Lovely v. U.S.

• Decision Date: 26 June 2009
• Docket Number: No. 08-3524.,08-3524.
• Citation: 570 F.3d 778
• Parties: Wayne G. LOVELY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

570 F.3d 778

Wayne G. LOVELY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 08-3524.

United States Court of Appeals, Sixth Circuit.

Argued: June 18, 2009.

Decided and Filed: June 26, 2009.

ARGUED: Kevin P. Podlaski, Carson Boxberger LLP, Fort Wayne, Indiana, for Appellant. Patrick D. Quinn, Assistant United States Attorney, Dayton, Ohio, for Appellee. ON BRIEF: Kevin P. Podlaski, Diana Carol Bauer, Carson Boxberger LLP, Fort Wayne, Indiana, for Appellant. Patrick D. Quinn, Assistant United States Attorney, Dayton, Ohio, for Appellee.

Before MOORE and GILMAN, Circuit Judges; PHILLIPS, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant Wayne G. Lovely appeals the order of the district court dismissing for lack of subject-matter jurisdiction Lovely's claim brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Lovely, a former student at the University of Dayton ("UD") and member of the Army Reserve Officers' Training Corps ("ROTC"), brought claims against Defendant-Appellee the United States of America and its agency, the United States Army ROTC Battalion at UD, for violation of Lovely's rights under the Privacy Act, 5 U.S.C. § 552a, and for intentional infliction of emotional distress ("IIED") under the FTCA. Lovely's claims were based on actions taken by Lovely's ROTC commander in relation to a UD disciplinary proceeding initiated against Lovely by another ROTC cadet. The district court dismissed Lovely's IIED claim under the Feres doctrine, which precludes claims brought under the FTCA "for injuries to servicemen 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, 71 S.Ct. 153, 95 L.Ed. 152 (1950).¹ On appeal, Lovely argues that the district court erred in dismissing the IIED claim under Feres because Lovely was a UD student and not involved in any military activity at the time of his injury. For the reasons discussed below, we AFFIRM the judgment of the district court dismissing Lovely's IIED claim as barred by the Feres doctrine.

I. BACKGROUND

Beginning in August 2001, Lovely was a student at UD and an ROTC cadet with an ROTC scholarship to UD. In the summer of 2003, Lieutenant Colonel Versalle Washington became the Professor of Military Science and Chair of the Department of Military Science at UD. As Professor of Military Science, Washington was the ROTC Battalion Commander at UD, with responsibility for training cadets so that they may attain commission as Army officers. As Lovely's ROTC contract states, "the sole purpose of the ROTC scholarship program is to produce officers for the United States Army." Record on Appeal ("ROA") at 156 (Contract at 1). The contract sets forth the financial terms of Lovely's scholarship, under which the government agreed to pay Lovely's tuition, educational fees, and textbooks for three years, as well as a subsistence allowance and pay during certain periods. The contract also specifies that Lovely's education was to be completed in May 2005 and that Lovely agreed to "[r]emain a full-time student at [UD] until [receiving his] degree." ROA at 157 (Contract at 2). Lovely also agreed to "[m]aintain eligibility for enrollment in ROTC, enlistment in the USAR, and commissioning, as defined by statute, Army regulation, and this contract, throughout the period of this contract." Id. If Lovely failed to complete the educational requirements or other terms of the contract or committed misconduct, he could either be ordered to active duty or instead be required to reimburse the United States for his educational costs paid under the contract.

In December 2003, Dr. Mark Ensalaco, Director of the Department of International Studies at UD, discovered that Lovely had plagiarized a research paper for one of Ensalaco's courses. At that time, Ensalaco orally told Washington of the plagiarism and offered to prepare for Washington a written statement about the plagiarism. It does not appear that Washington took Ensalaco up on the offer at that time.

