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Hajdusek v. United States

United States Court of Appeals, First Circuit

July 11, 2018

JOSEPH S. HAJDUSEK, Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA, Defendant, Appellee.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District Judge]

          David 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.

          Before Torruella, Selya, and Kayatta, Circuit Judges.

          KAYATTA, CIRCUIT JUDGE.

         Joseph 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.

         I.

         When 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.

         In 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 yet."

         After 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.

         After 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.

         Hajdusek 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.

         II.

         The FTCA serves as a limited waiver of sovereign immunity and ...


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