Wetherill v. Geren

• Citation: 616 F.3d 789
• Decision Date: 11 August 2010
• Docket Number: No. 09-3334.,09-3334.
• Parties: Nancy J. WETHERILL, Plaintiff-Appellant, v. Pete R. GEREN, Secretary of the Army; The Army National Guard; Steven R. Doohen, Brigadier General, in his official capacity as Adjutant General of the South Dakota National Guard; Theodore Johnson, Brigadier General, in his official capacity; and The South Dakota Army National Guard, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

616 F.3d 789

Nancy J. WETHERILL, Plaintiff-Appellant,
v.
Pete R. GEREN, Secretary of the Army; The Army National Guard; Steven R. Doohen, Brigadier General, in his official capacity as Adjutant General of the South Dakota National Guard; Theodore Johnson, Brigadier General, in his official capacity; and The South Dakota Army National Guard, Defendants-Appellees.

No. 09-3334.

United States Court of Appeals,Eighth Circuit.

Submitted: June 17, 2010.
Filed: Aug. 11, 2010.

616 F.3d 790

Sarah E. Baron Houy, argued, Rapid City, SD, for appellant.

Robert Bruce Anderson, argued, Pierre, SD, for Appellees Doohen, Johnson, and The SD Army National Guard.

Daneta Wollmann, AUSA, argued, Rapid City, SD, for Appellees Geren and The Army National Guard.

Before WOLLMAN, EBEL ¹ and COLLOTON, Circuit Judges.

EBEL, Circuit Judge.

This case requires us to determine whether the Feres doctrine, which generally bars judicial review of military decision-making, precludes us from hearing a Title VII suit brought by a “dual-status” National Guard technician, whose position was both military and civilian in nature. While Colonel Nancy Wetherill was initially granted a waiver of mandatory retirement from her military position, that waiver was later revoked. As a result, she was forced to quit her civilian position as a dual-status technician, and she was unable to obtain the full Civil Service pension attendant to the civilian aspect of that

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position. Wetherill brought suit under Title VII, alleging that the revocation of her military waiver constituted impermissible discrimination based on sex and/or national origin. The district court ² dismissed the action, holding that Wetherill's complaint was non-justiciable under the Feres doctrine.

On appeal, Wetherill presses two arguments. First, she argues that the Feres doctrine does not apply at all to dual-status National Guard technicians, by operation of a 1997 amendment to 10 U.S.C. § 10216 addressing funding for such positions. Second, she argues that, even if Feres applies to dual-status technicians generally, the district court applied the improper standard to her case and thus prematurely dismissed her action. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the decision of the district court.

BACKGROUND

Nancy Wetherill is a Japanese-American woman. ³ She began working for the South Dakota Army National Guard in 1974, was commissioned as an officer on July 4, 1977, and was promoted to her highest rank of Colonel on July 1, 1999. As for the events giving rise to this litigation, Wetherill was employed as a “dual-status” National Guard technician, which meant that she was paid as a civilian employee under the Civil Service system, but her job required her at all times to be an officer of the National Guard, and she worked in uniform. See 10 U.S.C. § 10216(a); 32 U.S.C. § 709(b).

Under 10 U.S.C. § 14507(b), National Guard Colonels who have not been recommended for promotion to a higher rank are required to retire from the military after 30 years of service. This statute thus sets an officer's Mandatory Retirement Date (“MRD”). Wetherill's MRD was July 31, 2007. Under the regulations of the Civil Service Retirement System, however, Wetherill would not qualify for a full retirement annuity unless she continued working in her civilian capacity as a dual-status National Guard technician until December 31, 2010, which she could not do once she was retired from the military.

Faced with this predicament, Wetherill asked Major General Michael A. Gorman, then the Adjutant-General ⁴ of the South Dakota Army National Guard, for a waiver of her MRD so that she could continue working until her Civil Service annuity matured. General Gorman granted this request on May 10, 2007, and his decision was approved by the National Guard on July 18 of that year. In September 2007, however, General Gorman retired, and Brigadier General Steven R. Doohen was appointed Adjutant-General of the South Dakota National Guard. In January 2008, General Doohen asked the National Guard to revoke the waiver given to Wetherill; in February, he informed Wetherill of this decision and that it was being made for “force management” reasons. (Apl't App. at 5 [Complaint ¶ 15].) The National Guard approved General Doohen's request, and Wetherill's MRD was re-set to July 31, 2008 (at this point, she was already serving beyond her original statutory MRD pursuant to the May 2007 waiver).

