Flowers v. First Hawaiian Bank, s. CIV. 99-00335SPK/KSC, CIV. 01-412SPK/BMK.

• Decision Date: 31 October 2003
• Docket Number: Nos. CIV. 99-00335SPK/KSC, CIV. 01-412SPK/BMK.,s. CIV. 99-00335SPK/KSC, CIV. 01-412SPK/BMK.
• Citation: 289 F.Supp.2d 1213
• Parties: Marshall Kenneth FLOWERS and Anna Flowers, Plaintiffs, v. FIRST HAWAIIAN BANK, Defendant. Marshall Kenneth Flowers and Anna Flowers, Plaintiffs, v. United States Army, 25th Infantry Division (L); and Fort Jackson Federal Credit Union, Defendants.
• Court: Hawaii Supreme Court

289 F.Supp.2d 1213

Marshall Kenneth FLOWERS and Anna Flowers, Plaintiffs, v. FIRST HAWAIIAN BANK, Defendant.

Marshall Kenneth Flowers and Anna Flowers, Plaintiffs, v. United States Army, 25th Infantry Division (L); and Fort Jackson Federal Credit Union, Defendants.

Nos. CIV. 99-00335SPK/KSC, CIV. 01-412SPK/BMK.

United States District Court, D. Hawai`i.

October 31, 2003.

COPYRIGHT MATERIAL OMITTED

Marshall Kenneth Flowers, pro se, Anna Flowers, pro se, Honolulu, for Plaintiffs.

Theodore G. Meeker, Esq., Assistant United States Attorney, Honolulu, for the Federal Defendants (United States Department of the Army).

Patsy Kirio, Esq., Watanabe Ing Kawashima & Komeiji, Honolulu, for Defendant First Hawaiian Bank.

Jeffre W. Juliano, Esq., Reinwald, O'Connor & Playdon LLP, Honolulu, for Defendant Fort Jackson Federal Credit Union.

ORDER GRANTING FEDERAL DEFENDANTS' MOTIONS TO DISMISS, AND AFFIRMING IN PART AND REVERSING IN PART THE SEPTEMBER 11, 2003 DISCOVERY ORDER

SAMULE P. KING, District Judge.

The federal defendants—the United States Army and, to the extent they remain in any capacity as named defendants, former Captain (now Major) John Ohlweiler, and Secretary of the Army Thomas White (hereinafter "the government") — move to dismiss the Second Amended Complaint.

Also at issue are two appeals (one from the government and one from Plaintiffs) under LR 74.1 from the same order of U.S. Magistrate Judge Chang.¹ The appeals essentially become moot as to the government witnesses if the case against the government is dismissed.

The matter was heard on October 31, 2003. For the reasons set forth, the government's motions to dismiss are GRANTED. As to the government's discovery appeal, although the matter appears to be moot, Judge Chang's order is REVERSED to the extent it allows re-deposition of the three Army witnesses. Otherwise, the discovery order is AFFIRMED.

I.

The basic factual background of this case is set forth in this Court's order at Flowers v. First Hawaiian Bank, 85 F.Supp.2d 993 (D.Haw.2000) and in the Ninth Circuit's opinion at Flowers v. First Hawaiian Bank, 295 F.3d 966 (9th Cir. 2002). Plaintiff Marshall Flowers brought these suits primarily under the Right to Financial Privacy Act, 12 U.S.C. § 3401 et seq. ("RFPA"), after Defendants First Hawaiian Bank and Fort Jackson Federal Credit Union provided bank records to the United States Army after receiving a military subpoena during Article 32 investigatory proceedings against then-Sergeant Major Flowers. This Court dismissed the suit against First Hawaiian Bank, but the Ninth Circuit remanded after determining that the Article 32 subpoenas were invalid and that litigation and grand jury exemptions did not apply. See Flowers, 295 F.3d at 970-77. After remand, this Court consolidated the First Hawaiian Bank matter (Civ. No. 99-00335) with a similar matter involving Fort Jackson Federal Credit Union (Civ. No. 01-412).²

The government first contends that the Plaintiffs' claims for damages against the government are barred by the Feres doctrine. See, e.g., Hodge v. Dalton, 107 F.3d 705, 710 (9th Cir.1997) ("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.") (quoting Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (emphasis in original)). After due consideration, the Court concludes that Feres requires this Court to dismiss the Plaintiffs' claims against the government.³

1. "Incident to Service."

Marshall Flowers cannot dispute that his (and his wife's) claims "arise out of or are in the course of activity incident to service." Id. Assuming the truth of the operative complaint's allegations and considering the undisputed evidence in the record, Marshall Flowers was an active duty Sergeant Major in the Army when the financial disclosures took place. That is, he was on active duty when the alleged violations of the RFPA occurred. The relevant disclosures of bank records occurred in the course of, and because of, a military Article 32 proceeding against him investigating charges against him of 42 counts of larceny at military exchanges.

