Joshua E. Frankel v. United States, et al.

Whether the Fourth Circuit erred in applying an unduly restrictive “situs and status test” for the determination of whether the acts at issue were “incident to service” which test is far beyond the established policy reasons underlying the so called Feres doctrine. Whether there is a conflict between District Courts and Courts of Appeal in the United States regarding the application of the “incident to service” test which requires guidance from this Court to not only avoid inconsistent results but ultimately to prevent a significant departure from Congress’ original intent in enacting 28 U.S.C. §2674 and its waiver of sovereign immunity implicating a concern for separation of powers. Whether the Fourth Circuit, in affirming the District Court’s dismissal of the Plaintiff’s uninsured motorist claim based upon Feres immunity, misapplied Section 38.2-2206 of the Code of Virginia, as made and provided, which would have allowed a judgment against an “Immune Defendant.”