Bowers v. Wynne, 09-3566.

• Decision Date: 21 July 2010
• Docket Number: No. 09-3566.,09-3566.
• Citation: 615 F.3d 455
• Parties: Jaimi L. BOWERS, Plaintiff-Appellant, v. Honorable Michael W. WYNNE, Secretary of the Air Force, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

615 F.3d 455

Jaimi L. BOWERS, Plaintiff-Appellant,

v.Honorable Michael W. WYNNE, Secretary of the Air Force, Defendant-Appellee.

No. 09-3566.

United States Court of Appeals,Sixth Circuit.

Argued: March 4, 2010.

Decided and Filed: July 21, 2010.

ARGUED: Geoffrey P. Damon, Butkovich & Crosthwaite Co., LPA, Cincinnati, Ohio, for Appellant. Lisa Hammond Johnson, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Geoffrey P. Damon, Butkovich & Crosthwaite Co., LPA, Cincinnati, Ohio, for Appellant. Lisa Hammond Johnson, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before SILER and ROGERS, Circuit Judges; BELL, District Judge. ^*

BELL, J., delivered the opinion of the court, in which SILER, J., joined. ROGERS, J. (pp. 468-70), delivered a separate opinion concurring in the result.

OPINION

BELL, District Judge.

In this action alleging gender and disability discrimination as well as retaliatory termination, Plaintiff-Appellant Jaimi L. Bowers (“Bowers”) appeals the district court's order dismissing her complaint. For the reasons that follow, we affirm the decision of the district court.

I. BACKGROUND

During the relevant time period, Bowers worked at the Youngstown Air Reserve Station as a Logistics Support Specialist in the Logistics Readiness Squadron, 910th Maintenance Support Group. As an Air Reserve Technician (“ART”), she was a federal civilian employee of the Air Force, but she held the military rank of Staff Sergeant and was required, as a condition of her employment, to maintain membership in the Air Force Reserve. Bowers alleges that she suffers from several emotional and medical disorders, including anxiety, depression, gastroesophageal reflux disease, and gastritis. She alleges that Major Dawn Sturdevant, her supervisor, and Major Ronald Coburn interfered with the grant of a security clearance and “went beyond the normal requirements” in requiring her to substantiate her medical disabilities. (R. at 4.) She asserts that “Defendant Secretary Michael W. Wynne, acting through Major Sturdevant and Major Coburn, acted maliciously by disregarding Ms. Bowers' medical documentation, and by using a pretext regarding the processing of a security clearance, to discharge Ms. Bowers.” ( Id. at 5.) Bowers filed a fraud, waste, and abuse complaint alleging that Major Sturdevant was forging signatures on performance recommendations and engaging in “abuse of power and conduct unbecoming an officer, particularly fraternization with enlisted.” ( Id. at 115, 116.) Bowers was terminated from her position on August 15, 2005. She contends that she was wrongfully charged with being absent without leave and discharged on the basis of her gender, her disabilities, and in retaliation for filing the fraud, waste, and abuse complaint. Following a CORE ¹ fact-finding proceeding in November of 2007, and a final agency decision in June of 2008, Bowers filed her complaint in United States District Court for the Northern District of Ohio, naming as defendant Defendant-Appellee Michael W. Wynne, the Secretary of the Air Force (the “Secretary”). Bowers's complaint contains three counts: (1) discrimination in violation of the Rehabilitation Act of 1973, (2) unlawful retaliatory discrimination, and (3) gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. On February 12, 2009, the Secretary moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that Bowers's claims were barred by the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). On March 31, 2009, the district court granted the Secretary's motion. Bowers now appeals the dismissal of her complaint.

II. LAW AND ANALYSIS

A. Standard of Review

Because the Secretary attached evidence in support of its motion to dismiss, the parties and the court construed the Secretary's motion as an attack on the factual basis for subject matter jurisdiction. “When a Rule 12(b)(1) motion attacks the factual basis for jurisdiction, the district court must weigh the evidence and the plaintiff has the burden of proving that the court has jurisdiction over the subject matter.” Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir.2005). The Court reviews the district court's application of the law to the facts de novo and its factual determinations for clear error. Id. The Court reviews 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).

