Full opinion text
ORDER EAGAN, District Judge. This matter comes before the Court on the Report and Recommendation (Dkt. # 28) of the United States Magistrate Judge. This action was brought by a retired Navy commander and his wife against the United States, two individual defendants, and two agencies of the United States, seeking compensatory damages and equitable relief under state tort law, the Federal Tort Claims Act (“FTCA”), the Victims of Crimes Act, the United States Constitution, and the Administration Procedures Act (“APA”). Plaintiffs essentially challenge the command authority of the individual defendants and actions taken by Captain Peter Toennies, in particular, with respect to an investigation of plaintiff, Commander Marshall D. Daugherty, and charges against Commander Daugherty that were ultimately resolved in his favor. Plaintiffs allege that Captain Toennies issued several orders pertaining to command authority, duty assignments, and disciplinary proceedings which directly harmed them. The magistrate judge recommended that the United States’ motion to substitute itself for individual defendants Rear Admiral Raymond Smith and Captain Toennies (Dkt. # 13-1) and for dismissal of the claims pled against: Rear Admiral Smith and Captain Toennies (Dkt. # 13-2) be denied; the United States’ motion to dismiss for lack of subject matter jurisdiction and failure to state a claim (Dkt. # 14-1) be granted as to all claims except plaintiffs claim under the APA; and the motions to dismiss filed by Rear Admiral Smith and Captain Toennies for lack of personal jurisdiction, lack of subject matter jurisdiction, improper venue, and failure to state a claim (Dkt. # 14-2) be granted. As for plaintiffs APA claim, the magistrate judge recommended that the motion be denied. The parties filed timely objections pursuant to 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). Accordingly, the Court has conducted a de novo review. The Court agrees with the magistrate judge’s assessment of the motions to dismiss filed by the individual defendants. The magistrate judge conducted a thorough analysis of traditional minimum contacts analysis under the Fourteenth Amendment to determine that the Court lacks in personam jurisdiction over the individual defendants. There are no allegations in the Complaint which establish that the individual defendants purposefully availed themselves of the privilege of conducting activities within Oklahoma. Nor is venue appropriate in this district pursuant to 28 U.S.C. § 1391(b). The criminal statute relied upon by plaintiffs, 18 U.S.C. § 1513, does not apply to this civil action. Further, plaintiffs have failed to state an APA claim against the individual defendants because a court cannot grant relief against an individual under the APA, see 5 U.S.C. §§ 702, 704, 706, and plaintiffs’ Bivens claims against the individual defendants are barred by the Feres doctrine, see Chappell v. Wallace, 462 U.S. 296, 298-99, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). The Court’s conclusion that dismissal is appropriate as to the individual defendants essentially renders the United States’ motion to substitute moot. Nonetheless, the Court finds the arguments of the United States’ persuasive in that substitution should be granted. A suit against the United States is the exclusive remedy for person with claims arising under state law for damages resulting from the actions of federal employees taken within the scope of their office or employment. 28 U.S.C. § 2679(b)(1). The certification of the Attorney General’s designee is prima facie evidence that the individual defendants were acting within their scope of employment, see Richman v. Straley, 48 F.3d 1139, 1145 (10th Cir.1995), and plaintiffs were unable to meet their burden to show that the individual defendants were not acting within their scope of employment when they took the actions of which plaintiffs complain. The magistrate judge correctly cited to Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), to explain that certifications are subject to judicial review. However, as defendants point out in their objection, the weight of authority postLamagno indicates that the certification continues to shift the burden to plaintiffs to show that the employee was not acting within the scope of employment. In addition to the certification, the United States has independently shown, in its objection, that the individual defendants were acting within the scope of their employment as Naval officers and, indeed, plaintiffs’ allegations support that determination. The Court finds that substitution is appropriate. The Court also concludes that the United States’ motion to dismiss for lack of subject matter jurisdiction and failure to state a claim (Dkt.# 14-1) be granted as to all claims, including plaintiffs claim under the APA. As set forth more fully in the Report and Recommendation, plaintiffs’ claims against the Department of Defense and the Department of the Navy are, in fact, claims against the United States, and, absent waiver, sovereign immunity shields the United States and its agencies from suit. FDIC v. Meyer; 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The United States has not waived its immunity; the FTCA does not provide for relief directly against the departments, agencies or instrumentalities of the United States, see 28 U.S.C. §§ 2674, 2679(a); and constitutional tort claims under Bivens are not actionable directly against agencies of the United States, Meyer, 510 U.S. at 486, 114 S.Ct. 996. Plaintiffs’ claims directly against United States also fail. Again, plaintiffs cannot state a Bivens claim directly against the United States. See Meyer, 510 U.S. at 485, 114 S.Ct. 996. As the magistrate judge points out, plaintiffs claim for restitution under the Victims of Crime Act borders on the frivolous. The right to restitution in 42 U.S.C. § 10606 appears in the context of sentencing a convicted criminal under 18 U.S.C. §§ 3663, 3664. There is no allegation of ongoing or contemplated criminal prosecution in this matter. Plaintiffs’ FTCA claims against the United States are barred by the Feres doctrine because Commander Daugherty is claiming injuries resulting from activity “incident to service.” 