Liek v. United States of America Department of the Navy

Filing 10

Judge Allison D. Burroughs: ORDER entered 6 Defendants' Motion to Dismiss is GRANTED. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NISSAY LIEK, Individually and as Successor
in Interest of the Estate of NATHAN V.
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NISSAY,
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Plaintiff,
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v.
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UNITED STATES OF AMERICA and the
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DEPARTMENT OF THE NAVY,
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Defendants.

Civil Action No. 16-cv-10632-ADB

MEMORANDUM AND ORDER
GRANTING MOTION TO DISMISS
BURROUGHS, D.J.
On March 31, 2016, Plaintiff Nissay Liek (“Plaintiff”) filed this wrongful death action
against Defendants United States of America and the Department of the Navy pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680, following the tragic
suicide of his son, Nathan Nissay (“Nissay”). [ECF No. 1].1 Presently pending before the Court
is Defendants’ Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack
of subject matter jurisdiction under the Feres doctrine. [ECF No. 6]. For the reasons set forth
herein, the Court GRANTS the motion and dismisses the case.
I.

BACKGROUND

The following facts are taken from Plaintiff’s complaint and the attached exhibits unless
otherwise specified. [ECF No. 1 (“Compl.”)]. In 2013, while serving in the Navy, Nathan Nissay
was on a temporary duty assignment at the Ballston Spa Naval Nuclear Power Training Unit in

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Plaintiff sues individually and as a successor-in-interest to his son.
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Saratoga Springs, New York, where he was training and attending classes. Compl. ¶ 12. On or
about December 30, 2013, Nissay committed suicide, leaving behind a video, journals, and text
messages filled with references to his depression and thoughts of suicide. Id. ¶ 3. Plaintiff alleges
that, prior to committing suicide, Nissay revealed his depressive thoughts and tendencies to his
supervisors and fellow employees in the Navy. Id. ¶ 10. The complaint contends that the United
States, through its agency, the Department of the Navy, failed to follow procedures to ensure the
safety and protection of Nissay while he was under the Navy’s supervision and control, despite
the expressed suicidal thoughts. Id. Specifically, Plaintiff alleges that the United States “failed its
mandatory duty to ensure that its employees would act and protect a fellow employee” while he
was at the Ballston Spa Naval Nuclear Power Training Unit. Id. ¶¶ 11–12. Plaintiff also claims
that, in addition to Nissay’s own reports, the Navy should have been aware of Nissay’s frail
status following the death of his fellow serviceman and friend, id. ¶¶ 17–18, and that the United
States directly and proximately caused the death of Nissay by ignoring his cries for help, Id. ¶¶ 7,
10, 18. Lastly, the complaint alleges that Nissay’s death was “not the cause of a serviceconnected injury.” Id. ¶ 16.
Before bringing the instant action, Plaintiff exhausted his administrative claims before the
Office of the Judge Advocate General (“JAG”), who determined that the claims were not valid
under the FTCA because, pursuant to the Feres doctrine, Nissay was an “active duty service
member at the time of his death” and the death occurred “incident to his military service.” [ECF
No. 1-6 at 2]. Accordingly, on October 1, 2015, the JAG denied Plaintiff’s claims. Id. Plaintiff
then filed a complaint in this Court [ECF No. 1], which Defendants have moved to dismiss
pursuant to Rule 12(b)(1) and the Feres doctrine [ECF No. 6].

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II.

LEGAL STANDARD

“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, rather than as a motion for
summary judgment.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1997); see also
Hamilton v. United States, 564 F. Supp. 1146, 1151 (D. Mass. 1983) (granting motion to dismiss
Feres-barred claims). When evaluating a motion to dismiss pursuant to Rule 12(b)(1), “[t]he
existence of subject-matter jurisdiction ‘is never presumed’” because federal courts are
considered courts of limited jurisdiction. Fafel v. Dipaola, 399 F.3d 403, 410 (1st Cir. 2005)
(quoting Viqueria v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998)). Where, as here, Defendants
bring a facial challenge to the Court’s subject matter jurisdiction, the Court must treat all wellpleaded facts as true and give Plaintiff the benefit of all reasonable inferences. See Fothergill v.
United States, 566 F.3d 248, 251 (1st Cir. 2009); Torres-Negron v. J & N Records, LLC, 504
F.3d 151, 162 (1st Cir. 2007). Dismissal is appropriate when the well-pleaded facts alleged in the
complaint, taken as true, do not support a finding of federal subject matter jurisdiction.
Fothergill, 566 F.3d at 251.
III.

