689 F. Supp. 531 | D. Maryland | 1988
MEMORANDUM
Plaintiff Veronica Deekinger (“Decking-er”), a Captain in the United States Army Reserve, filed this action against Major Wilfred Castro-Reyes (“Castro”), a military neurologist who treated her at Walter Reed Army Medical Center (“Center”). She alleges that Castro defamed her both orally and in written reports by stating that she was unfit for military service. Pending before the Court is defendant’s Motion for Summary Judgment, Paper No. 15
Plaintiff alleges jurisdiction based on diversity, claiming that she is a resident of Maryland and that defendant is a resident of Washington, D.C. Defendant points out that he is a resident of Maryland, but that jurisdiction is proper because, had plaintiff filed her complaint in state court, he would have petitioned to remove it pursuant to the federal officer’s removal statute. 28 U.S.C. § 1442(a)(1). The Court relies on the facts that Castro made the allegedly defamatory statements on the premises of the Center while he was on duty and that Castro’s superior officer directed him to write the report containing the allegedly defamatory statements to find, for the purposes of § 1442(a)(1), that defendant has sufficiently demonstrated that he was acting within the scope of his duty to make removal proper.
Factual Background
Plaintiff was assigned to Active Duty Training Status (“ADT”) for 108 days beginning May 21, 1986. Plaintiff’s Exhibit F, at p. 4
On August 29, 1986, Deckinger was permitted to go home from the hospital on convalescent leave. On September 5, 1986, her orders for her 108 days on ADT automatically expired. On September 10, 1986, she telephoned the Center to arrange for her discharge. She was advised that, to get discharged, she must come to the Center. Upon her arrival, she was advised that she needed to request her discharge from the medical officer who handled her case, Castro. Castro felt strongly that she should not be discharged, and that she
Afterwards, as directed by his superior officer, Colonel Carl H. Gunderson (“Gunderson”), defendant wrote a narrative clinical summary. Defendant’s Exhibit A at par. 7; Affidavit of Gunderson, attached as Defendant’s Exhibit B at par. 4. In this summary, defendant repeated that plaintiff was suffering from a personality disorder and a conversion reaction, and that she was unfit for service. Plaintiff’s Exhibit F at p. 6-8. An MEBD which included Castro, Gunderson, and Captain Jonathan P. Hosey recommended on November 26, 1986 that Deckinger be referred to a PEB. Plaintiff’s Exhibit F at p. 12. At the time of the filing of these motions, Deckinger was still a soldier in the Army Reserves.
Standard for Summary Judgment
The entry of 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). On defendant’s motion, the Court views all facts and draws all inferences in the light most favorable to plaintiff. U.S. v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). However, Deckinger must demonstrate the existence of genuine issues of material fact to avoid the entry of summary judgment against her. Celotex Corporation v. Catrett, 477 U.S. 317, 106 5.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Meadow Limited Partnership v. Heritage Savings and Loan, 639 F.Supp. 643, 651 n. 9 (E.D.Va.1986).
Discussion
Defendant makes two arguments in support of his motion for summary judgment. First, he argues that he is immune from suit because of the Feres doctrine, or intramilitary immunity, developed by the Supreme Court in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) and Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). Defendant’s second argument is that, as he was acting within the outer perimeter of the scope of his official duties as a federal officer, he is absolutely immune from state common-law tort liability. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Wallen v. Domm, 700 F.2d 124, 125 (4th Cir.1983).
Feres Doctrine and Intra-Military Immunity
In the Feres case, the Supreme Court concluded that the sovereign’s waiver of immunity in the Federal Tort Claims Act, Title 28 U.S.C. § 2671 et seq., did not create liability of the United States to those in the military “where the injuries arise out of or in the course of military service.” Feres, supra, 340 U.S. at 146, 71 S.Ct. at 159, a holding recently reaffirmed. United States v. Johnson, — U.S.-, 107 S.Ct. 2063, 2069, 95 L.Ed.2d 648 (1987). The basis of the Feres doctrine is that civilian courts should not second-guess military decisions, see Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), cited in United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 3042, 87 L.Ed.2d 38 (1985), and that such suits might impair military discipline, see Chappell, supra, 462 U.S. at 300, 304, 103 S.Ct. at 2367, cited in Shearer, supra, 473 U.S. at 57, 105 S.Ct. at 3042. In Chappell, the Supreme Court formulated the concept of intra-military immunity, holding that military personnel may not maintain suit for consti
Plaintiff does not dispute any of the above law. She instead argues that her alleged injury, Castro’s defamation, did not arise out of nor was it incident to her military service. Whether an injury arises out of or is incident to service is a matter of fact. Woodside v. United States, 606 F.2d 134, 141 (6th Cir.1979) cert. denied 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980); Hass v. United States, 518 F.2d 1138, 1141. (4th Cir.1975) The Court finds that the undisputed facts reveal that the alleged defamation arises out of and is incident to plaintiff’s military service.
