837 F.2d 395 (9th Cir. 1988), 86-4233, Stauber v. Cline

Docket Nº:86-4233.
Citation:837 F.2d 395
Party Name:Frederick C. STAUBER, Plaintiff-Appellant, v. Richard A. CLINE; Fred C. Scharper; Ray Dugan, Defendant-Appellee, and State of Alaska; Department of Military and Veterans Affairs, Office of the Adjutant General; State Review, State Review and Appeals Board, Defendants.
Case Date:January 20, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 395

837 F.2d 395 (9th Cir. 1988)

Frederick C. STAUBER, Plaintiff-Appellant,


Richard A. CLINE; Fred C. Scharper; Ray Dugan, Defendant-Appellee,


State of Alaska; Department of Military and Veterans

Affairs, Office of the Adjutant General; State

Review, State Review and Appeals Board,


No. 86-4233.

United States Court of Appeals, Ninth Circuit

January 20, 1988

Argued June 4, 1987.

Submitted July 2, 1987.

Page 396

Joseph N. Barcott, Anchorage, Alaska, for plaintiff-appellant.

Malcolm Logan, Asst. U.S. Atty., Anchorage, Alaska, for defendant-appellee.

Appeal from the United States District Court for the District of Alaska.

Before POOLE and CANBY, Circuit Judges, and RAUL RAMIREZ, [*] District Judge.

CANBY, Circuit Judge:

The issue before us is whether intramilitary immunity bars a state-law tort action between civilian technicians for the Alaska Army National Guard who were also necessarily National Guard members when the actions arose, and whether the district court correctly held that plaintiff's injuries arose incident to military service. We conclude that defendants are immune under the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and affirm the district court's dismissal for lack of jurisdiction.


Plaintiff-appellant Frederick C. Stauber and defendant-appellees Richard A. Cline, Fred C. Scharper, and Ray Dugan were mechanics working as dual-status employees of the National Guard. Civilian National Guard mechanic-technicians must also be members of the National Guard, as a condition of their civilian employment. 32 U.S.C. Secs. 709(b), 709(e)(1) & (2). 1 Defendants were superior in rank to Stauber, although only Cline had direct authority over him. All worked in an on-base National Guard maintenance shop in Anchorage, Alaska.

Stauber sued Cline, Scharper and Dugan in state court for intentional infliction of emotional distress and libel. He alleged that the three defendants, over a five-year period, continuously harassed him, both on- and off-base, during regular work-duty hours and after hours. 2 Stauber also contended

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that defendants, not under color of their military authority and outside their line of duty, made statements to third parties that harmed his reputation. Before filing his action, Stauber attempted to utilize a grievance process at his workplace and spoke with union representatives; he began receiving poor job evaluations from Cline, his immediate supervisor. 3

Defendants successfully petitioned for removal to the district court under 28 U.S.C. Secs. 1441(a) & 1442(a)(1), 4 where Stauber won a jury award of $106,000 in compensatory and punitive damages.

Defendants made five post-trial motions. The district court was distressed by defendants' imprecision and delay, but felt compelled to consider the late-raised claim of Feres immunity as a nonwaivable issue of subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). The court determined that "at the time Plaintiff's claims arose, all parties were National Guardsmen working on a military installation under the direct command of a uniformed, full-time U.S. Army lieutenant colonel." Order on Motion to Dismiss & For Relief From Judgment Granted at 5, Stauber (No. A83-613). The record reflected that the employment and command structure, and the relative rank of the technicians, was the same whether the parties were on active duty on weekends or in civilian status during the week. During both periods, work in the on-base maintenance shop was essentially the same, and was governed by military regulations and standard operating procedures. The court assumed that, for some purposes, the parties were civilian employees of the Army, but nonetheless held that

[t]his does not alter the fact that Plaintiff and Defendants were also Army National Guardsmen who performed the maintenance and repair work on vehicles and equipment used by the Army National Guard. Indeed, Plaintiff and Defendants used this equipment on weekends when they were on active duty. The work performed by Plaintiff and Defendants was beyond any question incident to military service. The Feres doctrine therefore applies, and Defendants are immune from suit.

Id. at 5. The court therefore set aside judgment on the verdict and dismissed Stauber's action.



