*2 FISHER, Before SMITH and Circuit DIAMOND, Judges, Judge.* District * Diamond, Judge The Honorable Gustave Senior Dis- trict for the Western District of Penn- the same employ summary judgment
OPINION District Court analysis required of the DIAMOND, Judge. District any are issues whether there determine Matreale, a commissioned Major Frank the non- that would enable fact material Army National New officer *3 Kay Berry, Inc. prevail. moving party is- (NJANG) under orders Guard Inc., 421 F.3d Taylor Gifts, 502(f)(1),1 to 32 U.S.C. pursuant sued Cir.2005). Summary judgment appro- of New Superior Court brought suit genuine issue as “there is no priate when Jersey Depart- New against Jersey moving and ... any material fact Affairs Military and Veterans ment of as a matter judgment to a party is entitled NJANG, (NJDMVA), of the overseer 56(c). At the sum- Fed.R.Civ.P. of law.” for retaliation damages to recover all stage, view evidence mary judgment Against Law Discrimina- the New in a all reasonable inferences and consider (NJLAD). Guard of National tion non-moving favorable to light most was and the case intervened States Inc., Liberty Lobby, Anderson v. party. court to the United from state removed 242, 255, 477 U.S. S.Ct. the District for District Court (1986). L.Ed.2d 202 in- doctrine of Jersey. Applying New immunity first enunciated tra-military
Feres v. United II. (1950), the District L.Ed. ongoing July judgment in favor summary granted provided to investigation, Matreale official of the NJDMVA. Milliken, supervi- his direct Lt. Kent Col. the Feres us is whether The issue before NJANG, supporting a statement sor in the immunity bars a that she guardsman’s a accusation female law claims for raising suit by an sexually NJANG had harassed been from, or in the course arising injuries ultimately Major. inquiry An Sergeant to, military service activity incident in fact was that concluded accuser national guard brought against a sexually harassed. under Title 32. We Matreale, the Dis- on contending and will affirm that based that it does hold summary judgment. investiga- grant trict role the sexual harassment Court’s tion, NJANG officers and other Milliken I. a course of engaged in retali- subsequently alia, him, including, inter jurisdiction ation pur- had The District Court 1346(b) performance and oth- negative § § evaluations and 1331. suant to 28 U.S.C. based accusa- disciplinary er measures jurisdiction pursuant appellate We have improper in an he had plenary engaged tions that § 1291. We exercise relationship with the superior-subordinate grant the District review over consent, (B) with or designation. with his either without sitting by sylvania, allowances; pay pertinent provides part: section That perform or be ordered to regulations prescribed be Under prescribed duty in addition to Army Secretary Secretary (a) [required drills and field subsection ... a member of the National Air Force training.] may- consent, (A) pay but with without his law; provided and allowances victim, sought tra-military immunity female sexual harassment doctrine and de- redress the suit referred above. being predicated scribed upon: in granting The District sum- peculiar special [t]he relationship of NJDMVA, mary judgment in favor of the superiors, the soldier to his the effects of Matreale, serving found that the maintenance of such suits on disci- pline, and the extreme results purposes and concluded that his state law might obtain if ... suits were allowed claims for were barred under the for ... negligent given orders negli- intra-military immunity Feres doctrine of gent acts committed in the course of injuries sought because the for which he military duty.... *4 of,
recovery arose out
or were incurred in
Brown,
110,
United
v.
112,
States
348 U.S.
to,
activity
course of
incident
his mili-
141,
(1954).
143,
75 S.Ct.
Although only
ley,
alluded to in
483 U.S.
107 S.Ct.
97
(1987) (Feres
Supreme
subsequently expounded
L.Ed.2d 550
“incident to ser-
upon
underlying
in-
equally applicable
rationale for the
vice” test
in Bivens
Agents
Supreme
v.
against
Bivens Six Unknown Named
Court authorized suits
feder-
Narcotics,
388,
the Federal Bureau
403 U.S.
al
officials whose actions violate
individu-
1999,
(1971),
91
rights.
S.Ct.