Plaintiff attempts to avoid this result by arguing, first, that when her ADT orders expired she was not in any military status, that she was not under any specific orders, that she was not receiving military pay, and that the Army had no power to evaluate her fitness for service. Parker v. United States, 611 F.2d 1007 (5th Cir.1980). She relies on the line of cases starting with Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949),
Plaintiff also argues, not only that the Army had no jurisdiction to evaluate her, but that the wrong person in the Army initiated the evaluation. Further, by stating that she was unfit, Castro in his role as evaluating physician and in his role as MEBD member violated AR635-40, Chapter 4, Section 4-9(c) and AR40-3, Chapter 7, Section 7-1. For the Court to determine liability based upon the level of the Army’s or Castro’s compliance with Army regulations would require exactly the type of second-guessing of military decision-making precluded by the Feres and intra-military doctrines.
Because the Court finds that plaintiff’s claim of defamation arises out of and is incident to her service, defendant is entitled to intra-military immunity. Accordingly, the Court will enter summary judgment in his favor.
Because the Court determines that Castro is immune from suit because of the Feres doctrine, it need not address his claim for immunity from state law tort claims as enunciated in Barr, supra, 360 U.S. 564, 79 S.Ct. 1335.
The Court will incorporate its rulings in a separate Order.
. This number is the docket entry number in the official court file.
. The test for removal under § 1442(a)(1) is much easier to satisfy than the test to establish official immunity. Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 1815, 23 L.Ed.2d 396 (1969). The Court’s preliminary determination that removal would be proper under § 1442(a)(1) is not a ruling on defendant's immunity claim under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).
. Plaintiff attached several exhibits to Plaintiff’s Answer and Opposition to Defendant’s Motion for Summary Judgment, Paper No. 17. Exhibit F is a series of official Army documents relating to plaintiff's military service. As she did not number the pages or documents, the Court has taken the liberty of doing so, and will refer to its own page numbers.
. Plaintiff does not dispute that this diagnosis was made after consultation with and examination by other members of the Psychiatry Service at the Center.
. Defendant’s exhibits are attached to his Motion for Summary Judgment, Paper No. 15.
. Defendant states that he advised plaintiff and her parents that the staff had concluded that plaintiff was unfit for service. Defendant's Exhibit A at Par. 6.
. According to Footnote 2 of Defendant’s Reply Memorandum, Paper No. 18, plaintiff received notification on January 14, 1987 from the PEB that the MEBD had concluded that she was unfit for service, citing Deckinger Deposition Exhibit No. 4. The Court has no access to this document, and thus cannot verify this information.
. To create a dispute of fact, as she must to avoid summary judgment, plaintiff points to a series of army regulations which she argues that Castro violated, and she also disputes vigorously that she has a personality disorder or a conversion reaction. The Court finds that these factual disputes are not material to the issue of whether her alleged injury was incident to or arose out of her military service. This determination does not depend on actions taken by the medical staff but upon plaintiff’s status within the military at the time of the injury. Although plaintiff disputes the legal significance of the facts determinative of her status, claiming that she was not on any duty after her release from ADT, she does not dispute that, after her discharge from the Center she continued in the Reserves. Nor does she dispute that she went to the Center because of her illness during her ADT status; that during her stay at the Center her treating physicians, including Castro, determined that plaintiff suffered from psychiatric problems; and that these physicians, including Castro, determined that she should be referred to a MEBD.
. See e.g. United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954) (discharged serviceman permitted to bring suit against Veterans Administration hospital for negligent treatment); Mills v. Tucker, 499 F.2d 866, 867 (9th Cir.1974) (family of serviceman killed in a traffic accident while on furlough allowed to maintain suit); Stephan v. United States, 490 F.Supp. 323, 328 (W.D.Mich, S.D. 1980) (reservist injured during recreational activities at a lake on a military reservation permitted to maintain suit).