B. Feres doctrine

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court held that military personnel could not pursue claims against the government under the Federal Tort Claims Act for injuries that “arise out of or are in the course of activity incident to service.” Id. at 146, 71 S.Ct. 153. Because “the relationship of military personnel to the Government has been governed exclusively by federal law,” the Court did not “think that Congress, in drafting this Act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence.” Id.

Thereafter, the Supreme Court applied the analysis in Feres to discrimination claims brought by naval personnel against their superiors pursuant to the Bivens doctrine. Chappell v. Wallace, 462 U.S. 296, 299, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). The Court explained that “[i]n the last analysis, Feres seems best explained by the ‘peculiar and special relationship of the soldier to his superiors, [and] the effects on the maintenance of such suits on discipline.’ ” Id. (quoting United States v. Muniz, 374 U.S. 150, 162, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963)). The Court determined that the “unique disciplinary structure of the military establishment and Congress' activity in the field” constituted “special factors” making it inappropriate to allow a judicially-created remedy. Id. at 304, 103 S.Ct. 2362.

The Supreme Court reiterated its concern to avoid intrusion into military discipline and military decisionmaking in United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). In that case, the Court held that the mother of an army private could not pursue a FTCA claim based on the murder of her son by another member of the military. Id. at 59, 105 S.Ct. 3039. Her son was off duty and away from his base when he was killed. Id. at 53, 105 S.Ct. 3039. The plaintiff alleged that the government was negligent in its supervision and control over the killer. Id. at 54, 105 S.Ct. 3039. The Court rejected the appellate court's heavy reliance on the site of the murder and the duty status of the army private when the murder occurred because “the situs of the murder is not nearly as important as whether the suit requires the civilian court to second-guess military decisions and whether the suit might impair essential military discipline.” Id. at 57, 105 S.Ct. 3039 (internal citations omitted).

In United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), the Supreme Court invoked the military discipline rationale underlying the Feres doctrine in a case involving negligence on the part of civilian employees of the government. Id. at 683, 107 S.Ct. 2063. The plaintiff's husband, a member of the Coast Guard, was killed when his helicopter crashed during a rescue mission. Id. at 682-83, 107 S.Ct. 2063. The plaintiff alleged that the crash resulted from the negligent actions of civilian radar controllers. Id. The Court held that the plaintiff could not pursue her FTCA claim, in part, because:

[M]ilitary discipline involves not only obedience to orders, but more generally duty and loyalty to one's service and to one's country. Suits brought by service members against the Government for service-related injuries could undermine the commitment essential to effective service and thus have the potential to disrupt military discipline in the broadest sense of the word.

Id. at 691, 107 S.Ct. 2063. The Court noted that “[c]ivilian employees of the Government also may play an integral role in military activities,” and reasoned that, “[e]ven if military negligence is not specifically alleged in a tort action, a suit based upon service-related activity necessarily implicates the military judgments and decisions that are inextricably intertwined with the conduct of the military mission.” Id. at 691 & n. 11, 107 S.Ct. 2063 (emphasis added). Because the plaintiff's husband was engaged in an activity incident to his service and was acting pursuant to the standard operating procedures of the Coast Guard, the Court determined that “the potential that [the] suit could implicate military discipline is substantial.” Id. at 691-92, 107 S.Ct. 2063.

In United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987), the Supreme Court affirmed the broad “incident to service test” from Feres. The plaintiff was a member of the military claiming injury as a result of his participation in a military program designed to test the long-term effects of LSD. Id. at 671-72, 107 S.Ct. 3054. The plaintiff argued that his case did not involve the sort of chain-of-command issues that were at issue in Chappell because he was not acting under orders from superior officers, and because at least some of the defendants were not his superior officers. Id. at 679, 107 S.Ct. 3054. The Court declined to limit Feres to claims by officers against their superiors because even an inquiry into whether a suit questions “military discipline and decisionmaking would itself require judicial inquiry into, and hence intrusion upon, military matters.” Id. at 682-83, 107 S.Ct. 3054.

This Court extended the analysis in Feres and Chappell to discrimination claims brought by military personnel pursuant to Title VII and the Rehabilitation Act in Coffman v. Michigan, 120 F.3d...