The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge
Michael Purcell ("Purcell"), the personal representative of the estate of Christopher Lee Purcell ("Christopher"), filed a complaint for wrongful death against the United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Before the court is the motion of the United States to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), claiming that the action is barred under the doctrine established in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), that the government is not liable under the FTCA for injuries to servicemen arising out of or in the course of activity incident to military service. For the following reasons, the motion [#11] is granted.
At the time of his death, Christopher, a twenty-one year old Navy Hospital Corpsman, was on active duty at the Brunswick Naval Air Station. Exs. 2, 4 to Def.'s Mem.*fn1 On January 27, 2008, Department of Defense Police Officers Shawn Goding and Matthew Newcomb, followed by Department of Defense Patrolman Francis Harrigan and Petty Officer First Class David Rodriguez, responded to a call that Christopher had a gun and planned to kill himself. Compl. ¶¶ 7-8. Christopher was in his barracks on the base. Ex. 4 to Def.'s Mem.Rodriguez searched the premises and found an empty gun case and bullets on top of the television but no weapon. Compl.¶ 9. None of the officers present at the scene searched Christopher to see if he had a gun on his person. Id. ¶ 15. Rodriguez suggested to Christopher that they talk outside, and he responded calmly. Id. ¶ 10. Once outside, Petty Officer First Class Mitchell Tafel approached Rodriguez and informed him that they needed to take Christopher into custody. Id. When the officers told Christopher that he would have to be put in restraints, he became irate and non-compliant. Id. ¶ 11.A struggle ensued, during which Rodriguez, Tafel, Harrigan, Goding, and Robinson subdued Christopher. Id. They handcuffed Christopher and escorted him back to his room. Id. Once upstairs, Tafel gave Christopher permission to use the bathroom and instructed Robinson to remove a handcuff. Id. ¶¶ 12-14.Christopher proceeded to the bathroom accompanied only by his friend Nathan Mutschler, pulled a gun from his waistband, and shot himself in the chest. Id. ¶ 16.The officers involved in the incident were later court-martialed. Pl.'s Resp. at 13.
On January 8, 2009, Purcell filed an administrative tort claim with the Department of Defense and Department of the Navy, seeking $45 million in damages. Compl. ¶ 18; Ex. 1 to Def.'s Mem. The claim was rejected on June 25, 2009 on the grounds that it was not cognizable under the FTCA. Ex. 4 to Def.'s Mem. Purcell filed this suit, alleging that the officers present were negligent in failing to search Christopher for a weapon and for a number of other acts and omissions that violated relevant Navy procedure. Compl. ¶ 17.
The court treats dismissal under Feres as dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Smith v. United States, 196 F.3d 774, 776 n.1 (7th Cir. 1999). The burden of proof is on the party asserting jurisdiction. United Phosphorus, Ltd. v. Angus Chem. Co.,322 F.3d 942, 946 (7th Cir. 2003). In determining whether subject matter jurisdiction exists, the court must accept all well-pleaded facts alleged in the complaint and draw all reasonable inferences from those facts in the plaintiff's favor. Sapperstein v. Hager, 188 F.3d 852, 855 (7th Cir. 1999). "Where evidence pertinent to subject matter jurisdiction has been submitted, however, 'the district court may properly look beyond the jurisdictional allegations of the complaint . . . to determine whether in fact subject matter jurisdiction exists.'" Id. (quoting United Transp. Union v. Gateway W. Ry. Co., 78 F.3d 1208, 1210 (7th Cir. 1996)).
I. The FTCA and the Feres Doctrine
The FTCA waives the sovereign immunity of the federal government under circumstances where the government would be liable under the law of the state where the injury occurred if it were a private individual. 28 U.S.C. § 1346(b). The statute contains a number of exceptions, including one for injuries resulting from combatant activities of the military during wartime. 28 U.S.C. § 2680. In three cases decided together known as Feres, the Court interpreted § 1346(b) as extending beyond combatant activities to injuries to service members "that arise out of or are in the course of activity incident to service," (in the Feres cases, a dangerous condition in barracks and medical malpractice). 340 U.S. at 146. The Supreme Court expressed three rationales for extending the exception in Feres: first, it is impossible for a court to hold the military liable as it would a private individual in similar circumstances because no private individual has powers and responsibilities remotely analogous to the military, id. at 141; second, the relationship between a soldier and the military is "distinctively federal in character," such that it would not make sense to apply the laws of the state where the soldier happens to be stationed, id. at 143; and, third, statutory systems of compensation for injuries to service members make the FTCA redundant, id. at 144. The case before this court is indistinguishable from Feres and thus presumably controlled by it.
In United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), the Court extended Feres immunity to a tort committed by a service member against a service member while they were off duty and off the military base. Although first ruling on other grounds in favor of the government, the Court recited its holding as follows: "We hold that Congress has not undertaken to allow a serviceman or his representative to recover from the Government for negligently failing to prevent another serviceman's assault and battery." Id. at 59. Although acknowledging the Feres rationales, the Court rested it decision primarily on the relationship of the service member to the military: "In the last analysis, Feres seems best explained by the peculiar and special relationship of the soldier*fn2 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." Id. at 57 (quoting United States v. Muniz, 374 U.S. 150, 162, 83 S.Ct. 1850, 10 L.Ed. 2d 805 (1963)) (internal quotation marks omitted).
Although the Court stated in Shearer that Feres immunity "cannot be reduced to a few bright-line rules[,]" 473 U.S. at 57, later cases suggest quite the contrary. They demonstrate the Court's intention to grant broad immunity to the United States from suits brought by military personnel. In United States v. Johnson, for example, the Court held (over a strongly worded dissent by four justices) that the government was immune where the service member's injury arose from conduct of a civilian employee of the government. The Supreme Court relied in its reasoning as in Feres on the "distinctly federal" relationship between the government and members of the armed forces and the existence of generous statutory disability and death benefits for service-related injuries, 481 U.S. 681, 689, 107 S.Ct. 2063, 2068 (1987), as well as Shearer's statement that, if this type of claim were generally permitted, it "would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness." Id. at 689-91, 107 S.Ct. 2063, 95 L.Ed. 2d 648 (1987).
The Seventh Circuit has not distinguished any of the Supreme Court cases in a manner suggesting the rule is not virtually absolute. See Smith v. United States, 196 F.3d 774, 777 (7th Cir. 1999) ("We hold only that Congress has made it clear that an FTCA action, in which the service member seeks damages from the United States and necessarily calls into question the management decisions of those who exercise military leadership, is not the appropriate avenue for a wronged service member seeking redress for such a grave wrong."); Maas v. United States, 94 F.3d 291, 295 (7th Cir. 1996) ("Application of the Feres doctrine does not depend on the extent to which its rationales are present in a particular case."); Selbe v. United States, 130 F.3d ...