Petition for Writ of Certiorari — Mackey v. United States

= Supreme Court, U.

G FILED

No. —_00128 9 FEB9 2001

ureice OF THE CLERK

In the

Supreme Court of the Anited States

DOROTHY MACKEY,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Or CERTIORARI

To Tue Unitep States Court oF APPEALS

For Tue Sixta Circuit

PETITION FOR WRIT OF CERTIORARI

JOANNE JOCHA ERVIN * Mark E. Woicik

135 W. Dorotuy LANE THE JOHN MARSHALL

Suite 101 Law SCHOOL

Dayton, Onto 45429-1477 315 S. PLymMoutuH Court

(937) 294-8420 Cuicaco, ILLINnois 60604-3639

- (312) 987-2391

Counsel for Petitioner

* Counsel of Record

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001 \

49 p

QUESTIONS PRESENTED

Does the doctrine set forth in Feres v. United States,

340 U.S. 135 (1950), bar state law claims of sexual

harassment and intentional infliction of emotional

distress, where varied and persistent acts of

harassment took place in a military context but did not

arise Out of (a) combatant activities; (b) foreign

activities; or (c) any other acts listed in 28 U.S.C.

§ 2680 as an exception to the waiver of sovereign

immunity under the Federal Tort Claims Act?

Should the Feres doctrine extend to protect sexual

harassment, when the underlying acts of sexual

harassment are specifically prohibited by the military

and do not advance any military or governmental

purpose?

If the Feres doctrine does bar a claim of sexual

harassment by uniformed military personnel in

peacetime, should the Feres doctrine be overruled?

PARTIES TO THE PROCEEDINGS

The caption contains the names of all parties (Dorothy

Mackey and the United States of America). Dorothy

Mackey, the Petitioner, is an individual and has no corporate

affiliations. The United States has been substituted for two

individual defendants, each of whom is or was a military

officer when named in the complaint as originally filed.

TABLE OF CONTENTS

QUESTIONS PRESENTED ................... i

PARTIES TO THE PROCEEDINGS ............ ii

a es eee ae eee iii

pe es oe Vv

apheresis es gil cd PEPER CEO COT ee 1

UN als SER UR Se 5 isd Sk occ wk |

STATUTORY PROVISIONS INVOLVED ......... 1

STATEMENT OF THECASE ................ 4

a. Procedural History ............... 4

b. stmtoment Of Pacts ............... 6

c. Statement of Lower Court

WONG 4 63 v0 4G cutinanuse Le il

REASONS FOR GRANTING THE WRIT ......... 11

‘ The Court of Appeals’ Application of

the Feres Doctrine to Bar Petitioner’s

Claims of Sexual Harassment and

Intentional Infliction of Emotional

Distress Is In Conflict With This

Court’s Feres Jurisprudence and the

Plain Language of 28 U.S.C. § 2680 ... 11

2. Allowing the Litigation Would

Support the Military’s Own

Efforts to Rid Itself of Sexual

EE a aN SE yao he caw 18

3. If the Court of Appeals

Correctly Applied the Feres

Doctrine to Bar Mackey’s

Sexual Harassment Claims,

This Court Should Revisit the

Wisdom of the Doctrine In

Light of the Strong National

Policy Against Sexual

I rn se a ee 20

CONCLUSION............. Diey pass pee 27

APPENDIX

Appendix A

Court of Appeals Opinion,

ET SE oe 6 ows bed oe Kees la

Appendix B

District Court Order, July 16,1999 ........ 10a

TABLE OF AUTHORITIES

Cases

Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388 (1971) ...---

Block v. Neal,

460 U.S. 289 (1983) ......-

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) ......

