     Case: 17-30266      Document: 00514208009         Page: 1    Date Filed: 10/24/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 17-30266
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       October 24, 2017
                                                                           Lyle W. Cayce
TIMOTHY LOGAN CHANDLER,                                                         Clerk


              Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; NATHANIEL B. GREENE, SR.,

              Defendants - Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:13-CV-2553


Before JONES, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Timothy Logan Chandler appeals from the district court’s dismissal of
his negligence claim under the Federal Tort Claims Act (“FTCA”) for lack of
subject matter jurisdiction. For the reasons explained below, we AFFIRM.
                                    I. Background
       On January 19, 2012, Chandler injured his knee while playing paintball
at the Fort Polk Morale Welfare & Recreation (“MWR”) Outdoor Recreation
Range. The United States owns and operates the MWR facility, and Nathaniel


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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B. Greene, Sr., maintained the property as a civilian employee of the United
States. At the time of his injury, Chandler was stationed at Fort Polk on active
duty in the United States Army. He had recently returned from a combat tour
of duty in Afghanistan and was required to participate in training called
Warrior Adventure Quest (“WAQ”), which is a military program designed to
help reintegrate soldiers upon their return from combat duty.
      Chandler was on duty the day of his injury.            He was subject to
accountability formation at both the beginning and end of the day to ensure
that soldiers were at their place of duty. Although soldiers were excused from
physical training that morning, for the rest of the day they were required to
attend an event informally referred to as a “fun day.” The officer-in-charge
testified that the purpose of this event was to help reintegrate soldiers
returning from a combat environment. Failure to appear at the event or
leaving without permission would have resulted in disciplinary action.
      However, this was not a normal event. While at the event, soldiers were
offered several outdoor activities to participate in, including paintball, but no
one was required to participate in any of the activities. As the officer-in-charge
that day explained, soldiers would have been at their place of duty even if they
chose to sit under the awning all day. Moreover, soldiers were permitted to
wear civilian clothes and there were plans to grill food. The event was initially
for soldiers only, but, because of the event’s relaxed nature, the officer-in-
charge elected to allow soldiers to invite their families to attend, observe, and
participate.
      The officer-in-charge for the day also attested that the event was
considered United States Army training because it was “pushed down from
higher as part of the soldier[’s] development,” was on the training calendar,
and had an officer-in-charge appointed for it. He further testified that he was
responsible for ensuring 100 percent accountability of all soldiers, maintaining

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all soldiers at the MWR, and administering the safety and activities for the
day. He appointed a non-commissioned officer for each activity to ensure the
safety of each event by checking for unsafe conditions, making sure people were
wearing protective gear and not engaging in foul play, and serving as a point
of contact for emergencies.
      Chandler voluntarily decided to play paintball and injured his knee on a
post sticking out of the ground. He filed suit against both the United States
and Greene, alleging negligence under the FTCA. The district court found that
Chandler was injured while on base and on duty performing an activity that
promoted the unique military purpose of reintegrating soldiers returning from
combat, and dismissed Chandler’s claim under the Feres doctrine for lack of
subject matter jurisdiction.     Chandler now appeals the district court’s
judgment.
                           II. Standard of Review
      The FTCA grants federal courts jurisdiction to hear tort claims against
the United States government. 28 U.S.C. § 1346. The Feres doctrine, however,
provides an exception to this jurisdictional grant “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 (1950). Claims barred under
the Feres doctrine are appropriately dismissed for want of jurisdiction under
Federal Rule of Civil Procedure 12(b)(1). See Stanley v. Cent. Intelligence
Agency, 639 F.2d 1146, 1156–60 (5th Cir. Unit B Mar. 1981). “When reviewing
a dismissal for lack of subject matter jurisdiction, we review factual findings
for clear error and legal conclusions de novo.” Funeral Consumers All., Inc. v.
Serv. Corp. Int’l, 695 F.3d 330, 336 (5th Cir. 2012).
                               III. Discussion
      To determine whether a service member’s injury was incident to military
service, we consider three factors: “(1) duty status, (2) site of injury, and

