The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO DISMISS THE COMPLAINT
The Government moves to dismiss plaintiffs complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the
following grounds: (1) the Court lacks subject matter
jurisdiction over plaintiff Eric Zimmerman individually; (2) the
Court lacks subject matter jurisdiction over Eric Zimmerman on
behalf of Guinevere Zimmerman; and (3) the Complaint fails to
state a claim upon which relief can be granted.*fn1
For the reasons stated below, the Government's motion to
dismiss Eric Zimmerman's personal claims is granted. The motion
to dismiss the claims brought by Zimmerman on behalf on
Guinevere Zimmerman is granted in part and denied in part.
FACTS PERTINENT TO THE MOTION
The following facts are drawn from the complaint and from
documents incorporated by reference therein.
At the time the following events occurred, Lieutenant Colonel
Eric Zimmerman was a commissioned officer of the United States
Army, on active duty at the United States Military Academy
("USMA") at West Point, New York. Eric Zimmerman lived on post
with his family. His daughter Guinevere was seven years old.
On June 3, 2000, Lieutenant Commander Mark Stone, a naval
officer who, along with his wife and young children, also
resided at the USMA at West Point, sexually assaulted Guinevere
Zimmerman while she was an overnight guest of one of his
daughters. Stone was arrested and charged with various offenses,
including forcible sodomy upon a minor. At a court-martial on
April 18, 2001, Stone pled guilty to charges of forcible sodomy
against Guinevere Zimmerman. A military judge sentenced him to
13 years confinement, total forfeitures, and dismissal from the
United States Navy.
Plaintiff alleges that this sexual assault upon Guinevere
Zimmerman could have been prevented had certain personnel of a
youth ministry program called "God's Gang" reported prior sexual
assaults by Stone upon other little girls who were spending the
night at his home. God's Gang is a program sponsored and
operated by the Post (Protestant Chapel) of the USMA. It holds
meetings for youths of different ages to discuss various issues.
USMA cadets act as counselors and mentors to the adolescent
participants in God's Gang.
The girls asked Cadet Jones what they should do about the
incidents. Jones responded that she would consult her
supervisors and get back to them. Cadet Jones then wrote a
memorandum about this conversation to Darren Shelburne, the
civilian "Youth Ministry Coordinator" of the God's Gang program.
She asked him how she should handle the matter.
The information contained in Cadet Jones' memo was allegedly
disseminated to at least two members of the Chaplain's Office:
Colonel Scott McChrystal, a USMA Chaplain, and another officer
now known to be Major Tom Wild. Ultimately, Shelburne,
McChrystal, Wild or someone else who had heard about Jones' memo
informed Jones that the reports did not warrant further
investigation. Jones then told the three girls that further
investigation into the matter was unnecessary.
On October 3, 2000, Eric Zimmerman presented the Army with a
claim for damages for personal injury to Guinevere and for
damages suffered by him. At the time the case was filed, six
months had elapsed since these claims were filed and Zimmerman
had received no response.
Plaintiff alleges that the God's Gang personnel, specifically
Jones, Shelburne, McChrystal, and Wild, should have concluded
that the acts reported by the three minor girls were sufficient
to raise a suspicion of child abuse; that they had a duty to
report such incidents pursuant to 42 U.S.C. § 13031, and that
they negligently failed to do so. Plaintiff also alleges that
the God's Gang personnel, including Jones, Shelburne,
McChrystal, and Wild, had a duty under N.Y. Soc. Serv. L. § 413
to report suspected incidents of child abuse and negligently
failed to do so. Finally, plaintiff alleges that Jones,
Shelburne, McChrystal and Wild acted as agents and employees of
the United States when they received and weighed the confidences
of these young girls, and in so doing "voluntarily assumed for
themselves and for the United States," the duty to assist
Guinevere Zimmerman and other minor children who were at risk
for sexual assaults because they might spend the night at the
Stone home. Plaintiff contends that their failure to report the
conduct of Stone, investigate the matter, and take action to
ensure the safety of such minor children was a breach of their
(and by extension the United States') common law duty to assist
I. Defendant's Motion to Dismiss for Lack of Subject Matter
In evaluating a motion to dismiss for lack of subject matter
jurisdiction, a court must "accept as true all material factual
allegations in the complaint," Shipping Fin. Serv. Corp. v.
Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974)), but refrain from "drawing from the pleadings inferences
favorable to the party asserting [jurisdiction]." Id. (citing
Norton v. Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 69 L.Ed.
413 (1925)). Courts evaluating Rule 12(b)(1) motions "may
resolve the disputed jurisdictional fact issues by reference to
evidence outside the pleadings, such as affidavits." Zappia
Middle East Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247,
253 (2d Cir. 2000). Where jurisdiction is "so intertwined with
the merits that its resolution depends on the resolution of the
merits," the court should use the standard "applicable to a
motion for summary judgment" and dismiss only where "no triable
issues of fact" exist. London v. Polishook, 189 F.3d 196,
198-99 (2d Cir. 1999) (citation omitted); see also Europe and
Overseas Commodity Traders, S.A. v. Banque Paribas London,
147 F.3d 118, 121 n. 1 (2d Cir. 1998).
A. Claims Brought By Eric Zimmerman Individually
When the Government invokes the Feres doctrine on a motion
to dismiss, a court must first determine whether a service
member's injuries were incurred "incident to service." Some
factors that courts have considered are (1) the individual's
status as a member of the military at the time of the alleged
incident giving rise to the claim, see Wake, 89 F.3d at 58
(citing Persons v. United States, 925 F.2d 292, 296 (9th Cir.
