Matreale v. New Jersey Dept. of Military

• Decision Date: 22 May 2007
• Docket Number: No. 06-2051.,06-2051.
• Citation: 487 F.3d 150
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Major Frank MATREALE, Appellant v. State of NEW JERSEY DEPARTMENT OF MILITARY & VETERANS AFFAIRS; National Guard of the United States.

487 F.3d 150

Major Frank MATREALE, Appellant v. State of NEW JERSEY DEPARTMENT OF MILITARY & VETERANS AFFAIRS; National Guard of the United States.

No. 06-2051.

United States Court of Appeals, Third Circuit.

Argued February 13, 2007.

Filed May 22, 2007.

William A. Riback (Argued), Camden, NJ, for Appellant.

Michele A. Daitz, Office of Attorney General of New Jersey, Dorothy J. Donnelly (Argued), Office of United States Attorney, Trenton, NJ, for Appellees.

Before SMITH and FISHER, Circuit Judges, and DIAMOND, District Judge.^*

OPINION

DIAMOND, District Judge.

Major Frank Matreale, a commissioned officer in the New Jersey Army National Guard (NJANG) serving under orders issued pursuant to 32 U.S.C. § 502(f)(1),¹ brought suit in the Superior Court of New Jersey against the New Jersey Department of Military and Veterans Affairs (NJDMVA), the overseer of the NJANG, to recover damages for retaliation under the New Jersey Law Against Discrimination (NJLAD). The National Guard of the United States intervened and the case was removed from state court to the United States District Court for the District of New Jersey. Applying the doctrine of intra-military immunity first enunciated in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the District Court granted summary judgment in favor of the NJDMVA.

The issue before us is whether the Feres doctrine of intra-military immunity bars a suit raising state law claims for damages for injuries arising from, or in the course of activity incident to, military service brought against a state national guard by a guardsman serving under Title 32. We hold that it does and will affirm the District Court's grant of summary judgment.

I.

The District Court had jurisdiction pursuant to 28 U.S.C. § § 1346(b) and 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court's grant of summary judgment and employ the same analysis required of the District Court to determine whether there are any issues of material fact that would enable the nonmoving party to prevail. Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 203 (3d Cir.2005). Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). At the summary judgment stage, we view all evidence and consider all reasonable inferences in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

II.

In July of 1999, pursuant to an ongoing official investigation, Matreale provided to Lt. Col. Kent Milliken, his direct supervisor in the NJANG, a statement supporting a female guardsman's accusation that she had been sexually harassed by an NJANG Sergeant Major. An inquiry ultimately concluded that the accuser in fact was sexually harassed.

Matreale, contending that based on his role in the sexual harassment investigation, Milliken and other NJANG officers subsequently engaged in a course of retaliation against him, including, inter alia, negative performance evaluations and other disciplinary measures based on accusations that he had engaged in an improper superior-subordinate relationship with the female sexual harassment victim, sought redress in the suit referred to above.

The District Court, in granting summary judgment in favor of the NJDMVA, found that Matreale, serving under Title 32, was a federal employee for immunity purposes and concluded that his state law claims for damages were barred under the Feres doctrine of intra-military immunity because the injuries for which he sought recovery arose out of, or were incurred in the course of activity incident to, his military service. The District Court further held that Matreale's requests for reinstatement, promotion and other injunctive or declaratory relief were non-justiciable.

III.

The doctrine of intra-military immunity upon which the District Court relied in dismissing Matreale's damages claims had its genesis in Feres, supra, a consolidation of three cases in each of which the claimant while on active duty in the United States Armed Forces sustained an injury due to the negligence of others in the armed forces. The Supreme Court held that the federal government was not liable under the Federal Tort Claims Act for injuries to servicemen arising out of, or in the course of activity incident to, military service. 340 U.S. at 146, 71 S.Ct. at 159. The Court noted that "without exception, the relationship of military personnel to the Government has been governed by federal law," id., and that no federal law "has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving." 340 U.S. at 141, 71 S.Ct. at 157.

Although only alluded to in Feres, the Supreme Court subsequently expounded upon the underlying rationale for the intra-military immunity doctrine and described it as being predicated upon:

[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits . . . were allowed for . . . negligent orders given or negligent acts committed in the course of military duty . . . .

United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954).

In Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the Supreme Court expanded the reach of the Feres doctrine to bar a Bivens² claim for damages brought by federal servicemen against their federal superior officers alleging constitutional violations resulting from alleged racial discrimination in assignments, evaluations and punishment. As in Feres, the Court relied primarily upon "the peculiar and special relationship" between a soldier and his superiors, and the potential effects of permitting such lawsuits on military discipline, in holding that the doctrine of intra-military immunity barred Bivens damages claims. Chappell, 462 U.S. at 304, 103 S.Ct. at 2367.

Without exception, in other post-Feres cases, the Court has adhered to the compelling necessity of maintaining military discipline as the basis for expanding the intra-military immunity doctrine to encompass a variety of claims, against an assortment of defendants, brought by a range of servicemen, for injuries arising out of, or in the course of activity incident to, military service. See United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (Feres "incident to service" test equally applicable in Bivens cases brought by serviceman against military officers and civilians); United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (barring FTCA claim against civilian defendant by widow of serviceman killed in rescue mission); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (barring FTCA claim against United States arising from murder of off-duty serviceman by another serviceman); Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (barring claim for indemnification against United States brought by a government contractor in a negligence suit filed by a National Guardsman on a training mission).

Following the Supreme Court's rationale in those cases, in defining the scope of the Feres doctrine we too have recognized the adverse impact on military discipline inherent in the judicial review of military orders and have sought to avoid it. In Jaffee v. United States, 663 F.2d 1226, 1239 (3d Cir.1981), we held that the Feres doctrine extends to bar a federal serviceman's state law intentional tort claim against his Army supervisors. We recognized two potential consequences of permitting suits for service injuries: their effect on the willingness of military personnel to follow the directions of their superiors and the concomitant chilling effect that the concern of being called into civilian court may have on the discharge of the decision-making duties of military authorities. Id. at 1232. Of particular significance to the matter presently before us, we noted in Jaffee that "[s]uits founded on state law have the same potential for undermining military discipline as federal tort claims." Id. at 1239.

Later, in Jorden v. National Guard Bureau, 799 F.2d 99, 104-05 (3d Cir.1986), we determined that the reasoning in Chappell, supra, barring Bivens damages claims against federal military officers, was equally applicable to a § 1983 action brought by a full-time civilian technician in a state national guard against state military officers in light of the Supreme Court's decision in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), which unequivocally held that Bivens claims and § 1983 claims are to be treated as identical for immunity purposes. We observed that in Chappell the Supreme Court "was laying down a general rule barring damages actions by military personnel against superior officers for constitutional violations, rather than authorizing a fact-specific inquiry." Jorden, 799 F.2d at 108.

IV.

In this case, there is no dispute that the alleged harm suffered by Matreale arose from, or in the course of activity incident to, his military service in the NJANG, since his damages allegedly resulted from the conduct of his superior officers in evaluating and disciplining him. A straightforward application of the Feres doctrine as it has evolved in the Supreme Court and this Circuit, therefore, would appear to dictate the conclusion reached by the District Court that Matreale's damages claims are barred by intra-military immunity.

Pressed by the overwhelming weight of the foregoing federal precedent, however, Matreale seeks to avoid such a straightforward application of the "federally created" Feres doctrine by attempting to convert this case into an...