                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            June 28, 2005
                                FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    JON B. PURCELL, Personal
    Representative of the Estate of
    Jeremy Ross Purcell,

                  Plaintiff - Appellant,                   No. 04-4309
                                                     (D.C. No. 04-CV-256-DS)
      v.                                                    (D. Utah)

    UNITED STATES OF AMERICA,

                  Defendant - Appellee,

    and

    JOHN DOES 1 THROUGH 100,

                  Defendants.




                                ORDER AND JUDGMENT          *




Before HARTZ , McKAY , and PORFILIO , Circuit Judges.



           After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff Jon B. Purcell, as personal representative of the estate of his son,

Jeremy Ross Purcell, appeals from a district court order dismissing his claims

under the Federal Tort Claims Act (FTCA), 28 U.S.C.      §§ 1346(b), 2671-2680, as

barred by the doctrine of   Feres v. United States , 340 U.S. 135 (1950). We review

the order de novo, Ricks v. Nickels , 295 F.3d 1124, 1127 (10th Cir. 2002), and

affirm for the reasons explained below.

       Jeremy Purcell, a member of the United States Marine Corps, was killed in

an accident during a military training operation at Camp Pendleton, California.

He was fatally wounded when a participant mistakenly used live ammunition for

the blanks that were intended for the exercise. Plaintiff filed this action seeking

redress for the alleged negligence of not only the particular participant using the

live ammunition but also the Marine Corps for relying on individual marines to

segregate, store, account for, and use the live and blank ammunition issued to

them. The United States was substituted as a defendant pursuant to 28 U.S.C.

§ 2679(d)(1), and moved for dismissal under     Feres , arguing that Jeremy’s death

“ar[o]se out of or [was] in the course of activity incident to service” and, thus,

was not redressible.   Feres , 340 U.S. at 146. S ee generally Tootle v. USDB

Commandant , 390 F.3d 1280, 1281-82 (10th Cir. 2004) and cases cited therein.


                                          -2-
The district court agreed and dismissed the FTCA claim against the United States

for lack of subject matter jurisdiction. Following dismissal of the rest of the case

and entry of judgment, plaintiff appealed the FTCA ruling.

       Recent decisions have made it clear that the overarching question under

Feres is whether the plaintiff’s injury was “incident to service,” regardless of the

presence of any “special factors” potentially implicating or undermining the legal

rationales historically advanced for the doctrine.        See Tootle , 390 F.3d at 1282

(“Rather than focusing on the presence or absence of the         Feres rationales, then,

the relevant question is whether [plaintiff’s] alleged injuries arose incident to

service.” (quotation omitted));     Ricks , 295 F.3d at 1130 (noting relevant case law

has “effectively merged the ‘special factors’ analysis with the incident to service

test”). The incident-to-service inquiry “‘has broadened . . . to the point where it

now encompasses, at a minimum,         all injuries suffered by military personnel that

are even remotely related to the individual’s        status as a member of the military.’”

Ricks , 295 F.3d at 1128 (quoting      Pringle v. United States , 208 F.3d 1220,

1223-24 (10th Cir. 2000) (further quotation omitted)). The accident at issue here,

occurring in the course of military training exercises, clearly falls within the

scope of the doctrine.   See, e.g. , Hefley v. Textron, Inc. , 713 F.2d 1487, 1492

(10th Cir. 1983); Kitowski v. United States , 931 F.2d 1526, 1530 (11th Cir. 1991);

Estate of Matinelli v. United States    , 812 F.2d 872, 873 (3d Cir. 1987).


                                              -3-
       Plaintiff sought to avoid that conclusion by advancing two distinct lines of

argument. First, he insisted that the    Feres doctrine be qualified in the same way

that the intentional-tort exclusion of 28 U.S.C.         § 2680(h) was in Sheridan v.

