Frankel v. United States

JOSHUA E. FRANKEL, Plaintiff - Appellant, v. UNITED STATES OF AMERICA; JAVEN EVONNE DAVIS,solely in her capacity of an uninsured driver pursuant to Virginia Code § 38.2-2206,as amended and provided, Defendants - Appellees,andGOVERNMENT EMPLOYEES INSURANCE COMPANY, Intervenor.

No. 19-1113

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Submitted: March 16, 2020

April 14, 2020

UNPUBLISHED

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, Chief District Judge. (2:18-cv-00107-MSD)

Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael Francis Imprevento, BREIT DRESCHER IMPREVENTO, PC, Virginia Beach, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Lauren A. Wetzler, Chief, Civil Division, Alexandria, Virginia, Sean D. Jansen, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia; Richard A. Saunders, FURNISS, DAVIS, RASHKIND & SAUNDERS, Norfolk, Virginia, for Appellees

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

After Petty Officer Joshua Frankel, a U.S. Navy employee, was struck by a car driven by a fellow officer on Naval Station Norfolk, he filed a complaint pursuant to the Federal Tort Claims Act (the "FTCA") against the Government and against the officer solely in her capacity as an uninsured driver under Virginia law. The district court dismissed the complaint for lack of subject matter jurisdiction under Feres v. United States, 340 U.S. 135 (1950). Frankel appeals. For the reasons that follow, we affirm the judgment of the district court.

I.

At 7:37 a.m. on March 31, 2015, Frankel was in a designated crosswalk within Naval Station Norfolk when he was hit by a car driven by Ensign Javen Evonne Davis. At the time of the accident, Davis was driving her personal vehicle to purchase a birthday cake for another officer, as instructed by her executive officer.

Although it is undisputed that Frankel was heading to the Naval Station gym at the time he was hit, the parties contest his status at the time of the accident, and specifically whether he was headed there of his own volition or under orders. Frankel asserts he was heading to the gym of his own volition given that he was "not under any orders associated with his employment with the Navy, he was not on an official Navy assignment, and he was not on duty." J.A. 8. Further, according to Frankel, physical training was not mandatory for his job.

Nonetheless, Frankel acknowledges that at the time of the accident, he was on active duty status (as opposed to furlough). In addition, his supervisor averred that Frankel was required to report to the Naval Station gym that day at 7:30 a.m. to begin mandatory physical training for his job. Although Frankel disputes these specific facts, he agrees that his employment required him to a pass a semi-annual physical fitness assessment and that he had access to the Naval Station's gym only by virtue of his status as a member of the U.S. Navy. (Both the gym and Naval Station Norfolk restrict access to members of and those affiliated with the U.S. Armed Forces.)

Frankel filed a state court complaint against Davis asserting negligence in the operation of her motor vehicle. The Government removed the case to the district court and filed a notice of substitution pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the "Westfall Act"), 28 U.S.C. § 2679, which provides immunity to federal employees from common law tort claims arising out of acts undertaken as part of their official duties and substitutes the United States as the defendant in such cases.¹

After Frankel's initial complaint was dismissed for failure to exhaust administrative remedies,² Frankel satisfied those prerequisites and then filed the instant two-count complaint. The first count asserts a negligence claim against the Government under the FTCA, claiming that Davis, as a federal employee, failed to exercise reasonable care in operating her vehicle when she struck Frankel. The second count asserts a claim under Virginia's uninsured motorist statute, Va. Code Ann. § 38.2-2206,³ which provides that a person injured in an accident by an otherwise immune vehicle operator may proceed against their own insurer. Specifically, the complaint alleges that Frankel had purchased uninsured motorist coverage from GEICO and that he was entitled to compensation from GEICO under this policy in the event that any named defendant was deemed immune from liability. In turn, the complaint named the Government and Davis as nominal defendants as to this claim to satisfy § 38.2-2206's requirements.