340 U.S. at 146, 71 S.Ct. 153; see also United States v. Johnson, 481 U.S. 681, 686, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987). As the magistrate judge stated, “all relevant activity in this case is military in nature.... ” Report and Recommendation, Dkt. # 28, at 1305. Whether Captain Toennies had any legal authority to issue orders affecting Commander Daugherty is not material to this determination. Cf. United States v. Stanley, 483 U.S. 669, 680-81, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (the officer-subordinate relationship between a plaintiff and the alleged tort feasor is irrelevant for purposes of a Feres inquiry). Plaintiffs’ Complaint also fails to state a claim for relief under the FTCA. All of plaintiffs’ claims are premised on an alleged violation of federal law: plaintiffs argue that Captain Toennies violated provisions of Title 10 of the United States Code when he took various actions affecting Commander Daugherty and his wife. Yet, “the FTCA’s waiver of sovereign, immunity is limited to conduct for which a private person could be held liable under state tort law, see 28 U.S.C. §§ 1346(b), 2674.... ” United States v. Agronics, 164 F.3d 1343, 1345 (10th Cir.1999). No private analog exists for Captain Toennies’ alleged improper exercise of command authority over Commander Daugherty in violation of federal law. The magistrate judge recommended that the United States’ motion to dismiss be denied as to plaintiffs’ APA claims because (a) the parties had failed to address the factors articulated in Mindes v. Seaman, 453 F.2d 197, 201-202 (5th Cir.1971), which were adopted by the Tenth Circuit in, Lindenau v. Alexander, 663 F.2d 68 (10th Cir.1981), and (b) the magistrate judge was not persuaded that, if plaintiffs could establish that the actions of which they complain were justiciable under the Mindes factors, plaintiffs would be unable to establish that the actions were final agency actions pursuant to the provisions of 5 U.S.C. §§ 551(13), 702, 704. Accordingly, the magistrate judge directed the parties to address the Mindes factors and the justiciability of plaintiffs’ APA claims in their objections to the Report and Recommendation. The Court now has the benefit of these arguments, and finds that the plaintiffs’ APA claims are not justicia-ble. Plaintiffs’ APA claims are premised on plaintiffs’ request that the Court order the setting aside and expungement from Commander Daugherty’s personnel record all actions, findings, and conclusions resulting from Captain Toennies’ alleged unlawful exercise of command authority over him. Under the first step of the two-step justiciability test set forth in Mindes, “[a] court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice corrective measures.” 453 F.2d at 200. If these threshold requirements are met, the court “must examine the substance of the allegations in light of the policy reasons behind nonreview of military matters,” weighing the following four factors: (1) the “nature and strength of the plaintiffs challenge to the military determination”; (2) the “potential injury to the plaintiff if review is refused”; (3) the “type and degree of anticipated interference with the military function”; and the “extent to which the exercise of military expertise and discretion is involved.” Id. at 201. Plaintiffs have alleged that Captain Toennies violated the plaintiffs’ fundamental rights to equal protection, due process, and liberty under the Fifth Amendment by issuing orders and imposing sanctions in the exercise of command functions over the plaintiffs, thereby subjecting them to void orders, sanctions, and unofficial proceedings. They also claim that defendants violated 10 U.S.C. §§ 162, 164, 167, 5013, and 5033. As the magistrate judge and the United States recognize, all of the plaintiffs’ arguments are promised on the allegation that the Goldwater-Nichols Department of Defense Reorganization Act of 1986, 10 U.S.C. §§ 161-68, (the “Act”), divested the Navy of command authority over Commander Daugherty. This allegation is meritless. The Act provides for the establishment of unified and specified combatant Commands to perform military missions. 10 U.S.C. § 161(a)(1). Forces are to be assigned to these joint combatant commands by the Secretaries of the military departments, 10 U.S.C. § 162(a), each of whom is “responsible for the administration and support of forces assigned by him to a combatant command.” 10 U.S.C. § 165(b). The plain language of the Act confirms that the Secretary of the Navy remains responsible for administration of forces assigned to combatant commands. Thus, plaintiffs’ statutory and constitutional claims lack merit. The first Mindes factor weighs against review of plaintiffs’ APA claim. See Wenger v. Monroe, 282 F.3d 1068, 1075 (9th Cir.2002). Under the first step of the Mindes test, the Court must also decline to review internal military affairs where the plaintiff has not exhausted “available intraservice corrective measures.” 453 F.2d at 200. Defendants argue that “the plaintiffs never presented their request for correction of Naval records to the Secretary of the Navy by petition to the Board for Correction of Naval Records (‘BCNR’), which has statutory authority to correct military records or remove an injustice.” 10 U.S.C. § 1552(a)(1); see also 32 C.F.R. §§ 723.1-723.11. Yet, as the magistrate judge points out, defendants have not shown that the statute or regulations establishing the Board expressly require administrative exhaustion prior to seeking judicial review. Exhaustion of remedies is not required prior to seeking judicial review under the APA when neither the relevant statute nor agency rules specifically mandate exhaustion as a prerequisite to judicial review and the administrative action is made inoperative pending that review. Darby v. Cisneros, 509 U.S. 137, 154, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993). The Court is not prepared to find that the Mindes exhaustion requirement is no longer applicable after Darby, especially since Darby did not involve a military matter. However, in this instance, defendants have not shown that the relevant statute or agency rules specifically mandate exhaustion prior to judicial review. Hence, plaintiffs were not required to exhaust their available remedy prior to seeking judicial review under the APA. Nonetheless, plaintiffs’ APA claim fails when the Court evaluates the four factors in the second step of the Mindes test. As discussed above, the nature of the plaintiffs challenge to the military determination is found in the Goldwater-Nichols Act, and the strength of that challenge is exceedingly weak, given the plain language of the statute. The second factor, “potential injury to the plaintiff if review is refused,” also weighs against justiciability. Commander Daugherty claims that the records he seeks to have expunged damaged his reputation, causing him to be passed over for a promotion that would have allowed him to retire at the grade of captain, and affected his ability to obtain desired employment in the future. Yet, he has been medically retired with an honorable discharge since February 1997. The charges against him were ultimately resolved in his favor. The Court fails to see how any potential injury could be more than slight. Further, the Court lacks the power to order a promotion for Commander Daugherty. Cf. Orloff v. Willoughby, 345 U.S. 83, 90, 73 S.Ct. 534, 97 L.Ed. 842 (1953) (Courts “have never assumed ... to control the appointing power ... [in] military positions.”); Charette v. Walker, 996 F.Supp. 43, 49 (D.D.C.1998) (“requests for retroactive military promotions fall ‘squarely within the realm of nonjustieiable military personnel decisions.’ ”) (citation omitted). The third factor, the “type and degree of anticipated interference with the military function,” appears to weigh in favor in justiciability at first glance. Merely expunging one serviceman’s records would not seem to involve much interference. However, expungement in this instance would necessarily follow a determination by the Court that Captain Toennies unlawfully exercised command authority over Commander Daugherty. The Court’s reading of the Goldwater-Nichols Act does not permit such a determination. If it did, such determination could have serious repercussions not only for the legitimacy of the Act, but for the military’s command structure in general and would certainly signify a major interference with military function. Courts traditionally have been reluctant to intervene in any matter which “goes directly to the ‘management’ of the military and calls into question basic choices about the discipline, supervision, [and] control of a serviceman.” See United States v. Shearer, 473 U.S. 52, 58, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). This reluctance is also reflected in the fourth factor, the “extent to which the exercise of military expertise and discretion is involved.” For the most part, the judiciary lacks the military expertise to interfere in the chain of command established by the armed services or to become embroiled in the minutia of military administration, discipline, and personnel decisions. In light of the policy reasons behind nonreview of military matters, the Court finds that the Mindes factors weigh against justiciability in this case. Conclusion For the reasons set forth above, the Report and Recommendation (Dkt. #28) is hereby adopted in part and modified in part, as follows: the United States’ motion to substitute itself for individual defendants Real- Admiral Raymond Smith and Captain Peter Toennies (Dkt. # 13-1), and for dismissal of the claims pled against Rear Admiral Smith and Captain Toennies (Dkt. # 13-2) is hereby granted; the United States’ motion to dismiss for lack of subject matter jurisdiction and failure to state a claim (Dkt. # 14-1) is hereby granted; and the motions to dismiss filed by Rear Admiral Smith and Captain Toen-nies for lack of personal jurisdiction, lack of subject matter jurisdiction, improper venue, and failure to state a claim (Dkt. # 14-2) are hereby granted. The Objection of the plaintiff (Dkt. # 61) is overruled; the Objection of the defendant (Dkt. # 60) is sustained; and this matter is dismissed with prejudice. REPORT AND RECOMMENDATION JOYNER, United States Magistrate Judge. TABLE OF CONTENTS I. INTRODUCTION.1290 1292 II.PLAINTIFFS’ CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS, REAR ADMIRAL SMITH AND CAPTAIN TOENNIES. 1292 A. THE SCOPE-OF-EMPLOYMENT ISSUE CANNOT BE RESOLVED AS A MATTER OF LAW ON THIS RECORD. 1294 B. THE NATURE OF PLAINTIFFS’ COMMON LAW TORT CLAIMS IS UNCLEAR, BUT IRRELEVANT. 1295 C. THE COURT LACKS IN PERSONAM JURISDICTION OVER THE INDIVIDUAL DEFENDANTS. 1. A Traditional Minimum Contacts Analysis Under the Fourteenth Amendment Is Appropriate With Regard to Plaintiffs’ State and Federal Claims. 03 i- — I 2. Minimum Contacts Analysis.:. 03 H D. OTHER BASES FOR DISMISSAL OF PLAINTIFFS’ CLAIMS 1299 AGAINST THE INDIVIDUAL DEFENDANTS. 1. Plaintiffs’ Bivens Claims Against the Individual Defendants Are Barred by the Feres Doctrine. 03 1 — 1 2. Venue Is Not Appropriate In This District. §3 1 — 1 3. Arguments Not Addressed. CO T — I III. PLAINTIFFS’ CLAIMS AGAINST THE FEDERAL AGENCIES, DoD and DoN.1300 IV. PLAINTIFFS’ CLAIMS AGAINST THE UNITED STATES.1301 A. PLAINTIFFS’ CANNOT BRING BIVENS CLAIMS AGAINST THE UNITED STATES.1301 B. PLAINTIFFS’ FTCA CLAIMS.1301 1. Commander Daugherty’s FTCA CLAIMS ARE BARRED BY THE FERES DOCTRINE.1301 a. Procedural Posture of the United States’ Motion to Dismiss... .1303 b. Application of Feres.1304 c. Commander Daugherty’s Request that Feres be Overruled.1309 d. Mrs. Daugherty’s FTCA Claims are Also Barred by Feres Because They Have Their Genesis In Commander Daugherty’s Claims.1309 2. Plaintiffs’ Complaint Fails to State a Claim for Relief Under the FTCA.1310 3. Other Basis for Dismissal of Plaintiffs’ FTCA Claims.1312 C. PLAINTIFFS’ CLAIMS UNDER THE ADMINISTRATIVE PROCEDURES ACT.1312 V. PLAINTIFFS’ CLAIM UNDER THE VICTIMS OF CRIME ACT.1317 RECOMMENDATION.1318 OBJECTIONS.1318 The following motions are now before the Court: 1. The United States’ motion to substitute itself for individual defendants Rear Admiral Raymond Smith and Captain Peter Toennies, and for dismissal of the claims pled against Rear Admiral Smith and Captain Toennies, [Doc. Nos. 13-1 and 13-2]; 2. The United States’ motion to dismiss for lack of subject matter jurisdiction and failure to state a claim, [Doc. No. 14]; and 3. Rear Admiral Smith’s and Captain Toennies’ motions to dismiss for lack of personal jurisdiction, subject matter jurisdiction, improper venue, and failure to state a claim, [Doc. No. 14]. These motions were referred to the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636, for a report and recommendation. Having reviewed the parties’ briefs and heard argument at a May 1, 2002 hearing, the undersigned offers this report and recommends that the United States’ motion for substitution and to dismiss be DENIED (doc. nos. 13-1 and 13-2); that Rear Admiral Smith’s and Captain Toennies’ motions to dismiss be GRANTED (doc. no. 14); and that the United States’ motion to dismiss be GRANTED as to all claims except Plaintiffs’ claim under the Administrative Procedures Act as to which claim the undersigned recommends that the motion be DENIED (doc. no. 14). I. INTRODUCTION The undersigned has necessarily reviewed Plaintiffs’ complaint to resolve Defendants’ various motions to dismiss. Plaintiffs’ complaint is a mishmash of disjointed legal theories which fails to comply with the spirit of Fed.R.Civ.P. 8(a)(2) and 8(e)(1), which requires short, plain, simple and concise averments in a pleading. It is, therefore, exceedingly difficult based on a review of the complaint to determine exactly what types of claims Plaintiffs are pleading against which defendants, and the briefing by Plaintiffs’ counsel does little to provide additional clarity. That said, the undersigned gleans the following from the record. At all relevant times, Plaintiff Marshall D. Daugherty was a Commander in the United States Navy and Plaintiff, Debra Denise Daugherty, was his wife. At all relevant times, Commander Daugherty served as Commander Naval Special Warfare Unit Ten (“NSWU10”), stationed in Rota, Spain. Commander Daugherty alleges that pursuant to Title 10 of the United States Code, his lawful chain of command was as follows: Brigadier General Michael Canavan, Commander Special Operations European Command, stationed in Germany; General Joulwan, Commander in Chief United States European Command, stationed in Germany; the Secretary of Defense; and the President of the United States. Defendant, Peter Toennies, was at all relevant times a Captain in the United States Navy. Plaintiffs allege that Captain Toennies’ lawful chain of command under Title 10 of the United States Code was as follows: Rear Admiral Raymond Smith, Commander Naval Special Warfare Command, stationed in Coronado, California; General Downing, Commander in Chief United States Special Operations Command, stationed at McDill Air Force Base in Florida; the Secretary of Defense; and the President of the United States. Plaintiffs allege that under Title 10 of the United States Code, Captain Toennies had no lawful command authority over Commander Daugherty, and that Captain Toennies exceeded his authority under Title 10 by issuing several orders and taking actions which directly harmed them. In particular, Plaintiffs allege that Captain Toennies improperly (a) interfered with Commander Daugherty’s medical treatment, (b) denied Commander Daugherty travel and