In January 2004, a female cadet reported to Washington that Lovely had sexually assaulted her in September 2003. She declined to press criminal charges, but accepted Washington's recommendation that she see a counselor at UD's counseling center. Upon the advice of Dr. Carol Cummins-Collier at the counseling center, the female cadet decided to pursue proceedings against Lovely through the UD disciplinary board. A UD disciplinary-board hearing was scheduled for February 17, 2004. The female cadet asked Washington if he would testify for her at the hearing, but he declined. The female cadet, however, already knew of Lovely's plagiarism and asked Washington to obtain a statement about the plagiarism from Ensalaco so that she could use it at the hearing to discredit Lovely. Washington contacted Ensalaco and asked him to send Washington the previously offered statement. The day before the hearing, Ensalaco sent Washington an email describing the plagiarism incident, and Washington then printed the email and gave a copy to the female cadet. The female cadet presented the statement to the UD disciplinary board at the February 17 hearing. After the hearing, Lovely asked Washington about the email, and Washington confirmed that he had requested the statement from Ensalaco and had given the email to the female cadet at her request. Lovely also asked Ensalaco how the female cadet received the document, and Ensalaco stated that he sent the email to Washington at Washington's request.

The board found that Lovely engaged "in non-consensual sexual intercourse" with the female cadet. ROA at 52 (Lovely Aff. 6/11/2004 at 5). The UD Judicial Review Committee denied Lovely's subsequent appeal, and he was suspended on March 8, 2005.

In his complaint, Lovely makes several allegations that Washington took other actions against Lovely in relation to the hearing. Lovely alleges that Washington told other ROTC cadets that Lovely had admitted at the hearing that he had sexually assaulted the female cadet. Lovely also alleges that Washington told other cadets that they should support the female cadet and that Washington intimidated one of Lovely's witnesses so that the witness did not testify at the hearing.

After the UD disciplinary proceedings, Washington initiated proceedings to remove Lovely from the ROTC program. Lovely claims that Washington improperly inserted himself into these proceedings by, for example, rejecting the suggestion of the UD Dean of Students that disenrollment could be prevented and insisting on proceeding with disenrollment using UD's documents as supporting evidence. Lovely eventually was disenrolled from ROTC for misconduct, preventing any eligibility to re-enroll. Lovely also had to repay the ROTC scholarship money that he had been awarded.

Lovely filed a claim for damages with the Army, which was denied, primarily on the basis that Feres precluded Lovely, who was enlisted in the Army at the time of the alleged injury, from recovering for an injury incident to service. On June 9, 2006, Lovely filed a complaint in the United States District Court for the Southern District of Ohio asserting a claim based on violation of the Privacy Act. Lovely then filed an amended complaint on November 6, 2006, adding his IIED claim under the FTCA. The amended complaint alleged that Lovely suffered economic damages, including loss of his college funding and other earnings, and mental, emotional, and psychological damages, such as loss of reputation, depression, and humiliation. The government filed a motion to dismiss the Privacy Act claim, and later a motion to dismiss the IIED claim under Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure, arguing that the district court lacked subject-matter jurisdiction due to the Feres doctrine and that Lovely's complaint failed to state a claim. On March 17, 2008, the district court entered a decision granting the government's motion to dismiss both claims. The district court dismissed the IIED claim on the basis that the court lacked subject-matter jurisdiction as a result of the Feres doctrine because Lovely's alleged injuries arose out of or were in the course of activity incident to military service. Lovely now appeals the district court's dismissal of his IIED claim.

II. ANALYSIS

A. Standard of Review

"We review de novo a district court's determination of the applicability of the Feres doctrine." Fleming v. United States Postal Serv., 186 F.3d 697, 698 (6th Cir.1999). Here, the district court dismissed Lovely's IIED claim for lack of subject-matter jurisdiction pursuant to the Feres doctrine.² "We normally review de novo the district court's decision to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)." Howard v. Whitbeck, 382 F.3d 633, 636 (6th Cir.2004). "Where the district court does not merely analyze the complaint on its face, but instead inquires into the factual predicates for jurisdiction, the decision on the Rule 12(b)(1) motion resolves a `factual' challenge rather than a `facial' challenge, and we review the district court's factual findings for clear error." Id.; accord RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1135 (6th Cir.1996) ("Where a trial court's ruling on jurisdiction is based in part on the resolution of factual disputes, a reviewing court must accept the district court's factual findings unless they are clearly erroneous."). "However, review of the district court's application of the law to the facts is de novo." RMI Titanium, 78 F.3d at 1135. Even when the parties raise a "factual" challenge by submitting exhibits relating to subject-matter jurisdiction, we give deference to the district court only to the extent the district court actually made factual findings. See Howard, 382 F.3d at 636-37.

B. Application of the Feres Doctrine

With...