                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 19a0409n.06

                                           No. 18-2415


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                      FILED
 GHAZALA SIDDIQUI and MASOOD SIDDIQUI, )                                        Aug 06, 2019
 Individually, and as Personal Representatives of the )                     DEBORAH S. HUNT, Clerk
 Estate of RAHEEL SIDDIQUI, Deceased,                 )
                                                      )
                                                                ON APPEAL FROM THE
         Plaintiffs-Appellants,                       )
                                                                UNITED STATES DISTRICT
                                                      )
                                                                COURT FOR THE EASTERN
 v.                                                   )
                                                                DISTRICT OF MICHIGAN
                                                      )
 UNITED STATES OF AMERICA,                            )
                                                                        OPINION
                                                      )
         Defendant-Appellee.                          )


       BEFORE:         SILER, STRANCH, and NALBANDIAN, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. This case resulted from the tragic death of Raheel

Siddiqui, a private in the United States Marine Corps who fell to his death during basic training.

His parents, Ghazala and Masood Siddiqui, sued the United States under the Federal Torts Claims

Act (FTCA), alleging that the Government negligently misled Private Siddiqui into enlisting,

assigned him to the command of officers already under investigation for abusing another Muslim

recruit, failed to protect him from discriminatory abuse that led to his death, and failed to

investigate fully the circumstances of his death. Because the doctrine announced in Feres v. United

States, 340 U.S. 135 (1950), bars suits for tort claims arising from injuries incident to military

service, we are bound to AFFIRM the district court’s dismissal of the case for lack of subject

matter jurisdiction.
No. 18-2415, Siddiqui v. United States


                                             I.    BACKGROUND

         The facts of this case are drawn from the First Amended Complaint. Raheel Siddiqui, a

native of Taylor, Michigan, was studying at the University of Michigan-Dearborn and working for

a department store when he was approached by a Marine Corps recruiter. On July 8, 2015, he

signed enlistment papers, and on August 1, Siddiqui was accepted for enlistment in the Marine

Corps’ Delayed Entry Program (DEP), in which he spent eight months in part-time training as a

member of the Marine Corps Reserve. On his enlistment forms, he indicated that he was Muslim,

and he was open to his recruiter about his faith.

         After completing DEP training, on March 7, 2016, Siddiqui was sent to the Recruit Depot

in Parris Island, South Carolina, where he signed a form granting his discharge from the DEP

Program and accepting enlistment in the regular United States Marine Corps at the rank of private.

Later that week, Private Siddiqui was assigned to Platoon 3042, Company K, Third Recruit

Training Battalion, for basic training under the supervision of senior drill instructor Gunnery

Sergeant Joseph A. Felix, Jr. Neither Private Siddiqui nor his family were aware that Sergeant

Felix had allegedly abused another Muslim recruit at the Parris Island Depot while intoxicated.

         After less than one full day of training, on March 13, Private Siddiqui threatened to commit

suicide and told military police that a supervisor had physically hit him.1 It was decided that he

did not require emergency transport to the hospital. The next day, a supervisor escorted Siddiqui

to recruit liaison services, and he retracted his threat of suicide. He was then deemed to be at a

“low risk for harm” and returned to training.




1
 Because the Amended Complaint uses the word “Defendant” to refer to the United States Government, the Marine
Corps, the Parris Island Recruit Depot, the Marine Corps Recruiting Station in Detroit, and 20 individual employees
of those entities, it is unclear which individual is alleged to have hit Private Siddiqui. It is similarly unclear which
specific individuals or entities Plaintiffs allege are responsible for other actions attributed to “Defendant,” though all
are employees or agencies of the Government.

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No. 18-2415, Siddiqui v. United States


       On March 17, Private Siddiqui’s platoon practiced mixed-martial-arts punching

techniques. As was allegedly typical for “weaker” recruits in such exercises, Private Siddiqui was

paired with a bigger, stronger recruit and subsequently sustained serious injuries. On March 18,

he gave the following note to a supervisor:

       This recruit has to go to medical. This recruit’s throat has been swollen for three
       days and is getting worse. This recruit also coughed blood a few times last night.
       And this recruit completely lost his voice and can barely whisper. This recruit’s
       whole neck is in a lot of pain.

He was not permitted to go to the medical center or provided medical attention.

       Later that day, Sergeant Felix found Private Siddiqui unconscious in the barracks and

attempted to revive him by rubbing his sternum and slapping him. Shortly thereafter, Siddiqui fell

to his death from a stairwell in the barracks. His death was ruled a suicide.

