Nyberg v. State Military Dept., 02-117.

• Decision Date: 31 March 2003
• Docket Number: No. 02-117.,02-117.
• Citation: 2003 WY 43,65 P.3d 1241
• Parties: Roger C. NYBERG, Appellant (Plaintiff), v. STATE of Wyoming MILITARY DEPARTMENT; Major General Ed Boenisch, Individually and in his Official Capacity as Adjutant General, State of Wyoming, Appellees (Defendants).
• Court: Wyoming Supreme Court

65 P.3d 1241

2003 WY 43

Roger C. NYBERG, Appellant (Plaintiff), v. STATE of Wyoming MILITARY DEPARTMENT; Major General Ed Boenisch, Individually and in his Official Capacity as Adjutant General, State of Wyoming, Appellees (Defendants).

No. 02-117.

Supreme Court of Wyoming.

March 31, 2003.

C.M. Aron of Aron and Hennig, LLP, Laramie, WY, Representing Appellant. Argument by Mr. Aron.

Hoke MacMillan, Attorney General; John W. Renneisen, Deputy Attorney General; and John D. Rossetti, Senior Assistant Attorney General, Representing Appellee. Argument by Mr. Rossetti.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] Roger Nyberg (Nyberg) appeals the district court's dismissal of his complaint in which he sought damages and reinstatement as a Wyoming Air National Guard (WANG) technician based on, among other things, wrongful termination and deprivation of civil rights under 42 U.S.C. § 1983. The district court dismissed both these claims for lack of subject matter jurisdiction. We affirm.

ISSUES

[¶ 2] Nyberg presents two issues for review:

1. Whether a National Guard order based on federal authority, and on the recommendations of a federal administrative board under federal regulations, is a state agency action subject to judicial review by a Wyoming District Court.

2. Whether the federal Feres doctrine, by which the federal government is immune from tort claims by soldiers, grants civil rights claims immunity to conduct of the Wyoming Adjutant General where:

(a) the federal military determines the conduct to be in dereliction of military duty; and

(b) the Adjutant General claims the conduct to be state agency action.

The State of Wyoming, Military Department (State) and Ed Boenisch as Adjutant General (Boenisch) phrase the issues as follows:

1. Did the District Court correctly determine that it lacked jurisdiction over Nyberg's wrongful termination claim for the reason that Nyberg failed to seek judicial review of final agency action under the Administrative Procedure Act and the Wyoming Rules of Appellate Procedure?

2. Was the dismissal of Nyberg's 42 U.S.C. § 1983 claim against the State and Boenisch proper pursuant to the Feres doctrine?

FACTS

[¶ 3] Nyberg was a Lieutenant Colonel in WANG. In order to maintain his state officer appointment, Nyberg was required to maintain his federal recognition as a military officer. Nyberg was also employed as a National Guard technician in the Wyoming Guard. A condition of his technician employment was that he remain a member of WANG. On October 14, 1997, the Wing Commander, Colonel Robert D. Rodekohr, recommended to Boenisch that Nyberg be separated from WANG on the basis of misconduct.

[¶ 4] On October 14, 1997, Nyberg received a letter of Notification of Recommendation for Separation or Discharge. The letter informed him that it was being recommended that he be separated from WANG and as a reserve officer in the United States Air Force in accordance with AFI 36-3209, Chapter 2, Section C. A discharge board was convened and hearings were held. Nyberg was present at the hearing and utilized both military and civilian counsel. Nyberg was allowed to introduce evidence, call witnesses, and cross examine the witnesses against him.

[¶ 5] The discharge board deciding the issue consisted of three officers, superior in rank to Nyberg, from outside the command. The board concluded that misconduct occurred and recommended that Nyberg be discharged from both WANG and as a reserve officer in the United States Air Force. The record of the board's proceedings was forwarded to Major Paula Zaleski for legal review and recommendations. Zaleski completed a detailed legal review and issued a report to Boenisch. This report recommended acceptance of the board's findings. Boenisch decided to separate Nyberg from WANG. Boenisch then forwarded the record to the Secretary of the Air Force for a determination of whether Nyberg would be separated as a reserve officer in the United States Air Force. Nyberg's federal recognition was never withdrawn; but, because he was no longer a member of WANG, Nyberg's military technician employment was terminated.

