The opinion of the court was delivered by: John G. Koeltl, District Judge
The plaintiffs, members of the Army Reserves and members of their families, bring this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), and 2671-80, alleging that the soldier-plaintiffs suffered injuries as a result of exposure to radioactive depleted uranium ("DU") while serving on active military duty in Iraq.
The plaintiffs assert six claims for relief in their Complaint. The first claim, asserted by the soldier-plaintiffs, alleges that those plaintiffs suffered injuries as a result of the negligence of the Department of the Army (the "Army"). (Compl. ¶¶ 69-86.) The second claim alleges medical malpractice by Army physicians in connection with treatment rendered prior to the soldier-plaintiffs' discharge from military service. The soldier-plaintiffs received medical treatment at medical facilities operated by the Army both overseas and in the United States. (Compl. ¶¶ 87-95.) The third claim alleges medical malpractice by Army physicians in connection with treatment rendered after the soldier-plaintiffs' discharge from military service. (Compl. ¶¶ 96-102.) The fourth claim alleges that the plaintiff Victoria Claudette Matthew, the daughter of plaintiffs Gerard Darren Matthew and Janise Matthew, was born on June 28, 2004 with "serious and permanent physical and psychological injuries" resulting from negligent exposure to DU upon conception and thereafter. (Compl. ¶¶ 103-07.) The fifth claim alleges that, as a result of the defendants' negligence, the plaintiff Janise Matthew has been deprived of the services and companionship of her daughter Victoria Claudette Matthew and has incurred medical expenses relating to Victoria Matthew's exposure to DU. (Compl. ¶¶ 108-11.) The sixth claim alleges that the spouse of each of the soldier-plaintiffs except Jerry Fernando Ojeda has been deprived of the services, society, and companionship of her spouse as a result of the soldier-plaintiffs' exposure to DU. (Compl. ¶¶ 112-26.)
The defendants, the United States of America and the Department of the Army, move pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss the Complaint on the ground that the Court lacks subject matter jurisdiction over each of the plaintiffs' claims under the doctrine of Feres v. United States, 340 U.S. 135 (1950), or under 28 U.S.C. §§ 2680(j) and 2680(k). In the alternative, the Government moves for dismissal of the plaintiffs' medical malpractice claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. For the reasons explained below, the defendants' motion is granted in part and denied in part.
On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court must accept the factual allegations contained in the complaint as true. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). The Court is not limited to considering the complaint alone, however, but may also consider matters outside the pleadings such as affidavits, documents, and testimony. See Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002); Antares Aircraft v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), aff'd on remand, 999 F.2d 33 (2d Cir. 1993); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); John Street Leasehold, LLC v. Capital Mgmt. Res., L.P., 154 F. Supp. 2d 527, 533-34 (S.D.N.Y. 2001), aff'd, 283 F.3d 73 (2d Cir. 2002). The standard used to evaluate a Rule 12(b)(1) motion is thus similar to that used for summary judgment under Rule 56. See Kamen, 791 F.2d at 1011.
The plaintiffs have the ultimate burden of proving the Court's jurisdiction by a preponderance of the evidence. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996); Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir. 1983); Fier v. United States, No. 01 Civ. 2225, 2002 WL 453177, at *1 (S.D.N.Y. Mar 25, 2002), aff'd, 53 Fed. Appx. 158 (2d Cir. 2002); see also Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (when subject matter jurisdiction is challenged under Rule 12, plaintiff bears the burden of persuasion); Martin v. Reno, No. 96 Civ. 7646, 1999 WL 527932 (S.D.N.Y. July 22, 1999); Harp v. City of New York, 218 F. Supp. 2d 495, 496-97 (S.D.N.Y. 2002).
It is beyond dispute that sovereign immunity deprives a federal court of jurisdiction over claims against the United States Government except to the extent that sovereign immunity has been waived. See United States v. Mitchell, 463 U.S. 206, 212 (1983). While the Government has, through the Federal Tort Claims Act, waived its sovereign immunity for a significant number of claims, that waiver is not absolute and federal courts are without jurisdiction to hear claims for which the Government has not consented to suit.
In one of the earliest decisions interpreting the Federal Tort Claims Act, the Supreme Court held that active service members may assert claims against the Government for injuries unrelated to their military service. Brooks v. United States, 337 U.S. 49, 51-52 (1949). The Court therefore allowed a suit to proceed on behalf of a soldier and the estate of his brother, also a soldier, arising out of a collision between their vehicle and a vehicle driven by an Army employee. Id. at 50, 53. In so holding, the Court noted that the injuries were not incident to the soldiers' service. Id. at 50, 52.
Just one year later, however, the Supreme Court unanimously held in Feres v. United States, 340 U.S. 135 (1950), that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146. The Feres doctrine has been reaffirmed on numerous occasions. See, e.g., United States v. Johnson, 481 U.S. 681, 686-88 (1987).
The Court of Appeals for the Second Circuit, like a number of other courts of appeals, has held that the Feres doctrine fully applies to members of the military reserves. Wake v. United States, 89 F.3d 53, 58-59 (2d Cir. 1996); see also Quintana v. United States, 997 F.2d 711, 712 (10th Cir. 1993); Duffy v. United States, 966 F.2d 307, 312 (7th Cir. 1992); Estate of Martinelli v. United States Dep't of the Army, 812 F.2d 872, 873 (3d Cir. 1987). To the extent that the injuries asserted in the plaintiffs' Complaint arise out of their military service, or are in the course of activity incident to their military service, therefore, the Court is without jurisdiction to hear those claims.
The Court of Appeals has identified a number of factors for courts to consider in determining whether an injury is "incident to service," including (1) "the individual's status as a member of the military at the time of the incident giving rise to the claim," (2) "the relationship of the activity to the individual's membership in the service, as well as the location of the conduct giving rise to the underlying tort claim," and (3) "whether the activity is limited to military personnel and whether the service member was taking advantage of a privilege or enjoying a benefit conferred as a result of military service." Wake, 89 F.3d at 58. No single factor is dispositive. Id.
The Court of Appeals has noted that there are three underlying rationales for the Feres doctrine: "(1) the distinctly federal relationship between the Government and members of its armed forces; (2) the existence of a uniform system of generous statutory disability and death benefits for members of the military; and (3) the need to preserve the military disciplinary structure and prevent judicial involvement in sensitive military matters." Id. at 57 (internal quotation marks omitted). These considerations should permeate the process of determining whether a service member's claim occurred within the purview of a distinctly military sphere of activity or while a military relationship was in effect. Id. at 57--58.
Each of the plaintiffs' claims will be addressed in turn with ...