ORDER GRANTING MOTION TO DISMISS

ACOSTA, District Judge.

The United States of America has moved the court to dismiss the instant complaint alleging lack of subject matter jurisdiction, lack of in personam jurisdiction, insufficiency of service of process, failure to state a claim, and failure to join an indispensable party. In the alternative, movant requests that summary judgment be entered in its favor.

The court having reviewed the memoranda filed by the parties hereby finds sufficient grounds to grant the petition for dismissal for the reasons set forth in this Order.

I. PROCEDURAL BACKGROUND

Specifically, the complaint alleges that: (1) Dr. Diaz Romero was demoted from his position as Clinical Director to the position of Medical Officer in retaliation for having been previously charged with sexual harassment, and (2) his performance evaluation was lowered in violation of his due process rights. The pleading further mentions a conspiracy to violate plaintiff's constitutional rights and a hostile work environment created by defendants' intentional or negligent discriminatory conspiracy actions.

The complaint cites violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq., 42 U.S.C. §§ 1983, 1985 and 1986, the Fourth, Fifth, Ninth and Fourteenth Amendments to the U.S. Constitution as well as torts pursuant to art. 1802 of the Puerto Civil Code, P.R. Laws Ann. tit. 31, § 5191 (1990) under our supplemental jurisdiction.

Plaintiffs seek both compensatory and punitive damages.

Named defendants are: John Ashcroft and Richard Chavez in their official capacity as well as several other current and former BOP and PHS employees both in their personal and official capacities.

We need only address the viability of plaintiff's Title VII cause of action as well as the tort and constitutional violations claims inasmuch as they are dispositive of this suit.

II. RULE 12(b)(1) AND RULE 12(b)(6)

Movant argues dismissal premised on both lack of subject matter jurisdiction as well as plaintiffs' failure to state a colorable claim.

The court's authority to entertain a particular controversy is commonly referred to as subject matter jurisdiction. "In the absence of jurisdiction, a court is powerless to act.") Am. Fiber Finishing, Inc. v. Tyco Healthcare Group, LP, 362 F.3d 136, 138 (1^st Cir. 2004).

Federal courts are courts of limited jurisdiction and hence, have the duty to examine their own authority to preside over the cases assigned. "It is black-letter law that a federal court has an obligation to inquire sua sponte into its own subject matter jurisdiction." McCulloch v. Velez, 364 F.3d 1, 5 (1^st Cir. 2004). See also, Bonas v. Town of North Smithfield, 265 F.3d 69, 73 (1^st Cir. 2001) ("Federal courts, being courts of limited jurisdiction, have an affirmative obligation to examine jurisdictional concerns on their own initiative.")

Further, subject matter jurisdiction is not waivable or forfeited. Rather, it involves a court's power to hear a case, it may be raised at any time. Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004); United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). "The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y H Corp., 546 U.S. 500, 126 S.Ct. 1235, 1240, 163 L.Ed.2d 1097 (2006).

The proper vehicle for challenging the court's subject matter jurisdiction is Rule 12(b)(1) whereas challenges to the sufficiency of the complaint are examined under the strictures of Rule 12(b)(6). In disposing of motions to dismiss for lack of subject matter jurisdiction the court is not constrained to the allegations in the pleadings as with Rule 12(b)(6) petitions. Rather, the court may review extra-pleading material without transforming the petition into a summary judgment vehicle.Gonzalez v. United States, 284 F.3d 281, 288 (1^st Cir. 2002);Aversa v. United States, 99 F.3d 1200, 1210 (1^st Cir. 1996).

In disposing of motions to dismiss pursuant to Rule 12(b)(6) Fed.R.Civ.P. the court will accept all factual allegations as true and will make all reasonable inferences in plaintiff's favor. Frazier v. Fairhaven School Com., 276 F.3d 52, 56 (1^st Cir. 2002); Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1^st Cir. 2001);Berezin v. Regency Sav. Bank, 234 F.3d 68, 70 (1^st Cir. 2000);Tompkins v. United Healthcare of New England, Inc., 203 F.3d 90, 92 (1^st Cir. 2000).

Our scope of review under this provision is a narrow one. Dismissal will only be granted if after having taken all well-pleaded allegations in the complaint as true, the court finds that plaintiff is not entitled to relief under any theory.Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 530 (1st Cir. 1995) cert. den. 116 S.Ct. 1044 (1996); Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994). Further, our role is to examine the complaint to determine whether plaintiff has adduced sufficient facts to state a cognizable cause of action.Alternative Energy, 267 F.3d at 36. The complaint will be dismissed if the court finds that under the facts as pleaded plaintiff may not prevail on any possible theory. Berezin, 234 F.3d at 70; Tompkins, 203 F.3d at 93.

Regardless of which of these two procedural routes we take for examining the viability of claims asserted in these proceedings, we find that dismissal of the complaint is warranted.

III. TITLE VII

It is undisputed that plaintiff, Dr. Diaz Romero, was an active service commissioned officer in the PHS at all times relevant to the complaint. Pursuant to 42 U.S.C. § 213(f), he is deemed to be in active military service in the Armed Forces and hence, excluded from the provisions of Title VII, specifically 42 U.S.C. § 2000e-16 which extended its application to employees of the Federal Government. See, Hedin v. Thompson, 355 F.3d 746, (4^th Cir. 2004); Salazar v. Heckler, 787 F.2d 527 (10^th Cir. 1986); Middlebrooks v. Thompson, 379 F.Supp.2d 774 (D.Md. 2005).