Burlington Industries v. Ellerth,

524 U.S. 742 (1998) ....--

Chappell v. Wallace,

462 U.S. 296 (1983) ....--

Dalehite v. United States,

346 U.S. 15 (1953) ....--

Faragher v. City of Boca Raton,

524 U.S. 775 (1998) ....--

Feres v. United States,

340 U.S. 135 (1950) .....-

Fleming v. United States Postal Serv.,

186 F.3d 697 (6th Cir. 1999)

Gonzales v. Department of Army,

718 F.2d 926 (9th Cir. 1983)

Gutierrez de Martinez v. Lamagno

Fae Ca Gat CHES 6 6 0h 6 ic 8S bd KRESS 5

Hodge v. Dalton, 107 F.3d 705 (9th Cir.),

cert. denied, 522 U.S. 815 (1997) .......... 22

Indian Towing Co. v. United States,

SOO Ua GE GRISD ccc cet chen seeveies 13

Johnson v. Alexander,

572 F.2d 1219 (8th Cir.),

cert. denied, 439 U.S. 986 (1978) ....... 22, 24

Jones v. United States,

112 F.3d 299 (7th Cir.), cert. denied,

- eth Bl, Pe esr re or ee 13

Mackey v. Milam,

154 F.3d 648 (6th Cir. 1998), cert. denied,

~ eis & ft, eas 5, 19, 20

Meritor Sav. Bank v. Vinson,

Set US. SE Cee a ke ewes ieee 21

Randall v. United States,

95 F.3d 339 (4th Cir. 1996), cert. denied,

519 U.S. 1150, reh’g denied,

TIP U.S. BO occa wee ka dalheewss 22

Rayonier, Inc. v. United States,

BOS ks SOP ee Fe ec eke iecaeees 15, 17

Roper v. Department of Army,

S32 F.26 B67 GAG Cir. ISB7) ow ccc cccccs 22

Santiago-Ramirez v. Secretary of the Dept. of Defense,

984 F.2d 16 (ist Cir. 1993) ....---+-+eee> 18

Sheridan v. United States,

487 U.S. 392 (1988)... .- ee eee eee ees 13

Smith v. United States,

196 F.3d 774 (7th Cir. 1999),

cert. denied, _US.__.,

120 S.Ct. 1676 (2000) .....--++>: -.. 3,0

Stencel Aero Eng’g Corp. v. United States,

431 U.S. 666 (1977)... ..- eee eee eee 13, 24

Taber v. Maine,

67 F.3d 1029 (2d Cir. 1995) ....----+ees: 25

Truman v. United States,

26 F.3d 592 (Sth Cir. 1994) .....-- ++ ee ees 17

United States v. Brown,

348 U.S. 110 (1954)... 2... - ee eee eee 12

United States v. Johnson,

481 U.S. 681 (1987) ......---- see eee 12, 19

United States v. Muniz,

374 U.S. 150 (1963)... .--- eee ee eter? 12

United States v. Shearer,

473 U.S. 52 (1985) ...-----++- 12, 13, 18, 19

United States v. Stanley,

483 U.S. 669 (1987) .....----++5> 14, 24, 26

Constitutional Provisions

ee on es cvecuvansaans 15

Statutes and Regulations

I I eee oC yeu wees oan 22

eS ng wt Ls oe ee ewe 22

TS PCS ete cer rer ee Cre 11

ii ob bx baws ened een 11

Ben bos 6 oR REO 11

Oe Be i kk ee dec dabens 1, 2, 4, 16, 27

Ss I sn oo on ckdcadsanbeawes 11

SE ee is 35 5 0 aes onde 11

ee eee 60s. s fo eaten dete 11

ere ree errr ee 4,27

RE ok i ko o's 2 dee ae ees 27

SU Oe See ois even d45 9a 4,11

Rh sk ck area es i, 1, 11, 16

Oe UE ovo s o.s 6s a eORSRS Se ee 15

ee nso 6s a aes 14, 16, 17, 18

ok 0 ct aoe eee 15, 16

SEU De Cs a vase cheno tS 16

Title VII of the Civil Rights Act of 1964,

4 SE eager 21

29 C.F.R. § 1614.103(d)(1) (2000) .............. 22

COR Be ot oss ot ei he Athi ke 22

Se Sw NR Aber Foren rere 5

Ww Ww. r Authoriti

Darpino, Eroding the Feres Doctrine --

A Critical Analysis of Three Decisions,

ere A ken 6 coe see tere eckes 25

Greenlaw & Port, Military Versus Civilian Judicial

Handling of Sexual Harassment Cases,

44 Lab. L. J. 366 (1993)... ee eeeee 23, 24

Holzer, The Endless Ordeals of Jacqueline Ortiz:

