226 F.3d 773 (6th Cir. 2000), 99-4022, Mackey v United States

Docket Nº:99-4022
Citation:226 F.3d 773
Party Name:Dorothy Mackey, Plaintiff-Appellant, v. United States of America, Defendant-Appellee.
Case Date:September 12, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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226 F.3d 773 (6th Cir. 2000)

Dorothy Mackey, Plaintiff-Appellant,

v.

United States of America, Defendant-Appellee.

No. 99-4022

United States Court of Appeals, Sixth Circuit

September 12, 2000

Argued: August 3, 2000

Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 96-00140--Susan J. Dlott, District Judge.

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Joanne Jocha Ervin, Dayton, Ohio, for Appellant.

Robert D. Kamenshine, Daniel L. Kaplan, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION, APPELLATE STAFF, Washington, D.C., for Appellee.

Before: NELSON and NORRIS, Circuit Judges; MATIA, District Judge[*].

OPINION

ALAN E. NORRIS, Circuit Judge.

This appeal comes to us for the second time. In 1998, this court reversed an order of the district court holding that the individual defendants named in the complaint were not acting within the scope of their employment. On remand, the district court entered an order substituting the United States as defendant and dismissing the case pursuant to the Feres doctrine, which bars claims under the Federal Tort Claims Act ("FTCA") for injuries that arise incident to military service. See Feres v. United States, 340 U.S. 135 (1950).

On appeal, plaintiff Dorothy Mackey maintains that the Feres doctrine does not apply to claims involving intentional torts. She also argues that, even if the doctrine is generally applicable to such claims, it does not apply to this case.

I.

The circumstances giving rise to this case are fully set forth in our earlier opinion and we will not restate them in detail here. See Mackey v. Milam, 154 F.3d 648, 649-50 (6th Cir. 1998), cert. denied, 119 S.Ct. 2393 (1999). Briefly, Mackey filed suit in state court against her superior officers in the United States Air Force, alleging sexual harassment. When the U.S. Attorney certified that the officers were acting within the scope of their employment, the case was removed to federal court and the United States was substituted as defendant. The district court determined that the officers were not acting within the scope of their employment, but certified that decision for interlocutory appeal. We reversed, holding that the officers were acting within the scope of their employment when they allegedly harassed Mackey. See id. at 652.

On remand, the district court entered judgment for the United States, stating:

This matter is before the Court upon the mandate of the [Sixth Circuit]. Based upon such mandate, the Court finds that the individual defendants were acting within the scope of their employment. Therefore, the United States is hereby substituted as the defendant in this case, and the matter is not remanded to the Ohio state court. Under the Feres doctrine, "the Government is not liable where the injuries arise out of or are in the course of activity incident to service." Feres v. United States, 340 U.S. 135, 146 (1950).

II.

The FTCA waives the United States' liability for tort claims, subject to certain

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exceptions. See 28 U.S.C. §§ 2674, 2680. The "Feres...

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