Buch et al v. United States of America
ORDER granting 7 Motion to Dismiss; denying 13 Motion for o/a. Signed by Judge H. Russel Holland on 3/21/16. (PRR, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
STANTON M. BUCH and SHARON A.
UNITED STATES OF AMERICA,
Motion to Dismiss
Defendant moves to dismiss plaintiffs’ complaint.1 This motion is opposed.2 Oral
argument was requested3 but is not deemed necessary.
Plaintiffs are Stanton M. Buch and Sharon A. Stinus. Defendant is the United States
Docket No. 7.
Docket No. 11.
Docket No. 13.
In September 2009, Buch “was enlisted with the U.S. Army and stationed at Ft.
Wainright, near Fairbanks,” Alaska.4 Buch was “[d]istraught over difficulties in a domestic
relationship and under the influence of alcohol and medications” when he “attempted
suicide by slashing his wrists.”5 Buch was “rushed to medical care at Bassett Army
Community Hospital” and “then transferred to the mental health unit at ... Fairbanks
Memorial Hospital[.]”6 Buch was “voluntarily” admitted to Fairbanks Memorial Hospital
on September 24, 2009 and “then discharged into the care of the U.S. Army on September
25, 2009.”7 “That night, after discharge, ... Buch, unwatched and unchallenged, left base,
purchased a handgun and, under the influence of alcohol, attempted suicide again.”8 Buch
“survived the attempt but injured himself severely in the head.”9 Before Buch “pulled the
trigger[,]” he “contacted his mother, plaintiff Sharon Stinus, by telephone, and apprised her
of the gun and of his intentions.”10 Stinus “desperately tried to dissuade ... Buch from
Complaint at 2, ¶ 11, Docket No. 1.
Id. at 2-3.
Id. at 3.
Id. at 3, ¶ 14.
Id. at 3, ¶ 15.
harming himself and tried to ascertain his whereabouts so she could direct Army personnel
to him in time.”11 “Stinus was thereby a bystander to the harm which befell ... Buch.”12
On August 13, 2015, plaintiffs commenced this Federal Tort Claims Act (FTCA)
action. Plaintiffs allege that U.S. Army personnel breached a duty to supervise Buch “by
negligently failing to place him on a suicide prevention watch with adequate safeguards.”13
Plaintiffs allege that Buch “suffered grievous physical wounds, emotional distress, pain and
suffering and loss of enjoyment of life” as a result of defendant’s negligence.14 And they
allege that Stinus “suffered severe emotional distress and depression from her exposure
to the harm experienced by her son[.]”15 Plaintiffs allege that their injuries “did not arise
out of or flow from any course of activity incident to Stanton Buch’s service with the U.S.
Defendant now moves to dismiss plaintiffs’ complaint pursuant to the Feres
Id. at 3, ¶¶ 12-13.
Id. at 4, ¶ 20.
Id. at ¶ 18.
Id. at 4-5, ¶ 23.
“A motion to dismiss pursuant to the Feres doctrine is properly treated as a Fed. R.
Civ. P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction[.]” Dreier v. United
States, 106 F.3d 844, 847 (9th Cir. 1997). “A Rule 12(b)(1) jurisdictional attack may be facial
or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial
attack, the challenger asserts that the allegations contained in a complaint are insufficient
on their face to invoke federal jurisdiction.” Id. “By contrast, in a factual attack, the
challenger disputes the truth of the allegations that, by themselves, would otherwise
invoke federal jurisdiction.” Id. Here, defendant is making a facial attack. The court
“therefore ‘assume[s] [plaintiffs’] [factual] allegations to be true and draw[s] all reasonable
inferences in [their] favor.’” Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009) (quoting
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)). The court does not, “however,
accept the ‘truth of legal conclusions merely because they are cast in the form of factual
allegations.’” Id. (quoting Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th
“As a sovereign, the United States is immune from suit unless it waives such
immunity.” Chadd v. United States., 794 F.3d 1104, 1108 (9th Cir. 2015). “The FTCA
waives the federal government’s sovereign immunity, rendering the United States liable
‘in the same manner and to the same extent as a private individual under like circum-
stances....’” Ritchie v. United States, 733 F.3d 871, 874 (9th Cir. 2013) (quoting 28 U.S.C. §
2674). “In 1950, however, the Supreme Court carved out a judicial exception to the FTCA,
holding in Feres v. United States 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.’” Id. (quoting Feres v. United States, 340 U.S. 135, 146 (1950)).