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(3) activity being performed.” Regan v. Starcraft Marine, LLC, 524 F.3d 627,
637 (5th Cir. 2008). A service member’s duty status is generally the most
important factor. Schoemer v. United States, 59 F.3d 26, 28–29 (5th Cir. 1995).
The significance of a service member’s duty status at the time of injury depends
on where it falls “on a continuum between performing the tasks of an assigned
mission to being on extended leave from duty.” Regan, 524 F.3d at 637. “[O]ne
who is on active duty and on duty for the day is acting ‘incident to service,’” but
one who “has been discharged from the service . . . [is] normally not [acting]
‘incident to service.’” Parker v. United States, 611 F.2d 1007, 1013 (5th Cir.
1980). “Between these extremes are degrees of active duty status ranging from
furlough or leave to mere release from the day’s chores.” Id. “One . . . who is
only off duty for the day usually is held to be acting ‘incident to service.’” Id.
On the other hand, one who is off-post and on a two-day pass at the time of
injury “is sufficiently far from core concerns of Feres as to . . . weigh in favor of
allowing suit.” Regan, 524 F.3d at 640.
      No one disputes that Chandler’s injury occurred on the premises of Fort
Polk. Chandler’s primary argument is that he was not on duty at the time of
his injury because the paintball game was a voluntary activity that involved
civilians. The district court did not err in finding otherwise. It is undisputed
that Chandler was ordered to be present for a military-sponsored and
controlled event and was not at liberty to leave without authorization. Both
Chandler’s platoon leader and the officer-in-charge testified that this event
was Chandler’s place of duty on the day of his injury. At the end of the day,
soldiers were required to report for accountability formation to ensure that
everyone was at their place of duty. These facts support the district court’s
finding that Chandler’s injury occurred while on duty.            Even assuming,
arguendo, that Chandler was not on duty for the paintball activity, this would
at best constitute a temporary suspension from duty for part of the day, which

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still weighs in favor of barring his suit under the Feres doctrine. See Parker,
611 F.2d at 1013.
       Chandler also disputes whether this event qualified as WAQ training.
We need not resolve this question. The district court determined that this
event supported the WAQ’s reintegration process and this fact finding is
supported by the record. Although family members were permitted to attend
and participate, the evidence supports the district court’s fact finding that
civilian participation promoted the event’s unique military purpose of
reintegration. We recently affirmed a district court’s application of the Feres
doctrine under factually analogous circumstances. See Morris v. Thompson,
852 F.3d 416, 418, 421 (5th Cir.) (applying the Feres doctrine to bar a suit
related to injuries sustained “on Randolph Air Force Base during a military
training function” that was “designed to foster camaraderie and serve team-
building purposes”), cert. denied, 86 U.S.L.W. 3153 (2017); see also Costo v.
United States, 248 F.3d 863, 868 (9th Cir. 2001) (“In a range of factual
situations, the courts of appeals have held that recreational activities
sponsored by the military fall within the Feres doctrine.” (collecting cases)).
       Furthermore, even if Chandler was injured while performing a personal
activity, the circumstances of his injury would still weigh in favor of applying
the Feres doctrine because the injury occurred while he was both on base and
on duty for the day. See Gros v. United States, 232 F. App’x 417, 418–19 (5th
Cir. 2007) (applying the Feres doctrine to bar a suit related to toxic chemical
exposure while a service member was at home during off-duty hours because
he “was on active duty status and on base when his injuries occurred”); 1
Warner v. United States, 720 F.2d 837, 838 (5th Cir. 1983) (“[A]n injury
suffered on a military base by a serviceman on private business during normal


       1 Although Gros is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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duty hours but during a period when he had been given permission to take the
day off is incident to his military service . . . .”); Mason v. United States, 568
F.2d 1135, 1136 (5th Cir. 1978) (applying the Feres doctrine to bar a suit
related to an automobile accident that occurred while running personal
errands on the way home from routine naval duties because the service
member “was both on active duty status and on the premises of the Naval Air
Station at the time of the accident”); Zoula v. United States, 217 F.2d 81, 82
n.1, 84 (5th Cir. 1954) (similar to Mason).
      Chandler maintains that our decision in Regan should control the
outcome of this case. In Regan we declined to apply the Feres doctrine to bar
a suit related to a purely voluntary off-base, off-duty recreational activity
unrelated to any direct military purpose. See Regan, 524 F.3d at 637–46.
Those circumstances are not present here. Chandler’s injury occurred while
he was on base and on duty during an official military event to help reintegrate
soldiers returning from combat.
      Accordingly, we AFFIRM the district court’s judgment dismissing
Chandler’s claim for lack of subject matter jurisdiction under the Feres
doctrine.




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