United States District Court, District of New Jersey
October 18, 2001
MATTHEW TOBIN, PLAINTIFF
UNITED STATES OF AMERICA, DEFENDANT
The opinion of the court was delivered by: Stanley S. Brotman, United States District Court
OPINION ON DEFENDANT'S MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION
Presently before the Court is Defendant's motion to dismiss for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1). For the reasons stated below, Defendant's motion shall be
FACTUAL AND PROCEDURAL BACKGROUND
This case involves the application of the Feres doctrine to the Federal
Tort Claims Act. Plaintiff, a member of the Armed Services, alleges
negligence against the United States in connection with a motor vehicle
Plaintiff is a cadet at the U.S. Military Academy at West Point, New
York. (Pl.'s Br. in Opp'n to Def.'s Mot. Dismiss at 2.)
To further Plaintiff's education, the United States Army (the "Army")
assigned Plaintiff to Mounted Maneuver Training at Fort Knox, Kentucky from
July 6 to August 7, 1998. (Def.'s Mem. in Supp. of Mot. Dismiss Ex. 1
(Plaintiff's Military Orders).) Another cadet, Glenda Wrenn ("Cadet
Wrenn"), was also assigned to training at Fort Knox. (Id.) In
furtherance of the cadets' assignments, the Army issued each of them
Military Orders that commanded them to attend the Fort Knox training.
(Id.) These orders covered the cadets' travel to and from Fort Knox and
authorized them to travel via privately owned vehicle. (Id.)
As the Fort Knox training neared completion, the cadets prepared for
the drive back to West Point. To prepare the cadets for this trip, the
Army conducted a safety briefing in which it instructed the cadets to
drive carefully and travel in pairs to avoid fatigue (the "buddy system")
(Def.'s Reply Mem. in Supp. of Mot. Dismiss Ex. 3 (Statement of Captain
Ashe, U.S.A.).) At the briefing, the Army stressed the importance of the
buddy system, and even instructed the cadets that if both drivers were
tired they should pull over and get a hotel room, for which the Army
would later reimburse them. (Id.) This safety briefing was given on
Friday, August 7th, and the cadets were due back in West Point by
Sunday, August 9th. (Id.)
In keeping with the buddy system, Plaintiff and Cadet Wrenn drove
together in Cadet Wrenn's car. On August 8, 1998 at approximately 6:30
A.M., Cadet Wrenn allegedly fell asleep at the wheel and lost control of
her car while en route to West Point. (Pl.'s Br. in Opp'n to Def.'s Mot.
Dismiss at 2.) Both she and Plaintiff sustained serious injuries in the
resulting crash. (Id.)
On July 20, 2000, Plaintiff brought suit against Cadet Wrenn in the New
Jersey Superior Court, Law Division. Thereafter, Cadet Wrenn removed
this case to federal court and filed an Answer to Plaintiff's Complaint.
Subsequently, the United States Attorney successfully moved to substitute
the United States of America as the sole Defendant pursuant to
28 U.S.C. § 2679(b), 1441, and 1442. Now, the United States Attorney
moves for dismissal pursuant to Federal Rule of Civil Procedure
Defendant advances two arguments in support of its motion to dismiss.
First, it argues that this Court lacks subject matter jurisdiction since
the Feres doctrine bars Plaintiff's claim. Second, it contends that this
Court lacks subject matter jurisdiction because Plaintiff has failed to
exhaust his administrative remedies, as required by
28 U.S.C. § 2675(a). Because the Feres doctrine bars Plaintiff's
claim, the Court will grant Defendant's motion to dismiss.
Standard for Motion to Dismiss under Rule 12(b)(1)
Upon a motion to dismiss under Rule 12(b)(1), a court must determine if
it has the subject matter jurisdiction — i.e., the authority
— to consider the attacked claim. See Coll. Savings Bank v. Fla.
Prepaid Postsecondorary Educ. Expense Bd., 948 F. Supp. 400, 406 (D.N.J.
1996). Because "`federal courts are courts of limited jurisdiction,'"
their power to adjudicate is limited to "`only those cases within the
bounds of Article III and the United States Constitution and
Congressional enactments stemming therefrom.'" Id. (quoting Walsh v.
