Major Frank Matreale v. State of New Jersey Department of Military & Veterans Affairs National Guard of the United StatesMajor Frank Matreale v. State of New Jersey Department of Military & Veterans Affairs National Guard of the United States
Lead Opinion
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),
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 non-moving party to prevail. Kay Berry, Inc. v. Taylor Gifts, Inc.,
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
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.
Although only alluded to in Feres, the Supreme Court subsequently expounded upon the underlying rationale for the in-tra-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,
In Chappell v. Wallace,
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,
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,
Later, in Jorden v. National Guard Bureau,
IV.
In this case, there is no dispute that the alleged harm suffered by Matr-eale 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 exclusive state law matter. In that vein, Matreale argues that, as a state guardsman, serving under Title 32, he is a state employee suing other state employees, also serving under Title 32, under state law. Accordingly, his argument goes, the issue of immunity is one which should be addressed and resolved solely under state law; specifically, the
Matreale’s entire position rests on his attempt to differentiate between state guardsmen serving pursuant to Title 10, on the one hand, and those serving pursuant to Title 32, on the other. Matreale contends that the Feres doctrine applies only to state guardsmen who have been mobilized to active duty under Title 10, but does not apply to guardsmen serving under Title 32, except to the extent those guardsman are engaged in drills or field training under 32 U.S.C. § 502(a)
Neither party in this case questions the fact that Matreale was serving under orders issued pursuant to 32 U.S.C. § 502(f)(1), and had not been mobilized under Title 10, at the time of the conduct in question.
Matreale’s argument is without merit for several reasons. First, the essential premise of his entire case, i.e., that, for immunity purposes, he was solely a state employee, is invalid. Rather, the District Court clearly was correct in holding that Matreale’s Title 32 status at the time of the alleged incidents rendered him a federal employee for Feres purposes.
First, at the time of the conduct in question, Matreale was serving under orders issued pursuant to federal law, specifically, 32 U.S.C. § 502(f). His appointment as an officer was pursuant to the sixteenth clause of section 8, article I of the Constitution, and he began full time service with the national guard in December of 1992 on orders issued pursuant to 32 U.S.C. § 502(f). As the District Court correctly noted, these orders rendered Matreale, at all relevant times, a full time guardsman in the National Guard of the United States serving in accordance with the Active Guard Reserve Program.
In addition, this Court previously has applied the Feres doctrine to a guardsman serving under Title 32. In Loughney v. United States,
Like Loughney, Matreale was a Title 32 serviceman in active guard reserve duty status and his alleged damages arose out of, or in the course of activity incident to, his military service. The fact that Loughney sued under the FTCA whereas Matreale is suing only under state law is of no consequence. As we recognized in Jaf-fee, supra, the Feres doctrine applies to suits founded on state law as well as to those founded on federal law because state law based suits have the same potential for undermining military discipline as do federal claims. Jaffee,
Matreale’s arguments in support of his position that his status as a Title 32 guardsman rendered him a state rather than a federal employee likewise are unpersuasive. First, his reliance on Perpich v. Department of Defense,
Matreale misconstrues the Per-pich holding as implying that unless a state guardsman has been called to active duty under Title 10 and thereby loses his status in the state guard, he at all other times remains solely in state, not federal, status. But the plain holding of the Court is to the contrary. Under the holding in Perpich, Matreale attained dual status as a member of both the National Guard of the United States and the NJANG when he accepted his commission as an officer. 32 U.S.C. §§ 305 and 307; N.J.S.A. 38A:7-4. And while under Perpich a state guardsman loses his state status when he is called to active duty under Title 10, there is nothing in Perpich from which one reasonably may infer, as Matreale argues, that a Title 32 guardsman “loses”, or does not have, federal status unless he is mobilized under Title 10 or engaged in drills or field training under 32 U.S.C. § 502(a). On the contrary, the Supreme Court in Perpich stressed that its holding that a state guardsman is stripped of his state status when he is called to active duty under Title 10 “merely recognizes the supremacy of federal power in the area of military affairs.” Perpich,
Matreale also cites to Phillips v. State Department of Defense, 98 N. J. 235,
For the foregoing reasons, we agree with the District Court’s determination that Matreale and his supervisors, all of whom were serving under orders issued pursuant to 32 U.S.C. § 502(f) at the time of the conduct in question, were serving in a federal capacity and therefore were federal “employees” for purposes of the intra-military immunity doctrine.
Our conclusion that Matreale and his supervisors were federal (or at best dual federal-state) employees, at the time of the conduct in question is dispositive of his remaining argument that state law, rather than the Feres doctrine, should determine the question of immunity.
