Uhl v. Swanstrom

• Citation: 79 F.3d 751
• Decision Date: 04 April 1996
• Docket Number: No. 95-1704,95-1704
• Parties: Kenneth P. UHL, Appellant, v. Dennis P. SWANSTROM, individually and in his official capacity as 185 TFG Commander Iowa Air National Guard, Warren G. Lawson, individually and as Adjutant General, Iowa Air National Guard, and the Iowa Air National Guard, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 751

79 F.3d 751

Kenneth P. UHL, Appellant, v. Dennis P. SWANSTROM, individually and in his official capacity as 185 TFG Commander Iowa Air National Guard Warren G. Lawson, individually and as Adjutant General, Iowa Air National Guard, and the Iowa Air National Guard, Appellees.

No. 95-1704.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 16, 1995.

Decided April 4, 1996.

Appeal from the United States District Court for the Northern District of Iowa; Honorable Mark W. Bennett, Judge. No. C 91-4012.

Blake Franklin Parker, Fort Dodge, IA, for appellant.

Grant Keith Dugdal, Asst. Atty. Gen., Des Moines, IA, for appellee.

Before McMILLIAN, BRIGHT and LOKEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Plaintiff Kenneth P. Uhl appeals from a final order entered in the United States District Court ¹ for the Northern District of Iowa granting summary judgment in favor of defendants Dennis P. Swanstrom, Warren G. Lawson, and the Iowa Air National Guard on plaintiff's claims of due process and equal protection violations pursuant to 42 U.S.C. § 1983, a claim of violation of the Privacy Act of 1974, 5 U.S.C. § 552a et seq., and a pendent state law claim pursuant to the Federal Tort Claims Act (FTCA). Uhl v. Swanstrom, 876 F.Supp. 1545 (N.D.Iowa 1995). For reversal, plaintiff argues that the district court erred in holding that (1) all of plaintiff's claims were non-justiciable under the doctrine established in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (Feres ) (limiting tort claims against the United States and its agencies and representatives for injuries incident to military service); (2) some of plaintiff's claims were barred by the applicable statutes of limitations; and (3) plaintiff was not entitled to partial summary judgment based upon the district court's prior rulings. For the reasons discussed below, we hold that the district court correctly applied the Feres doctrine, we decline to reach plaintiff's statute of limitations arguments, and we hold that plaintiff was not entitled to partial summary judgment based upon the district court's prior rulings. Accordingly, we affirm.

Background

Plaintiff was a dual-status employee with the Iowa Air National Guard (IANG). He was a full-time civil engineer at the IANG base in Sergeant Bluffs, Iowa, and a part-time member of the IANG. His eligibility for military service was a requirement of his continued employment as a civil servant. On June 9, 1988, plaintiff was discharged from the IANG after a Medical Evaluation Board reportedly diagnosed him as mentally unfit for military duty. As a consequence, plaintiff also lost his civil service employment. At the time of plaintiff's discharge, defendant Swanstrom was his commanding officer, and defendant Lawson was the Adjutant General of the IANG.

Plaintiff filed a complaint with the Department of Defense Office of the Inspector General (DoD/IG), which investigated the matter and found the process leading to plaintiff's discharge flawed and the decision to discharge plaintiff inappropriate and invalid. In its final report, dated January 24, 1990, the DoD/IG recommended that plaintiff be reinstated to the positions he would have occupied had he not had a break in service. Plaintiff also filed an application with the Air Force Board for Correction of Military Records (AFBCMR) seeking to have the medical disqualification removed from his military records. The AFBCMR agreed with the DoD/IG's conclusions and, on June 21, 1991, recommended that plaintiff's records be expunged of all references to the medical disqualification. Despite these findings by both the DoD/IG and the AFBCMR, the IANG has never reinstated plaintiff.

Plaintiff also filed an administrative claim with the Department of the Air Force under the FTCA and separately filed a civil lawsuit against Swanstrom and the IANG in Iowa state court alleging defamation and deprivation of rights under state and federal law, and seeking damages and reinstatement. On August 31, 1990, the Department of the Air Force denied plaintiff's administrative claim under the FTCA. On November 26, 1990, the Iowa state court granted the IANG's motion to dismiss plaintiff's claims on the basis of the Feres doctrine; then, on September 24, 1991, the state court granted Swanstrom's motion for summary judgment and dismissed plaintiff's claims against him, again on the basis of the Feres doctrine.

