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Liek v. United States

United States District Court, D. Massachusetts

May 25, 2017

NISSAY LIEK, Individually and as Successor in Interest of the Estate of NATHAN V. NISSAY, Plaintiff,



         BURROUGHS, D.J.

         On March 31, 2016, Plaintiff Nissay Liek (“Plaintiff”) filed this wrongful death action against Defendants United States of America and the Department of the Navy pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, following the tragic suicide of his son, Nathan Nissay (“Nissay”). [ECF No. 1].[1] Presently pending before the Court is Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction under the Feres doctrine. [ECF No. 6]. For the reasons set forth herein, the Court GRANTS the motion and dismisses the case.

         I. BACKGROUND

         The following facts are taken from Plaintiff's complaint and the attached exhibits unless otherwise specified. [ECF No. 1 (“Compl.”)]. In 2013, while serving in the Navy, Nathan Nissay was on a temporary duty assignment at the Ballston Spa Naval Nuclear Power Training Unit in Saratoga Springs, New York, where he was training and attending classes. Compl. ¶ 12. On or about December 30, 2013, Nissay committed suicide, leaving behind a video, journals, and text messages filled with references to his depression and thoughts of suicide. Id. ¶ 3. Plaintiff alleges that, prior to committing suicide, Nissay revealed his depressive thoughts and tendencies to his supervisors and fellow employees in the Navy. Id. ¶ 10. The complaint contends that the United States, through its agency, the Department of the Navy, failed to follow procedures to ensure the safety and protection of Nissay while he was under the Navy's supervision and control, despite the expressed suicidal thoughts. Id. Specifically, Plaintiff alleges that the United States “failed its mandatory duty to ensure that its employees would act and protect a fellow employee” while he was at the Ballston Spa Naval Nuclear Power Training Unit. Id. ¶¶ 11-12. Plaintiff also claims that, in addition to Nissay's own reports, the Navy should have been aware of Nissay's frail status following the death of his fellow serviceman and friend, id. ¶¶ 17-18, and that the United States directly and proximately caused the death of Nissay by ignoring his cries for help, Id. ¶¶ 7, 10, 18. Lastly, the complaint alleges that Nissay's death was “not the cause of a service-connected injury.” Id. ¶ 16.

         Before bringing the instant action, Plaintiff exhausted his administrative claims before the Office of the Judge Advocate General (“JAG”), who determined that the claims were not valid under the FTCA because, pursuant to the Feres doctrine, Nissay was an “active duty service member at the time of his death” and the death occurred “incident to his military service.” [ECF No. 1-6 at 2]. Accordingly, on October 1, 2015, the JAG denied Plaintiff's claims. Id. Plaintiff then filed a complaint in this Court [ECF No. 1], which Defendants have moved to dismiss pursuant to Rule 12(b)(1) and the Feres doctrine [ECF No. 6].


         “A motion to dismiss pursuant to the Feres doctrine is properly treated as a Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, rather than as a motion for summary judgment.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1997); see also Hamilton v. United States, 564 F.Supp. 1146, 1151 (D. Mass. 1983) (granting motion to dismiss Feres-barred claims). When evaluating a motion to dismiss pursuant to Rule 12(b)(1), “[t]he existence of subject-matter jurisdiction ‘is never presumed'” because federal courts are considered courts of limited jurisdiction. Fafel v. Dipaola, 399 F.3d 403, 410 (1st Cir. 2005) (quoting Viqueria v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998)). Where, as here, Defendants bring a facial challenge to the Court's subject matter jurisdiction, the Court must treat all well-pleaded facts as true and give Plaintiff the benefit of all reasonable inferences. See Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009); Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir. 2007). Dismissal is appropriate when the well-pleaded facts alleged in the complaint, taken as true, do not support a finding of federal subject matter jurisdiction. Fothergill, 566 F.3d at 251.


         “As sovereign, the United States may not be sued for damages without its consent.” Day v. Mass. Air Nat'l Guard, 167 F.3d 678, 681 (1st Cir. 1999). The United States has, however, consented to a limited waiver of sovereign immunity through the FTCA, which permits parties to bring suit for damages for the negligent or wrongful acts or omissions of federal employees “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. §§ 1346(b), 2674, 2675(a). An exception to this general rule bars any claim “arising out of the combatant activities of the military or naval forces, or the Coast Guard.” Id. § 2680(j).

         In Feres v. United States, the Supreme Court interpreted this provision broadly as barring governmental liability for all injuries that “arise out of or are in the course of activity incident to [military] service.” 340 U.S. 135, 146 (1950). The Supreme Court invoked numerous justifications for the doctrine, emphasizing the “distinctively federal . . . character” of “[t]he relationship between the Government and members of its armed forces, ” and the “extremely favorabl[e]” military benefits provided to plaintiffs and their families for injuries. Id. at 141-43. The Supreme Court has noted that Feres is best explained 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 under the Tort Claims Act 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) (internal quotations and citations omitted). Feres and its progeny bar suits brought by service members against the government for injuries incurred “incident to service” because they are the “types of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” United States v. Johnson, 481 U.S. 681, 690 (1987) (internal quotation and alteration omitted). Courts in this Circuit and others have consistently barred wrongful death claims under the Feres doctrine in cases involving the suicide of a service member. See, e.g., Persons v. United States, 925 F.2d 292, 293-94 (9th Cir. 1991) (affirming district court's dismissal for want of jurisdiction, including for widow's and parents' claims, following service member's suicide); Purcell v. United States, 656 F.3d 463, 464 (7th Cir. 2011) (same); Becton v. United States, 489 F.Supp. 134, 138 (D. Mass. 1980) (holding that wrongful death suit was barred, even though deceased was off-duty and pending discharge at the time of suicide); Stubbs v. United States, 744 F.2d 58 (8th Cir. 1984) (holding that Feres barred wrongful death suit where service member was sexually harassed by a fellow officer, which created an atmosphere that ultimately led to her suicide).

         Here, even taking Plaintiff's well-pleaded factual allegations as true, the complaint must be dismissed because it seeks to challenge the Navy's decisions relating to the supervision and control of Nissay during his time at the naval nuclear training base. As Plaintiff concedes, “there is no dispute that Nathan Nissay was a member of the U.S. armed services at the time of his death” and during the alleged negligent actions of the government in caring for and supervising him.[2] [ECF No. 9-1 at 2]; see also Compl. ¶¶ 11-12. Thus, the only “additional question that must be answered in order to determine whether the [Feres] doctrine bars his tort claims . . . is whether the injuries he suffered were ‘incident to the service.'” Diaz-Romero v. Mukasey, 514 F.3d 115, 119 (1st Cir. 2008).

         In the First Circuit, determining whether the service member's injury arose “incident to service” under the Feres doctrine involves consideration of the following:

whether [the injury] occurred on a military facility, whether it arose out of military activities or at least military life, whether the alleged perpetrators were superiors or at least acting in cooperation with the military, and . . . whether the injured party was himself ...

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