DISCUSSION

“As sovereign, the United States may not be sued for damages without its consent.” Day
v. Mass. Air Nat’l Guard, 167 F.3d 678, 681 (1st Cir. 1999). The United States has, however,
consented to a limited waiver of sovereign immunity through the FTCA, which permits parties to
bring suit for damages for the negligent or wrongful acts or omissions of federal employees “in
the same manner and to the same extent as a private individual under like circumstances.” 28
U.S.C. §§ 1346(b), 2674, 2675(a). An exception to this general rule bars any claim “arising out
of the combatant activities of the military or naval forces, or the Coast Guard.” Id. § 2680(j).

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In Feres v. United States, the Supreme Court interpreted this provision broadly as barring
governmental liability for all injuries that “arise out of or are in the course of activity incident to
[military] service.” 340 U.S. 135, 146 (1950). The Supreme Court invoked numerous
justifications for the doctrine, emphasizing the “distinctively federal . . . character” of “[t]he
relationship between the Government and members of its armed forces,” and the “extremely
favorabl[e]” military benefits provided to plaintiffs and their families for injuries. Id. at 141–43.
The Supreme Court has noted that Feres is best explained by the “peculiar and special
relationship of the soldier to his superiors, the effects of the maintenance of such suits on
discipline, and the extreme results that might obtain if suits under the Tort Claims Act were
allowed for negligent orders given or negligent acts committed in the course of military duty.”
United States v. Shearer, 473 U.S. 52, 57 (1985) (internal quotations and citations omitted).
Feres and its progeny bar suits brought by service members against the government for injuries
incurred “incident to service” because they are the “types of claims that, if generally permitted,
would involve the judiciary in sensitive military affairs at the expense of military discipline and
effectiveness.” United States v. Johnson, 481 U.S. 681, 690 (1987) (internal quotation and
alteration omitted). Courts in this Circuit and others have consistently barred wrongful death
claims under the Feres doctrine in cases involving the suicide of a service member. See, e.g.,
Persons v. United States, 925 F.2d 292, 293–94 (9th Cir. 1991) (affirming district court’s
dismissal for want of jurisdiction, including for widow’s and parents’ claims, following service
member’s suicide); Purcell v. United States, 656 F.3d 463, 464 (7th Cir. 2011) (same); Becton v.
United States, 489 F. Supp. 134, 138 (D. Mass. 1980) (holding that wrongful death suit was
barred, even though deceased was off-duty and pending discharge at the time of suicide); Stubbs
v. United States, 744 F.2d 58 (8th Cir. 1984) (holding that Feres barred wrongful death suit

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where service member was sexually harassed by a fellow officer, which created an atmosphere
that ultimately led to her suicide).
Here, even taking Plaintiff’s well-pleaded factual allegations as true, the complaint must
be dismissed because it seeks to challenge the Navy’s decisions relating to the supervision and
control of Nissay during his time at the naval nuclear training base. As Plaintiff concedes, “there
is no dispute that Nathan Nissay was a member of the US armed services at the time of his
death” and during the alleged negligent actions of the government in caring for and supervising
him.2 [ECF No. 9-1 at 2]; see also Compl. ¶¶ 11–12. Thus, the only “additional question that
must be answered in order to determine whether the [Feres] doctrine bars his tort claims . . . is
whether the injuries he suffered were ‘incident to the service.’” Diaz-Romero v. Mukasey, 514
F.3d 115, 119 (1st Cir. 2008).
In the First Circuit, determining whether the service member’s injury arose “incident to
service” under the Feres doctrine involves consideration of the following:
whether [the injury] occurred on a military facility, whether it arose out of military
activities or at least military life, whether the alleged perpetrators were superiors or
at least acting in cooperation with the military, and . . . whether the injured party
was himself in some fashion on military service at the time of the incident.
Diaz-Romero, 514 F.3d at 119 (quoting Day, 167 F.3d at 678). No single element in this
equation, however, is decisive. Id.

