Futrell v. United States, 16-3079

859 F.3d 403

John Lee FUTRELL, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 16-3079

United States Court of Appeals, Seventh Circuit.

Argued April 7, 2017

Decided June 8, 2017

Laura Mae Longstreet, Attorney, Longstreet Law LLC, South Bend, IN, for Plaintiff–Appellant.

Gina Shields, Bob Wood, Attorneys, Office of the United States Attorney, Indianapolis, IN, for Defendant–Appellee.

Before Posner, Ripple, and Sykes, Circuit Judges.

Posner, Circuit Judge.

The plaintiff began a military career in 1983, serving variously in the Indiana National Guard, the United States Army, and finally the United States Army Reserve, from which he retired, ending his military career, in 2014, by which time he had reached the rank of Captain and served in combat in Iraq. Between July 2007 and October 2011 he had sustained several injuries and, more ominously, had been diagnosed with Type 2 (adult–onset) diabetes. His blood–glucose levels had risen so high as to sow doubt about his ability to continue performing his military duties. And sure enough in October he was released from active duty and placed on reserve status while a Physical Evaluation Board evaluated his fitness for continued military service.

When finally retired from the army on grounds of physical disability in November 2014, Futrell became eligible to receive a monthly pension from the government. And had his medical paperwork gone through he would have received in addition incapacitation payments to cover the gap between his release from duty and his retirement. But as a result of some mix–up he received no money from the government between December 2011 and January 2013, a deprivation that he claims without contradiction inflicted severe financial and emotional distress on him. In the following month the government did pay him a lump sum that covered the incapacitation payments that he should have received, but the government failed (he claims, again without contradiction) to compensate him for the distress he'd experienced when because of the government's confusion or incompetence he had received no salary.

Having thus incurred damages as a result of the government's negligence in failing to pay him his salary for more than a year, he filed this suit against the United States under the Federal Tort Claims Act, which makes the government subject to tort claims "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. (Actually, the claim might better have been interpreted as a contract claim governed by the Tucker Act, 28 U.S.C. § 1346(a)(2), but as neither side has briefed the issue we'll not address it.)

Coming to the heart of the case before us, we note that the district court dismissed Futrell's suit as barred by Feres v. United States , 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), where in Justice Robert Jackson's majority opinion, which despite its age has not been overruled, superseded, recast, or ignored, the Court ruled the Federal Tort Claims Act unavailable to a member of the armed forces who "while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces." Id. at 138, 71 S.Ct. 153. That describes the present case. The Court further noted that the Act made " ‘the law of the place where the [negligent] act or omission occurred’ govern any consequent liability," id. at 142, 71 S.Ct. 153, quoting 28 U.S.C. § 1346(b), and since a soldier has no choice of where he's assigned, that "the geography of an injury should select the law to be applied to his [a soldier's] tort claims makes no sense.... It would hardly be a rational plan of providing for those disabled in service by others in service to leave them dependent upon geographic considerations over which they have no control and to laws which fluctuate in existence and value." Id. at 143, 71 S.Ct. 153. The Court pointed out that the military had its own compensation system comparable to the common law tort system embodied in the Federal Tort Claims Act, see id. at 145, 71 S.Ct. 153, and "conclude[d] that the Government is not liable under the ... Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. 153.

Feres remains the law, but the plaintiff argues that...