A Desert Storm Soldier’s Unsuccessful

Attempt to Recover for a Sexual Assault by

Her First Sergeant,

24 N. M. L. Rev. $1 (1994)... 2... e eee. 24

Hornbrook & Kirschbaum, The Feres Doctrine:

Here Today - Gone Tomorrow?,

33 Air Force L. Rev. 1 (1990) ......... 25, 26

Mattern, Lutz v. Secretary of the Air Force:

At the Edge of Feres?,

36 Air Force L. Rev. 161 (1992) .......... 25

Perlstein, 7DRL and the Feres Doctrine,

43 Air Force L. Rev. 259 (1997) .......... 26

Rogers, A Proposal for Combating Sexual

Discrimination in the Military:

Amendment of Title VII,

78 Calif. L. Rev. 165 (1990) ............. 22

Seidelson, From Feres v. United States to

Boyle v. United Technologies Corp. :

An Examination of Supreme Court

Jurisprudence and a Couple of Suggestions,

32 Dug. L. Rev. 219 (1994) ...... \ oe i as at 25

Spak & Tomes, Sexual Harassment in the Military:

Time for a Change of Forum,

47 Clev. St. L. Rev. 335 (1999) ........... 20

ix

Tomes, Feres to Chappell to Stanley: Three Strikes

and Servicemembers Out,

oo UU, Maem. L. BV. SS CIGD) ow. eds 25

Note, Boyle v. United Ti

and the Government Contractor Defense:

An Analysis Based on the Current Circuit

Split Regarding the Scope of the Defense

(authored by Sean Watts),

40 Wm. & Mary L. Rev. 687 (1999) ....... 16

1 Secretary of the Army's Senior Review Panel

Report on Sexual Harassment 12 (1997) ..... 19

Legislative History

Women in the Military: Hearings Before the

Military Personnel and Compensation

Subcomm. of the House Comm. on

Armed Services, 100th Cong., 1st and

2d Sess. 28, 136 (1987 and 1988) .......... 23

DOROTHY MACKEY respectfully petitions this

Court for a writ of certiorari to review the judgment and

decision of the United States Court of Appeals for the Sixth

Circuit, entered on September 12, 2000.

OPINIONS BELOW

The opinion of the Court of Appeals, Mackey v.

United States, 226 F.3d 773 (6th Cir. 2000) (per Norris,

Circuit J., with Nelson, Circuit J. and Matia, District J.) is

reproduced in Appendix A. The district court’s unpublished

Order (a one-page decision substituting the United States as

defendant and entering judgment on behalf of the United

States) (Susan B. Dlott, J.) is reproduced in Appendix B.

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit affirming the district court’s grant of

judgment to the United States was filed September 12, 2000.

App. A. On November 30, 2000, under No. 00A480, Justice

Stevens granted petitioner’s application for an extension of

time to file this petition until February 9, 2001. Rules 13.1,

13.3, 13.5, and 30.1 (1999 rev.). Petitioner invokes this

Court’s jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The Federal Tort Claims Act

28 U.S.C. § 2680

The provisions of this chapter and section 1346(b) of this title

shall not apply to-

(a) Any claim based upon an act or omission of an

employee of the Government, exercising due care, in the

l

execution of a statute or regulation, whether or not such

Statute or regulation be valid, or based upon the exercise or

performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal agency

or an employee of the Government, whether or not the

discretion involved be abused.

(b) Any claim arising out of the loss, miscarriage, or

negligent transmission of letters or postal matter.

(c) Any claim arising in respect of the assessment or

collection of any tax or customs duty, or the detention of any

goods or merchandise by any officer of customs or excise or

any other law-enforcement officer.

(d) Any claim for which a remedy is provided by

sections 741-752, 781-790 of Title 46, relating to claims or

suits in admiralty against the United States.

(e) Any claim arising out of an act or omission of any

employee of the Government in administering the provisions

of sections 1-31 of Title 50, Appendix.

