Lutz v. Secretary of Air Force

• Decision Date: 16 September 1991
• Docket Number: No. 89-16310,89-16310
• Citation: 944 F.2d 1477
• Parties: 56 Fair Empl.Prac.Cas. (BNA) 1430, 57 Empl. Prac. Dec. P 41,049, 60 USLW 2193 Marsha L. LUTZ, Plaintiff-Appellee, v. SECRETARY OF THE AIR FORCE, Defendant, and Gerald L. Ivory, Manuel E. Ferdin, and United States of America, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1477

944 F.2d 1477

56 Fair Empl.Prac.Cas. (BNA) 1430,

57 Empl. Prac. Dec. P 41,049, 60 USLW 2193

Marsha L. LUTZ, Plaintiff-Appellee, v. SECRETARY OF THE AIR FORCE, Defendant and Gerald L. Ivory, Manuel E. Ferdin, and United States of America, Defendants-Appellants.

No. 89-16310.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 13, 1991.

Decided Sept. 16, 1991.

George C. Stoll, Asst. U.S. Atty., San Francisco, Cal., Mark W. Pennak, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Robert R. Bryan, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before FLETCHER, NORRIS and TROTT, Circuit Judges.

FLETCHER, Circuit Judge:

This case involves Bivens and state common law claims brought by a former major in the United States Air Force, Marsha Lutz, who alleges that the individual defendants, Technical Sergeants Ivory and Ferdin ("the sergeants"), broke into her office, took personal papers and disseminated them to other military personnel with the intent to injure her reputation and career. The sergeants, along with the United States, seek to appeal the district court's denial of their motion to dismiss on grounds of Feres intra-military immunity. They also seek to appeal what they term the district court's "[denial of] defendants' We conclude, based on the collateral order rule, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), that we have jurisdiction to review the district court's order denying the motion to dismiss and affirm the district court's finding that the individual defendants' actions were not "incident to military service" within the meaning of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and its progeny.

motion to substitute the United States as the sole party defendant for plaintiff's common law claims" pursuant to 28 U.S.C. 2679(d)(1). ¹

FACTS ²

Marsha Lutz entered the Air Force in 1972 at the rank of second lieutenant following an outstanding academic and athletic career at the University of California at Davis. She rose steadily in the service, and by 1984 had achieved the rank of major. During the course of her military career, she continued to reap various awards and commendations--based on both her athletic and her military abilities. She consistently received outstanding reviews, was selected for and excelled in a number of special training programs, earned numerous awards and commendations, and served as the first woman in a number of significant postings. At the time of the events in question, Major Lutz was the Commander of the 2035th Information Systems Squadron, the only female within the Strategic Air Command to serve in such a position. She was also a regional and ultimately a national finalist for a prestigious White House Fellowship.

In 1984, three of Major Lutz's subordinates, Technical Sergeants Ivory, Ferdin and Cotton entered her office after hours on one or more occasions and removed personal property from her desk including a sealed letter and notes. Apparently the letter and notes could be read to imply that Major Lutz was involved in a lesbian relationship with her civilian secretary. The sergeants made copies of the notes and letter and showed them to various squadron personnel. Major Lutz alleges that these actions were taken in an attempt to harm or ruin her reputation and career.

