JOSEPH S. HAJDUSEK, Plaintiff, Appellant,
UNITED STATES OF AMERICA, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District Judge]
N. Damick, with whom The Law Offices of David N. Damick and
Thomas P. Colantuono were on brief, for appellant.
Courtney L. Dixon, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, with whom Chad A.
Readler, Acting Assistant Attorney General, John Farley,
Acting United States Attorney, and Mark B. Stern, Attorney,
Appellate Staff, Civil Division, United States Department of
Justice, were on brief, for appellee.
Torruella, Selya, and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
Hajdusek participated in the Marine Corps Delayed Entry
Program ("DEP"), a program through which
individuals can sign up to join the Marine Corps but delay
entry in order to better prepare for basic training. Hajdusek
alleges that a superior negligently ordered him to undertake
an unreasonable program of physical activity, which
ultimately resulted in serious injuries. Left disabled and
abandoned by the Corps, he sued the United States under the
Federal Tort Claims Act ("FTCA"). The district
court concluded that the discretionary function exception to
the FTCA barred the suit and dismissed the case. For the
following reasons, we must affirm.
reviewing a dismissal for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1), we
"construe the [c]omplaint liberally and treat all
well-pleaded facts as true, according the plaintiff the
benefit of all reasonable inferences." Murphy v.
United States, 45 F.3d 520, 522 (1st Cir. 1995). In
addition to the pleadings, Hajdusek submitted certain
additional materials for the district court to consider in
evaluating its own jurisdiction, including his own
declaration and various Marine Corps documents. The district
court considered those materials without objection from the
government, and the government makes no objection to our
proceeding similarly here, so we draw the following facts
from the complaint as well as from the additional materials
considered by the district court.
August 2010, Hajdusek signed up for the Marine Corps DEP. The
DEP is a program that allows individuals to enlist in the
Marine Corps Reserve up to one year prior to enlisting in the
regular Marine Corps. Individuals participating in the
program are known as "poolees." While enrolled in
the program, poolees prepare physically and mentally for
their enlistment into the active-duty Marine Corps. The
program aims to assist in training and reduce attrition. One
important aspect of the pool program is particularly relevant
here: Poolees, though affiliated with a Marine recruiting
station, are not active-duty Marines and are not entitled to
Department of Defense type benefits. As guidance documents
from the Marine Corps state, poolees "are not Marines
participating in the program for several months, Hajdusek met
most of his weight and strength goals, and was preparing to
ship to basic training upon passing a pull-up test. Prior to
this final stage, he went skiing with his family, a trip
approved by one of the Marines supervising the program.
During this trip, Hajdusek received a phone call from Staff
Sergeant Mikelo, the newly installed manager of his
recruiting station, asking why he had not shown up for a pool
event. Dissatisfied with Hajdusek's answer, Mikelo
ordered him to appear for a physical training session on
March 1. Hajdusek did as he was told. When he arrived for the
training session, Mikelo put him through a workout that
Hajdusek describes in a declaration as "much longer and
much more strenuous than any other workout I had ever been
given." During this workout, he did more repetitions
than normal of lunges, pull-ups, push-ups, crunches, and air
squats, was given only two twenty-second water breaks over a
two-hour period, and was made to exercise for at least thirty
minutes longer than normal. Near the end of the session he
showed signs of overexertion, collapsing several times but
nonetheless able to leave under his own power.
spending the ensuing several days essentially bedridden due
to pain, Hajdusek began to experience blurred vision and
nausea. He was diagnosed with various ailments, including
rhabdomyolysis, a condition caused when muscle tissue dies
from extreme overuse and the dead tissue enters the
bloodstream. This has left him permanently disabled.
sued the United States in the District of New Hampshire,
alleging that Mikelo's actions had caused his physical
injuries and disabilities, that these actions were negligent,
and that pursuant to the Federal Tort Claims Act, 28 U.S.C.
§ 1346(b)(1), he was entitled to damages. The United
States moved to dismiss on the ground that Hajdusek's
claim stemmed from "the performance of a discretionary
function," and since the United States has not waived
sovereign immunity for such claims, the district court lacked
subject matter jurisdiction. The district court agreed with
the government and dismissed the case. This appeal followed.
FTCA serves as a limited waiver of sovereign immunity and