In the meantime, on January 22, 1991, plaintiff initiated the present action in federal district court. ² On February 21, 1991, plaintiff amended his complaint. The amended complaint alleges due process and equal protection violations, a federal Privacy Act violation, and a state common law claim of intentional interference with contract, all arising out of defendants' termination of plaintiff from his service with the IANG. The amended complaint seeks declaratory and injunctive relief (including reinstatement), actual, incidental, and punitive damages, attorneys' fees, and costs.

Defendants moved to dismiss, arguing, among other things, that plaintiff's claims were barred under the Feres doctrine. On April 7, 1992, the district court denied defendants' motion. Uhl v. Swanstrom, No. C 91-4012 (N.D.Iowa Apr. 7, 1992). In its order of April 7, 1992, the district court also certified, for purposes of interlocutory appeal, that the order involved a controlling question of law as to which there were substantial grounds for a difference of opinion. See 28 U.S.C § 1292(b). Defendants did not immediately appeal the district court's order and instead moved for reconsideration in the district court. One year later, the district court ruled on the motion for reconsideration and dismissed two of the defendants, the United States and the United States Air Force, without prejudice; however, the remaining defendants, Swanstrom, Lawson, and the IANG, were not dismissed. Uhl v. Swanstrom, slip op. at 8 (Mar. 26, 1993). The district court's order of March 26, 1993, did not contain certification language permitting interlocutory appeal. After failing to obtain relief from the district court on their motion for reconsideration, defendants Swanstrom, Lawson, and the IANG subsequently filed an interlocutory appeal. Their interlocutory appeal was dismissed for lack of jurisdiction. Uhl v. Swanstrom, No. 93-8059NISC (8th Cir. Apr. 27, 1993) (order entered by the clerk of court dismissing appeal for lack of jurisdiction).

Thereafter, defendants Swanstrom, Lawson, and the IANG filed a motion for summary judgment in the district court, again asserting, among other things, that plaintiff's claims were barred under the Feres doctrine. Plaintiff filed a cross-motion for partial summary judgment, arguing, among other things, that the district court was bound by its earlier rulings. Following oral arguments, the district court granted defendants' motion for summary judgment, denied plaintiff's cross-motion, and dismissed the case. Uhl v. Swanstrom, 876 F.Supp. at 1570. ³ This appeal followed.

Discussion

We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992); St. Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th Cir.1992). Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th Cir.1990).

We begin by addressing plaintiff's last argument--that defendants were precluded from relitigating on summary judgment those issues which had previously been litigated and decided in the district court's orders of April 7, 1992, and March 26, 1993. Defendants failed to timely appeal the district court's April 7, 1992, order despite the creation of interlocutory appellate jurisdiction by the district court's certification in accordance with 28 U.S.C. § 1292(b). Nevertheless, we hold that plaintiff's collateral estoppel argument is legally flawed for several reasons. Most notably, the district court expressly stated in its order of March 26, 1993:

It has been brought before the court's attention that defendants Swanstrom, Lawson, and the [IANG] have further factual issues to raise in this case that they believe would entitle them to relief on a summary judgment motion. Nothing in this order or in the previous order of this court precludes defendants from raising such a motion for summary judgment at a later time if they feel it is appropriate.

Uhl v. Swanstrom, slip op. at 8 (Mar. 26, 1993) (emphasis added). Moreover, defendants' interlocutory appeal from the April 7, 1992, and March 26, 1993, orders was dismissed for lack of jurisdiction because it was untimely with respect to the April 7, 1992, order and the March 26, 1993, order was not properly certified by the district court. As such, and because the appeal was interlocutory, the dismissal was without prejudice and the district court's orders did not become final. Collateral estoppel applies only where the issue in controversy has previously been determined by a valid and final judgment. In re Miera, 926 F.2d 741, 743 (8th Cir.1991). We therefore hold that the district court correctly rejected plaintiff's collateral estoppel argument. Uhl v. Swanstrom, 876 F.Supp. at 1550. Also, as noted by the district court, the so-called "law of the case" doctrine does not apply when an intervening decision from a higher tribunal renders a prior...