[¶ 6] On September 13, 2000, Nyberg filed an action against the State and Boenisch for money damages, a permanent injunction, and reinstatement. In his complaint, Nyberg alleged that as a National Guard technician he could only legally be terminated by proper application of federal procedures, in this case Air Force Instruction (AFI) 36-3209, or if he was discharged from WANG in compliance with Wyo. Stat. Ann. § 19-2-301(b) (Michie 1997).¹ This statute requires that the discharge be either for cause on the recommendation of an efficiency board or upon conviction by court martial for violation of military law. Nyberg alleged that these procedures were not followed because a state efficiency board was never convened, a court martial never took place, and AFI 36-3209 was not followed. Instead, he contends the discharge board deciding the issue was a Withdrawal of Federal Recognition Board, which only allowed the Adjutant General to recommend withdrawal of Nyberg's federal recognition, not discharge Nyberg from WANG.

[¶ 7] The State and Boenisch filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim pursuant to W.R.C.P. 12(b)(1) and 12(b)(6). On January 14, 2002, the district court dismissed the wrongful termination claim for lack of subject matter jurisdiction. The district court found that the defendants were an agency within the scope of the Wyoming Administrative Procedure Act and that the order separating Nyberg from WANG was a final agency action. Because Nyberg failed to file a petition for review of the final administrative action, the district court found that judicial review was time barred. On March 20, 2002, the court further dismissed the civil rights claim for lack of subject matter jurisdiction based on the Feres doctrine ruling that the claims were nonjusticiable. These orders are the subject of this appeal.

STANDARD OF REVIEW

[¶ 8] The ultimate question for our review is whether the district court has subject matter jurisdiction over Nyberg's wrongful termination claim and his 42 U.S.C. § 1983 claim. The district court found that it lacked subject matter jurisdiction to hear the claims. A court has jurisdiction when it has the "power to hear and determine a matter in controversy." Garnett v. Brock, 2 P.3d 558, 561 (Wyo.2000) (citing In Interest of MFB, 860 P.2d 1140, 1146 (Wyo.1993)). We review jurisdictional questions de novo pursuant to our power and duty to address jurisdictional defects. Id. (citing Pawlowski v. Pawlowski, 925 P.2d 240, 242 (Wyo.1996)).

DISCUSSION

Wrongful Termination

[¶ 9] Although not presented by either party, our determination of this issue requires a brief review of the body of case law involving the military and military personnel. A fairly well established principle from this body of law is claims brought by military personnel for injuries arising from or in the course of activity incident to military service are nonjusticiable. Texas Adjutant General's Dep't v. Amos, 54 S.W.3d 74, 77 (Tex.App.2001) (citing United States v. Stanley, 483 U.S. 669, 683-84, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950); Holdiness v. Stroud, 808 F.2d 417, 423 (5th Cir.1987); Crawford v. Texas Army Nat'l Guard, 794 F.2d 1034, 1035 (5th Cir.1986); Newth v. Adjutant General's Dep't, 883 S.W.2d 356, 357 (Tex.App.1994)). We are called on to decide whether the reach and purpose of this well established principle is applicable to the case before us.

[¶ 10] The current climate of nonjusticiability for suits brought by military personnel can be traced back in large part to the case of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In Feres, the Supreme Court held that the waiver of sovereign immunity provided by the Federal Tort Claims Act (FTCA) is subject to an exception. This exception, known now as the Feres doctrine, generally stands for the proposition that the federal government cannot be sued by members of the armed services for injuries that "arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146, 71 S.Ct. at 159.

[¶ 11] In a later decision, the United States Supreme Court explained that the Feres doctrine is based on concern for the "peculiar and special relationship" between the soldier to his superiors, the effect such suits have on discipline, and the extreme results that might follow if suits under the FTCA were allowed for orders given or acts committed in the course of military duty. Amos, 54 S.W.3d at 77 (citing United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139 (1954)). In a subsequent decision, the United States Supreme Court articulated three factors supporting the Feres doctrine: 1) state law should not affect the government's liability to military members because the relationship between the parties is distinctly federal; 2) no fault compensation schemes exist to compensate military members; and 3) the negative effect judicial review would have on military discipline. Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 672-73, 97 S.Ct. 2054, 2058-59, 52 L.Ed.2d 665 (1977).

[¶ 12] Although Feres is often thought of only in connection with claims under the FTCA, the United States Supreme Court expanded the doctrine in Chappell v. Wallace, holding that military personnel may not seek to remedy alleged constitutional violations committed by their superior officers by pursuing a Bivens² type action for damages. Amos, 54 S.W.3d at 77 (citing Chappell v. Wallace, 462 U.S. at 305, 103 S.Ct. at 2362). In the course of its holding, the Court explained that the Feres doctrine is founded, at least in...