The Government and Davis moved to dismiss for lack of subject matter jurisdiction under Feres, which held that the Government is immune from FTCA claims arising from activities "incident to service" of military personnel. 340 U.S. at 146.

The district court granted the motion.⁴ First, the court considered whether Feres barred Frankel's claim against the Government. As an initial matter, it observed that the Government had presented a factual challenge to subject matter jurisdiction, arguing that the jurisdictional facts—that is, those that bore upon whether Frankel's injuries arose "incident to service," such as the purpose of his gym visit—alleged in the complaint were incorrect. The court further observed that in ruling on a challenge to jurisdictional facts that were not intertwined with the underlying merits of the negligence claim, it was not required to assume those facts, as alleged in the complaint, were true. Rather, it could resolve the jurisdictional facts by "weigh[ing] the evidence and satisfy[ing] itself as to the existence of its power to hear the case." Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (internal quotation marks omitted); see also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir. 2009) ("Unless the jurisdictional facts are intertwined with the facts central to the merits of the dispute, the district court may then go beyond the allegations of the complaint and resolve the jurisdictional facts in dispute by considering evidence outside the pleadings, such as affidavits." (internal quotation marks omitted)).⁵ Here, the evidence showed that Frankel was on duty, was on his way to a mandatory training, was hit by a fellow servicemember, and was on a military base with restricted access. As a result, the court ruled that Frankel's claim "falls squarely within the heart of the Feres bar." J.A. 201 (internal quotation marks omitted). The court further determined that, even if it did not resolve the jurisdictional facts and instead accepted Frankel's version of the facts as true—that he was off duty and headed to the gym of his own volition, and was hit by another off-duty servicemember—it would still find the claim barred by Feres because Frankel conceded he was on active duty status rather than furlough status, his Navy employment required him to pass a semi-annual physical fitness assessment, and he was attempting to patronize a gym that he had access to only by virtue of his status as a Navy servicemember.

Second, the court concluded that Frankel's uninsured motorist claim was barred. As the court observed, to proceed against an otherwise-immune defendant, Virginia law first required entry of judgment against that defendant. But because Feres prevented Frankel from obtaining that judgment, his uninsured motorist claim could not meet this threshold requirement. Further, the court concluded, because Virginia law did not permit Frankel to pursue his claim directly against his insurance company, it had to be dismissed.

Frankel appeals, arguing that the district court erred in ruling that his claims were barred by Feres and deciding this jurisdictional issue without further discovery. He also asserts that the court misapplied Feres to dismiss his uninsured motorist claim.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We first consider whether the district court erred in concluding Feres deprived it of subject matter jurisdiction. The existence of subject matter jurisdiction under Rule 12(b)(1) is a question of law that this Court reviews de novo. Balfour Beatty Infrastructure, Inc. v. Mayor & City Council of Balt., 855 F.3d 247, 251 (4th Cir. 2017).

The FTCA provides a limited waiver of the Government's sovereign immunity, authorizing lawsuits against the United States for certain tort claims against federal employees acting within the scope of their duties in circumstances "where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). But in Feres, the Supreme Court held that servicemembers cannot bring tort suits against the Government for injuries they incur that "arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146. Feres has since been applied "consistently to bar all suits on behalf of service members against the Government based upon service-related injuries." United States v. Johnson, 481 U.S. 681, 687-88 (1987).

Here, the district court concluded that Frankel's injuries arose "incident to service" because at the time of the accident Frankel was on active duty status and "his status as a Navy employee both gave him access to the on-base gym and required him to maintain a level of fitness." Frankel v. United States, 358 F. Supp. 3d 537, 543 (E.D. Va. 2019). Therefore, "his on-base injury occurring while he was traveling to a military exercise facility was directly connected to his military service, even if his workout was intended to be recreational." Id. (internal quotation marks omitted).

A.

On review, we conclude that the district court correctly determined that Feres barred Frankel's claim against the Government because the injury was a...