Hajdusek v. United States

895 F.3d 146 (1st Cir. 2018)

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Nature of the Case

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Facts

In August 2010, P signed up for the Marine Corps DEP. 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. Poolees are not active-duty Marines and are not entitled to Department of Defense type benefits. After several months, P met most of his weight and strength goals and was preparing to ship to basic training upon passing a pull-up test. P went skiing with his family. During this trip, P 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. Mikelo ordered him to appear for a physical training session on March 1. P did as he was told. Mikelo put him through a tough workout. 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 P showed signs of overexertion, collapsing several times but nonetheless able to leave under his own power. P was bedridden due to pain. P 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. P sued D under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1). D moved to dismiss on the ground that P'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 motion was granted and P appealed.