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
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
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
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 contractual relationship, hiring,
supervision, and discipline of its Chaplain's Office and of
God's Gang, — a role on which the Feres doctrine frowns.
Feres bars only Eric Zimmerman's individual claims. His
claims on behalf of his daughter are not barred by Feres, even
though they raise exactly the same issues and considerations.
This may seem incongruous, but Feres does not bar suits
against the government when the injured plaintiff is a civilian.
See, e.g., Sheridan v. United States, 487 U.S. 392, 401, 108
S.Ct. 2449, 101 L.Ed.2d 352 (1988) (injured civilian shot by
drunken serviceman could sue under FTCA for navy personnel's
negligence in allowing drunken serviceman to leave base with a
rifle); Kohn v. United States, 680 F.2d 922, 926 (2d Cir.
1982) (although Feres did bar recovery by the estate of a
murdered serviceman, it did not bar claims brought by his
parents for the Army's alleged infliction of emotional distress
on them subsequent to their son's death). This is true even if
the civilian is a military dependent. See Romero v. United
States, 954 F.2d 223, 225 (4th Cir. 1992) (reversing district
court's dismissal of civilian dependent's claims, explaining
that "claims brought by civilians and civilian dependents of
service members who have directly sustained injuries from
military personnel are not Feres-barred").
B. Claims Brought by Eric Zimmerman on Behalf of Guinevere
The Government argues that there is no subject matter
jurisdiction over the claims brought by Eric Zimmerman on behalf
of his daughter to the extent Zimmerman alleges any negligent
action by Shelburne, because a theory of sovereign immunity
precludes claims brought against the United States for injuries
caused by its independent contractors.*fn3 The Government
correctly states the rule. See United States v. Orleans,
425 U.S. 807, 813, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976);
Roditis v. United States, 122 F.3d 108, 110 (2d Cir. 1997).
However, application of the rule requires a factual
determination of whether an entity is an independent contractor
as contemplated in the FTCA, see Leone v. United States,
910 F.2d 46, 49 (2d Cir. 1990). The Government rests on the
proposition that Shelburne, as the coordinator of God's Gang,
was an independent contractor who acted outside of USMA
supervision. That may be true, but I cannot make any such
determination on the record before me.
Whether a person is a government employee or an independent
contractor for the purposes of the FTCA is a question of federal
law. See Leone v. United States, 910 F.2d 46, 49 (1990)
(citing Logue v. United States, 412 U.S. 521, 528, 93 S.Ct.
2215, 37 L.Ed.2d 121 (1973)). In Leone, the estates of two
passengers killed in a plane crash when the pilot suffered a
heart attack brought an action against the United States under
the FTCA. Id., at 47 Plaintiffs alleged that private
physicians, who are designated by the Federal Aviation
Administration ("FAA") as Aviation Medical Examiners ("AMEs"),
were negligent in failing to discover the pilot's unhealthy
physical condition when issuing him a medical certificate. Id.
The Government moved for summary judgment on the grounds that
the AMEs were independent
contractors and not government employees. The district court
denied the Government's motion, and the Government appealed.
On appeal, the Court addressed the central question of whether
the AMEs were government employees or independent contractors.
The FTCA's limited waiver of sovereign immunity makes the
Government liable for certain torts of government employees,
28 U.S.C. § 1346(b), 2671, but not liable for the actions of
independent contractors, see United States v. Orleans,
425 U.S. 807, 813-14, 96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976).
The Court of Appeals found that the "strict control test"
governed the inquiry. Leone, 910 F.2d at 50. The strict
control test asks whether the contractor's day-to-day operations
are supervised by the Federal Government. Id. Generally, an
employee relationship will be found when the government
exercises "day-to-day control" over the "detailed physical
performance of the contractor." Orleans, 425 U.S. at 81314, 96
S.Ct. 1971 (citation omitted). When, in contrast, the government
exercises broad supervisory powers, reserves the right to
inspect, or monitors compliance with federal law, an independent
contractor relationship will most often be found. See Moschetto
v. United States, 961 F. Supp. 92, 95 (S.D.N.Y. 1997); Lipka v.
United States, 369 F.2d 288, 291 (2d Cir. 1966). In Leone,
the Court of Appeals reversed the district court, finding that
the evidence proved that the AMEs were not government employees
for the purposes of the FTCA because the FAA did not maintain
control over their performance and provided no insurance or
worker's compensation for the AMEs, and the AMEs relied on their
own professional judgment in making decisions, decided who they
would examine, were paid directly by the patient, and supplied
their own tools, instruments and place of work. Leone, 910
F.2d at 50. The record presented by the parties does not allow
me to draw any conclusion, one way or the other, about the
status of Shelburne.