1991)); (2) the relationship of the activity to the individual's
membership in the service; (3) the location of the conduct
giving rise to the underlying tort claim, see e.g., Bozeman v.
United States, 780 F.2d 198. 200-01 (2d Cir. 1985) (barring
claim arising from automobile crash which occurred off base
while service member was off duty because service member's
intoxication occurred at a military club); and, (4) whether the
activity is limited to military personnel and whether the
service member is taking advantage of a privilege or enjoying a
benefit conferred as a result of military service, see e.g.,
Sanchez v. United States, 878 F.2d 633, 637 (2d Cir. 1989)
("Sanchez III") (barring a claim brought by a serviceman
injured in a car fixed by an on-base mechanic shop because the
facility was open exclusively to military personnel as a
privilege of service, and because the case would involve
impermissible civilian inquiry into policies and procedures for
operation of facility under control of military forces). No
single factor is dispositive.
Taking these factors as a guide, I conclude that Eric
Zimmerman's injuries were incurred incident to military service.
At the time of Stone's assault upon his daughter, as well as
during the period when defendants allegedly should have reported
or investigated the story told to Cadet Jones, Zimmerman was a
member of the military on active duty. God's Gang meetings were
an adjunct of the military's chaplaincy program. They took place
on the military base. They were staffed by military personnel.
Zimmerman and his family lived in military housing. The crime
against Guinevere Zimmerman was committed by a military officer
who was later punished pursuant to the military code. These
facts are sufficient to bar plaintiffs individual claims under
Plaintiff argues, that the underlying rationales of Feres
would be offended if the doctrine were invoked to bar the suit.
Three rationales underlie the Feres doctrine: (1) concern
for keeping courts away from delicate questions involving
military discipline; (2) an intention to replace the
contingencies of local tort law with a uniform federal scheme;
and (3) a desire that this uniformity be achieved through
exclusive recourse to the federal system of death and disability
benefits. See Taber v. Maine, 67 F.3d 1029, 1049 (2d Cir.
1995); see also Feres, 340 U.S. at 146, 71 S.Ct. 153; United
States v. Johnson, 481 U.S. 681, 688-91, 107 S.Ct. 2063,
2068-69, 95 L.Ed.2d 648 (1987); Wake v. United States,
89 F.3d 53, 57 (2d Cir. 1996).
Plaintiff's argument that Taber limits application of the
Feres doctrine to worker's compensation cases is unsound. See
Wake v. United States, 89 F.3d 53, 61 (2d Cir. 1996)
(dismissing plaintiffs argument on appeal that Taber created a
new test for determining the applicability of the Feres
The Taber Court itself rejected plaintiff's argument that
Taber limited the application of the Feres doctrine. In
Taber, a Navy serviceman brought a personal injury claim
against the Government for injuries sustained while he was
off-duty in an off-base accident with another off-duty
serviceman who had been drinking on-base. Plaintiff claimed that
the Government was vicariously liable for the actions of the
defendant, who allegedly acted negligently in driving while he
was intoxicated. The Government moved for summary judgment on
plaintiffs claims citing Feres. The district court granted
summary judgment in favor of the Government. The Court of
On appeal, the court determined that the proper jurisdictional
issue in this particular case was whether plaintiff was entitled
to worker's compensation for his injuries. If he was entitled to
benefits, then he was injured while acting in the scope of his
employment and incident to service. Barring his claims would
fulfill the third underlying Feres rationale of preserving a
uniform federal death and disability benefits program as the
sole recourse of injured servicemen. Taber, 67 F.3d at 1053.
If he was entitled to no worker's compensation benefits, he was
not injured while acting in the scope of his employment and
incident to service, and no underlying Feres rationale applied
to his claims. The Court of Appeals found that plaintiff would
not be entitled to federal disability payments for his injuries,
and his claims against the Government should not be dismissed.
The fact that the Court of Appeals allowed plaintiff to bring
his claims against the Government in Taber had no impact upon
the applicability of the other underlying rationales of Feres.
In fact, the Taber court affirmatively found that another of
the three Feres rationales, the need to avoid significant
judicial interference in military decisions, still played a role
in the application of the doctrine. This rationale, once the
primary concern in the application of the Feres doctrine, has
diminished in importance over the years. See Taber, 67 F.3d at
1052 (noting that the other two Feres factors — the existence
of a federal compensation scheme and the desirability of a
uniform federal rule — were tantamount to disciplinary
considerations). But the Court of Appeals acknowledged that
there are rare cases in which the discipline of the party who
causes the injury is crucial to the application of a Feres
bar, while the other two rationales do not apply. Id. (noting
that the court applied Feres in Bozeman and Sanchez III
because plaintiffs' allegations of negligence in the supervision
of the tortfeasors, would require the military to defend its
employment and other decisions related to certain of their