The opinion of the court was delivered by: Robert F. Kelly, J.
Before this Court is the United States' Motion to Dismiss the Joinder
Complaint of Contemporary Services Corporation ("CSC") pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction. Kevin Galligan ("Mr. Galligan"), a former United States
Military Academy ("USMA" or "West Point") cadet, sued several parties for
his injuries resulting from a safety railing collapse during a December
5, 1998, Army-Navy football game held at Veteran's Stadium in
Philadelphia, Pennsylvania. CSC, one of the Defendants in the action,
filed a Joinder Complaint against the United States.*fn1
Based on the Feres doctrine, the United States has filed the instant
Motion to Dismiss. For the reasons that follow, the Motion is granted.
On or about December 5, 1998, Mr. Galligan, a West Point cadet suffered
injuries as a result of a safety railing collapse at an Army-Navy
football game held at Veterans Stadium. (Am. Compl., ¶¶ 10, 11.) In
the Court of Common Pleas, Philadelphia County, Mr. Galligan sued CSC and
several other parties connected with the football game. (Id.) CSC's
involvement was based on the fact that it was retained to provide
security services at the game. (Mem. Law Opp'n Mot. Dismiss, Ex. C.) On
or about November 17, 2000, CSC filed a third party Complaint "alleging
that, among others, the United States `w[as] responsible for the safety
and security of the plaintiff at the time of the incident.'" (Mem. Law
Supp. Mot. Dismiss at 4.)(citing Joinder Compl., ¶ 11.) Because the
United States has sovereign immunity, CSC's Joinder Complaint was brought
pursuant to the waiver of sovereign immunity found in the Federal Tort
Claims Act, 28 U.S.C. § 1346(b) et seq. ("FTCA"). (Id. at 4.) On or
about January 19, 2001, the United States removed the instant action to
this Court. See Notice of Removal. Currently, the United States has moved
to dismiss CSC's Joinder Complaint under Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction based on the Feres
doctrine. The Feres doctrine is a judicially created doctrine whereby "a
soldier may not recover under the Federal Tort Claims
Act for injuries which `arise out of or are in the course of activity
incident to service.'" United States v. Shearer, 473 U.S. 52, 57 (1985)
(quoting Feres v. United States, 340 U.S. 135, 146 (1950)).
Pursuant to Federal Rule of Civil Procedure 12(b)(1), when "considering
a motion to dismiss for lack of subject matter jurisdiction, the person
asserting jurisdiction bears the burden of showing that the case is
properly before the court at all stages of the litigation." Fed. Realty
Inv. Trust v. Juniper Props. Group, No. 99-3389, 2000 WL 45996, at *3
(E.D.Pa. 2000) (citing Packard v. Provident Nat'l Bank, 994 F.2d 1039,
1045 (3d Cir. 1993), cert. denied, 510 U.S. 964 (1993)). The district
court, when reviewing a motion to dismiss for lack of subject matter
jurisdiction, "must accept as true the allegations contained in the
plaintiff's complaint, except to the extent federal jurisdiction is
dependent on certain facts." Id. (citing Haydo v. Amerikohl Mining,
Inc., 830 F.2d 494, 496 (3d Cir. 1987)). The district court is not
confined to the face of the pleadings when deciding whether
subject matter jurisdiction exists. Id. (citing Armstrong World Indus.
v. Adams, 961 F.2d 405, 410, n. 10 (3d Cir. 1992)). "In assessing
a Rule 12(b)(1) motion, the parties may submit and the court may consider
affidavits and other relevant evidence outside of the pleadings." Id.
(citing Berardi v. Swanson Mem'l Lodge No. 48 of Fraternal Order of Police,
920 F.2d 198, 200 (3d Cir. 1990)). In the case where the defendant
attacks jurisdiction with supporting affidavits, "the plaintiff has the
burden of responding to the facts so stated." Id. "A conclusory response
or a restatement of the allegations of the complaint is not sufficient." Id.
(citing Int'l Ass'n of Machinists & Aerospace Workers v. Northwest
Airlines, Inc., 673 F.2d 700, 711 (3d Cir. 1982)).
The United States' Motion to Dismiss is based upon the Feres doctrine.