transportation allowances for himself and his family in connection with his medical treatment, (c) instituted criminal and other investigations into Commander Daugherty’s activities, (d) instituted a Court-Martial against Commander Daugherty and interfered with witnesses who were to appear before the Courts-Martial, (e) filed false performance reports in Commander Daugherty’s personnel file, (f) interfered with Commander Daugherty’s command of NSWU10, (g) detailed Commander Daugherty to another command without official orders, and (h) prevented Commander Daugherty from seeking redress of his grievances from the Navy and the Department of Defense. See Doc. No. 1, ¶¶ 19 and 22. Plaintiffs have sued Captain Toennies and certain of his superiors on the theory that these superiors failed to act to prevent Captain Toennies from exercising illegal and improper command authority over Commander Daugherty. In particular, Plaintiffs have sued the following defendants: 1. Captain Peter Toennies, Commander Naval Special Warfare Group Two, stationed in Norfolk, Virginia; 2. Rear Admiral Raymond Smith, Captain Toennies’ direct superior and Commander Naval Special Warfare Command, stationed in Coronado, California; 3. The Department of the Navy (“DoN”); 4. The Department of Defense (“DoD”); and 5. The United States of America. Plaintiffs have, therefore, sued two individual defendants, two agencies of the United States and the United States itself. Plaintiffs seek compensatory and equitable relief from these Defendants under state tort law, the Federal Tort Claims Act (“FTCA”), the Victims of Crime Act, the United States Constitution, and the Administrative Procedures Act (“APA”). For the reasons discussed below, the undersigned finds that as currently pled all of Plaintiffs’ claims are subject to dismissal under Fed.R.Civ.P. 12. II. PLAINTIFFS’ CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS, REAR ADMIRAL SMITH AND CAPTAIN TOENNIES Plaintiffs clearly attempt to assert Bivens claims against Rear Admiral Smith and Captain Toennies personally for their alleged violations of Plaintiffs’ constitutional rights. See Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). It also appears that Plaintiffs intend to assert common law tort claims against Rear Admiral Smith and Captain Toennies personally. The precise nature of these common law tort claims is, however, not at all clear from the record. A. THE SCOPE-OF-EMPLOYMENT ISSUE CANNOT BE RESOLVED AS A MATTER OF LAW ON THIS RECORD. The United States filed a motion to substitute itself for Defendants Smith and Toennies as to all of Plaintiffs’ common law tort claims and for dismissal of all common law tort claims pled against the individual defendants. The United States premises its motion on a certification prepared by Jeffrey Axelrad, Director, Torts Branch, Civil Division, United States Department of Justice. Pursuant to 28 U.S.C. § 2679(d), Mr. Axelrad has certified that the individual defendants “were acting within the scope of their offices as employees of the United States at the time of the conduct alleged in the Complaint.” Doc. No. 13, Exhibit l. Mr. Axelrad indicates in his “certification” that he is making his certification pursuant to § 2679(d)(2). That subsection, however, applies to actions filed initially in a state court and provides a basis for removal upon certification by the Attorney General that the defendant was acting within the scope of his federal employment. Mr. Axelrad’s certification is actually made pursuant to § 2679(d)(1), which provides as follows: Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. 28 U.S.C. § 2679(d)(1). The United States Supreme Court explains the effect of this certification as follows: When a federal employee is sued for a wrongful or negligent act, the Federal Employees Liability Reform and Tort Compensation Act of 1988 (commonly known as the Westfall Act) empowers the Attorney General to certify that the employee “was acting within the scope of his office or employment at the time of the incident out of which the claim arose ....” 28 U.S.C. § 2679(d)(1). Upon certification, the employee is dismissed from the action and the United States is substituted as defendant. The case then falls under the governance of the Federal Tort Claims Act (FTCA), ch. 753, 60 Stat. 812, 842. Generally, such cases unfold much as cases do against other employers who concede respondeat superior liability. If, however, an exception to the FTCA shields the United States from suit, the plaintiff may be left without a tort action against any party. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 419-20, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995). Based on Mr. Axelrad’s certification, the United States argues that, with regard to any conduct which would support a common law tort claim, the individual defendants were “acting within the scope of their offices” such that any common law tort claims are in fact claims against the United States under the FTCA, and not claims against the individual defendants by virtue of § 2679. Later, for various reasons that do not relate directly to the merits, the United States argues that all FTCA claims against the United States should be dismissed. Thus, the United States also does not address the precise nature of the common law tort claims Plaintiffs are attempting to assert against the individual defendants. Rather, the United States argues that all such claims are really claims against the United States and all claims against the United States should be dismissed whatever they are. Plaintiffs respond by attacking Mr. Ax-elrad’s certification. Plaintiffs argue that Mr. Axelrad’s certification is not definitive on the scope-of-employment issue. Plaintiffs admit that some of the conduct alleged in their complaint was within the scope of the individual defendants’ employment (i.e., conduct which might support a negligence action), but argue that their complaint also alleges conduct which would constitute an intentional tort, which conduct would generally not be within the scope of the individual defendants’ employment. Ultimately, Plaintiffs argue that whether all of the conduct alleged in their complaint is within the scope of the individual defendants’ employment is a factual issue, and that the scope-of-employment issue cannot be decided as a matter of law on a motion to dismiss. Ordinarily, scope-of-employment certifications occasion no contest. While the certification relieves the federal employee of responsibility, the plaintiff is still confronted with a financially reliable defendant: the United States. In this case, however, substitution of the United States could cause the demise of the action because the United States asserts various non-merits arguments in support of dismissal of all FTCA claims pled against it. This is precisely the situation the United States Supreme Court addressed in Lamagno. See 515 U.S. at 422, 115 S.Ct. 2227. At issue in Lamagno was whether the Attorney General’s § 2679 certification is definitive, or whether that certification is itself subject to judicial review. The Supreme Court ultimately held in Lamagno that plaintiffs may “present to the District Court their objections to the Attorney General’s scope-of-employment certification ....” Id. at 436-37, 