The Government has provided the Court with a contract between
the USMA and Military Community Youth Ministries ("MCYM"), the
organization that runs God's Gang. (Kennedy Aff., Exh. C.) The
contract consists of a boilerplate form contract titled
"Solicitation/Contract/Order for Commercial Items," and two
attached schedules. This contract is the only factual evidence
before the Court that goes to the degree of control the
Chaplain's Office exercised over God's Gang. Standing alone, it
is insufficient allow this Court to make a determination of the
degree of control exercised. The Government also asserts that
there is no subject matter jurisdiction over the Complaint to
the extent that it alleges any negligent action by Cadet Jones
because Jones acted outside her official capacity as a USMA
cadet when serving as a God's Gang counselor. See
28 U.S.C. § 2679(b)(1). Again, that may be the case. But there are
allegations in the complaint that suggest otherwise. I am in no
position to foreclose plaintiff from developing a record that
would rebut the Government's rather conclusory contentions in
The Government also argues that since Jones reported the
girls' allegations to Shelburne, plaintiffs claims can not be
based on Jones' failure to report. I have little doubt that
given Cadet Jones' position in the chain of command, she did all
she could by asking her supervisor and superior officers for
guidance. That may well entitle her to summary judgment; it does
not mean that subject matter jurisdiction is lacking over the
claims against her.
The Government's factual attacks on jurisdiction should be
supported by ample "affidavits, deposition testimony, and other
materials outside the complaint." See Ensign-Bickford Co. v.
ICI Explosives USA, Inc., 817 F. Supp. 1018, 1023 (D.Ct. 1993).
Both parties have submitted a negligible amount of supplemental
materials, but the factual record is insufficient to permit me
either to accept or reject the Government's arguments. I
therefore deny the motion without prejudice to the Government's
renewing it on a full record after discovery.
II Defendant's Motion to Dismiss Guinevere's Claims For
Failure to State a Claim
Plaintiff pleads three alternative causes of action against
the Government: (1) breach of a federal statutory duty to report
incidents of suspected child abuse pursuant to
42 U.S.C. § 13031; (2) breach of state statutory duty to report suspected
child abuse pursuant to Title 6, § 413 of the New York Social
Services Law; and, (3) breach of a common law duty to assist the
imperiled. Defendant challenges these causes of action as
legally insufficient under Fed.R.Civ.P. 12(b)(6).
The Government articulates five alternative theories in its
motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6): (A) failure to state a claim under the federal statute
because the FTCA's "law of the place" requirement can not be
satisfied by the violation of a federal statute standing alone;
(B) failure to state a claim for failure to comply with the
state statute because plaintiff did not allege defendant's
willful failure to report incidents of suspected child abuse;
(C) failure to state a claim for failure to comply with the
state and federal reporting statutes because the memorandum
written by Jones to Shelburne does not describe incidents of
sexual or child abuse; (D) failure to state a claim because the
God's Gang personnel did not have a duty to report suspected
child abuse under the state and federal statutes or under New
York law; (E) failure to state a claim because neither the
federal or state statutes includes priests, ministers, chaplains
or clergy in their lists of mandatory reporters.
The role of a district court in considering a motion to
dismiss is "not to weigh the evidence that might be presented at
trial but merely to determine whether the complaint itself is
legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067
(2d Cir. 1985). The court must accept as true the factual
allegations made in the complaint, see LaBounty v. Adler,
933 F.2d 121, 123 (2d Cir. 1991), and the complaint should not be
dismissed "unless it appears beyond a doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236,
94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (quoting Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
A. "Law of the place" requirement under the FTCA
28 U.S.C. § 1346(b) provides for the district court's
jurisdiction of claims under the FTCA:
[T]he district courts . . . shall have exclusive
jurisdiction of civil actions on claims against the
United States, for money damages, accruing on and
after January 1, 1945, for injury or loss of
property, or 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.
The Government argues that plaintiffs cause of action under
the federal statute, 28 U.S.C. § 13031, should be dismissed
because the FTCA's "law of the place" requirement can not be
satisfied by a violation of federal law standing alone. The
Government contends that the FTCA mandates that a federal
violation must constitute violations of duties that are
"analogous to those imposed under local law." While this
statement is true, the federal statute does create a duty, the
breach of which can result in a claim of negligence under state
law. I therefore conclude that plaintiffs first cause of action
under the federal reporting statute should not be dismissed.
"The reference in § 1346(b) to the `law of the place' means
the `whole law' of the state where the incident took place."
Caban v. United States, 728 F.2d 68, 72 (2d Cir. 1984)
(quoting Lambertson v. United States, 528 F.2d 441, 443 (2d
Cir. 1976)). Application of the "whole law" requires that I look
to all law, including federal law, that a state court would
apply in similar circumstances involving a private defendant.
