This judicially created exception to service members' FTCA suits is generally referred to as the Feres doctrine. See Shaw v. United States, 854 F.2d 360, 362 (10th Cir. 1988). "[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."

In such circumstances, courts have routinely found any lawsuit to be barred by Feres. See Shaw v. United States, 854 F.2d 360 (10th Cir. 1988) (automobile accident on base while service member driving to report for duty for the day); Flowers v. United States, 764 F.2d 759 (11th Cir. 1985) (automobile accident on base while service member driving home); Warner v. United States, 720 F.2d 837 (5th Cir. 1983) (motorcycle accident on base while service member driving to store); Mason, 568 F.2d at 1135 (motorcycle accident on base while service member driving home). Indeed, in several of these cases the plaintiff was off-duty for the day or was tending to personal business when the accident occurred.

But cf. Parker v. United States, 611 F.2d 1007, 1014 (5th Cir. 1980) (holding that right to be off-duty for four days more like furlough than mere release from day's duties). Furthermore, when an active status service member is injured in a vehicular accident on a military reservation, courts generally find a Feres bar.See, e.g., Shaw v. United States, 854 F.2d 360, 363 (10th Cir. 1988); Warner, 720 F.2d at 839; Coffey, 324 F. Supp. at 1088. Finally, the activity of leaving the duty station after work and returning to the duty station for work is generally considered an activity incident to military service.

In contrast, however, one who is only off duty for the day is generally held to be acting incident to service. See Shaw v. United States, 854 F.2d 360, 363 (10th Cir. 1988) (motor vehicle accident while returning to duty); Mason v. United States, 568 F.2d 1135 (5th Cir. 1978) (motorcycle accident while returning home); Watkins v. United States, 462 F. Supp. 980 (S.D.Ga. 1977) (motorcycle accident while leaving a recreational event on base), aff'd per curiam, 587 F.2d 279 (5th Cir. 1979). In the present case, plaintiff concedes that he was an active duty member of the Corps at the time of his injury. His normal workday was from 6:30 a.m. until 4:30 p.m. Although plaintiff argues that he was in a "liberty status" at the time of the accident, his military status prior to the accident more closely resembles one being released from duties for the day and not on furlough or leave. "The fact that [plaintiff] had been relieved of duty for the rest of the day does not mean that he was in off-duty status as were the servicemen in Brooks (furlough) or Parker (four-day leave)."

To the extent Plaintiff's claims relate to any act or omission by the United States during Plaintiff's active duty service, they are barred by the Feres doctrine.Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950); Shaw v. United States, 854 F.2d 360, 361 (10th Cir.1988).Maddick v. United States, 978 F.2d 614, 615 (10th Cir.1992).

Indeed, the Third Circuit affirmed the district court's conclusion that Private Richards "`would not, except in the event of the rarest coincidence, have been in the same place at the same time with the same purpose, had it not been incident to his active status in the military.'" Id. (quoting the district court, Richards v. United States, 1 F. Supp.2d 498, 502 (D.V.I. 1998), which in turn was quoting Shaw v. United States, 854 F.2d 360, 363 (10th Cir. 1988)) (internal quotation marks omitted). Application of the Feres Doctrine to this Case

One could note also that Mack was not in transit between assignments; she was reporting to duty in the morning. But because Mack was on active duty status at the time of the accident, see Dec. of Randy Finney ¶ 4, the fact that she was driving to duty, as opposed to driving during duty, does not matter. See, e.g., Shaw v. United States, 854 F.2d 360 (10th Cir. 1988) (barring a suit where a member of the United States Army was traveling from his off-post residence to Fort Still to report to duty in the morning); Shoen v. United States, 885 F. Supp. 827 (E.D.N.C. 1995) (barring a suit where a Lance Corporal in the United States Marine Corps was reporting to Camp LeJune from his off-base residence); cf. Mason v. United States, 568 F.2d 1135 (5th Cir. 1978) (applying Feres to a suit where an officer was involved in an accident on his way home after duty). These cases do not resolve the present case, however, because they all involved accidents occurring on military bases in circumstances connecting the victim's military status with the accident.

The scope of this waiver is limited by exceptions contained in the FTCA itself and by judicial interpretation and application of the FTCA. See Shaw v. United States, 854 F.2d 360, 361 (10th Cir. 1988). The Westfall Act provides that "certification of the Attorney General shall conclusively establish scope of employment for purposes of removal."

Id. It is not necessary, however, that all three rationale be present in support of a given instance of a service-related injury, and the Feres doctrine receives broad application. Shaw v. United States, 854 F.2d 360, 364 (10th Cir. 1988). Because the applicability of the Feres doctrine relates to this court's subject matter jurisdiction under 28 U.S.C. § 1346(b), the court considers the motion as one for dismissal for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).

The United States may not be sued without its consent or waiver of sovereign immunity. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1975-1976, 48 L.Ed.2d 390 (1976); Shaw v. United States, 854 F.2d 360, 361 (10th Cir. 1988). "[I]n sweeping language," the FTCA waives sovereign immunity.