MARIA-ELENA JAMES, Magistrate Judge.
Plaintiff Isaac Castro ("Plaintiff"), as Personal Representative of the Estate of Sara Castromata, his daughter, brings suit against the United States of America ("Defendant") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Pending before the Court is Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) for lack of subject matter jurisdiction in light of Feres v. United States, 340 U.S. 135 (1950), and its progeny. Dkt. No. 16. Plaintiff filed an Opposition (Dkt. No. 18), and Defendant filed a Reply (Dkt. No. 20). The Court finds this matter suitable for disposition without oral argument and
The following facts are taken from Plaintiff's Complaint. See Compl., Dkt. No. 1 (filed Jan. 28, 2016). Sara Castromata was on active duty for the United States Marine Corps ("USMC") stationed at Marine Corps Base, Quantico, Virginia ("MCBQ") at the time of her death. Id. ¶ 3. On March 21, 2013, Sgt. Eusebio Lopez fatally shot Castromata while she was in her barracks room aboard MCBQ. Id. ¶¶ 4, 12, 38.
Plaintiff alleges Lopez had documented head trauma and PTSD, following his three tours in support of Operation Iraqi Freedom. Id. ¶ 13. Lopez was initially supposed to transfer to MCBQ to attend Recruiter school, but he was reassigned to serve at the Officer Candidates School ("OCS") aboard MCBQ after failing a mental health screening. Id. ¶ 15. When Lopez was transferred to MCBQ in March
Lopez and Castromata had a brief, intimate relationship that began in November 2012 and ended several weeks prior to March 21, 2013. Id. ¶ 28. Castromata began dating Cpl. Jacob Wooley following her relationship with Lopez. Id. ¶ 34.
On March 21, 2013, Lopez sent Castromata a text message indicating he was going to commit suicide. Id. ¶ 29. Castromata warned the Sentry about Lopez's text and mental state, but the Sentry did not notify the chain of command or document the incident. Id. ¶ 30. The same day, Lopez told the Sentry he was locked out of his room and asked for the master key, which the Sentry gave him. See id. ¶ 33. Lopez later returned his own room key to the Sentry, instead of the master key. Id.
While Castromata and Wooley were on liberty and off-base on a dinner date, Lopez used the master key to access Castromata's room, Wooley's room, and the stairwells. Id. ¶ 35. Castromata and Wooley returned to the barracks between 8:30 and 9:00 p.m. and watched a movie in Wooley's room before returning to Castromata's room. Id. ¶ 36. Around 10:00 p.m., Lopez, under the influence of alcohol and in possession of a firearm, confronted Castromata and Wooley, and fatally shot Wooley, Castromata, and himself. Id. ¶ 38. Plaintiff alleges their bodies were left in place for over six hours before any action was taken to determine if the injuries were survivable. Id. ¶ 39. Specifically, Plaintiff alleges "no action was taken to determine the medical condition of all personnel involved until approximately four hours after the shooting; local civilian authorities were not contacted during this time to assist." Id.
Plaintiff brings a single claim in this lawsuit: negligence. Id. ¶¶ 41-44. In addition to the events above, Plaintiff alleges that upon arrival at MCBQ, Lopez never attended a Welcome Aboard Brief, which reviews the Command's policies and procedures for personal firearms. Id. ¶ 16. Furthermore, Lopez owned a Springfield XD .45 caliber, semi-automatic pistol and Remington shotgun in addition to several large knives and ammunition, which he originally stored off-base at his personal residence. Id. ¶¶ 17, 18. Plaintiff alleges the Command knew about Lopez's firearms by the time he moved into the barracks at OCS, but they did not ensure his weapons were registered and stored at the armory. Id. ¶¶ 22-25. Indeed, in August 2012, members of OCS Command received information that Lopez had weapons and suicidal aspirations, but Plaintiff indicates the Command mishandled this incident by, among other things, failing to properly log important details about the incident, including Lopez's possession of weapons. Id. ¶¶ 19-22. Additionally, the Command is required to conduct Force Preservation Boards ("FPB"), where members of the command discuss individuals with mental illness or suicidal/homicidal intentions or histories, but OCS's FPB, held on September 25, 2012, never mentioned Lopez's name, suicidal ideations, weapons, or move into the barracks. Id. ¶¶ 26-27.