McGee, 899 F. Supp. 1232, 1236 (S.D.N.Y. 1995)). Indeed, the question of
subject matter jurisdiction is of such great consequence that it is a
the court is bound to ask and answer for itself, even when not
otherwise suggested.'" Id. at 406 (quoting Mansfield, Coldwater & Lake
Michigan Ry. v. Swan, 111 U.S. 379, 382 (1884)). In resolving this
question, "the person asserting jurisdiction bears the burden of showing
that the case is properly before the court at all stages of the
litigation." Fed. Realty Inv. Trust v. Juniper Props. Group, Civil
Action No. 99-3389, 2000 WL 45996, at *3 (E.D.Pa. Jan. 21, 2000) (citing
Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir.), cert.
denied, 510 U.S. 964, 114 S.Ct. 440 (1993)).
In deciding a motion under Rule 12(b)(1), the court must first
determine if it attacks the complaint on its face or on its facts.
Carpet Group Int'l v. Oriental Rug Imp. Ass'n, 227 F.3d 62, 69 (3d Cir.
2000) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,
891 (3d Cir. 1977)). If the motion disputes the complaint on its face,
then the court must consider the complaint as true, and disposition of
the motion becomes a purely legal determination. Mortensen, 549 F.2d at
891. On the other hand, if the motion concerns the existence of subject
matter jurisdiction in fact, then "no presumptive truthfulness attaches
to plaintiff's allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself the merits
of jurisdictional claims." Id. As such, the court is not confined to
the face of the pleadings when deciding whether subject matter exists on
certain facts, and may thus consider affidavits and other relevant
evidence outside of the pleadings. Berardi v. Swanson Mem'l Lodge No. 48
of Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir. 1990).
In this case, Defendant's Motion attacks the Plaintiff's Complaint on
its facts, contending that the Feres doctrine precludes this Court's
subject matter jurisdiction because Plaintiff's injury occurred during
the course of Plaintiff's military service. Accordingly, this Court may
consider evidence outside of the pleadings, including the Exhibits and
Affidavits submitted with Defendant's Motion.
The Feres Doctrine
"It is elementary that `[t]he United States, as sovereign, is immune
from suit save as it consents to be sued . . ., and the terms of its
consent to be sued in any court define that court's jurisdiction to
entertain the suit.'" United States v. Mitchell, 445 U.S. 535, 538 (1980)
(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)).
Accordingly, a claim against the United States is barred for lack of
subject matter jurisdiction unless it falls within an applicable waiver
of sovereign immunity. Id. "[A] waiver of sovereign immunity `cannot be
implied but must be unequivocally expressed'" by Congress. Id. (quoting
United States v. King, 395 U.S. 1, 4 (1969)).
The Federal Tort Claims Act ("FTCA") grants a limited, qualified waiver
of the federal government's sovereign immunity. See 28 U.S.C. § 1346(b)
(1994). It unequivocally:
waives sovereign immunity as to claims against the United
States for money damages for injury caused by the
negligent or wrongful act or omission of a government
employee acting within the scope of his employment "under
circumstances where the United States, if a private
person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.
Beneficial Consumer Discount Co. v. Poltonowicz, 47 F.3d 91
(3d Cir. 1995) (quoting 28 U.S.C. § 1346(b)).
In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court
"limited the applicability of the FTCA as it pertains to military
personnel," Richards v. United States, 176 F.3d 652, 654 (3d Cir. 1999),
by holding that "the Government is not liable under the [FTCA] for
injuries to [service members] where the injuries arise out of or are in
the course of activity incident to service." Feres, 340 U.S. at 146.
Accordingly, the Feres doctrine pulls taut a chain of logic that deprives
a court of subject matter jurisdiction: if the claim is barred by the
Feres doctrine, then it does not fit within the FTCA's waiver, and is
thus barred by sovereign immunity, which takes the matter outside of a
federal court's subject matter jurisdiction.