United States , 487 U.S. 392 (1988), which allowed an FTCA claim even though

the immediate cause of injury was an assault excluded by            § 2680(h), because

behind the immediate cause lay another proximate cause – supervisory negligence

enabling the assault – not subject to the exclusion.         See R. docs. 10 & 18.

Second, plaintiff argued for abandonment of the doctrine, for reasons expressed

by the dissent in United States v. Johnson , 481 U.S. 681, 692-703 (1987), as an

unjustified judicial encroachment on the exclusive sphere of Congress, which did

not include an incident-to-service principle among the list of exclusions in the

FTCA. See R. docs. 1 & 18.

       The district court rejected the first argument, holding        Sheridan ’s analysis of

the intentional-tort exclusion inapposite to         Feres ’ incident-to-service principle

and noting that similar allegations of negligent military management leading to a

service-related injury did not forestall application of the        Feres doctrine in United

States v. Shearer , 473 U.S. 52, 57-59 (1985).          See R. doc. 21 at 3-4. We agree

that Sheridan does not solve the Feres problem in this case.           Sheridan turned on

two joint points: (1) a given injury may be traced back to more than one type of

tortious conduct, and (2) the exclusions in      § 2680 are tort-specific, so that the



                                               -4-
exclusion of one type of tort claim need not entail the exclusion of another. But

the second point does not apply here. The      Feres doctrine turns on the relationship

of the plaintiff’s injury to his or her military service, not the specific tort theory

asserted to redress the injury. If it applies, it excepts the federal government from

any liability “ under the FTCA. ” 1 Ricks , 295 F.3d 1127 (emphasis added);        see

Tootle , 390 F.3d at 1281;    Pringle , 208 F.3d at 1223;    see also Bowen v. Oistead ,

125 F.3d 800, 804 (9th Cir. 1997) (“     Feres bars intentional tort claims as well as

simple negligence claims”);     Mackey v. United States , 226 F.3d 773, 776 (6th Cir.

2000) (holding to same effect, collecting cases). Thus, there is no significance

under Feres to the fact that a tort claim based on the negligence of the marine

using live ammunition here may be augmented with another tort claim based on

the military policy making that mistake possible: the latter claim, being equally

“incident to service,” is precluded for the same reason as the former.

      Plaintiff’s argument for abandonment of the           Feres doctrine is misdirected

at this court. “[O]nly the United States Supreme Court can overrule or modify

Feres .” Labash v. United States Dept of Army       , 668 F.2d 1153, 1156 (10th Cir.

1982). For the same reason, plaintiff’s related constitutional challenge to the

FTCA as construed in Feres       is beyond our purview.       See Tootle , 390 F.3d at


1
        Feres also applies to constitutional claims.       Tootle , 390 F.3d at 1282-83;
Bowen , 125 F.3d at 803 & n.2. We need not pursue the point further, however, as
plaintiff has limited his appellate briefing to application of       Feres to FTCA claims.

                                             -5-
1282-83 (noting but not reaching constitutional concerns raised regarding      Feres

doctrine because panel was “bound to follow the decisions of the Supreme Court

and the published decisions of this court”). We are constrained by controlling

precedent to hold that the FTCA affords no remedy to those who, like plaintiff,

have suffered even grievous personal loss incident to service in this country’s

military forces.

      The judgment of the district court is AFFIRMED. Plaintiff’s motion for

leave to proceed on appeal in forma pauperis (IFP) is DENIED.       2




                                                       Entered for the Court



                                                       John C. Porfilio
                                                       Circuit Judge




2
       Given plaintiff’s financial declaration reflecting yearly income in excess of
$45,000 and net assets over $45,000, he cannot qualify for waiver of fees and
costs under the indigency standard governing IFP status under 28 U.S.C.        § 1915.
See, e.g. , Walker v. People Express Airlines, Inc. , 886 F.2d 598, 601-02 (3d Cir.
1989); Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc.       , 865 F.2d 22,
23 (2d Cir. 1988); United States v. Valdes , 300 F. Supp.2d 82, 84 (D. D.C. 2004).

                                           -6-