Plaintiff claims Defendant breached its duty to ensure the barracks was a safe environment and to uphold and enforce its regulations by, among other things: (1) failing to consciously and deliberately transfer Lopez's medical records; (2) failing to ensure Lopez registered and stored his weapons in the armory; (3) failing to discuss and remedy Lopez's mental health issues at the Command's FPB; (4) giving Lopez the master key, in violation of a Marine Corps Order; (5) putting a Marine who had multiple Non-Judicial Punishments and was in the process of being administratively discharged on Duty as the Sentry and in-possession of the master key; (6) failing to enforce non-discretionary Department of Defense and Marine Corps orders; (7) failing to provide emergency medical attention immediately after the shooting; and (8) failing to contact local civilian authorities to assist. Id. ¶ 43.
While acknowledging the tragic nature of this case, Defendant moves to dismiss under Feres v. United States and its progeny, which prohibit suits against the military for injuries arising out of or in the course of activity "incident to service." 340 U.S. at 146. Defendant argues the "Feres doctrine" divests the Court of subject matter jurisdiction over Plaintiff's case. Mot. at 1, 3.
Federal district courts are courts of limited jurisdiction; "[t]hey possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted). Accordingly, "[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id.; Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).
Federal Rule of Civil Procedure 12(b)(1) authorizes a party to move to dismiss a lawsuit for lack of subject matter jurisdiction. A jurisdictional challenge may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Where the attack is facial, the court determines whether the allegations contained in the complaint are sufficient on their face to invoke federal jurisdiction, accepting all material allegations in the complaint as true and construing them in favor of the party asserting jurisdiction. Warth v. Seldin, 422 U.S. 490, 501 (1975). Where the attack is factual, however, "the court need not presume the truthfulness of the plaintiff's allegations." Safe Air for Everyone, 373 F.3d at 1039. In resolving a factual dispute as to the existence of subject matter jurisdiction, a court may review extrinsic evidence beyond the complaint without converting a motion to dismiss into one for summary judgment. Id.; McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (holding that a court "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction").
A motion to dismiss based on Feres v. United States is a request for dismissal for lack of subject matter jurisdiction under Rule 12(b)(1). Bowen v. Oistead, 125 F.3d 800, 803 (9th Cir. 1997) (citing Jackson v. United States, 110 F.3d 1484, 1486 (9th Cir. 1997)).
The Federal Tort Claims Act ("FTCA") "effects a broad waiver of the United States' sovereign immunity from suit for tort damages." Jackson v. Tate, 648 F.3d 729, 733 (9th Cir. 2011) (citing 28 U.S.C. § 2674); see also 28 U.S.C. § 1346(b) ("[D]istrict courts . . . have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for . . . personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or 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."). "In an exception to this waiver," however, "the FTCA withholds the United States' consent to be sued for `[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.'" Id. (brackets in original; emphasis added) (quoting 28 U.S.C. § 2680(j)).
In Feres v. United States, the Supreme Court expanded this exception and held that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146. The Supreme Court has been criticized for its decision in Feres as going well beyond what Congress intended in delineating the foregoing exception to the FTCA in § 2680(j). See United States v. Johnson, 481 U.S. 681, 700 (1987) (Scalia, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.) ("Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received."). Nonetheless, the Supreme Court has continued to uphold Feres and its "bar has been interpreted broadly[,]" so that "[p]ractically any suit that `implicates the military judgments and decisions' . . . runs the risk of colliding with Feres." Bowen, 125 F.3d at 803 (quoting Persons v. United States, 925 F.2d 292, 295 (9th Cir. 1991)) (internal marks omitted). The Ninth Circuit Court of Appeals has held that "the Feres doctrine is applicable `whenever a legal action would require a civilian court to examine decisions regarding management, discipline, supervision, and control of members of the armed forces of the United States." Bowen, 125 F.3d at 804 (quotations and internal marks omitted)).