The Supreme Court justified its position in Feres "by the peculiar and
special relationship of the soldier to his superiors, the effects of the
maintenance of such suits on discipline, and the extreme results that
might obtain if suits . . . were allowed for negligent orders given or
negligent acts committed in the course of military duty." United States
v. Shearer, 473 U.S. 52, 57 (1985). Other rationales supporting Feres
are: "(1) the `distinctive federal' nature of the relationship between
the government and the armed forces; and (2) the ability of service
members to receive no-fault statutory disability and death benefits
through the Veterans' Administration." Richards, 176 F.3d at 655 n. 2
(citing United States v. Johnson, 481 U.S. 681, 689-90 (1987)).*fn1
According to the Third Circuit, "the gravamen of the Feres doctrine is
that the government is immune from suit when injuries occur incident to
service." O'Neill v. United States, 140 F.3d 564, 565 (3d Cir.), cert.
denied, 525 U.S. 962 (1998) (emphasis added). Several factors assist in
determining whether an injury occurred incident to service, including:
(1) the service member's duty status; (2) the site of the accident; and
(3) the nature of the service member's activity at the time of injury.
Richards, 176 F.3d at 655. A court must consider the totality of the
circumstances when applying these factors, bearing in mind that "the fact
that any one factor weighs in favor of applying the Feres doctrine is not
necessarily dispositive." Id.
The Richards case provides a striking example of the breadth of the
Feres doctrine. There, the wife of a slain serviceman sued under the FTCA
after her husband was killed on his way home when his privately owned
vehicle was struck by an Army truck operated by a member of the United
States Army. Id. at 653-54. The district court dismissed the action for
lack of subject matter jurisdiction, based on its application of the
Feres doctrine. Id. at 654. The Third Circuit affirmed on appeal,
holding that the serviceman's accidental death was incident to military
service within the meaning of the Feres doctrine. Id. at 657-58.
The Third Circuit summarized the facts surrounding the serviceman's
death as follows:
Charles Richards was a private in the United States Armed
Forces, stationed in Fort Knox, Kentucky. On June 26,
1995, Private Richards left work early to go home and
attend to his pregnant wife. Although Private Richards
received permission to leave early, the Army did not issue
him a pass or furlough. While driving home in his
personal vehicle, Private Richards was broadsided by a
five-ton military fuel truck, killing him instantly. The
accident took place within the confines of the Fort Knox
Army Base, at the intersection of Kentucky Highway 1638
and U.S. Highway 31W.
Id. at 653-54 (footnote omitted).
In holding that the Private Richards's activity at the time of the
accident required the application of the Feres, the Third Circuit
reasoned that: (1) the accident occurred on a military base; and (2)
"Private Richards's relationship with the military — i.e., the fact
that he worked on the Army base and was leaving his duty station —
is the reason he was traveling . . . at the time of the accident." Id.
at 656. Indeed, the Third Circuit affirmed the district court's
conclusion that Private Richards "`would not, except in the event of the
rarest coincidence, have been in the same place at the same time with the
same purpose, had it not been incident to his active status in the
military.'" Id. (quoting the district court, Richards v. United States,
1 F. Supp.2d 498, 502 (D.V.I. 1998), which in turn was quoting Shaw v.
United States, 854 F.2d 360, 363 (10th Cir. 1988)) (internal quotation
Application of the Feres Doctrine to this Case
The "incident to service" factors and policy justification for the
Feres doctrine illustrate that Plaintiff's claim ought to be barred from
this Court's subject matter jurisdiction. The Court will consider these
reasons in turn.
Plaintiff's Duty Status
Defendant argues that Plaintiff was "on duty," and his accident thus
"incident to service," because, "at the time of the accident[,] both
cadets were not on leave status and were traveling pursuant to official
military orders." Def.'s Mem. of Law in Supp. of Mot. Dismiss at 9-10.
Plaintiff opposes this argument by pointing out that the cadets were not
on active duty status at the time of the accident.*fn2 The court is
persuaded by Defendant's argument.
While cadets cannot be considered "active duty," they are nevertheless
service members and subject to the Feres doctrine's bar. Galligan v.
City of Phila., Civil Action No. 01-288, 2001 WL 515944, at *5 (E.D.Pa.
May 15, 2001); see Miller v. United States, 42 F.3d 297 (5th Cir. 1995);
Collins v. United States, 642 F.2d 217 (7th Cir. 1981); Archer v. United
States, 217 F.2d 548 (9th Cir. 1954). Accordingly, the distinction on
which Plaintiff relies lacks force in determining the application of the
Feres doctrine to the facts of this case.
Here, Plaintiff was acting under his obligation to the United States
and was thus "on duty." He was neither on leave nor furlough and was in
fact traveling under official military orders. Through these orders, the
Army commanded Plaintiff not just to attend training, but to travel to
and from that training. Def.'s Mem. of Law in Supp. of Mot. Dismiss Ex.