To whatever extent state law may apply to govern the relations between soldiers or others in the armed forces and persons outside them or nonfederal government agencies, the scope, nature, legal incidents and consequence of the relation between persons in service and the Government are fundamentally derived from federal sources and governed by federal authority.
As stated above, at the time of the conduct giving rise to his suit, Matreale and his supervisors were members of the military serving in a federal capacity under orders issued pursuant to Title 32. As a result, federal authority as set forth in Feres and its progeny, rather than state law, governs the issue of immunity. And because the alleged harm suffered by Matreale arose from, or in the course of activity incident to, his military service in the NJANG, his claims for damages are
Our holding in this case is consistent with, and a logical corollary to, our prior precedent in the area of intra-military immunity. We previously have applied the Feres doctrine in Loughney to a Title 32 guardsman suing under federal law. We also have applied the doctrine in Jaffee to a federal active duty serviceman suing under state law. It is both reasonable and appropriate to apply the doctrine to Title 32 guardsman suing under state law and thereby to make immunity co-extensive for all dual-status national guardsmen. A concern for the disruption of the unique relationship of military personnel to their superiors and to other military personnel that likely would result if one could hale another into court as a result of activity incident to military service is equally as compelling in the context of lawsuits brought by Title 32 guardsmen, whether serving under § 502(a) or § 502(f), as it is in the context of lawsuits brought by Title 10 guardsmen.
Accordingly, for the foregoing reasons, the District Court’s finding that Matreale’s damage claims founded on state law are barred by the Feres doctrine of intra-mili-tary immunity doctrine will be affirmed.
V.
The District Court also held that Matr-eale’s requests for promotion and other injunctive relief arising from his negative officer evaluations are non-justiciable. Matreale did not challenge this aspect of the District Court’s decision in his brief on appeal and, therefore, he has waived it. Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp.,
VI.
For the foregoing reasons, we agree with the District Court that there are no genuine issues of material fact in the above matter and that the NJDMVA is entitled to judgment as a matter of law. Accordingly, we will affirm the decision of the District Court granting summary judgment in favor of the NJDMVA.
Notes
. That section provides in pertinent part:
Under regulations to be prescribed by the Secretary of the Army or Secretary of the Air Force ... a member of the National Guard may-
(A) without his consent, but with the pay and allowances provided by law; or
(B) with his consent, either with or without pay and allowances;
be ordered to perform training or other duty in addition to that prescribed under subsection (a) [required drills and field training.]
. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
. Title 32 U.S.C. § 502(a) provides in pertinent part:
Under regulations to be prescribed by the Secretary of the Army or the Secretary of the Air Force ... each company, battery, squadron, and detachment of the National Guard, unless excused by the Secretary, shall
(1) assemble for drill and instruction, including target practice, at least 48 times each year; and,
(2) participate in training at encampments, maneuvers, outdoor target practice, or other exercises, at least 15 days each year.
. Matreale’s unit subsequently was mobilized to active duty in Iraq pursuant to Title 10 on August 19, 2004. However, at the time of the conduct at issue in this case, Matreale was serving under Title 32.
. Matreale argues that the NJLAD would not provide immunity for guardsman but suggests in any event that it is for the New Jersey Supreme Court, not this Court, to determine the immunity question under state law. Matreale therefore alternatively seeks certification of this question to the New Jersey Supreme Court. In light of our holding that Matreale is a federal employee for immunity purposes and that this case is governed by federal law, the issue of certification of the question to state court is moot.
Concurrence Opinion
concurring.
I join in its entirety the excellent opinion of my esteemed colleague, Judge Diamond. In light of the purposes of the doctrine as well as its application by the Supreme Court and several courts of appeals — including this Court — the majority has aptly shown why we will apply intra-military immunity to bar the damages claims presented here. I write separately only to note that this Court, again and again, has dutifully applied the Feres doctrine in spite of perceived injustice and possibly in opposition to the actual text of the FTCA, but noting that we are bound to do so unless and until the Supreme Court or Congress tells us otherwise.
The doctrine of intra-military immunity remains ripe for reconsideration by the Supreme Court in light of the questionable foundation upon which it stands. Prior panels of this Court, of other courts of appeals, and numerous commentators have questioned the soundness of the Feres doctrine. A long line of Supreme Court cases, beginning with Feres v. United States, have been decided in seeming opposition to Congress’ clearly expressed intent in the FTCA as to the scope of intra-military immunity. Feres and its progeny ought to be reexamined.
. See Richards v. United States,