In assessing whether the Feres doctrine applies, courts consider "two common factors": (1) whether the injured person was a member of the armed forces of the United States at the time the injury was sustained; and (2) whether the injury arises out of or occurred in the course of activity incident to military service. See Jackson, 648 F.3d at 733. As there is no dispute Castromata was on active duty for the USMC at the time of her death, Compl. ¶ 3, the key inquiry and dispute in this matter is whether her death occurred "in the course of activity incident to [her] service." Feres, 340 U.S. at 146.
In Johnson v. United States, the Ninth Circuit articulated four factors for determining whether an injury has been sustained in the course of an activity "incident to service," including (1) the location where the activity giving rise to the injury occurred; (2) the duty status of the plaintiff at the time of activity giving rise to the injury; (3) the benefits accruing to the plaintiff because of her status as a service member; and (4) the nature of the plaintiff's activities at the time of the activity giving rise to the injury. 704 F.2d 1431, 1436-41 (9th Cir. 1983); Jackson v. Tate, 648 F.3d at 733 (applying factors); see also Schoenfeld v. Quamme, 492 F.3d 1016, 1021 (9th Cir. 2007) ("[T]he most relevant line of inquiry is whether or not the service member's activities at the time of the injury are of the sort that could harm the disciplinary system if litigated in a civil action." (quoting Johnson, 704 F.2d at 1439). While courts in the Ninth Circuit have relied on such factors in guiding their analysis, in United States v. Shearer, the Supreme Court has stated that "[t]he Feres doctrine cannot be reduced to a few bright-line rules," 473 U.S. 52, 57 (1985). The Ninth Circuit has directed courts to thus focus on the "totality of the circumstances" to determine whether the alleged injury occurred "incident to service." See Costo v. United States, 248 F.3d 863, 867 (9th Cir. 2001), cert. denied, 534 U.S. 1078 (2002). In doing so, "lower courts have typically resorted to comparing fact patterns in previous cases with that in the case before them in an effort to produce the most appropriate outcome." Estate of McAllister v. United States, 942 F.2d 1473, 1477 (9th Cir. 1991), cert. denied, 112 S.Ct. 1164 (1992). Additionally, the Ninth Circuit has recognized that the "key inquiry is `whether the suit requires the civilian court to second-guess military decisions, . . . and whether the suit might impair essential military discipline[,]'" noting that the "the interest in maintaining military discipline—is `the most persuasive justification' for the [Feres] doctrine, and our Feres cases have focused mainly on whether the serviceman's activities implicate that interest." Schoenfeld, 492 F.3d at 1019 (quotations omitted).
Defendant cites McAllister as controlling precedent for this case. Mot. at 7. McAllister in turn relied on the Supreme Court's decision in United States v. Shearer, 473 U.S. 52 (1985). In Shearer, Army Private Vernon Shearer was off-duty and away from base when he was kidnapped and murdered by another serviceman, Andrew Heard. 473 U.S. at 53. Shearer's mother brought suit under the FTCA, alleging the Army had been negligent because it knew Heard was dangerous and yet had "`failed to exert a reasonably sufficient control over' him and `failed to warn other persons that he was at large.'" Id. at 53-54. The Court held that Feres barred the action because it would entail the "hal[ing] [of] Army officials into court to account for their supervision and discipline of Private Heard," id. at 59, explaining that
Id. at 58. Even though respondent focused on her claims on the Army's negligence, "characterizing her claim as a challenge to a `straightforward personnel decision[,]'" the Supreme Court rejected this argument, asserting that "[b]y whatever name it is called, it is a decision of command." Id. at 59. The Court thus held that Feres barred Shearer's mother's FTCA claim.
The Ninth Circuit subsequently adhered to the Shearer rationale in upholding the dismissal of a wrongful death action that alleged that the military was negligent in its supervision of a known paranoid schizophrenic with dangerous tendencies who killed an off-duty serviceman. McAllister, 942 F.2d at 1477-79. There, the complaint alleged
Id. at 1478 n.3. As much as the Court may wish to ignore the parallels between McAllister and the allegations in this case, they are much too similar to do so.