1 (Plaintiff's Military Orders). Though the Army could have commanded
Plaintiff to travel via military vehicle, it authorized both him and
Cadet Wrenn to travel by privately owned vehicle. Accordingly, because
was both traveling at the behest of, and only as authorized by
the Army, this Court finds that Plaintiff's duty status lends support to
the application of the Feres doctrine's bar.
Site of the Accident and Nature of Plaintiff's Activity at the Time of
The Court will consider the other two Feres factors together because of
their interrelation on these facts. Defendant argues that Plaintiff's
accident was incident to his service because it occurred along the direct
route between West Point and Fort Knox while Plaintiff and Cadet Wrenn
traveled between military duty stations. Plaintiff responds that: (1)
because the accident took place off base, on a public highway, it should
not be considered as incident to service; and (2) that the situation
presented is merely that of one student "hitching a ride . . . with a
fellow student." The Court finds Defendant's argument compelling.
Though Plaintiff is correct in that the accident did not occur on a
military installation, that fact is not determinative in this Court's
consideration of the "incident to service" test. See Richards,
176 F.3d 655-56 (applying Feres doctrine bar even though accident
occurred on a public highway that ran through an easement of land granted
to Kentucky by the Army); Galligan, 2001 WL 515944, at *5 (applying
Feres doctrine bar even though accident occurred at Veteran's Stadium in
Philadelphia). Instead, this Court must focus on how the Plaintiff's
presence at the site of the accident relates to his military service.
In this regard, the only reason that Plaintiff and Cadet Wrenn were
traveling on the highway that day was to commute from one military
activity to another — i.e., from their temporary training at Fort
Knox to their permanent duty station at West Point. The site of the
accident, the Pennsylvania Turnpike, is directly en route from Fort
Knox, Kentucky, to West Point, New York. As already stated, supra Part
II.B.1, neither Plaintiff nor Cadet Wrenn was on leave or furlough, and
both were under military orders. Even the fact that they were driving
together related to their military service, as they had been instructed
to do so by their commanding officer. Thus, these facts fit within the
ambit established in Richards, that Plaintiff "`would not, except in the
event of the rarest coincidence, have been in the same place at the same
time with the same purpose, had it not been incident to his active status
in the military.'" Richards, 176 F.3d at 656 (quoting the district
court, Richards v. United States, 1 F. Supp.2d 498, 502 (D.V.I. 1998),
which in turn was quoting Shaw v. United States, 854 F.2d 360, 363 (10th
Cir. 1988)) (internal quotation marks omitted).
Accordingly, this Court finds that the site and nature of Plaintiff's
injury satisfies the "incident to service" test, thus requiring the
application of the Feres doctrine's bar.
Finally, recognizing the potential for inequitable results under the
Feres doctrine, the Richards court has instructed lower courts to be
mindful of the policy underlying the doctrine itself — i.e.,
protecting "the relationship between the soldier and his or her relevant
superiors." Id. at 657. This Court finds that applying the Feres
doctrine's bar to the facts of this case adheres to this stated policy
goal. Specifically, this case implicates the decision making of military
personnel, including the means of transport authorized, the amount of time
allotted for travel, the adequacy of the safety briefing, etc. The
exists to prevent exactly these types of challenges.
Because Plaintiff's claim is both incident to his service and offensive
to the policy behind Feres, this Court must bar his claim for lack of
subject matter jurisdiction.
Failure to Exhaust Administrative Remedies
Since the Feres doctrine bars the assertion of subject matter
jurisdiction in this case, the Court need not proceed to Defendant's
argument concerning administrative remedies.
For the reasons set forth above, this Court lacks subject matter
jurisdiction over this matter by virtue of the Feres doctrine.
Accordingly, Defendant's motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1) is GRANTED. An appropriate Order will be
THIS MATTER having come before the Court on Defendant's Motion to
Dismiss under Federal Rule of Civil Procedure 12(b)(1) for Lack of
Subject Matter Jurisdiction; and,
The Court having reviewed the record and the submissions of the
For the reasons set forth in the Court's Opinion accompanying this
IT IS this 18th of October, 2001 HEREBY ORDERED that Defendant's Motion
is GRANTED and that this action is DISMISSED pursuant to Federal Rule of
Civil Procedure 12(h)(3).