154 officers, equal- against mili against by serviceman brought cases by brought action to a 1983 ly applicable civilians); States United tary officers in a state technician 2063, full-time civilian a Johnson, 107 S.Ct. U.S. 481 v. military offi- (1987) guard against national (barring FTCA L.Ed.2d 648 95 deci- light cers by widow civilian defendant against claim Economou, 438 U.S. mission); in Butz v. sion in rescue killed of serviceman (1978), which L.Ed.2d 895 Shearer, 105 S.Ct. States United claims and (1985) that Bivens unequivocally held (barring L.Ed.2d 38 S.Ct. treated as identical claims are to be arising States United against claim FTCA We observed by immunity purposes. off-duty serviceman murder from lay- Court “was Chappell serviceman); Eng’g Aero Stencel another barring rule general ing down U.S. Corp. v. United against supe- military personnel actions (barring 52 L.Ed.2d violations, constitutional rior officers for indemnification claim in- fact-specific authorizing a rather than contrac government brought Jorden, F.2d at 108. quiry.” a National filed negligence suit tor in a mission). on a Guardsman *5 IV. ratio- the
Following case, dispute there is no In this cases, defining scope the in in those nale by alleged harm suffered Matr- recog- that the too have we of the Feres doctrine from, activity in the course of military disci- eale arose impact on adverse nized the the military service in incident his judicial review of inherent pline NJANG, allegedly re avoid since his sought to and have military orders superior of his from the conduct F.2d sulted v. United it. In Jaffee disciplining him. evaluating in (3d Cir.1981), that the officers we held the application of Feres straightforward A to bar a federal extends Feres in evolved the tort doctrine as intentional state law serviceman’s therefore, Circuit, this would Court and Army supervisors. We claim the conclusion reached appear to dictate consequences potential two recognized dam that Matreale’s injuries: their the District Court for service permitting suits claims are barred military per- ages willingness of on the effect immunity. of their su- the directions sonnel to follow chilling effect the concomitant periors and overwhelming weight the Pressed civil- being called into concern of that the however, foregoing precedent, federal the discharge on may have ian court straightfor- seeks to avoid such Matreale military authori- decision-making duties “federally created” application ward signifi- particular at 1232. Of Id. ties. convert by attempting to Feres doctrine us, before presently matter cance to the law mat- an exclusive state this case into “[sjuits founded on we noted Jaffee that, as vein, argues ter. In that for un- potential law have same state serving under Title guardsman, a state federal military discipline as dermining state employee suing other he is a state claims.” Id. tort serving under Title employees, also Accordingly, argu- state law. Later, Bu Jorden National immunity one (3d Cir.1986), 99, 104-05 goes, the issue reau, and resolved be addressed which should reasoning Chappell, determined law; specifically, solely claims under state barring Bivens supra, and, therefore, question should be whether NJDMVA were employees state sub- NJLAD, is entitled to under the ject only to state law on rather than one addressed to federal law immunity.
in the form of the Feres doctrine.
Matreale’s argument
is without
position
Matreale’s entire
rests on his
First,
merit for several reasons.
the es
attempt
to differentiate between state
case, i.e.,
sential premise
that,
of his entire
guardsmen
serving pursuant to Title
immunity purposes,
he was solely a
hand,
serving pursuant
one
and those
employee,
Rather,
is invalid.
to Title
on the other. Matreale con-
District
clearly
Court
was
correct
hold
only
tends that the Feres doctrine applies
ing that Matreale’s Title 32 status at the
guardsmen
who have been mobi-
time
alleged
incidents rendered him
lized to active
but
federal
purposes.
apply
guardsmen
does not
un-
serving
First, at the time of the
in ques-
conduct
32, except
der Title
to the extent
those
tion,
Matreale was
under orders
guardsman are
engaged
drills or field
law,
pursuant
issued
specifically,
502(a)3
§
under 32 U.S.C.
at the
502(f).
appointment
His
as an
conduct,
alleged
time of the
because
officer was pursuant
to the sixteenth
guardsmen serving under Title 32 are
clause of section
article I of the Consti-
state,
federal,
opposed
employees.
tution,
began
and he
full time service with
Neither
party
questions
this case
the national
guard December of 1992 on
fact that Matreale
under or-
orders
pursuant
issued
to 32 U.S.C.
ders
issued
to 32 U.S.C.
502(f).
As the District
correctly
502(f)(1),
and had not been mobilized
*6
noted,
Matreale,
these orders rendered
at
at the time of the conduct
times,
all relevant
full
guardsman
time
in
question.4 Likewise,
in
dispute
there is no
the National Guard of the United States
that all
the superior
implicated
officers
in
serving
accordance with the Active
in
alleged retaliatory
behavior
Guard Reserve Program.
Matreale also were
under orders
502(f).
addition,
issued
to 32 U.S.C.
Fi-
previously
this Court
nally,
dispute
there is no
that at
applied
the time
guardsman
Feres doctrine to a
of the conduct in question, neither
Matr-
under Title 32.
In Loughney v.
superiors
eale nor his
engaged
Cir.1988),
were
in United
157
supremacy
military
remaining argument
law,
over
af-
nizes federal
that state
rather
doctrine,
fairs.
than the Feres
should determine
immunity.5
We need look
Phillips
also cites to
v. State
no further than
unequivocal
Feres for an
Defense, 98 N.
Department
J.
There,
refutation
argument.
of this
(N.J.1985). This case too is of
A.2d 318
point
Court stressed the
that the
position.
Phillips,
little value to his
“relationship between the Government and
Jersey Supreme
New
Court held that a
members of its armed
‘distinctly
forces is
injured
national
while
”
federal
in character’
and that “without
employee
remained an
of the state and was
exception,
relationship military per-
govern-
not an
of the federal
sonnel to the Government has
gov-
been
ment,
precluded applica-
which would have
Feres,
erned
federal law.”
340 U.S. at
Jersey
tion of the New
com-
143-44,
(citation
at
pensation
mentioning
law.
