits under § 1131 because the Secretary found that Brown is a veteran and
has suffered "service-connected" injuries resulting in disability.

       A veteran is a person who has "served in the active military, naval, or air
service," 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 service." See id. § 101(22)(D) (Senior ROTC training programs of four weeks or
greater duration constitute "active duty for training"); id. § 101(23)(C) (Senior ROTC
training programs of fewer than four weeks' duration constitute "inactive duty for
training"); id. § 101(24) (the term "active military, naval or air service" includes both
"active duty for training" and "inactive duty for training"). Brown's participation in
inactive duty training constituted "active military, naval or air service," and he is
therefore a veteran, having been discharged under honorable conditions.

       Veterans receive benefits under § 1131 only for service-connected
disabilities—i.e., disabilities 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). Because
Brown's injury occurred during a mandatory ROTC Army Physical Fitness Test, the
Secretary determined that it was service-connected, and correctly concluded that
Brown is entitled to veterans benefits under § 1131.

                                            -4-
because the Department of Labor does not pay FECA benefits where VA benefits have
been awarded.4

       On February 2, 1996, Brown filed this action against the United States
government, alleging 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 subject 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
granted, 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 federal government's waiver of sovereign immunity as
to claims for money damages for injuries caused by the torts of government employees
acting within the scope of their employment "under circumstances where the United
States, if a private person, would be liable to the claimant in accordance with the law




      4
       Senior ROTC members are considered federal employees and are covered by
FECA if they suffer work-related injuries. 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, § 113(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 injured
cadets will receive, as discussed supra in note 3.

                                           -5-
     the place where the act or omission occurred." 28 U.S.C. § 1346(b),                 28
                                                                    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 injuries arise out
of or are in the course of activity incident to service." Id. at 146. An injury is
considered "incident to service" if it arises "because of his military relationship with the
Government." United States v. Johnson, 481 U.S. 681, 689 (1987). Where injuries are
incurred incident to service, dismissal is required. Miller v. United States, 643 F.2d
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 United States'
motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of
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 jurisdictional
doctrine, and the terms of the United States' "consent to be sued in any court define that
court's jurisdiction 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. United
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 claim 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


                                            -6-
       jurisdiction.        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 States
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 three
         See         , 481 U.S. at 688-91.

      All         rationales are implicated by Brown's suit, but the second is the most
         In denying servicemen the right to sue the government for injuries incurred
                          Court in Feres
a "simple, certain, and uniform" compensation system for such injuries which is neither
             nor "negligible." 340 U.S. at 144, 145. The Court reasoned that ha
Congress                                                                              -
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



                                              -7-
      serviceman, but it also clothes the Government in the "protective mantle
      of the Act's limitation-of-liability provisions." Given the broad exposure
      of the Government, and the great variability in the potentially applicable
      tort law, the military compensation scheme provides an upper limit of
      liability for the Government as to service-connected injuries.

431 U.S. at 673 (citations omitted). The Court stated that allowing a 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 Supreme
Court's last word on the subject—the Court reiterated that the Feres doctrine does not
contemplate suits for tort damages in the face of VA benefits for service-connected
disabilities or death. There the Court wrote:

             [T]he existence of these generous statutory disability and death
      benefits is an independent reason why the Feres doctrine bars suit for
      service-related injuries. In Feres, the Court observed that the primary
      purpose of the FTCA was to extend a remedy to those who had been
      without; if it incidentally benefited those already well provided for, it
      appears to have been unintentional. Those injured during the course of
      activity incident to service not only receive benefits that compare
      extremely favorably with those provided by most workmen's compensation
      statutes, but the recovery of benefits is swift and efficient, normally
      requiring no litigation. The Court in Feres found it difficult to believe that
      Congress would have provided such a comprehensive system of benefits
      while at the same time contemplating recovery for service-related injuries
      under the FTCA. Particularly persuasive was the fact that Congress
      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.




                                           -8-
481   .S. at 689-90 (internal citations, quotations marks, footnote, and alterations
              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 benefits, 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
        Johnson                                                                See 481 U.S.



