United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
the Court is the government's motion to dismiss this case
for lack of subject matter jurisdiction. Doc. 10. This case
arises from the tragic death of plaintiff's son, Staff
Sergeant Avonye' Chisolm, a United States Army Ranger.
See generally doc. 1 (Complaint). The government
argues, among other reasons for dismissal, that this Court
lacks subject matter jurisdiction over the plaintiff's
claims. See generally doc. 11 (supporting brief);
see also doc. 15 (reply brief providing further
argument in favor of dismissal and asserting service
defects). Plaintiff opposes. Doc. 13.
Federal Rules of Civil Procedure dictate that an action
must be dismissed if the Court determines, at any
time, that it lacks subject matter jurisdiction. Fed.R.Civ.P.
12(h)(3). Subject matter jurisdiction is no mere
technicality. As the Supreme Court has explained:
“‘For a court to pronounce upon [the merits] when
it has no jurisdiction to do so, ' [Cit] . . . ‘is
for a court to act ultra vires.'” Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999) (quoting
Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 101-02 (1998)). The limitations of subject matter
jurisdiction “keep the federal courts within the bounds
the Constitution and Congress have prescribed.”
Id. In evaluating whether it has subject matter
jurisdiction, the Court is not confined to the pleadings, as
it often is when considering motions to dismiss. See,
e.g., Odyssey Marine Exploration, Inc. v. Unidentified
Shipwrecked Vessel, 657 F.3d 1159, 1170 (11th Cir. 2011)
(“When a party challenges subject matter jurisdiction,
the court is given the authority to resolve factual disputes,
along with the discretion to devise a method for making a
determination with regard to the jurisdictional issue.”
(quotes and cite omitted)).
fundamental obstacle to the plaintiff's claims is the
doctrine of sovereign immunity. Although the government's
brief mentions this longstanding (if not ancient) doctrine,
it does not fully explain its relevance here. Given the
plaintiff's clear and understandable emotional interest
in this case, a more careful explanation is warranted.
traditional, common-law principle of sovereign immunity was
already well-established at this country's founding.
See, e.g., United States v. Lee, 106 U.S. 196, 205
(1882) (noting that “it is beyond question that from
the time of Edward the First [1239-1307] until now the king
of England was not suable in courts of that county, except
where his consent had been given . . . .”). It is
similarly clear that the principle applies to suits against
the United States. See, e.g., United States v.
Mitchell, 463 U.S. 206, 212 (1983) (“It is
axiomatic that the United States may not be sued without its
consent and the existence of consent is a prerequisite to
jurisdiction.”). This immunity extends to agencies of
the United States, of which the Army is one. See, e.g.,
Feres v. United States, 340 U.S. 135, 138 (1950)
(discussing possibility that Federal Tort Claims Act waives
immunity for military personnel negligence).
the Court has jurisdiction over Chisolm's claims, then,
depends upon whether the United States has waived its
immunity. As the Government correctly points out, it has not.
Even if the Court permitted Chisolm to amend his Complaint
and name an entity capable of being sued, see doc.
11 at 5 (arguing that neither the U.S. Army nor a specific
battalion is an entity capable of being sued), and even if it
limited its disposition of this case to permit refiling after
proper exhaustion of administrative remedies, see
Id. at 5-6 (arguing for dismissal of claim, construed as
Federal Tort Claims Act claim, for failure to exhaust
administrative remedies), the Feres doctrine
precludes a viable claim based on the facts plaintiff
Supreme Court considered, in Feres v. United States,
the viability of claims that “while on active duty and
not on furlough, [active duty service members] sustained
injury due to negligence of others in the armed
forces.” 340 U.S. at 138. The Court concluded that the
Federal Tort Claims Act does not waive the United States'
sovereign immunity and does not create “a new cause of
action . . . for service-connected injuries or death due to
negligence.” Id. at 146. Subsequently, courts
have applied the Feres doctrine broadly to injuries
sustained by members of the Armed Services during their
service. See United States v. Johnson, 481 U.S. 681,
686 (1987) (“[T]he Feres doctrine has been
applied consistently to bar all suits on behalf of service
members against the Government based upon service-related
injuries.”); Starke v. United States,
249 Fed.Appx. 774, 775 (11th Cir. 2007) (“‘Where
the claimant is injured on base while on ‘active duty,
' Feres applies virtually as a matter of
law.'” (quoting Watkins v. United States,
462 F.Supp. 980, 986-87 (D.C. Ga. 1977), aff'd
by, Watkins v. United States, 587 F.2d 279, 279
(5th Cir. 1979) (expressly adopting district court's
reasoning)). Thus, Feres and its progeny preclude
tort claims arising incident to military service.
