John Lee Futrell v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3079
J OHN LEE FUTRELL ,
Plaintiff‐Appellant,
v.
U NITED STATES OF A MERICA ,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:14‐cv‐02089 — Tanya Walton Pratt, Judge.
____________________
A RGUED A PRIL 7, 2017 — D ECIDED J UNE 8, 2017
____________________
Before P OSNER , R IPPLE , and SYKES , Circuit Judges.
P OSNER , Circuit Judge. The plaintiff began a military ca‐
reer 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)

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2 No. 16‐3079
diabetes. His blood‐glucose levels had risen so high as to
sow doubt about his ability to continue performing his mili‐
tary duties. And sure enough in October he was released
from active duty and placed on reserve status while a Physi‐
cal Evaluation Board evaluated his fitness for continued mil‐
itary service.
When finally retired from the army on grounds of physi‐
cal 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 re‐
ceived 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 gov‐
ernment between December 2011 and January 2013, a depri‐
vation 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 cov‐
ered the incapacitation payments that he should have re‐
ceived, but the government failed (he claims, again without
contradiction) to compensate him for the distress he’d expe‐
rienced when because of the government’s confusion or in‐
competence he had received no salary.
Having thus incurred damages as a result of the govern‐
ment’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,

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No. 16‐3079 3
28 U.S.C. § 1346(a)(2), but as neither side has briefed the is‐
sue 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 (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. 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, 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 ap‐
plied to his [a soldier’s] tort claims makes no sense. … It
would hardly be a rational plan of providing for those disa‐
bled 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. 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, and “conclude[d] that the Government is not liable
under the … Act for injuries to servicemen where the inju‐
ries arise out of or are in the course of activity incident to
service.” Id. at 146.
Feres remains the law, but the plaintiff argues that his
claim falls outside its scope. He points out that the negligent
acts for which he seeks redress were not the injuries (includ‐

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4 No. 16‐3079
ing his contracting diabetes) that he suffered while he was in
active military service, but rather the financial and emotional
damages that he incurred while an Army reservist because
of the Army’s delays in paying him the disability benefits to
which he was entitled as a result of the injuries. Had he in‐
curred those damages after his retirement, the Feres doctrine
might well have not applied, see, e.g., United States v. Brown,
348 U.S. 110, 112 (1954), because the claim would have ac‐
crued when he was no longer a member of the armed forces.
But he was not retired until November 5, 2014, and all the
delays and other harms of which he complains occurred
much earlier, between December 6, 2011, and January 13,
2013; for that was the period in which he was not paid and it
was his not being paid that gave rise to the damages he
seeks under the Federal Tort Claims Act. Furthermore the
alleged harms all relate to Futrell’s military benefits and
were committed by staff working on the military base. See
Jones v. United States, 112 F.3d 299, 301–02 (7th Cir. 1997).
That he was on reserve status is irrelevant, because the Feres
doctrine applies to reservists and not just to active military.
See, e.g., Duffy v. United States, 966 F.2d 307, 312 (7th Cir.
1992); Herreman v. United States, 476 F.2d 234, 236–37 (7th
Cir. 1973).
What is puzzling is Futrell’s passivity during the 13‐
month period in which as a result of the errors or incompe‐
tence of the military paymasters he was receiving no pay.
We are not told whether he made any efforts to light a fire
under the paymasters, for example by filing grievances up
the chain of command or complaining to his senator or rep‐
resentative, who probably would have been aggressive in
pressing the paymasters on behalf of a constituent who had
served in combat, been injured, and contracted a serious dis‐

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No. 16‐3079 5
ease, all while in service. But whether the delay in his receiv‐
ing money due to him from the government was purely the
fault of the government or compounded by laxity in his pur‐
suit of his rights is irrelevant; all that matters is that Feres
renders the Federal Tort Claims Act inapplicable to a ser‐
viceman who incurs injuries that exist only because of his
military employment.
The judgment of the district court is
AFFIRMED.

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