In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3743
M ICHAEL P URCELL, individually and as
the Personal Representative of the Estate
of C HRISTOPHER L EE P URCELL, deceased,
Plaintiff-Appellant,
v.
U NITED S TATES OF A MERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cv-06137—Joan Humphrey Lefkow, Judge.
A RGUED M AY 12, 2011—D ECIDED A UGUST 23, 2011
Before B AUER, FLAUM, and E VANS , Circuit Judges.
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being resolved
by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 10-3743
F LAUM, 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 Govern-
ment is not liable under the [FTCA] for injuries to ser-
vicemen 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 (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
No. 10-3743 3
several occasions by providing substance abuse treat-
ment 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 resi-
dence and found evidence indicating that he had a fire-
arm, 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.
4 No. 10-3743
Once upstairs, Tafel permitted Purcell to use the bath-
room and instructed Robinson to remove one of
Purcell’s handcuffs. Purcell went to the bathroom accom-
panied 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 Rodri-
guez 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 pro-
ceeding.
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 repre-
sentative 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 accor-
dance with the Air Station’s standard operating proce-
dures. It also claims that the responding officers
irritated Purcell with profane, derogatory, and threat-
No. 10-3743 5
ening comments that were contrary to standard op-
erating 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 dis-
missal under Feres as a dismissal for lack of subject
matter jurisdiction under Federal Rule of Civil Proce-
dure 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 com-
batant 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 (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.
The Feres doctrine, while currently viable, is certainly
not without controversy. It has been interpreted increas-
6 No. 10-3743
ingly 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 (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 (Scalia, J., dissenting, joined by
Brennan, Marshall, and Stevens, JJ.). But the majority
in Johnson reaffirmed Feres, id. at 692, and the Court
has not squarely addressed the doctrine since then.
Feres thus remains the law until Congress or the Su-
preme 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 ad-
versely 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,
No. 10-3743 7
481 U.S. at 688-91). 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 subse-
quent cases.” United States v. Shearer, 473 U.S. 52, 57
(1985). “ ‘The dispositive inquiry [is] whether the ser-
vice-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 ac-
tivity 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 ex-
plains, faced courts-martial and were punished via an
extrajudicial proceeding for failing to adequately search
and supervise Purcell. See Skees v. United States, 107 F.3d
421, 424 (6th Cir. 1997) (Feres barred claim that members
of serviceman’s chain of command negligently super-
vised him because they “knew of [his] alcohol problems,
but failed to follow their own regulations which
required them to address and treat [the decedent’s]
8 No. 10-3743
problems” after he communicated his intent to kill him-
self); Persons, 925 F.2d at 294-96 (Feres barred medical
malpractice claim involving a decedent who came to a
military hospital with slash marks on his wrists and
attested to his attempted suicide, was released after a
few hours without being admitted for observation, and
committed suicide three months later); Stubbs v. United
States, 744 F.2d 58 (8th Cir. 1984) (Feres barred suit for
wrongful death based on a servicewoman’s suicide
after she was accosted by a drill sergeant and refused
his sexual advances); see also Shearer, 473 U.S. at 58-59
(holding that a suit alleging that the government inade-
quately supervised and disciplined a serviceman was
barred by Feres because it went “directly to the manage-
ment of the military; it call[ed] into question basic
choices about the discipline, supervision, and control of
a serviceman” (internal quotation marks and citations
omitted)); Feres, 340 U.S. at 136-37 (tort suit barred where
executrix of a serviceman sought to recover for service-
man’s death allegedly caused by negligence where dece-
dent died in a fire while on active duty and quartered
in military barracks near a defective heating plant);
Selbe, 130 F.3d at 1267 (considering as “a factor tending
to show that her suit is barred” that the servicewoman’s
“original injury occurred while she was on active duty
and she had not been discharged when the subsequent
injury occurred”); Stephenson, 21 F.3d at 164 (considering
as factors that “Stephenson’s death occurred while he
was an active duty member of the Army and subject
to military discipline, orders, and control,” and that “his
death occurred on military property and in the barracks
No. 10-3743 9
to which he was assigned”). Together, these facts demon-
strate that Purcell stood “in the type of relationship to
the military at the time of his . . . injury that the occur-
rences causing the injury arose out of activity incident
to military service,” and thus that Feres bars his suit.
Stephenson, 21 F.3d at 162. We limit our holding to the
facts of this case.
Michael Purcell’s counsel ably, although ultimately
unpersuasively, opposes applying Feres. Primarily, he
argues that Purcell’s death had nothing to do with his
military status, and that the military connections to the
case are irrelevant because Purcell was effectively acting
as and treated like a civilian during the relevant events.
See Brooks v. United States, 337 U.S. 49, 52 (1949); Jones,
112 F.3d at 302 (noting that “where suits have been
allowed to proceed, the military personnel involved
were not taking advantage of any military program or
status, but simply engaging in activities on the same
grounds as civilians”). We disagree. As explained above,
Feres is read broadly, and Michael Purcell cannot avoid
its reach on the facts of this case. Michael Purcell
also points out that neither Purcell nor his estate have
received benefits related to his suicide. But that alone
does not warrant reversal in this case. See Maas v.
United States, 94 F.3d 291, 295 (7th Cir. 1996) (“[T]his
and other courts have applied Feres to bar claims that
are incident to service even if a serviceman is not
entitled to military benefits relating to those claims.”).
10 No. 10-3743
III. Conclusion
Like many courts and commentators, we recognize the
challenges presented by the Feres doctrine. In light of
its enormous breadth, however, we A FFIRM the judg-
ment of the district court.
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