       A Marine Corps Command Investigation into Private Siddiqui’s death recommended

punitive and administrative action against several Marines, including Sergeant Felix and his

supervisor, Lieutenant Colonel Joshua Kissoon. Upon conviction by a court martial for violating

orders, maltreatment, false official statements, and drunk and disorderly conduct, Sergeant Felix

was dishonorably discharged and sentenced to ten years’ confinement. Lieutenant Colonel

Kissoon pled guilty to various charges.

       The Siddiqui family received $100,000 from the Marine Corps death benefits program—a

payment made to the survivors of any military personnel who die during active duty—and

$400,000 from the Servicemen’s Group Life Insurance program.

       Plaintiffs Ghazala and Masood Siddiqui, on behalf of their deceased son and in their

individual capacities, filed a complaint under the FTCA. They alleged that Marine Corps recruiters

misled Private Siddiqui concerning enlisting by failing to warn him about abuse of other Muslim

recruits at Parris Island, where he was sent. They brought claims of negligence, hazing, torture,

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No. 18-2415, Siddiqui v. United States


and other criminal acts leading to the abuse that resulted in Private Siddiqui’s death. Plaintiffs

also allege that the Government failed to investigate fully the circumstances of Private Siddiqui’s

death and aver his death was a result of torture and forced inhumane treatment, not suicide. (

       The Government moved to dismiss for lack of subject matter jurisdiction. The district

court, despite its strong reservations about the continued viability of the Feres doctrine, found that

Feres applied and dismissed the case. Plaintiffs timely appealed.

                                        II.   ANALYSIS

       “We review de novo a district court’s determination of the applicability of the Feres

doctrine.” Lovely v. United States, 570 F.3d 778, 781 (6th Cir. 2009) (quoting Fleming v. United

States Postal Serv., 186 F.3d 697, 698 (6th Cir. 1999)).

       The FTCA “permits the government to be sued for injuries caused by the negligence of

government employees, acting within the scope of their employment, to the same extent that a

private individual would be liable for such negligence.” Brown v. United States, 462 F.3d 609,

611 (6th Cir. 2006); see 28 U.S.C. § 1346(b). In Feres, the Supreme Court carved out an exception,

holding that “the Government is not liable under the Federal Tort Claims Act for injuries to

servicemen where the injuries arise out of or are in the course of activity incident to service.”

Feres, 340 U.S. at 146. The Court has emphasized three broad rationales underlying Feres. “First,

the relationship between the Government and members of its armed forces is distinctively federal

in character.” United States v. Johnson, 481 U.S. 681, 689 (1987) (alterations and internal

quotation marks omitted). Second, the Government’s “generous statutory disability and death

benefits” provide “[t]hose injured during the course of activity incident to service . . . benefits that

‘compare extremely favorably with those provided by most workmen’s compensation statutes.’”

Id. at 689–90 (quoting Feres, 340 U.S. at 143). “Third, . . . suits brought by service members

against the Government for injuries incurred incident to service . . . are the ‘type[s] of claims that,
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No. 18-2415, Siddiqui v. United States


if generally permitted, would involve the judiciary in sensitive military affairs at the expense of

military discipline and effectiveness.’” Id. at 690 (quoting United States v. Shearer, 473 U.S. 52,

59 (1985)). In applying the Feres doctrine, we do not reduce it “to a few bright-line rules; each

case must be examined in light of the [FTCA] as it has been construed in Feres and subsequent

cases.” Shearer, 473 U.S. at 57.

       Plaintiffs’ injuries arise from Private Siddiqui’s death while on active duty, allegedly

caused by the negligent actions and inactions of his military supervisors and recruiters. In cases

involving similar facts, the Supreme Court and this court have applied Feres to bar suit against the

Government. In Shearer, the mother of an Army private murdered by another serviceman off-

base claimed that the Government knew of the other serviceman’s prior murder and manslaughter

convictions and negligently failed to control him or warn others that he was at large. Id. at 53–54.

The Supreme Court found those claims barred by Feres because the allegation of negligence went

“directly to the ‘management’ of the military” and “call[ed] into question basic choices about the

discipline, supervision, and control of a serviceman.” Id. at 58. The Court emphasized the

importance of asking “whether the suit requires the civilian court to second-guess military

decisions and whether the suit might impair essential military discipline,” policy concerns that

undergird Feres’s exception to the FTCA’s waiver of sovereign immunity. Id. at 57 (internal

citations omitted).