While
omitted). The court explained:
in passing,
the court did not
Feres
To whatever extent state law
rely
may apply
on the
rationale
Feres
because “the
govern
statutory
relations between soldiers
interplay between the New Jer-
or others in the
per-
armed forces and
sey
compensation law and the
sons outside them
govern-
or nonfederal
Jersey
pres-
New
Tort Claims Act was not
agencies,
nature,
scope,
legal
ent
Feres.”
Our conclusion that alleged Matreale and his because the harm suffered (or from, supervisors were federal at best dual Matreale arose or in the course of federal-state) to, employees, activity at the time of the incident service in question NJANG, conduct in dispositive is of his the his claims for are argues Jersey 5. Matreale that the NJLAD question would not cation of this to the New provide immunity guardsman suggests Supreme light holding for but Court. In of our that any in event immunity is for the New ais federal for Court, Court, Supreme purposes governed by not this to determine and that this case is law, immunity question law. federal of the issue of certification alternatively Matreale therefore seeks certifi- to state court is moot. aspect challenge this of immunity Matreale did not intra-military barred on decision his brief the District Court’s doctrine. and, therefore, he has waived it. appeal is consistent in this case Our N. Am. v. Foster Int’l Laborers’ Union of prior our corollary with, logical and a (3d Cir. 26 F.3d Corp., Wheeler intra-military im- of in the area precedent 1994). the District Court’s Accordingly, applied have previously munity. We in favor summary judgment grant to a Title 32 Loughney for request in- as to Matreale’s NJDMVA law. We suing under guardsman affirmed. junctive relief also is the doctrine applied have also Jaffee suing un- duty serviceman active a federal VI. reasonable and It both law. is der state the doctrine Title apply appropriate reasons, agree foregoing For law under state and suing are that there no with the District Court for immunity co-extensive thereby to make fact the above issues of material genuine A con- guardsmen. national all dual-status is and that the NJDMVA entitled matter unique of the rela- disruption for the cern of law. Accord- judgment as matter to their su- military personnel tionship of the we will affirm the decision ingly, military personnel and to other periors summary judg- granting District Court if one could hale likely would result in favor of the NJDMVA. activity a result into court as another equally SMITH, concurring. Judge, service as
incident to Circuit context of in the lawsuits compelling opinion join entirety the excellent I guardsmen, whether by Title 32 brought Diamond. my colleague, Judge esteemed 502(f), as it serving under of the doctrine light purposes brought Title context of lawsuits Supreme application by the well as its guardsmen. appeals and several courts Court —in- reasons, foregoing Accordingly, for the majority aptly has cluding this Court—the finding that Matreale’s the District Court’s why apply we will shown law are damage claims founded pre- claims to bar the of intra-mili- Feres doctrine barred only separately here. I write sented will be immunity doctrine affirmed. tary again, again that this and note spite dutifully applied Feres doctrine V. oppo- perceived injustice possibly FTCA, but Matr- sition to the actual text of also held that Court The District are bound to do so unless noting that we promotion requests eale’s Congress and until the Court negative arising from injunctive relief non-justiciable. tells us otherwise.6 are evaluations officer States, pronouncement in Feres since the Court’s v. United 6. See Richards ”); 140 F.3d ("It .... O’Neillv. United is because Feres too C.J., (Becker, (3d Cir.1998) statement sur that mem- curious results produces such often (“I rehearing) petition urge repeatedly expressed have denial of this court bers of it.”); grant certiorari and Richards misgivings about *9 Feres.”); 564, Cir.1999) (3d (Ren- Loughney v. States, United reconsider States, 565 180 186, (3d Cir.1988) ("We, dell, J., petition 839 F.2d 188 dissenting a denial of a from court, banc) ("I Supreme the district are constrained urge the like rehearing en Supreme Court and must decisions of the and revisit what grant Court to certiorari has that Court ex- nearly fifty years adhere to the during view wrought have
159
The tension between the decision in
even
the United States or based
FTCA);
Shearer,
United
on the
Feres
States v.
and
is obvious. As
the FTCA
Jus-
52,
3039,
473 U.S.
105
his oft-cited United
S.Ct.
87 L.Ed.2d
tice Scalia stated
38
(1985) (barring an
claim
dissent,
FTCA
of a soldier
States v. Johnson
exception
kidnapped and murdered when off-base
“Congress specif-
illustrates that
2680©
soldier).
off-duty by
and
another
considered,
ically
provided
and
what
it
for,
thought
special
needful
require-
of intra-military
doctrine
military.
ments
There was no
ripe
remains
reconsideration
proper
Supreme
basis for
[the
Court]
Supreme
light
Court in
questionable
supplement
i.e.,
congres-
to revise —that
upon
foundation
which it stands.
Prior
—
681, 693,
disposition.”
sional
481 U.S.
107 panels
Court,
of this
of other courts of
(1987)
2063,
(Scalia,
S.Ct.
e.g., Chappell v.
296,
462 U.S.
103
(1983) (Feres
2362,