Purcell v. U.S.

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: FLAUM, Circuit Judge.
• Citation: Purcell v. U.S., 656 F.3d 463 (7th Cir. 2011)
• Decision Date: 25 October 2011
• Docket Number: No. 10–3743.,10–3743.
• Parties: Michael PURCELL, individually and as the Personal Representative of the Estate of Christopher Lee Purcell, deceased, Plaintiff–Appellant,v.UNITED STATES of America, Defendant–Appellee.

656 F.3d 463

Michael PURCELL, individually and as the Personal Representative of the Estate of Christopher Lee Purcell, deceased, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 10–3743.

United States Court of Appeals, Seventh Circuit.

Argued May 12, 2011.Decided Aug. 23, 2011.Rehearing and Rehearing En Banc Denied Oct. 25, 2011.*

Alexander N. Hattimer (argued), Attorney, Fichera & Miller PC, Chicago, IL, for Plaintiff–Appellant.Samuel S. Miller (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Defendant–Appellee.Before BAUER, FLAUM, and EVANS ^**, Circuit Judges.FLAUM, Circuit Judge.

Christopher Lee Purcell (“Purcell”) committed suicide in his barracks at the Brunswick Naval Air Station, where he was serving on active duty in the Navy. Navy and Department of Defense (“DOD”) personnel were called to the scene after being informed that Purcell planned to kill himself. They arrived at his residence before he attempted suicide, but did not find the gun they were told he had. Later, they permitted Purcell to go to the bathroom accompanied by his friend. Upon entering, he pulled a gun from his waistband and committed suicide by shooting himself in the chest.

After attempting unsuccessfully to recover for Purcell's death from the Navy through administrative procedures, his family sought relief in federal court on a wrongful death claim under the Federal Tort Claims Act (“FTCA”). The district court found the case barred by the Feres doctrine, which provides that “the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We affirm.

I. Background

Purcell was twenty-one years old and working on active duty in the Navy as a hospital corpsman at the Brunswick Naval Air Station when he committed suicide. The brief submitted by Purcell's father, Michael Purcell, notes that shortly after enlisting, at the age of eighteen, Purcell began experiencing social and emotional problems. It also mentions that the Navy intervened on several occasions by providing substance abuse treatment and mental health care.

On January 27, 2008, someone contacted the base at around 8:30 pm to inform them that Purcell had a gun in his room and was threatening suicide. In response to the call, Junior Corpsman Stephen Lollis told base security that Purcell had a gun and was about to kill himself, and provided Purcell's address. DOD Police Officers Shawn Goding and Matthew Newcomb were the among the first local law enforcement officers to arrive at Purcell's apartment, followed by DOD Patrolman Francis Harrigan and Petty Officer First Class David Rodriguez. Each was aware that Purcell had a gun and was suicidal.

Purcell was alive when the investigating officers arrived at his on-base residence. They searched his residence and found evidence indicating that he had a firearm, including an empty gun case and bullets on top of a television stand, but they did not find a weapon, and they never searched Purcell's person.

Rodriguez spoke to Purcell and suggested they go outside to talk. Purcell responded calmly. Outside, Petty Officer First Class Mitchell Tafel approached Rodriguez and stated that they needed to get Purcell into custody to protect him and local law enforcement. Purcell became irate and non-compliant when told he would have to be put in restraints. A struggle with Rodriguez, Tafel, Harrigan, Goding, and Thomas Robinson, also with DOD, ensued. The five eventually subdued Purcell, handcuffed him, and escorted him back to his room. Once upstairs, Tafel permitted Purcell to use the bathroom and instructed Robinson to remove one of Purcell's handcuffs. Purcell went to the bathroom accompanied by his friend, Nathan Mutschler. After entering the bathroom, Purcell pulled his gun from his waistband and committed suicide by shooting himself in the chest.

In his brief, Michael Purcell notes that Tafel and Rodriguez faced courts-martial for violating a general order, reckless endangerment, and dereliction of duty for failing to properly search and supervise Purcell. He claims that they were punished via an extrajudicial proceeding.

Purcell's estate filed an administrate tort claim with the Navy seeking $45 million in damages. The Navy denied the claim based on Feres. Michael Purcell's brief claims that the Purcell family has not received any benefits from the military for Purcell's suicide.

