UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JON B. PURCELL, Personal Representative of the Estate of

Jeremy Ross Purcell,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee,

and

JOHN DOES 1 THROUGH 100,

Defendants.

No. 04-4309

(D.C. No. 04-CV-256-DS)

(D. Utah)

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

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 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 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