115 S.Ct. 2227. The Attorney General’s certification is, therefore, subject to judicial review in this case. Consequently, the Attorney General’s certification cannot settle the scope-of-employment issue as a matter of law for purposes of the United States’ motion to dismiss. Plaintiffs may be able to present a set of facts which establishes that some of the individual defendants’ conduct was not within the scope of their federal employment. For the foregoing, reasons, the undersigned recommends that the United States’ motion to substitute itself for Admiral Smith and Captain Toennies be DENIED, and that the United States’ motion to dismiss the common law tort claims pled against Admiral Smith and Captain Toen-nies be DENIED. [Doc. Nos. 13-1 and 13-2], B. THE NATURE OF PLAINTIFFS’ COMMON LAW TORT CLAIMS IS UNCLEAR, BUT IRRELEVANT. Plaintiffs appear to be asserting both unintentional and intentional tort claims against the individual defendants. The allegations in the complaint might support a negligence theory, a false imprisonment theory, an intentional infliction of emotional distress theory, a fraud theory, or a defamation theory. Plaintiffs’ complaint, however, never directly identifies the theory of recovery on which their common law tort claims are based, and they do not identify on which state’s law they rely as the basis for their common law tort claims. Nevertheless, the undersigned finds that the Court need not resolve the precise nature of Plaintiffs’ tort claims because, as will be discussed below, the undersigned finds that Plaintiffs have failed to allege an adequate basis for the Court’s exercise of in personam jurisdiction over the individual defendants as to any claim. C. THE COURT LACKS IN PER-SONAM JURISDICTION OYER THE INDIVIDUAL DEFENDANTS. 1. A Traditional Minimum Contacts Analysis Under the Fourteenth Amendment Is Appropriate With Regard to Plaintiffs’ State and Federal Claims. The appropriate exercise of a court’s jurisdiction over one’s person has two dimensions: a constitutional dimension and a procedural dimension. Not only must the Constitution’s requirements be satisfied, but certain procedural requirements must also be satisfied before a court may exercise personal jurisdiction over a defendant. The United States Supreme Court explains as follows: [Bjefore a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant and a constitutionally sufficient relationship between the defendant and the forum. There also must be a basis for the defendant’s amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant. Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987). The procedural aspects of service of process in federal court are governed by Fed. R.Civ.P. 4. Pursuant to Rule 4(e) and 4(k), federal courts normally look either to a federal statute authorizing nationwide service of process or to the long-arm statute of the State in which the court sits to determine whether a defendant not present within the territorial jurisdiction of the court is amenable to service of process. The individual defendants are not within the territorial jurisdiction of this Court, and Plaintiffs have identified no federal statute which authorizes service of process, nationwide or otherwise, on the individual defendants. Plaintiffs must, therefore, be relying on Oklahoma’s long-arm statute to effect service of process in this case. . The current Oklahoma long-arm statute provides that an Oklahoma court “may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States.” See 12 Okla. Stat. § 2004(F). Thus, the only analysis under the Oklahoma long-arm statute is whether the court’s exercise of personal jurisdiction would be consistent with the constitutional requirements of due process. See Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1416-17 (10th Cir.1988). The United States Supreme Court has held that individuals have a liberty interest, protected by the Constitution’s due process clauses, in not being subject to the binding judgments of a forum with which the individual has established no meaningful contacts, ties or relations. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Omn% 484 U.S. at 104, 108 S.Ct. 404. The Constitution contains two due process clauses: one in the Fifth Amendment, which applies generally to the federal government; and one in the Fourteenth Amendment, which applies generally to the States. There has been much scholarly debate about which of these two clauses applies to claims brought under federal law, as opposed to state law claims brought in diversity cases, and whether the analysis under these two clauses is distinct (e.g., must a defendant against whom a federal claim is asserted have sufficient contacts with the forum, or need the defendant only have sufficient contacts with the Nation as a whole). See Wright & Miller, Federal Practice and Procedure: Civil 3d, § 1068.1 (2002). As discussed above, Plaintiffs are attempting to assert claims against the individual defendants which arise under federal law (e.g., Bivens) and claims which arise under state law (e.g., common law torts). This has led to some confusion by the parties as to what constitutional standard should be used to evaluate the propriety of the Court’s exercise of personal jurisdiction over the individual defendants: the traditional minimum contacts analysis under the Fourteenth Amendment and International Shoe or a distinct analysis under the Fifth Amendment. This issue becomes most acute when a plaintiff asserts a federal claim under a statute which authorizes nationwide service of process. In that instance, should the Fourteenth Amendment apply at all, and, if not, should the analysis focus on contacts with the forum or contacts with the Nation. The Tenth Circuit faced just such an issue in Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206 (10th Cir.2000). In Peay, the Tenth Circuit held that the Fifth Amendment applied to the personal jurisdiction inquiry in that case because the claim at issue was a federal ERISA claim for which Congress had provided nationwide service of process. Peay, 205 F.3d at 1210. The Tenth Circuit rejected a straight national contacts test and held that the Fourteenth Amendment’s requirement that the forum selected be “fair and reasonable” is also part of a Fifth Amendment personal jurisdiction analysis. Given, however, that the claim involved was a federal claim with nationwide service of process, the Court held that contacts with the forum were not all that a court should look at. The focus must be on whether the defendant’s liberty interest would in fact be violated by having to litigate regarding a federal claim in the particular federal forum chosen by the plaintiff. Courts should, therefore, also look at the interstate character of the defendant’s conduct, the defendant’s access to counsel in the forum, defendant’s distance from the forum, the probable situs of discovery, the extent to which the defendant’s activities routinely have an impact beyond the borders of his domicile, and judicial economy. Id. at 1212. As discussed above, Plaintiffs are asserting federal claims against the individual defendants. Plaintiffs have not, however, identified any federal statute which authorizes nationwide service of process. Rather, they are necessarily relying on Oklahoma’s long-arm