Plaintiff attempts to distinguish Feres and its progeny, acknowledging those cases contain "one unifying principle: courts do not want to second guess military management or military discipline." Opp'n at 12 (citing Feres, 340 U.S. at 136; Shearer, 473 U.S. at 58; Persons v. United States, 925 F.2d 292 (9th Cir. 1991)); see also Schoenfeld, 492 F.3d at 1019 (recognizing the interest in maintaining military discipline is "the most persuasive justification" for the Feres doctrine). But he claims that is not the issue here. Rather, Plaintiff generally argues (A) "many of the defendant's wrongful acts willfully or recklessly disregarded non-discretionary" military and USMC Orders, e.g., "it is uniform policy of the Marine Corps to require all personally-owned fire arms to be stored at the base armory, yet the Command here failed to (1) notify incoming Marines of this policy and (2) enforce the base order"; and (B) there is "nothing distinctly military about the negligence" alleged in this case and the same type of negligence could just as easily been alleged in a non-military, private civilian context. See Opp'n 13-14. There is some internal conflict in this logic, i.e., saying that Defendant's negligence stems from failure to follow military rules but at the same point arguing that those acts were not distinctly military—nonetheless, the Court understands Plaintiff's point to be that some of Defendant's negligent acts relate to violating mandatory military orders, and other acts demonstrate more general failure to exercise due care under the circumstances.
There are two problems with Plaintiff's first argument. First, Plaintiff has cited no authority for this proposition. The only case Plaintiff relies on is Berkovitz v. United States, 486 U.S. 531, 548 (1980), which Plaintiff acknowledges held that "the discretionary function exception to the FTCA does not shield a Federal agency that does not comply with mandatory rules." Opp'n at 13. The discretionary function exception to the FTCA is not related to the Feres doctrine, and the holding has no bearing on this case. Second, when it comes to assessing whether and how to enforce military orders and rules, permitting a suit on such grounds directly implicates the concern about second-guessing military decisions and Shearer's statement that it would mean commanding officers "would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions; for example, whether to overlook a particular incident or episode . . . ." 473 U.S. at 58. The Court therefore cannot say that simply because the military has orders or rules on a subject means that the concerns underlying Feres and its progeny can be overcome.
As to Plaintiff's second argument, the Supreme Court "has sent the message that . . . an individual can, based solely upon his status as a member of the armed forces, be proscribed from enjoying the same legal remedies as his civilian counterparts."
The Court is thus left with the nature of Plaintiff's allegations, which all ultimately implicate military management and decision-making. Plaintiff alleges Defendant was negligent in the following respects: (1) failing to consciously and deliberately transfer Lopez's medical records; (2) failing to ensure Lopez registered and stored his weapons in the armory; (3) failing to discuss and remedy Lopez's mental health issues at the Command's FPB; (4) giving Lopez the master key, in violation of a Marine Corps Order; (5) putting a Marine who had multiple Non-Judicial Punishments and was in the process of being administratively discharged on Duty as the Sentry and in-possession of the master key; (6) failing to enforce non-discretionary Department of Defense and Marine Corps orders; (7) failing to provide emergency medical attention immediately after the shooting; and (8) failing to contact local civilian authorities to assist. Compl. ¶ 43; see Mot. at 5-6 (arguing that "each of those steps would go `directly to the "management" of the military' and `call into question basic choices about the discipline, supervision, and control of a serviceman.'" (quoting Shearer, 473 U.S. at 58). The Court reluctantly agrees with Defendant that Plaintiff's allegations all implicate the concerns sheltered by Feres' progeny. See Ritchie v. United States, 733 F.3d 871, 876 (9th Cir. 2013) (recognizing that courts have noted such concerns as the fact "that adjudication of her claim would require a court to `examine the government's activity in relation to military personnel on active duty'" and would "require members of the Armed Services to testify in court as to each other's decisions and actions." (quotations omitted)).
In light of the foregoing, the Court must