Stauber argues that the district court erred in considering Feres immunity because defendants failed to raise the issue as an affirmative defense. The district court adopted defendants' position that the immunity could not be waived because it is an issue of subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); see Jablonski by Pahls v. United States, 712 F.2d 391, 394-95 (9th Cir.1983); Beers v. Southern Pac. Transp. Co., 703 F.2d 425, 429 (9th Cir.1983). We review de novo the district court's decision to consider appellees' late claim of intramilitary immunity. E.g., United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

In Feres v. United States, the Supreme Court held that members of the armed services could not sue the government for injuries that "arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159, quoted in United States v. Johnson, --- U.S. ----, 107 S.Ct. 2063, 2066, 95 L.Ed.2d 648 (1987).

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The Court grounded its ruling on the fact that relations between the government and its military personnel were "distinctively federal in character," exclusively governed by federal law, and that a comprehensive, even-handed government compensation scheme was available for service-connected injuries. Feres, 340 U.S. at 143-45, 71 S.Ct. at 158-59. Later Supreme Court decisions emphasized the effect that private lawsuits might have on military discipline. See, e.g., United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 3043, 87 L.Ed.2d 38 (1985); Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977).

In cases arising under the Federal Tort Claims Act, we have viewed the Feres doctrine as a limitation on the jurisdiction of the courts. Atkinson v. United States, 825 F.2d 202 (9th Cir.1987); Millang v. United States, 817 F.2d 533, 534-35 (9th Cir.1987); Bon v. United States, 802 F.2d 1092, 1094 (9th Cir.1986); Broudy v. United States, 661 F.2d 125, 128 n. 5 (9th Cir.1981); Monaco v. United States, 661 F.2d 129, 131 (9th Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). Although Feres itself did not compel dismissal for lack of subject matter jurisdiction, such a result comports with the development of the doctrine, which has grown as a judgemade exception to the Federal Tort Claims Act's (FTCA's) waiver of sovereign immunity. 5

In contrast to Atkinson, Millang, Bon, Broudy, and Monaco, Stauber's action does not depend on any waiver of the sovereign immunity of the United States to establish jurisdiction. He brought his action in state court against the individual defendants, and federal jurisdiction was acquired by removal. Although Stauber makes no point of this distinction, it has a potential effect on the jurisdictional question. When Feres is applied as an exception to Congress's waiver of sovereign immunity in the Federal Tort Claims Act, it is an easy step to say that the exception takes the case out of the waiver, and that the federal court has no jurisdiction to entertain a suit against the sovereign. That analysis cannot apply here, because no action against the sovereign is before us.

Nevertheless, we conclude that the Feres doctrine, in light of the reasoning underlying it, occupies a position comparable to a restriction on subject matter jurisdiction, so that the district court was correct to apply the doctrine despite its untimely invocation. As we will more fully explain in dealing with the district court's ruling on the merits of the Feres issue, the Feres doctrine has come to rest at least in significant part on the view that the judiciary ought not to intrude in military affairs. 6 Thus the Feres rule has been interpreted as necessary to avoid the courts' second-guessing military decisions, or impairing military discipline. Shearer, 473 U.S. at 57, 105 S.Ct. at 3043; see Chappell v. Wallace, 462 U.S. 296, 304, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983). Indeed, courts have even been viewed as " 'ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have.' " Chappell, 462 U.S. at 305, 103 S.Ct. at 2368 (quoting Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 187 (1962)).

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Thus the Feres doctrine, as presently interpreted, has far more to do with the proper relation between the courts, Congress and the military than it has to do with individual defendants. It is not a matter of personal immunity of the military personnel who may be defendants in a Bivens-type action incident to military services. United States v. Stanley, --- U.S. ----, 107 S.Ct. 3054, 3064, 97 L.Ed.2d 550 (1987). It is a judicial doctrine leaving matters incident to service to the military, in the absence of congressional direction to the contrary. For these reasons, we conclude that the district court was correct in holding that the Feres defense was not waived when defendants failed to raise it until after trial. The doctrine is tantamount to a limitation of subject matter jurisdiction.


It is beyond question that the Feres doctrine generally applies to claims brought by National Guard members. See, e.g., Stencel Aero, 431 U.S. at 673, 97 S.Ct. at 2058; Anderson v. United States, 724 F.2d 608, 610 (8th Cir.1983); cf. Sebra v. Neville, 801 F.2d 1135, 1140-41 (9th Cir.1986) (justiciability...

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