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Wetherill believed that General Doohen's revocation of her MRD waiver was motivated by sex and/or national origin discrimination, and complained both informally and formally to the Office of Equal Opportunity and Civil Rights of the National Guard Bureau. Between May and July 2008, Wetherill was reassigned to a building where she worked in a room by herself, and was given work “that no Colonel would ever be required to perform.” (Apl't App. at 5-6 [Complaint ¶ 19].) According to Wetherill's complaint, no other technician in the South Dakota Army National Guard has had an MRD waiver revoked, and she is the only Asian-American female officer and the only woman to have served at her level in the South Dakota Army National Guard. Wetherill did indeed retire from the Guard on July 31, 2008, and thus had to relinquish her technician job as well. See 32 U.S.C. § 709(b) (requiring that dual-status technicians must “[b]e a member of the National Guard”).

After her appeal was denied by the National Guard Bureau, Wetherill filed this action in the District of South Dakota against the Secretary of the Army, the Army National Guard, General Doohen and another general, and the South Dakota Army National Guard (collectively, “the Guard”), alleging discrimination and retaliation based on sex and/or national origin, in violation of Title VII. 42 U.S.C. § 2000e-2(a)(1) (barring discrimination “against any individual ... because of such individual's race, color, religion, sex, or national origin....”). All of the defendants moved to dismiss the complaint under a variety of theories. The district court granted the motions to dismiss, holding that Wetherill's complaint was nonjusticiable under the Feres doctrine, and thus that the court lacked subject-matter jurisdiction to hear the case. Wetherill v. Geren, 644 F.Supp.2d 1135, 1142 (D.S.D.2009). Wetherill timely appealed to this court. We review the district court's grant of a motion to dismiss for lack of subject-matter jurisdiction de novo. Ark. Blue Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d 812, 816 (8th Cir.2009).

DISCUSSIONI. Genesis and Development of the Feres Doctrine

In order to understand the gravamen of Wetherill's arguments on appeal, a brief detour is in order to assess the origins and history of the Feres doctrine. In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court held that members of the armed forces who sustained injury while on duty due to the negligence of other servicemembers or the military itself could not sue the United States under the Federal Tort Claims Act (“FTCA”). The Court framed its decision in terms of statutory interpretation. While there was no language in the FTCA expressly excluding servicemember claims against the military-and indeed, some of the statutory language could have been construed as implicitly endorsing such liability ⁵ -the Court nevertheless interpreted

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the statute in concert with “the entire statutory system of remedies against the Government.” Id. at 139, 71 S.Ct. 153. In the Court's view, the FTCA was a narrow exception to the otherwise prevailing norm of sovereign immunity. Congress enacted the statute in order to “transfer[ ] the burden of examining tort claims to the courts,” and thus stem the “steadily increas[ing]” tide of private bills in Congress demanding relief for individuals who had suffered harm at the hands of the government. Id. at 140, 71 S.Ct. 153. But, the Court noted, “Congress was suffering from no plague of private bills on the behalf of military and naval personnel, because a comprehensive system of relief had been authorized for them and their dependents by statute.” Id. Thus, in the Court's view, compensation for harms suffered by servicemembers while on duty was not within Congress' purpose in passing the FTCA.

The Court then turned to the language of the FTCA providing the test for liability: “The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances....” Id. at 141, 71 S.Ct. 153 (quoting 28 U.S.C. § 2674). This test did not create a new species of liability; it merely adopted the standards of tort law as applied to private individuals. And because “[w]e know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving,” the petitioners in the case could point to no analogous circumstance that a private individual might face that would give rise to liability; private individuals, after all, cannot maintain armies. Id. Thus, the FTCA could not create liability in the United States for a harm which no private party could inflict under tort law.

In reaching its conclusion, the Court distinguished one of its earlier precedents, Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), in a manner that sheds light on the governing standard under Feres. In Brooks, a soldier who was injured when a government-owned and - operated vehicle collided with a car in which he was a passenger, was allowed to recover from the United States under the FTCA. Feres, 340 U.S. at 146, 71 S.Ct. 153. Brooks could do so, however, only because he had been on furlough at the time of the accident: “[t]he injury to Brooks did not arise out of or in the course of military duty.” Id. at 146, 71 S.Ct. 153. In contrast, Feres was killed when his barracks caught on fire while he was on...