Complaint is clear that Staff Sergeant Chisolm died while he
was actively serving as a United States Army Ranger,
stationed at Fort Stewart, Georgia. See generally
doc. 1. Plaintiff does not specifically allege the
circumstances of his son's death, but he doubts the
Army's explanation that his son died in a parachute
training accident. See, e.g., Id. at 13, ¶ 40
(proffering to show “that it was physically impossible
for SSgt. Avonye' Chisolm” to engage in parachute
training because of injuries suffered in recent auto
accidents); doc. 13 at 1, ¶ 3 (arguing “that
[plaintiff's] son was very ill and physically incapable
of performing any type of jump.”). However, the
allegations make clear that, other than inferring from the
circumstances, plaintiff does not know exactly what happened.
support of its contention that this Court lacks subject
matter jurisdiction, the Government has submitted the sworn
affidavit of Todd Brown. Doc. 15-1. Brown testifies that he
“managed administrative issues and the day-to-day
operations of the Company” to which Staff Sergeant
Chisolm was assigned. Id. at 1-2. He further
testifies that “[a]t the time of his death, SSG Chisolm
was an airborne-qualified active member of the United States
Army on hazardous duty orders. At the time of his death he
was participating in a nighttime airborne training exercise
designed to maintain and improve unit readiness and
proficiency.” Id. at 2, ¶ 5. Plaintiff
has not responded to Brown's affidavit.
facts established in Brown's unrebutted testimony weigh
unequivocally in favor of Feres' application.
The factors the Court must consider “are (1) the duty
status of the service member, (2) the place where the injury
occurred, and (3) the activity the serviceman was engaged in
at the time of the injury.” Kitowski v. United
States, 931 F.3d 1526, 1528-29 (11th Cir. 1991) (quotes
and cite omitted). Brown's unrebutted testimony
establishes that Staff Sergeant Chisolm was on active duty
when the accident occurred and that it occurred during a
training exercise. Both weigh in favor of applying
Feres. See Kitowski, 931 F.2d at 1529
(Feres properly applied to injury suffered by active
duty serviceman participating in a training exercise).
Although it is not expressly stated in Brown's affidavit,
it seems apparent from the Complaint and incorporated
documents that there is no dispute that the injury occurred
at Fort Stewart. Thus Feres bars plaintiff's
tort claims. The other arguments plaintiff raises are closely
analogous to those the Eleventh Circuit considered in
Kitowski. First, plaintiff's pleadings refer to
the fact that Staff Sergeant Chisolm was in the process of
separating from the Army. See, e.g., doc. 13 at 2,
¶ 9. However, as in Kitowski, “[h]e had
not been discharged . . . .” 931 F.2d at 1529.
Plaintiff also alleges his son's death constitutes
“manslaughter” or “homicide.”
See doc. 1 at 2, ¶ 2. But Kitowski
declined to find an “egregious conduct” exception
to Feres. 931 F.2d at 1529-30. Finally, plaintiff
objects to the very existence of Feres, implying it
should be overturned. See, e.g., doc. 13 at 5,
¶¶ 29-30. As the Eleventh Circuit explained, they
“ha[d] no authority to overrule a decision by the
Supreme Court.” Kitowski, 931 F.2d at 1529.
This Court is constrained to apply not only Supreme Court
precedent, but also decisions by the Court of Appeals. It is
clear, therefore, that this Court must apply the
Feres doctrine and find that it lacks subject matter
jurisdiction to consider plaintiff's claims.
late Justice Scalia opined that “Feres was
wrongly decided and heartily deserves the widespread, almost
universal criticism it has received.” Johnson,
481 U.S. at 700-01 (Scalia, J. dissenting) (quotes and cite
omitted). His reasoning, however, did not win a majority;
thus, this Court must apply Feres. See
Kitowski, 931 F.2d at 1529 (recognizing Justice
Scalia's dissent as indicating “some support on the
Supreme Court for overruling Feres, ” but
“a majority of the Justices do not agree at this
time.”). Although the government's motion should be
GRANTED (doc. 10) and this case
DISMISSED for lack of subject matter
jurisdiction, the Court wishes to conclude by recognizing
Staff Sergeant Chisolm's service and his family's
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).