       Brown                                                          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
See 10 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




                                             -9-
       Furthermore, as the Second Circuit noted in Wake, several courts have held that
Feres bars cadets at military academies and reservists from suing the government for
service-related injuries. See Wake, 89 F.3d at 58-59 (listing relevant cases). The
Eighth 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.2d 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 engaged 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 been engaged in the physical fitness test and would therefore not have
been injured. Carroll and Archer make clear that Feres bars reservists and cadets at
military academies from suing under the FTCA for injuries sustained during such
activities, and we discern no principled reason why Senior ROTC members should be
treated differently. In short, we hold that Brown's initial injury was sustained "because
of his military relationship with the government." See Johnson, 481 U.S. at 689.
Accordingly, the injury occurred in the 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 suit alleges medical
negligence by the military doctors who treated the initial injury, citing, inter




                                          -10-
   , 38 U.S.C. § 1151,                        , 348 U.S. 110 (1954), and
United States, 426 F.2d 1324 (6th Cir. 1970). We disagree.

              Feres
the Supreme Court:                              , Jefferson v. United States        Feres v.
United States. Two of these actions (Jefferson and Grigg) sought recovery for negligent
treatment by military surgeons of injuries incurred during active military service. See
Feres, 340 U.S. at 137. The Court did not hesitate in holding that both of these suits
were completely barred by sovereign immunity. 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 injury "occur[red] in the course of activity" incident to military service,
aggravations to the injury sustained during treatment "arise out of" that same service-
related activity. See id. at 146 (both injuries "in the course of" and injuries "arising out
of" activity 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
postdischarge failure to treat service-related injuries constituted continuations of the
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. § 1151. Brown argues that section 1151 evidences a general congressional
intent to allow claims for medical negligence brought by veterans against military
doctors. We disagree for several reasons. First, section 1151 is only applicable where
a veteran 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. More
fundamentally, section 1151 is clearly intended to extend VA benefits, not to authorize
tort suits against the government. Because veterans who have suffered non-service-




                                           -11-
related injuries may sue under the FTCA, section 1151 provides that VA benefits shall
be abated in such cases to reflect tort damages received by the patient. It says nothing,
however, about the applicability of the FTCA in the context of service-related activities.

       Finally, section 1151 originated in 1958 and has not been substantially altered
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, legislation that would allow service
members to bring medical malpractice suits against the Government." Johnson, 481
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 result, Congress would
not have needed to consider such legislation, and the Supreme Court would not have
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 not
changed this standard in the now close to 50 years since Feres.

       Allison v. United States, 426 F.2d 1324 (6th Cir. 1970), is similarly irrelevant to
Brown's action. The "sole issue" in that case was whether an ROTC cadet was eligible
for contractual benefits under certain group life insurance policies. Id. at 1324. The
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, 687
n.7 (1987). In Brown I, the Supreme Court refrained from applying the Feres bar to a
veteran's suit against the government for medical negligence. The Court acknowledged
that the veteran's service-related injury was aggravated during an operation at a VA
hospital, but because the veteran had been completely discharged from service seven




                                          -12-
years before the operation, the Court found that the causal relationship was too
attenuated for the Court to conclude that the subsequent harm caused by the alleged
medical negligence arose out of activity incident to military service. See Brown I, 348
U.S. at 112.

       The case at hand is very different from Brown I. We are not faced with the
follow-up treatment of a veteran in a VA hospital many years after he has left the
service, but rather with the initial treatment by Army doctors in a military hospital of
injuries sustained during active military service. See 38 U.S.C. § 101(23)(C). Brown
was still a member of the Senior ROTC advanced training program when he was treated
for the injury he had sustained during required ROTC activities, while the plaintiff in
Brown I had been discharged seven years 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
significant likelihood that Brown's suit, if allowed to go forward, would interfere with
the military's disciplinary structure. This concern, which has been central to the
Supreme Court's analysis 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 that he was admitted to the Army hospital in his
capacity as a military dependant rather than in his capacity as an ROTC cadet. We
agree with the district court that, in this case, "this fact is not enough to lift the Feres
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.




                                           -13-
                III.




A true copy.

      Attest:




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