“It subsequently extended this principle—known informally as the Feres doctrine—in
Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977), to bar third-party
claims which derive directly or indirectly from injuries to service members incident to
military duty.” Id.
“The Feres doctrine is applicable ‘whenever a legal action would require a civilian
court to examine decisions regarding management, discipline, supervision, and control of
members of the armed forces of the United States.’” Zaputil v. Cowgill, 335 F.3d 885, 887
(9th Cir. 2003) (quoting Hodge v. Dalton, 107 F.3d 705, 710 (9th Cir. 1997)). “‘The test has
been broadly construed to immunize the United States and members of the military from
any suit which may intrude in military affairs, second-guess military decisions, or impair
military discipline.’” Id. (quoting Jackson v. Brigle, 17 F.3d 280, 282 (9th Cir. 1994)).
To determine whether a service member’s injuries arise from activity “incident to
service”, the court considers four factors:
“(1) the place where the negligent act occurred, (2) the duty
status of the plaintiff when the negligent act occurred, (3) the
benefits accruing to the plaintiff because of the plaintiff’s status
as a service member, and (4) the nature of the plaintiff’s
activities at the time the negligent act occurred.”
McConnell v. United States, 478 F.3d 1092, 1095 (9th Cir. 2007) (quoting Costo v. United
States, 248 F.3d 863, 867 (9th Cir. 2001)). “[N]one of these factors are dispositive.” Id.
Rather, the court must look at “the totality of the circumstances.” Id. (citation omitted).
Consideration of these factors leads to the conclusion that plaintiffs’ alleged injuries
arose out of activity incident to Buch’s service in the Army. At the time of his second
suicide attempt, Buch was an enlisted soldier serving on active duty. Plaintiffs have alleged
that the cost of almost all of Buch’s medical treatment as a result of his second suicide
attempt “has been borne by defendant[.]”17 And, the alleged negligent act, the failure of
U.S. Army personnel to provide adequate psychiatric care for Buch after his release from
the hospital, presumably took place on base.
Plaintiffs’ argument to the contrary is unavailing. Plaintiffs point out that the sole
express military exception in the FTCA is for “[a]ny claim arising out of the combatant
activities of the military or naval forces, or the Coast Guard, during time of war.” 28 U.S.C.
§ 2680(j). Thus, because plaintiffs’ claims did not arise out of combatant activities of the
military, plaintiffs argue that their FTCA claims should not be dismissed.
Complaint at 4, ¶ 21, Docket No. 1.
Although plaintiffs are correct that the only statutory military exception in the FTCA
is for combatant activities, that does not mean that the Feres doctrine does not apply here.
The Feres doctrine is a judicially created exception to the waiver of sovereign immunity in
the FTCA that applies in military cases, such as this one, which do not involve combatant
activities. And, as discussed above, plaintiffs’ alleged injuries arose out of activity incident
to Buch’s service in the Army. Although Buch was off base when he attempted suicide a
second time, plaintiffs’ claims are based on the Army’s failure to supervise one of its
soldiers. Such claims plainly fall within the reach of the Feres doctrine. Thus, plaintiffs’
claims are barred by Feres doctrine, and they must be dismissed.
Plaintiffs’ request for oral argument18 is denied. Defendant’s motion to dismiss19 is
granted. The clerk of court shall enter judgment dismissing plaintiffs’ claims with
DATED at Anchorage, Alaska, this 21st day of March, 2016.
/s/ H. Russel Holland
United States District Judge
Docket No. 13.
Docket No. 7.
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