(f) Any claim for damages caused by the imposition

or establishment of a quarantine by the United States.

(g) [Repealed.]

(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of

process, libel,- slander, misrepresentation, deceit, or

interference with contract rights: Provided, That, with regard

to acts or omissions of investigative or law enforcement

officers of the United States Government, the provisions of

this chapter and section 1346(b) of this title shall apply to any

claim arising, on or after the date of the enactment of this

proviso, out of assault, battery, false imprisonment, false

arrest, abuse of process, or malicious prosecution. For the

purpose of this subsection, “investigative or law enforcement

officer” means any officer of the United States who is

empowered by law to execute searches, to seize evidence, or

to make arrests for violations of Federal law.

2

(i) Any claim for damages caused by the fiscal

operations of the Treasury or by the regulation of the

monetary system.

(j) Any claim arising out of the combatant activities

of the military or naval forces, or the Coast Guard, during

time of war.

(k) Any claim arising in a foreign country.

4{l) Any claim arising from the activities of the

Tennessee Valley Authority.

(m) Any claim arising from the activities of the

Panama Canal Company.

(n) Any claim arising from the activities of a Federal

land bank, a Federal intermediate credit bank, or a bank for

cooperatives.

STATEMENT OF THE CASE

This petition arises from the uncertainty created by the

extension of the Feres doctrine to prohibit intentional tort

claims not specifically mentioned in the carefully delineated

exceptions to the broad waiver of tort liability created by the

Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.

a. Procedural History

The petitioner, Dorothy Mackey, is a former captain

in the United States Air Force. While she was in the service,

her superior officers, Colonel David W. Milam and

Lieutenant Colonel Travis E. Elmore, allegedly subjected her

to various forms of sexual harassment from the fall of 1991

until the fall of 1992. She brought suit in the Court of

Common Pleas of Montgomery County, Ohio in December

1994, based on numerous acts of verbal harassment and

physical contact. Among other allegations, her complaint

included two. counts for intentional infliction of emotional

distress.

After the case had proceeded in the Ohio state court

for some 15 months, the U.S. Attorney certified, under the

Westfall Act, 28 U.S.C. § 2679(d)(2), that Milam and Elmore

were acting “within the scope of their employment” and

authorized representation of them. The United States of

America was then substituted for Milam and Elmore and on

May 1, 1996, the case was removed to the U.S. District

Court for the Southern District of Ohio.

The district court, assuming the truth of the allegations

of the complaint, determined that sexual harassment was

outside the scope of employment and ruled that the United

States had been improperly substituted for Milam and Elmore.

4

Exercising its authority under Gutierrez de Martinez v.

Lamagno, 515 U.S. 417 (1995), the district court remanded

the case to the Ohio state court. Following the government’s

motion for reconsideration under Fed. R. Civ. P. 59(e), the

district court declined to revisit its “scope of employment”

holding but vacated the remand order to permit discovery on

the facts underpinning the “scope” issue. Following motion

by the United States, the district court on April 22, 1998,

certified the “scope of employment” issue for interlocutory

appeal pursuant to 28 U.S.C. § 1292(b).

On appeal, a divided panel of the Sixth Circuit on

September 10, 1998, reversed, finding that Milam and

Elmore had been acting within the scope of their employment.

Mackey v. Milam, 154 F.3d 648 (6th Cir. 1998). Mackey’s

petition for rehearing was denied, Judge Cole dissenting, by

order dated October 27, 1998. On motion by Mackey, who

was then the appellee, the Sixth Circuit on December 14,

1998, stayed its mandate to permit filing of a petition for writ

of certiorari.

Mackey’s first petition for writ of certiorari, filed on

March 26, 1999, challenged the Attorney General’s

certification under the Westfall Act. That petition presented

questions relating to interlocutory order jurisdiction and

whether resort to state or federal law determines the “scope

of employment” question. This Court denied Mackey’s first

petition on June 24, 1999. Mackey v. Milam, 527 U.S. 1035

(1999).