Marshall Flowers retired or resigned from the Army in lieu of facing a general court martial. He filed this civil action after leaving the Army. However, even though he is no longer in the military, Feres still applies to the claims that arose while he was on active duty. See, e.g., Jackson v. Brigle, 17 F.3d 280, 281 (9th Cir.1994) (barring action brought by former Air Force officer).

2. Right to Financial Privacy Act.

The closer question is whether the Feres doctrine should be extended from the Federal Tort Claims Act to bar Marshall's (and his wife's) claims for damages under the RFPA. This appears to be an issue of first impression.

Originally, Feres barred negligence claims by military personnel against the government under the FTCA, even though the FTCA is not, by its terms, limited only to civilians. 340 U.S. at 146, 71 S.Ct. 153. Although the doctrine has been criticized, see, e.g., Johnson, 481 U.S. at 703, 107 S.Ct. 2063 (Scalia, J., dissenting), the doctrine's logic and rationale have been extended from the FTCA to many other contexts. "[P]ractically any suit that `implicates the military judgment and decisions' runs the risk of colliding with Feres." Persons v. United States, 925 F.2d 292, 295 (9th Cir.1991) (quoting United States v. Johnson, 481 U.S. 681, 691, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987)). Feres is a doctrine of "intramilitary immunity." Hodge, 107 F.3d 705, 710 (9th Cir. 1997).

The Feres doctrine now bars not only claims of negligence, but also intentional torts as well. See, e.g., Mollnow v. Carlton, 716 F.2d 627, 628 (9th Cir.1983).

It bars claims not only against the government, but also claims against individuals. See Lutz v. Secretary of the Air Force, 944 F.2d 1477, 1480-81 (9th Cir. 1991) (recognizing intramilitary immunity for suits between military members based on injuries sustained incident to service).

It bars claims not only against military supervisors, but also against all claims for damages that were "incident to service." United States v. Stanley, 483 U.S. 669, 680-81, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987). This includes claims against military doctors for medical malpractice. See, e.g., Atkinson v. United States, 825 F.2d 202 (9th Cir.1987).

It bars civil rights claims against federal individuals brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983).

Likewise, it bars 42 U.S.C. § 1983 civil rights claims by national guard personnel against state officers. See Bowen v. Oistead, 125 F.3d 800, 803 n. 2 (9th Cir.1997)

It bars Title VII-type discrimination in employment claims under 42 U.S.C. § 2000e-16. See Hodge, 107 F.3d at 710 (reasoning that the Feres doctrine, as well as the language of section 2000e-16 regarding prohibited employment discrimination against employees of "military departments," bars statutory claims by members of the armed forces).

It bars claims by military members for civil rights conspiracy claims under 42 U.S.C. § 1985(1). See Mollnow, 716 F.2d at 631. And it bars similar civil rights claims under 42 U.S.C. § 1985(3). See Trerice v. Pedersen, 769 F.2d 1398, 1402 (9th Cir.1985); Bois v. Marsh, 801 F.2d 462, 469 (D.C.Cir.1986).

It bars suits under the Public Vessels Act, 46 U.S.C. §§ 781-790. See Charland v. United States, 615 F.2d 508, 509 (9th Cir.1980).

Further, an intramilitary immunity rationale applies to bar claims by military members under the Americans with Disabilities Act, Age Discrimination in Employment Act, and the Rehabilitation Act. See Baldwin v. United States Army, 223 F.3d 100 (2d Cir.2000) (barring ADA claims); Spain v. Ball, 928 F.2d 61 (2d Cir.1991) (ADEA); Coffman v. Michigan, 120 F.3d 57 (6th Cir.1997) (Rehabilitation Act).

Given the range of case law, the Court concludes that Feres bars the Flowers' claims for damages here under the RFPA.

Case law provides three justifications for the Feres bar. See Johnson, 481 U.S. at 688-89, 107 S.Ct. 2063. First, "the relationship between the Government and members of its armed forces is distinctively federal in character." Id. (citations and internal quotations omitted). "Where a service member is injured incident to service — that is, because of his military relationship — it makes no sense to permit the fortuity of the situs of the alleged negligence to affect the liability of the Government to the serviceman." Id. (citations and internal quotations omitted). In other words, Congress could not have intended with the FTCA to subject the armed forces to vagaries of local tort law.

Second, the existence of "generous statutory disability and death benefits is an independent reason why the Feres doctrine bars suit for service-related injuries." Id. That is, benefits under the Veterans' Benefits Act essentially preclude additional remedies under the FTCA.

Third, suits by service members against the government for injuries incurred incident to service "if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness." United States v. Shearer, 473 U.S. 52, 59, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). This third rationale — involvement in military discipline — is most important for the question involved here. It makes the Feres doctrine applicable "whenever a legal action would require a civilian court to examine decisions regarding management, discipline, supervision, and control of members of the armed forces." Zaputil v. Cowgill, 335 F.3d 885, 887 (9th Cir.2003) (citations and internal quotations omitted). "The test has been broadly construed to immunize the United States and member of the military from any suit which may intrude...