Further, plaintiff's spouse has no valid claim under Title VII. Relief against the Government under this particular statute is limited to "employees or applicants for employment" in the federal system. 42 U.S.C. § 2000e-16(a). See also, Ramos v. Roche Prods., 694 F. Supp. 1018, 1026 (D.P.R. 1988), vacated on other grounds, 880 F.2d 621 (1st Cir. 1989) ("Though Congress intended Title VII to provide a broad foundation to remedy employment discrimination, it did not intend to provide a remedy to a spouse of a plaintiff having no employment connection with the employer".)

Accordingly the claims asserted under Title VII are hereby DISMISSED.

IV. TORTS — INDIVIDUAL DEFENDANTS

The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, amended the FTCA "to make an action against the United States the exclusive remedy for money damages for injury arising from the `negligent or wrongful act or omission' of a federal employee `acting within the scope of his office or employment,' 28 U.S.C. § 2679(b)(1) making federal employees absolutely immune from suit for torts committed within the scope of employment." Aversa, 99 F.3d at 1207. "The [Westfall] Act confers such immunity by making an FTCA action against the Government the exclusive remedy for torts committed by Government employees in the scope of their employment." United States v. Smith, 499 U.S. 160, 163, 111 S.Ct. 1180, 1183-84, 113 L.Ed.2d 134 (1991).

This individual immunity subsists even if government liability is otherwise foreclosed. Operation Rescue National v. United States, 147 F.3d 68, 69 (1^st Cir. 1998). In other words, the FTCA provides "the exclusive mode of recovery for the tort of a Government employee even when the FTCA itself precludes Government liability." United States v. Smith, 499 U.S. at 166, 111 S.Ct. at 1185, 113 L.Ed.2d 134. See also, Aversa, 99 F.3d at 1208 ("FTCA is the exclusive remedy even when . . . an exception to the FTCA precludes government liability.").

The acts complained of in these proceedings, i.e., Dr. Diaz Romero's demotion and allegedly unjust evaluation and other work-related treatment were, per force, taken by his supervisors as part of the inherent functions of their positions. Accordingly, we find that plaintiffs are precluded from pursuing negligent claims against the individual defendants in this action and the same are hereby DISMISSED.

V. FERES DOCTRINE a. FTCA

The "incident to service" test has been broadly construed and extended to situations where civilian employees of the federal Government have been charged with negligence. See, i.e., United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (wrongful death FTCA claim brought by widow of deceased coast guard helicopter pilot foreclosed under the Feres doctrine inasmuch as death occurred during rescue mission on high seas which was deemed an activity incident to his military service even if the alleged negligence was by a civilian employee of federal government.) Nor does the fact that the damages may have occurred during plaintiff's "spare time" prevent application of the Feres immunity. See i.e., Borden v. Veterans Admin. 41 F.3d 763 (1^st Cir. 1994) (active service member injured while playing basketball barred from bringing suit against the Veterans Administration Hospital even if medical treatment was provided by civilian government employees and injury occurred while plaintiff was "off duty".)

"The incident to service test itself has become a talisman, although perhaps not so intended . . . Courts have sought to determine whether an injury was incident to service by asking whether it occurred on a military facility, whether it arose out of military activities or at least military life, whether the alleged perpetrators were superiors or at least acting in cooperation with the military, and — often stressed as particularly important . . . whether the injured party was himself in some fashion on military service at the time of the incident. No single element in the equation, the Supreme Court has said, is decisive." Day, 167 F.3d at 682 (internal citations omitted).

As previously noted, at all relevant times plaintiff Dr. Wilfredo Diaz Romero was a PHS commissioned officer and, by operation of law, deemed to be in active service in the Armed Forces. It appearing that the damages alleged in the complaint stem precisely by virtue of his work at MDC Guaynabo these necessarily fall within the ambit of the "incident to service" envisioned in Feres.

Accordingly, plaintiff is precluded from asserting any negligence claims against the United States.

b. Bivens and § 1983

The Feres immunity has been extended to damages suits asserted against individual defendants — either for common law torts or for constitutional torts — be it under § 1983 or Bivens, its federal equivalent. Wigginton v. Centracchio, 205 F.3d 504 (1^st Cir. 2000). See also, United States v. Stanley, 483 U.S. 669, 684, 107 S.Ct. 3054, 3064, 97 L.Ed.2d 550 (1987) (Feres limitation applicable to both Bivens and section 1983 suits); Chappell v. Wallace, 462 U.S 296, 305, 103 S.Ct. 2362, 2368, 76 L.Ed.2d 586 (1983) ("enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations [Bivens suit]"); Day, 167 F.3d at 683 ("immunity-related limitations on Bivens are presumptively to be applied to claims under section 1983"); Wright v. Park, 5 F.3d 586, 591 (1^st cir. 1993) ("absent a specific statutory provision to the contrary, there is no principled basis for according state actors sued under 42 U.S.C. § 1983 a different degree of immunity than would be accorded federal actors sued for an identical abridgment of rights under Bivens.")

Plaintiffs sued the federal defendants both in their official and individual capacities seeking monetary relief for alleged violations of Dr. Diaz Romero's constitutional rights. Pursuant to Feres, plaintiffs are precluded from obtaining monetary compensation in this suit from either the Government or the named federal employees individually regardless of whether the economic relief prayed for in the complaint is premised on negligent or allegedly unconstitutional conduct.

Accordingly, all damages claims asserted in the complaint based on negligence and/or constitutional violations are DISMISSED in accordance with Feres.

VI. CONCLUSION

Accordingly, the complaint filed in this case is hereby DISMISSED.

Judgment shall be entered accordingly.

IT IS SO ORDERED.