Following the dissemination of this material, Major Lutz alleges that her superiors took a series of summary actions which effectively destroyed her career in the military, ultimately compelling her to resign. Major Lutz filed a seven count complaint in federal district court on February 25, 1987 asserting Bivens claims and common law claims under California state law against various individual defendants and the Secretary of the Air Force. On September 21, 1987, the district court dismissed with prejudice Lutz's claims for damages against the United States. The court also dismissed her claims for declaratory and injunctive relief against the United States with leave to amend. Lutz filed a second amended complaint on October 21, 1987. Following a second motion to dismiss hearing, the district court dismissed with prejudice the remaining claims against the United States. The court deferred ruling on Sergeant Ferdin's motion to dismiss pending further discovery. On August 1, 1989, the district court addressed and denied the sergeants' renewed motion to dismiss both the Bivens and common law claims against them based on the Feres doctrine, finding that "the defendants' actions were not 'incident to military service,' " and that because Although the sergeants argued as one ground for dismissal of Lutz's common law claims against them that 28 U.S.C. § 2679 mandated that the United States be substituted as the defendant for those claims, the district court order addressed only the applicability of the Feres doctrine. It made no mention of substituting the United States as defendant, of the certification by the Attorney General that the sergeants were acting in the scope of their employment, or of § 2679. ⁴ There is no indication in the record that the sergeants or the government moved for reconsideration of that order or brought to the court's attention its failure to address the substitution issue. There is likewise no indication in the record below or on appeal that Lutz contests the Attorney General's certification. Indeed, Lutz's complaint alleges that the three sergeants were acting within the scope of their employment. The sergeants and the United States filed a timely notice of appeal which specified that they were appealing "from the order dated August 1, 1989 which denied official immunity and substitution of the United States."

"[t]he only disciplinary action taken by the Air Force was against Major Lutz ... [t]he Court [would] not be second-guessing military discipline by evaluating defendants' conduct at issue in this case." ³ It is that order which is the subject of the present appeal.

DISCUSSION

A. Jurisdiction

Appellants assert two possible bases for jurisdiction. They contend that the panel has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 under the collateral order doctrine initially articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and recently revisited by the Court in Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). In the alternative, they argue that the panel has jurisdiction over the district court's purported refusal to substitute the United States as defendant, and can therefore also reach the Feres issue based on pendent appellate jurisdiction. Because we conclude that we have jurisdiction to review the district court's order under the collateral order doctrine, we need not reach the issue of pendent jurisdiction.

In Gulfstream the Supreme Court rearticulated the "three-pronged test to determine whether an order that does not finally resolve a litigation is nonetheless appealable under § 1291." 485 U.S. at 276, 108 S.Ct. at 1136-37. To come under the collateral order exception, the challenged order must (1) "conclusively determine the disputed question"; (2) "resolve an important issue completely separate from the merits of the action"; and (3) "be effectively unreviewable on appeal from a final judgment." Id. (internal quotations omitted).

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. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950), creating a judicial exception to the Federal Tort Claims Act's (FTCA's) broad waiver of sovereign immunity. Atkinson, 825 F.2d at 204. While Feres was an FTCA case, applicable to common law tort claims against the government, the Supreme Court has extended the Feres doctrine to Bivens claims. Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987). This circuit has extended the application of Feres to suits between individual members of the military Appellants argue that the district court's denial of the motion to dismiss based on the Feres doctrine satisfies the three Gulfstream criteria because 1) the district court has determined conclusively the question of whether the defendants' actions were "incident to military service," 2) that question is entirely separate from the merits of Lutz's constitutional and common law claims, and 3) the Feres defense will be effectively unreviewable on appeal from final judgment because a central purpose of the Feres doctrine is not only to avoid liability, but also to preclude a trial on the merits because the judicial inquiry itself, rather than just a merits judgment, causes the disruption of military affairs the Feres doctrine is designed to prevent.

                recognizing an "intramilitary immunity" from suits based on injuries sustained incident to service.   See e.g., Stauber v. Cline, 837 F.2d 395 (9th Cir.), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988);  Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir.1985);  Mollnow v. Carlton, 716 F.2d 627, 628 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984);  Mattos v. United States, 412 F.2d 793, 794 (9th Cir.1969). 5  Thus, if Major Lutz's injuries arose out of or were in the course of activity incident to service, then the Feres doctrine would preclude her recovery on either her Bivens claims or her common law tort claims
                

The question of whether a district court's refusal to dismiss a case on Feres grounds constitutes a reviewable collateral order has been addressed in only one case. In re Agent Orange Product...