United States District Court, Western District of Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
Joseph H. McKinley, Jr., Chief Judge United States District Court
This matter is before the Court on a motion by Defendant, United States, to dismiss the complaint against it pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). [DN 9]. Fully briefed, this matter is ripe for decision.
I. STANDARD OF REVIEW
A. Fed.R.Civ.P. 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) provides that a party may file a motion asserting “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). “Subject matter jurisdiction is always a threshold determination, ” American Telecom Co., L.L.C. v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007) (citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998)), and “may be raised at any stage in the proceedings, ” Schultz v. General R.V. Center, 512 F.3d 754, 756 (6th Cir. 2008). “A Rule 12(b)(1) motion can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). “A facial attack on the subject-matter jurisdiction alleged in the complaint questions merely the sufficiency of the pleading.” Gentek Bldg. Products, Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
B. Fed.R.Civ.P. 12(b)(6)
Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), a court “must construe the complaint in the light most favorable to plaintiff, ” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), “accept all well-pled factual allegations as true[, ]” id., and determine whether the “complaint  states a plausible claim for relief[, ]” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this standard, the plaintiff must provide the grounds for his or her entitlement to relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only when he or she “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint falls short if it pleads facts “merely consistent with a defendant’s liability” or if the alleged facts do not “permit the court to infer more than the mere possibility of misconduct.” Id. at 678, 679. Instead, the allegations must “‘show[ ] that the pleader is entitled to relief.’” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). It is against these standards the Court reviews the following facts.
This case arises from a motor vehicle accident that occurred on May 18, 2012, in Jefferson County, Kentucky. Plaintiff alleges that she was riding as a passenger in a motor vehicle driven by Eric Claggett, a sergeant in the United States Army Reserves, who negligently struck another vehicle resulting in injuries to Plaintiff. Both Plaintiff and Claggett attended Active Duty Training School (“ADTS”) for 13 days beginning on May 6, 2012, at the Army Reserve Training Center (“ARRTC”) at Fort Knox. Kentucky. Friday, May 18, 2012, was the last day of the course at Fort Knox. After the course ended, Claggett offered a ride in his rental vehicle to the Louisville International Airport to three of his fellow students, Eddie Buchanan, Darrell Worrell, and Leslie Johnson. These students were either military reservists or civilian employees on orders. At the time of the accident, Plaintiff was traveling to the airport with Claggett in order to return to her home.
On May 14, 2014, Plaintiff filed suit in the Jefferson Circuit Court against Claggett in his individual capacity for negligence; USAA Casualty Insurance Company, Enterprise Rent-A-Car Company of Kentucky, LLC, and/or EAN Holdings, LLC, for recovery of no-fault benefits; and State Farm Mutual Automobile Insurance Company for recovery of uninsured motorist coverage. Plaintiff did not initially file a claim against the United States under the Federal Torts Claim Act, but sued Eric Claggett in his individual capacity for negligence.
On September 4, 2014, the United States removed this action to federal court stating that at the time of the accident Claggett was acting within the scope of his employment with the United States Department of the Army and that the Federal Tort Claims Act is the exclusive remedy against the United States and its agents. The United States then filed a Notice of Substitution to substitute the United States, rather than the individual employee, as the defendant under the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679 (“the Westfall Act”). The United States now moves to dismiss the complaint against it pursuant to Fed.R.Civ.P. 12(b)(1) arguing that the Court lacks jurisdiction over Plaintiff’s claims because (1) the claims are barred by the Feres Doctrine and (2) Plaintiff failed to exhaust her administrative remedies.
In Feres v. United States, 340 U.S. 135 (1950), the United States Supreme Court held 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. at 146. Because “’the relationship of military personnel to the Government has been governed exclusively by federal law, ’ the Court did not ‘think that Congress, in drafting this Act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence.’” Bowers v. Wynne, 615 F.3d 455, 458 (6th Cir. 2010)(quoting Feres, 340 U.S. at 146). The Feres doctrine applies to claims of negligence, constitutional violations, and intentional torts. Hiles v. Army Review Bd. Agency, 2013 WL 1196594, *7 (S.D. Ohio March 25, 2013)(citing Mackey v. U.S., 226 F.3d 773, 775–776 (6th Cir. 2000)). It is premised on three underlying rationales: “’(1) the distinctively federal character of the relationship between the government and members of its armed forces; (2) the existence of generous statutory disability and death benefits; and (3) the impact of allowing lawsuits, which would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.’” Id.
In determining whether injuries were incurred “incident to service, ” courts consider numerous factors, including whether the injury arose while the service member was on active duty, location of the accident, the nature of the activity, whether the service member was participating in a benefit or activity conferred as a result of military service at the time of the injury, and whether the service member was subject to military control or discipline. See, e.g., Kohn v. United States, 680 F.2d 922, 925 (2d Cir. 1982) (an injury to a service member on base or off base but while engaged in a military duty is incident to service); Boggs-Wilkerson v. United States, 2011 WL 2970895, *4 (E.D. Va. 2011) (claim barred where active duty soldier was injured off-post on her way to report for duty by another active duty soldier carrying out military orders); Stewart v. United States, 90 F.3d 102, 104 (4th Cir. 1996)(claim barred where ...