       We addressed similar claims in Satterfield v. United States, 788 F.2d 395 (6th Cir. 1986),

brought by the mother of Army private Charles Hulstine, who was beaten to death by three

servicemen during basic training. Id. at 396. All four servicemen were off-duty and off-base at

the time of the killing. Id. The plaintiff alleged that Army recruiters negligently recruited Private

Hulstine, failed to supervise and control the servicemen who threatened and assaulted him before



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No. 18-2415, Siddiqui v. United States


the fatal beating, and failed to warn and protect him. Id. We concluded that Private Hulstine’s

death “was incident to his military service,” even though the servicemen were off-duty and off-

base, for the same reasons stated in Shearer. Id. at 398. Because we “focus[ed] the inquiry on

whether Hulstine’s death was incident to his military service,” we found it unnecessary to decide

whether his recruitment and enlistment were also incident to military service. Id. at 398–99

(emphasis in original). Instead, “[h]aving already concluded that Hulstine’s death was incident to

his military service,” we held that “the Feres doctrine was properly applied to bar plaintiff’s claim

of negligent enlistment as well.” Id. at 399.

       Like the Army privates in Shearer and Satterfield, Private Siddiqui was an active

serviceman at the time of his death. Like the plaintiffs in those cases, Plaintiffs Ghazala and

Masood Siddiqui allege that the Government’s negligence in failing to control Private Siddiqui’s

supervising officers led to their son’s death. Because Plaintiffs’ FTCA claims also “call[] into

question basic choices about the discipline, supervision, and control of a serviceman,” we are

bound to apply the Feres doctrine. Shearer, 437 U.S. at 58.

       Plaintiffs argue that because Marine Corps recruiters made misrepresentations to entice

Private Siddiqui to enlist, their claim of negligent enlistment arises before their son began military

service, and Feres thus does not apply. But, as discussed in Satterfield, if Siddiqui’s death was

incident to his military service, then a claim of negligent enlistment relating to his death is also

barred by Feres. See Satterfield, 788 F.2d at 399. Plaintiffs also cite to Hajdusek v. United States,

No. 16-CV-340-SM, 2017 WL 4250510 (D.N.H. Sept. 21, 2017), arguing that during their son’s

training in the DEP program, he was a “poolee,” not an active duty member of the armed services,

and was not engaging in activity incident to service. But Private Siddiqui’s death occurred after

he left the DEP program and enlisted in the Marine Corps. There is no dispute that Siddiqui was



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No. 18-2415, Siddiqui v. United States


on active duty when he died, and we conclude that his death during basic training falls squarely

within the wide reach of the Feres doctrine. See Lovely, 570 F.3d at 782–83.

       Insofar as Plaintiffs also bring claims that the Government violated internal regulations

regarding treatment of recruits and violated the Eight Amendment in subjecting Private Siddiqui

to “punishments involving torture,” those claims are also barred by Feres. See Satterfield, 788

F.2d at 398 (noting the “impropriety of a civilian court involving itself in a military matter,

especially where a military regulation is at issue”); Chappell v. Wallace, 462 U.S. 296, 304 (1983)

(holding that “it would be inappropriate to provide enlisted military personnel a Bivens-type

remedy against their superior officers” for constitutional violations).

       Finally, Plaintiffs call upon us to disregard or overrule Feres. We would not be the first

court to consider doing so. As the Ninth Circuit noted, “We can think of no other judicially-created

doctrine which has been criticized so stridently, by so many jurists, for so long.” Ritchie v. United

States, 733 F.3d 871, 878–79 (9th Cir. 2013). In 1987, Justice Scalia wrote, in a dissent joined by

Justices Brennan, Marshall, and Stevens, that “Feres was wrongly decided and heartily deserves

the ‘widespread, almost universal criticism it has received.’” Johnson, 481 U.S. at 700 (Scalia, J.,

dissenting) (quoting In re “Agent Orange” Prod. Liab. Litig., 580 F. Supp. 1242, 1246 (E.D.N.Y.

1984)). More recently, Justice Thomas has urged reconsideration of Feres. See Daniel v. United

States, 139 S. Ct. 1713 (2019) (Thomas, J., dissenting from denial of cert.); Lanus v. United States,

570 U.S. 932 (2013) (Thomas, J., dissenting from denial of cert.). We also acknowledge the

district court’s appropriate challenge to the generosity of the death benefits provided:

       [T]he Feres doctrine’s reliance on “generous” military no-fault compensation has
       not withstood the test of time. A $100,000 death benefit and $400,000 in a group
       life insurance payout are mere fractions of most wrongful death awards. The
       September 11th Fund’s wrongful death awards were in the $2-$3 million-dollar
       range. Eric Posner & Cass Sunstein. Dollars and Death, 72 U CHI. L. REV. 537
       (2005). Those awards considered modern tort principles, including the focus on

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No. 18-2415, Siddiqui v. United States


       deterrence and compensation. Id. Private Siddiqui’s death benefit is woefully out-
       of-step with such principles.

       Unless and until the Supreme Court overturns Feres, we remain bound by the Feres

doctrine and accordingly find Plaintiffs’ claims barred for lack of subject matter jurisdiction.

                                    III.   CONCLUSION

       For the reasons stated above, we AFFIRM the district court’s dismissal of the case.




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