statute under Rule 4(k)(l)(A) to support this Court’s exercise of personal jurisdiction over the individual defendants. The Tenth Circuit’s decision in Peay is, therefore, not directly on point. The question becomes, therefore, when a federal court employs a state long-arm statute in a federal question case, must it also use the traditional Fourteenth Amendment analysis under International Shoe or must it use the Fifth Amendment analysis adopted by the Tenth Circuit in Peay ? The Tenth Circuit has not answered this question in a published opinion. However, the Tenth Circuit in an unpublished decision and district courts in the Tenth Circuit have held, and Professors Wright and Miller have suggested, that in federal question cases where Congress has not authorized nationwide service of process, and a state long-arm statute is borrowed, a traditional Fourteenth Amendment analysis must be used to determine whether application of the state’s long-arm statute is constitutionally permissible. See Wright and Miller, Federal Practice and Procedure: Civil 3d, § 1068.1, pp. 615-618 (2002); Springer v. Balough, No. 00-5071, 2000 WL 1616246, at *1 (10th Cir. Oct.30, 2000); Rainy Day Books, Inc. v. Rainy Day Books & Cafe, L.L.C., 186 F.Supp.2d 1158, 1161 (D.Kan.2002); and Scherer v. Curators of the University of Missouri and Law School Admission Council, 152 F.Supp.2d 1278, 1281-82 (D.Kan.2001). Thus, the undersigned finds that a traditional Fourteenth Amendment minimum contacts analysis should be applied to determine whether the Court can exercise personal jurisdiction over the individual defendants with regard to Plaintiffs’ state and federal claims. 2. Minimum Contacts Analysis When a defendant challenges a court’s personal jurisdiction under Fed. R.Civ.P. 12(b)(2), the plaintiff bears the burden of establishing that the Court’s exercise of personal jurisdiction over the defendant is proper. OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998). When a court rules on a Rule 12(b)(2) motion without holding an evidentiary hearing, as in this case, the plaintiff need only make a 'prima facie showing of personal jurisdiction to defeat the motion to dismiss. Id. The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant. For purposes of ruling on a Rule 12(b)(2) motion, the allegations in the plaintiffs complaint will be taken as true unless contradicted by defendant’s evidentiary materials. If the plaintiff meets the defendant’s evidence with her own evidence, then a question of fact will arise, and all factual disputes are to be resolved in the plaintiffs favor at the motion to dismiss stage. In order to defeat a plaintiffs prima facie showing of personal jurisdiction, a defendant must present a compelling case demonstrating that the presence of some other considerations would render jurisdiction unreasonable. Id. See also Rambo v. American Southern Ins. Co., 839 F.2d 1415, 1417 (10th Cir.1988). The parties have not submitted any evi-dentiary material in connection with the individual defendants’ Rule 12(b)(2) motions. The undersigned will, therefore, accept the allegations in Plaintiffs’ complaint as true. Based on a review of the allegations in Plaintiffs’ complaint, the undersigned finds that Plaintiffs have failed to make a prima facie showing that the individual defendants are subject to this Court’s jurisdiction. A federal court may, consistent with the due process clause of the Fourteenth Amendment, exercise personal jurisdiction over a nonresident defendant so long as there exist minimum contacts between the defendant and the forum state. World-Wide Volkswagen Corp. v. Wood-son, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). The defendant’s contacts with the forum state must be such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. Id. at 292, 100 S.Ct. 559. The sufficiency of a defendant’s contacts must be evaluated by examining the defendant’s conduct and connections with the forum state to assess whether the defendant has purposefully availed himself of the privilege of conducting activities within the forum state. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). See generally, Rambo, 839 F.2d at 1417. Personal jurisdiction over a defendant may be either general or specific. If a defendant has purposefully directed her activities at residents of the forum, and the injuries alleged arise out of or relate to those activities, a court may exercise “specific” jurisdiction over the defendant. In contrast, when the suit does not arise from or relate to the defendant’s contacts with the forum, a court may exercise “general” jurisdiction over the defendant based on the defendant’s presence in or accumulated contacts with the forum. Rudzewicz, 471 U.S. at 473 n. 15, 105 S.Ct. 2174; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8 & 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). However, because general jurisdiction is not related to the events giving rise to the suit, a more stringent minimum contacts test is used, requiring the plaintiff to demonstrate the defendant’s “continuous and systematic” contacts with the forum. Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868. See generally OMI, 149 F.3d at 1090-91; and Rambo, 839 F.2d at 1418. Thus, to establish general jurisdiction, the defendant must conduct substantial and continuous activity within the forum state. Soma Medical International v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir. 1999). Based on the allegations in Plaintiffs’ complaint, the individual defendants have no contacts with Oklahoma, the forum, let alone minimum contacts. During the relevant period, Rear Admiral Smith was located in California; Captain Toennies was located in Virginia; and Plaintiffs were located in Spain. Plaintiffs did travel from Spain to the United States so that Commander Daugherty could receive medical treatment, but there is no indication that he received treatment in Oklahoma. There are, therefore, no allegations in Plaintiffs’ complaint which establish that the individual defendants purposefully availed themselves of the privilege of conducting activities within Oklahoma. Plaintiffs’ only argument is that the Navy has “well-established offices in all 50 states comprising the United States,” and that the individual defendants “believed their authority to extend to all the states ... in which an office of the Department of the Navy was established” and “expected residents of all the states ... who were members of the Navy to be subject to their authority.” Doc. No. 24, p. 18. Initially, the undersigned notes that none of these factual assertions are alleged in the complaint or supported by any eviden-tiary material. In any event, the undersigned finds that even if Plaintiffs’ arguments are accepted as fact, all Plaintiffs have identified with regard to the individual defendants is an alleged inchoate power to direct orders to Navy personnel in Oklahoma. Plaintiffs have not alleged any facts which establish that the individual defendants ever in fact directed any orders, or any other activity, toward Oklahoma. Furthermore, the fact that the Navy may have installations in Oklahoma, a fact not in evidence, would be relevant to establish jurisdiction over the Navy or the United States, but not against Rear Admiral Smith and