Michael Purcell, individually and as a personal representative of Purcell's estate, then brought a wrongful death action against the United States under the FTCA, 28 U.S.C. §§ 1346(b), 2671–2680, in federal district court based on the conduct of the officers sent to help Purcell. The complaint alleges that the United States failed to calm Purcell, to search him in accordance with Navy regulations, to maintain proper custody of him after removing his handcuffs, and to transport him to the Brunswick Naval Air Station security precinct in accordance with the Air Station's standard operating procedures. It also claims that the responding officers irritated Purcell with profane, derogatory, and threatening comments that were contrary to standard operating procedures. The district court dismissed the case for lack of subject matter jurisdiction based on the Feres doctrine.

II. Discussion

Michael Purcell contends that the district court erred by dismissing his case based on Feres. We treat dismissal under Feres as a dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Smith v. United States, 196 F.3d 774, 776 n. 1 (7th Cir.1999). Whether subject matter jurisdiction exists under the FTCA is a question of law that we review de novo. Jones v. United States, 112 F.3d 299, 301 (7th Cir.1997).

The FTCA provides that “[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. Excepted from this waiver of sovereign immunity, however, are claims “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). In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court further held that “the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146, 71 S.Ct. 153.

The Feres doctrine, while currently viable, is certainly not without controversy. It has been interpreted increasingly broadly over time, see Persons v. United States, 925 F.2d 292, 295 (9th Cir.1991); Major v. United States, 835 F.2d 641, 644–45 (6th Cir.1987), and has also been widely criticized, see, e.g., Selbe v. United States, 130 F.3d 1265, 1266 (7th Cir.1997) (citing opinions and academic commentary criticizing the Feres doctrine); Taber v. Maine, 67 F.3d 1029, 1032, 1038 (2d Cir.1995) (writing that “the Feres doctrine has gone off in so many different directions that it is difficult to know precisely what the doctrine means today,” and characterizing it as “an extremely confused and confusing area of law”); Estate of McAllister v. United States, 942 F.2d 1473, 1475–77 (9th Cir.1991) (discussing and citing to critiques of the Feres doctrine). In United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), in a dissent signed by three other Justices, Justice Scalia wrote that “ Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.” Id. at 700, 107 S.Ct. 2063 (Scalia, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.). But the majority in Johnson reaffirmed Feres, id. at 692, 107 S.Ct. 2063, and the Court has not squarely addressed the doctrine since then. Feres thus remains the law until Congress or the Supreme Court decides otherwise. See Selbe, 130 F.3d at 1266.

When the Court reaffirmed Feres, it discussed three rationales that support the doctrine: “(1) the need to protect the distinctively federal relationship between the government and the armed forces, which could be adversely affected by applying differing tort laws; (2) the existence of statutory compensatory schemes; and (3) the need to avoid interference with military discipline and effectiveness.” Jones, 112 F.3d at 301 (construing Johnson, 481 U.S. at 688–91, 107 S.Ct. 2063). The Court has also explained that “[t]he Feres doctrine cannot be reduced to a few bright-line rules; each case must be examined in light of the statute as it has been construed in Feres and subsequent cases.” United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). “ ‘The dispositive inquiry [is] whether the service-member stand[s] in the type of relationship to the military at the time of his or her injury that the occurrences causing the injury arose out of activity incident to military service.’ ” Smith, 196 F.3d at 777 (quoting Stephenson v. Stone, 21 F.3d 159, 162 (7th Cir.1994)); see also Jones, 112 F.3d at 301 (same).

Applying that test, we conclude that the district court correctly dismissed Michael Purcell's suit based on Feres. At the time he committed suicide, which occurred in his on-base residential building, Purcell was on active duty; living in the barracks on a military base, experiencing, according to Michael Purcell, various social and emotional problems that developed shortly after he enlisted; and deliberately avoiding Navy and DOD personnel sent to Purcell's barracks to help him, whom Michael Purcell claims failed to follow their own military regulations, and some of whom, he explains, faced courts-martial and were punished via an extrajudicial proceeding for failing to adequately search and supervise...