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Plaintiff does not supply additional facts or arguments outside of the complaint as to this
Court’s jurisdiction in his opposition. Rather, Plaintiff avers only that it is up to the District
Court “to exercise its jurisdiction to determine whether any claim is recognizable in law” and
noting that Defendants “did not file a timely notice of dismissal.” [ECF No. 9]. Plaintiff’s
allegations concerning the timing of the motion, however, carry little weight because the Court is
obliged to address its own subject matter jurisdiction sua sponte regardless of when the issue was
raised by a party. McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir. 2004) (“It is black-letter law that a
federal court has an obligation to inquire sua sponte into its own subject matter jurisdiction.”).
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Again, for the purpose of this motion to dismiss, all well-pleaded factual allegations are
accepted as true. Here, the complaint alleges that the negligence occurred on a military facility,
the Ballston Spa Naval Nuclear Power Training Unit in Saratoga Springs, New York, where
Nissay was being trained and taking classes. Compl. ¶¶ 12, 21. The nature of the injury arose out
of military activities or at least military life because, as alleged in the complaint, the “Navy . . .
retain[ed] control of the day to day activities and supervision of” Nissay while he was training,
and his section leaders “act[ed] within the time, purpose, course, and scope” of their employment
in the Navy. Id. ¶¶ 6, 21. The complaint further alleges that the tortfeasors were Nissay’s
superiors, or “section leaders,” as well as his peers, all of whom were on notice of and ignored
his suicidal thoughts. Id. ¶¶ 11, 14, 17. It additionally claims that the Defendants “negligently
discharged its mandatory duties to oversee, supervise, control and otherwise protect” Nissay, and
that he died as a result. Id. ¶¶ 22, 23. Thus, the allegations show that the complained-of acts or
omissions occurred on a military facility, that the nature of the injury arose directly out of
military activities, and that the alleged acts or omissions were committed by military supervisors
and other employees.
The final factor is whether the injured party was, in some fashion, on military service at
the time of the incident. Day, 167 F.3d at 682. Although it is unclear whether Nissay was offduty when he committed suicide, “the relevant distinction . . . is between servicepersons who are
‘active duty’ and those who have been discharged or are on furlough, not between ‘off-duty’ and
‘on-duty’ servicepersons.” Skees v. United States, 107 F.3d 421, 425 (6th Cir. 1997) (citation
omitted) (finding that “off-duty” status at the time of plaintiff’s suicide was not controlling
because he was an active service member); see also Borden v. Veterans Admin., 41 F.3d 763,
763 (1st Cir. 1994). Here, it is undisputed in the opposition, and Plaintiff’s complaint affirms,

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that Nissay was an active service member at the time of the alleged negligent supervision by the
Navy. Compl. ¶¶ 11, 12; see also [ECF No. 9 at 2]. Even assuming that Nissay’s suicide
occurred while he was off-duty, a distinction between “off-duty” or “on-duty” status at the time
of his death would not be dispositive here. Borden, 41 F.3d at 763; see also Becton v. United
States, 489 F. Supp. 134, 138 (D. Mass. 1980) (barring recovery under Feres where the father of
the decedent navy service member sought damages for his son’s suicide because, although
decedent’s naval discharge was pending, he was still connected to the armed services).
With respect to Plaintiff’s allegations that Defendants were negligent in “fail[ing] to
follow mandatory procedures,” Compl. ¶ 10, the First Circuit has held that the Feres doctrine
applies even where the Navy’s compliance with its own regulations and procedures is at issue
because holding otherwise would still force a court to “delve into questions of military decision
making.” See Morey v. United States, 903 F.2d 880, 881–82 (1st Cir. 1990) (“The claim that the
Navy negligently or recklessly failed to place [service member] in the alcohol rehabilitation
program implicates such questions of military decision making as the circumstances under which
a serviceman should have been given alcohol rehabilitation; which servicemen’s problems are so
serious as to require priority over others; and how the rehabilitation program should be managed
and supervised.”). Similarly, here, it is not for the Court to second-guess “military decisions” and
procedures with respect to the supervision of, and decisions relating to, a service member while
he was on the naval training base. See Lauer v. United States, 968 F.2d 1428, 1430 (1st Cir.
1992) (noting that “conduct of the military . . . goes far beyond discipline in the narrow sense”
and courts should not “second guess[] military decisions.”); see also Skees, 107 F.3d at 424–25
(holding that Feres doctrine barred claims that military was negligent in supervising, controlling,
and following its own regulations leading up to service member’s suicide);

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Levin v. United States, 403 F. Supp. 99, 103–04 (D. Mass. 1975) (barring claims for the serviceconnected suicide of plaintiff’s husband even though there were allegations of negligence on the
part of the government in failing to recognize the decedent’s suicidal tendencies).
Thus, based on the facts alleged by Plaintiff and in light of the considerations laid out in
Feres and subsequent cases concerning whether an injury occurred “incident to service,” the
complaint must be dismissed because Plaintiff’s claims are barred by the Feres doctrine.3
IV. CONCLUSION
Accordingly, the Defendants’ Motion to Dismiss [ECF No. 6] is GRANTED.
SO ORDERED.
Dated: May 25, 2017

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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To the extent that Plaintiff sues in his individual capacity seeking to recover as a family
member of Nissay, such claims are also barred by the Feres doctrine. See De Font v. United
States, 453 F.2d 1239, 1239–40 (1st Cir. 1972) (barring widow’s and children’s claims); Persons,
925 F.2d at 293 (same); Skees, 107 F.3d at 425 (barring widow’s claims).

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