Captain Toennies, who Plaintiffs allege were acting outside the scope of their employment for the Navy as to those claims pled against them personally. The undersigned finds that Plaintiffs have failed to present a prima facie case that the individual defendants had any contacts with Oklahoma. This Court may not, therefore, exercise personal jurisdiction over the individual defendants consistent with the due process clause of the Fourteenth Amendment. Consequently, the undersigned recommends that Rear Admiral Smith’s and Captain Toennies’ Rule 12(b)(2) motions to dismiss for lack of personal jurisdiction be GRANTED. D. OTHER BASES FOR DISMISSAL OF PLAINTIFFS’ CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS 1. Plaintiffs’ Bivens Claims Against the Individual Defendants Are Barred by the Feres Doctrine. In Feres, the Supreme Court held that when it enacted the FTCA Congress did not intend for the FTCA’s remedies to apply to a person who sustained an injury incident to military service, even if that injury would otherwise be actionable under the FTCA. In Chappell, the Supreme Court held that for reasons similar to those articulated in Feres, Bivens claims also could not be brought by military personnel. In Stanley, the Court held that the immunity from suit granted to the United States in Feres and the immunity from suit granted to federal officials in Chappell should be coextensive, and should be informed by the concerns underpinning Feres. As discussed below in Part IV(B)(1), the undersigned finds that Plaintiffs’ FTCA claims are barred by Feres. Thus, pursuant to Chappell and Stanley, Plaintiffs’ Bivens claims against the individual defendants are also barred by Feres. Consequently, the undersigned also recommends that Rear Admiral Smith’s and Captain Toennies’ Rule 12(b)(6) motions to dismiss for lack of subject matter jurisdiction be GRANTED as to the Bivens claims asserted against them by Plaintiffs. See discussion at Part IV(B)(l)(a) (explaining why the motion is being granted under Rule 12(b)(6) rather than Rule 12(b)(1)). 2. Venue Is Not Appropriate In This District The undersigned agrees with the individual defendants that venue in this district is not appropriate under 28 U.S.C. § 1391, the general venue statute, and Plaintiffs have identified no other venue statute applicable to the individual defendants. Venue is not appropriate under § 1391(b), which provides venue rules for non-diversity actions like this, because not all of the defendants reside in Oklahoma, a substantial portion of the events giving rise to Plaintiffs’ claims did not occur in Oklahoma, and Plaintiffs have not established that there is no other district in the Nation in which their claims against the individual defendants may be brought. The undersigned also finds that Plaintiffs’ reliance on § 1391(e) is misplaced as to the individual defendants for the reasons set forth by the United States Supreme Court in Stafford v. Briggs, 444 U.S. 527, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980) (i.e., the individual defendants were not officers or employees of the federal government, or acting under color of legal authority, at the time this suit was filed; and § 1391(e) only applies when the claim at issue is nominally against an individual government officer but is in reality against the United States and not the officer personally). Consequently, the undersigned also recommends that Rear Admiral Smith’s and Captain Toennies’ Rule 12(b)(3) motions to dismiss for improper venue be GRANTED. 3. Arguments Not Addressed Because the undersigned has recommended dismissal of Plaintiffs’ claims against the individual defendants for the reasons discussed above, the undersigned has not addressed the following arguments made by the individual defendants: (1) whether Plaintiffs’ common law tort claims are barred by the doctrine of intra-military immunity recognized by the Tenth Circuit in Durant v. Neneman, 884 F.2d 1350 (10th Cir.1989) (see discussion in Part IV(B)(l)(b), infra)-, (2) whether Plaintiffs have adequately alleged a constitutional violation in connection with their Bivens claims, (3) whether the individual defendants are entitled to qualified immunity as to Plaintiffs’ Bivens claims, or (4) whether Mrs. Daugherty’s claims are barred by the statute of limitations given that she cannot claim the benefit of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 App. U.S.C. § 525. III. PLAINTIFFS’ CLAIMS AGAINST THE FEDERAL AGENCIES, DoD and DoN Plaintiffs all but concede that their claims against the Department of Defense and the Department of the Navy are in fact claims against the United States. See Doc. No. 25, p. 16. Absent a waiver, sovereign immunity shields the United States and its agencies from suit. FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Other than through the FTCA, Plaintiffs have not demonstrated that the United States has waived its sovereign immunity with respect to any of the claims they have pled against DoD or DoN. The FTCA provides for relief against the United States only, and not directly against its departments, agencies or instrumentalities. See 28 U.S.C. §§ 2674 and 2679(a). See also 28 U.S.C. § 1346(b) (which provides subject matter jurisdiction over the United States for FTCA claims, but not its agencies). Plaintiffs cannot, therefore, assert any state law claims against DoD or DoN. The United States Supreme Court has also held that constitutional tort claims under Bivens are not actionable directly against agencies of the United States. Meyer, 510 U.S. at 486, 114 S.Ct. 996. Plaintiffs cannot, therefore, assert their federal law claims against DoD or DoN. Consequently, the undersigned recommends, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), that DoD’s and DoN’s motions to dismiss be GRANTED and that Plaintiffs’ claims against DoD and DoN be dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. IV. PLAINTIFFS’ CLAIMS AGAINST THE UNITED STATES A. PLAINTIFFS’ CANNOT BRING BIVENS CLAIMS AGAINST THE UNITED STATES. In Bivens, the United States Supreme Court held that under the Constitution there is an implied remedy for money damages against federal officials who violate the Constitution. The Court implied such a remedy in part because a direct action against the United States was not available due to sovereign immunity, and as a deterrent to lawless federal officials. In FDIC v. Meyer, the Supreme Court was asked to extend this implied remedy to claims directly against the United States and its agencies. The Court refused, holding that the logic behind Bivens did not support the extension of Bivens from federal agents to federal agencies. Meyer, 510 U.S. at 473, 114 S.Ct. 996. Thus, to the extent Plaintiffs’ complaint can be read as attempting to state Bivens claims against the United States, the undersigned recommends that those claims be dismissed for failure to state a claim for which relief can be granted. See Fed. R.Civ.P. 12(b)(6). B. PLAINTIFFS’ FTCA CLAIMS 1. Commander Daugherty’s FTCA CLAIMS ARE BARRED BY THE FERES DOCTRINE. The FTCA operates as a waiver the United States’ sovereign immunity with regard to certain common law tort claims. In Feres, however, the United States Supreme Court recognized an exception to this waiver of sovereign immunity for certain claims brought against the United States by military personnel. