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October 17, 2001


The opinion of the court was delivered by: McMAHON, District Judge.


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.


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.

Plaintiff argues that Jones, Shelburne, McChrystal, and Wild knew or should have known: (1) that Stone had committed sexual offenses against the three minor girls; (2) that the girls had not reported these offenses to anyone who had the responsibility of ensuring their safety or of investigating the offenses; (3) that the girls were relying upon agents of the United States to advise them whether they should report the offenses to others; (4) that the girls were relying on agents of the United States to tell them what they should do to avoid further crimes against them and against other children who had been and would be visitors to the Stone home; and (5) that minor female children, other than those who had spoken with Cadet Jones, were frequently invited to spend the night at the Stone residence, and in the absence of intervention by someone acting to ensure their safety, would do so in the future.

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 the imperiled.


I. Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction

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 Feres.

Plaintiff argues, that the underlying rationales of Feres would be offended if the doctrine were invoked to bar the suit. I disagree.

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 argues that the Second Circuit's 1995 decision in Taber v. Maine clarified Feres by "divin[ing] a rationale" that limited application of the Feres doctrine to cases that were "predicated on the availability of a worker's compensation-like remedy." (Pl. Mem. in Opp. to Def. Mot. to Dismiss, at 8.) Since Eric Zimmerman could not obtain compensation for the injuries in suit under worker's compensation, he insists that Feres should not apply.

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 doctrine).

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 Appeals reversed.

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 policies).

Eric Zimmerman's individual claims implicate delicate military judgments, namely the decision-making process concerning the hiring and supervision of officers and civilians within the USMA Chaplain's Office, the discipline of such officers and civilians, and the approval and supervision of contractors who operate within the military base. Feres prevents this court from interfering in such military matters when the plaintiff is a member of the military whose injuries arose incident to service. Plaintiffs individual claims would require this court to second-guess the USMA's ...

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