Relying on the Feres doctrine, the United States argues that "[t]his
Court lacks subject matter jurisdiction to adjudicate a third party
complaint against the United States for injuries sustained by military
personnel incident to service."*fn2 (Mot. Dismiss at 1)(citing Stencel
Aero Eng'g Corp. v. United States, 431 U.S. 666 (1977)). CSC argues that
this Court has subject matter jurisdiction because the Feres doctrine is
inapplicable to this case since "the injury that Kevin Galligan sustained
while at the Army/Navy game . . . was not incurred incident to his
service with the United States Army." (Mem. Law Opp'n Mot. Dismiss at 5.)
Thus, the issue involved in this case is whether the injury sustained by
Mr. Galligan arose out of activity incident to his military service. If
Mr. Galligan's injury arose out of activity incident to military
service, the Feres doctrine is applicable, and this Court lacks subject
matter jurisdiction over this case.
"It is a well-settled rule of law, known as the Feres doctrine, that
`the Government is not liable under the Federal Tort Claims Act for
injuries to servicemen where the activities arise out of or are in the
course of activity incident to service.'" Swiantek v. United States, No.
94-5251, 1995 WL 120208, at *1 (E.D.Pa. 1995) (quoting Feres, 340 U.S. at
146). The Feres doctrine is premised on three rationales. Id. "First, a
uniform federal law regarding suits arising from military service is
needed in light of the `distinctively federal' relationship between the
government and its military personnel." Id. (quoting Feres, 340 U.S. at
143-44; United States v. Standard Oil Co., 332 U.S. 301, 305 (1947)).
This rationale is based on "the presumption that Congress would not have
intended that suits against the military subject the government to
different results based on differing state tort laws." Id. (citing United
States v. Johnson, 481 U.S. 681, 689 (1987)). "Second, the Feres doctrine
prohibits suits for service-related injuries because such injuries are
presumed compensated by `generous statutory disability and death benefits'
provided by the Veterans' Benefits Act, 38 U.S.C. § 301 et seq." Id.
(citing Johnson, 481 U.S. at 689; Feres, 340 U.S. at 144.)
Third, "the Feres doctrine bars actions against the government for
service-related injuries because of the concern that allowing such suits
would `involve the judiciary in sensitive military affairs at the expense
of military discipline and effectiveness.'" Id. (quoting
Johnson, 481 U.S. at 690)(citing Loughney v. United
States, 839 F.2d 186 (3d Cir. 1988); Estate of
Martinelli v. United States, 812 F.2d 872 (3d Cir.),
cert. denied, 484 U.S. 822 (1987)).
1. Injury Incident to Service
The Court of Appeals for the Third Circuit ("Third Circuit") has stated
that "the gravamen of the Feres doctrine is that the government is immune
from suit when injuries occur incident to service." O'Neill v. United
States, 140 F.3d 564, 565 (3d Cir.), cert. denied, 525 U.S. 962 (1998)).
Deciding whether an injury is incident to military service is not a
simple task because there is no bright line between whether an injury was
or was not incident to plaintiff's military service. McVan v. Bolco
Athletic Co., 600 F. Supp. 375, 379 (E.D.Pa. 1984). In fact, "[t]here is
a good deal of language in judicial opinions to the effect that the
inquiry is fact-specific and not easily susceptible to clear rules." Id.
(citing Woodside v. United States, 606 F.2d 134, 141 (6th Cir. 1979),
cert. denied, 445 U.S. 904 (1980)).
"The Supreme Court has not articulated a specific method for determining
whether an injury is `incident' to military service." Richards v. United
States, 176 F.3d 652, 655 (3d Cir. 1999), cert. denied, 528 U.S. 1136
(2000). However, the Supreme Court has given some guidance by instructing
"courts to examine each case `in light of the statute as it has been
construed in Feres and subsequent cases.'" Id. (quoting Shearer, 473
U.S. at 57). Courts have considered a number of factors when trying to
decipher the incident to military service issue "including: (1) the
service member's duty status; (2) the site of the accident; and (3) the
nature of the service member's activity at the time of the injury." Id.
(citing Dreier v. United States, 106 F.3d 844, 848 (9th Cir. 1997);
Schoemer v. United States, 59 F.3d 26, 28 (5th Cir.), cert. ...