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The United States argues, and the undersigned agrees, that Commander Daugherty’s FTCA claims are barred by the Court’s holding in Feres. In 1950 in Feres, the Supreme Court held that when it enacted the FTCA Congress did not intend for the FTCA’s remedies to apply to a person who sustained an injury incident to military service, even if that injury would otherwise be actionable under the FTCA. Feres, 340 U.S. at 138, 71 S.Ct. 153. Thirty-seven years later in Johnson, the Supreme Court resoundingly reaffirmed Feres’ viability with the following language: In Feres, this Court held that service members cannot bring tort suits against the Government for injuries that “arise out of or are in the course of activity incident to service.” This Court has never deviated from this characterization of the Feres bar. Nor has Congress changed this standard in the close to 40 years since it was articulated, even though, as the Court noted in Feres, Congress “possesses a ready remedy” to alter a misinterpretation of its intent. United States v. Johnson, 481 U.S. 681, 686, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (internal citations omitted). In Feres, the Court began by recognizing that the relationship between a sovereign and the members of its armed forced is unlike any relationship between private parties. The Court then offered the following rationales in support of its holding in Feres: (1) the United States’ relationship with members of its armed forces is distinctively federal in character, making application of state law, via the FTCA, inappropriate; (2) Congress has established other compensation schemes for members of the armed forces (e.g., Veterans’ Benefits Act, 38 U.S.C. §§ 101-5228); and (3) the likelihood that these types of claims would have an undesirable effect on military discipline, would require judicial second-guessing of military orders, and would require commanding officers to come forward and explain themselves with regard to a wide range of military decisions. See Stencel Aero Engineering, Corp. v. United States, 431 U.S. 666, 671-73, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); and United States v. Shearer, 473 U.S. 52, 58, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). The United States’ military branches are not deliberative bodies; they are the coercive arm of the executive, and generally there is no room in the military for a debate about the right of an officer to command and the duty of a soldier to obey. United States v. Grimley, 137 U.S. 147, 153, 11 S.Ct. 54, 34 L.Ed. 636 (1890). It is, therefore, the soldier’s filing of a lawsuit itself, as much as the possibility of recovery, which the Supreme Court feared would disrupt military discipline and the orderly conduct of military affairs. Henninger v. United States, 473 F.2d 814, 815-16 (9th Cir.1973). The Supreme Court used the following phrases to delineate the scope of its holding in Feres: claims which are “incidental to service” in the military, injuries which are “service-connected,” and injuries which “arise out of or are in the course of activity incident to service” are not compensable under the FTCA. Feres, 340 U.S. at 139 and 146, 71 S.Ct. 153. Thus, the Comb in Feres established an incident-to-service test which focuses on the nature of the serviceman’s injury and asks whether that injury was sustained incident to his service in the military. This reading of Feres was confirmed by the Supreme Court in Johnson, where the Court held that the focus is on the injury suffered and not on the “military status of the alleged tortfeasor ....” Johnson, 481 U.S. at 686-88, 107 S.Ct. 2063. The Court in Johnson also offered another definitional view of the phrase incident-to-service. The Court held that an injury is incident-to-service if it occurs “because of [the plaintiffs] military relationship with the Government ....’’Id. at 689, 107 S.Ct. 2063. This has led several courts, including the Tenth Circuit, to remark that the Supreme Court has extended the Feres doctrine so far that it bars recovery under the FTCA for all injuries suffered by military personnel that are even “remotely” related to the individual’s status as a member of the military. Pringle v. U.S., 208 F.3d 1220, 1223-24 (10th Cir.2000). The Supreme Court has made it clear that, although it was concerned about the second-guessing of command decisions and the effect the filing of a lawsuit challenging a superior officer’s order would have on military discipline, an officer-subordinate relationship is not crucial to Feres’ operation. United States v. Stanley, 483 U.S. 669, 680-81, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); Shaw v. United States, 854 F.2d 360, 364-65 (10th Cir.1988). In Stanley, the Court refused to adopt a test which would require courts to analyze the degree to which an officer-subordinate relationship existed, or the degree to which military discipline would actually be affected by a given FTCA claim. According to the Court, such inquiries would themselves require unwarranted and Congressionally-uninvited intrusion into military matters. The Court was reluctant to permit such inquiries in part because the Constitution specifically authorizes Congress, not the judiciary, to “make Rules for the Government and Regulation of the land and naval Forces .... ” U.S. Const., Art. I, § 8, cl. 14. The Court opted, therefore, to continue its use of an incident-to-service test which focuses exclusively on the nature of the injury alleged. Id. at 682-84,107 S.Ct. 3054. a. Procedural Posture of the United States’ Motion to Dismiss The United States moves to dismiss Plaintiffs FTCA claims, arguing that under Feres it has not waived its sovereign immunity for the types of claims brought by Commander Daugherty. The defense of sovereign immunity implicates the Court’s subject matter jurisdiction. E.F.W. v. St. Stephen’s Indian High School, 264 F.3d 1297, 1302 (10th Cir. 2001). The United States’ motion to dismiss is, therefore, a motion under Fed. R.Civ.P. 12(b)(1) to dismiss for lack of subject matter jurisdiction. As a general rule, a 12(b)(1) motion is not to be converted into a motion for summary judgment under Rule 56. Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987). However, a well-recognized exception to this rule requires conversion of a Rule 12(b)(1) motion to a Rule 56 or a Rule 12(b)(6) motion “[i]f the jurisdictional question is intertwined with the merits of the [plaintiffs] case.” Id. A Rule 12(b)(1) motion is considered a “speaking motion” and it can include references to evidence extraneous to the complaint without having to be converted to a Rule 56 motion. A court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). Thus, converting a Rule 12(b)(1) motion to a Rule 56 or a Rule 12(b)(6) motion does not result in any significant difference in the way a court will consider the motion. The primary difference is not in the procedures used but in the effect the ruling will have upon the parties. A dismissal under Rule 12(b)(1) is not on the merits, whereas a dismissal under either Rule 56 or Rule 12(b)(6) is on the merits. See Fed.R.Civ.P. 41(b). Thus, when jurisdictional questions are intertwined with th