Id. (citing Southern Pacific Transportation Co. v. United
States, 462 F. Supp. 1193, 1213 (E.D.Cal. 1978)). It is true
that in the vast majority of FTCA cases, the "law of the place"
will, in fact, be the law of that state, but the language of the
Act does not mandate that state law be applied when the state
courts themselves would be required to refer to and apply
federal law to determine the liability of a private person. See
Southern Pacific Transportation Co., 462 F. Supp. at 1213.
In Caban, the court permitted the application of federal law
in a suit for false imprisonment brought under the FTCA.
Caban, 728 F.2d at 73. The Court of Appeals reviewed the
district court's dismissal of a false imprisonment charge
brought under the FTCA for the wrongful detention by INS of a
Spanish speaking citizen. On appeal, Caban challenged the
district court's application of federal standards to the actions
of the INS, arguing that under the FTCA's "law of the place"
requirement, the Government had the burden of proving that
plaintiffs detention was justified under New York law, and not
federal law. Id. at 71. The Court of Appeals held that the
district court applied proper legal principles in ruling that
INS acted in conformance with proper federal standards regarding
treatment of applicants for entry to the United States. Id. at
73. The court determined that the district court properly began
its inquiry by looking to New York's law of false imprisonment.
Under New York law, the legal justification for an alleged false
imprisonment did not have to be found in New York's substantive
law, but could be found in some other body of law, such as
federal law. Id. at 73. Since New York courts could
conceivably apply federal law to determine whether a confinement
by federal officials, acting pursuant to federal law, was
justified and therefore privileged, such an analysis was
permissible under the FTCA. Id.
Section 13031 imposes reporting requirements related to
suspected cases of child abuse. It applies to "[a] person . . .
engaged in a professional capacity or activity [as defined in
the statute] . . . on Federal land or in a federally operated
(or contracted) facility." If plaintiff had brought this action
against Jones, Shelburne, McChrystal and Wild as private
individuals in New York state court, he could state a negligence
claim for breach of a duty to report a suspected incident of
child abuse under 28 U.S.C. § 13031 against each individual as a
professional listed in the statute working in a federal
facility. A New York court would invoke the New York common law
doctrine that the breach of a statutory duty is negligence per
se. The court would then apply the federal reporting requirement
created by § 13031(a). A breach of this duty to report is
negligence per se under New York law. See Chen v. United
States, 854 F.2d 622, 627 (2d Cir. 1988) ("In New York, the
`unexcused omission' or violation of a duty imposed by statute
for the benefit of a particular class `is negligence
itself.'"); German by German v. Federal Home Loan Mortgage
Group, 896 F. Supp. 1385, 1396 (S.D.N.Y. 1995).
The Government argues that no federal statute can be the basis
of a FTCA claim because the Second Circuit has never decided
whether "it would be sufficient under the FTCA for a plaintiff
to prove breach of a federal statutory duty if the state where
the breach took place recognized the doctrine of negligence per
se." (Defendant's Reply Brief, at 9 (quoting Dorking v. United
States, 76 F.3d 1261, 1266 (2d Cir. 1996)).) However, as here,
the Second Circuit has not definitively ruled against the
proposition, a district court is free to embrace it. Other
Circuits have affirmatively concluded that in cases brought
under the FTCA, if the federal law has a state analogue, claims
based on a breach of a federal statutory can be maintained. See
Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995); Gelley v.
Astra Pharmaceutical Prods. Inc., 610 F.2d 558, 562 (8th Cir.
1979) ("[F]ederally imposed obligations, whether general or
specific, are irrelevant to our inquiry under the FTCA, unless
state law imposes a similar obligation upon private persons.");
Zabala Clemente v. United States, 567 F.2d 1140, 1149 (1st
Cir. 1977) (". . . even where specific behavior of federal
employees is required by federal statute, liability to the
beneficiaries of that statute may not be founded on the Federal
Tort Claims Act if state law recognizes no comparable private
liability"). Here, N.Y. Soc. Serv. L. § 413 is analogous to
28 U.S.C. § 13031. In light of Johnson, Gelley, and Zabala, and
in light of Caban, I find the Government's arguments
This "law of the place" requirement of the FTCA is not
violated by application of the duty created by the federal
statute. Defendant's motion to dismiss plaintiff's first claim
on this basis is denied.
B. Failure to allege willful failure to report pursuant to
the New York statute
The Government next alleges that Zimmerman failed to
adequately plead a violation under the New York reporting
statute, N.Y. Soc. Serv. L. § 413, because he failed to plead
willfulness. Section 413 mandates that certain persons and
officials are required to report cases of suspected child abuse