On July 16, 1999, the district court upon mandate

determined that Milam and Elmore were acting within the

scope of their employment, substituted the United States for

them, and entered judgment on behalf of the United States

based upon the Feres doctrine. App. B. Petitioner timely

appealed the district court’s order.

On appeal, the Sixth Circuit on September 12, 2000,

affirmed the judgment of the district court. Mackey v. United

States, 226 F.3d 773 (6th Cir. 2000). On November 30,

2000, Justice Stevens extended the time for filing this petition

until February 9, 2001.

b. Statement of the Facts

This case involves varied forms of serious and

pervasive sexual harassment by military superiors, harassment

that the victim could not control until she, lacking any other

corrective option, abandoned a promising military career to

escape her tormentors.

Dorothy Mackey ascended through the ranks to

become a captain in the United States Air Force. After duty

in Mississippi and Germany and a work-study assignment at

the Grumman Corporation, Captain Mackey was assigned to

Wright Patterson Air Force Base (“Wright-Patt”) in Dayton,

Ohio, where she was a headquarters squadron section

commander. ~While at Wright-Patt, she was under the

authority of Colonel David W. Milam, chief of staff and

inspector general for the aeronautical systems division, and

Lieutenant Colonel Travis E. Elmore, assistant chief of staff

and assistant inspector general.

While she served as squadron section commander,

Captain Mackey was subjected to sexual harassment by both

Milam, retired shortly after the lawsuit was filed, and

Elmore. The harassment, coming from her high-ranking

superiors, took the forms of sexual innuendoes about her

body, verbal harassment, inappropriate bodily touching, and

6

unrelenting sexual advances by her direct superiors. Milam

and Elmore through their actions and powerful positions

created a physically threatening and humiliating work place

from which Captain Mackey could not escape. This

eventually destroyed the ability of Captain Mackey, a once

honored nominee for “Federal Woman Supervisor of the

Year,” to serve the United States Air Force and her country.

For example, shortly after her hiring into the section

commander position at Wright-Patt, Elmore, her direct

superior, expressed an interest in Captain Mackey’s breasts.

During one meeting, Captain Mackey observed Elmore

looking at her breasts and smiling. Captain Mackey, realizing

that her nipples were erect from the cold, turned red and

crossed her arms over her chest. Elmore sniggered and said

that the erection was a “natural reaction.” Even though

Captain Mackey told Elmore that his comment was

inappropriate and that she did not appreciate it, Elmore

continued to stare, grin, and chuckle. Over a period of many

months, Elmore continued to stare at Captain Mackey’s

breasts during meetings. He commented upon Captain

Mackey’s weight, body, and legs and complimented her

appearance. He expressed interest in her legs and small waist

and on one occasion put his hands around her waist as if to

measure it. During one meeting, Elmore ordered Captain

Mackey to stand and turn around, and then commented

approvingly on her body and appearance by stating, “Very

nice, very nice.” When seated across from her at a table in

his office, Elmore routinely pushed his chair far enough back

and away from the table so that he could, and did, look under

the table at her legs.

In October of 1991, Elmore’s leering and commenting

escalated into touching when he took it upon himself on the

first of several occasions to massage Captain Mackey’s neck

7

during a meeting. In early 1992, following an injury to

Captain Mackey’s leg, Elmore during a meeting moved from

his desk to where Captain Mackey was sitting and touched her

leg from knee to ankle as if he were conducting a physical

examination.

In the late spring or early summer of 1992, while

Captain Mackey was seated in his office, Elmore began to

conduct a quasi-pelvic exam upon her. He got out of his

chair, walked over to Captain Mackey, placed both of his

hands on her stomach and pressed down. He then began to

move his hands down the front of her uniform pants, with his

thumbs up and fingers wrapped around her back. He

continued to move his hands downward, pressing in on

Captain Mackey’s abdomen, despite her protests. When he

got to Captain Mackey’s pubic area, he said that she should

“see a physician. During the entire time, Mackey was

alarmed, extremely nervous, and sweating.

Elmore also persisted in attempts to use his position of

power over Captain Mackey to advance an unwanted intimate

relationship beyond their professional relationship. He invited

her to join him for lunch and for dancing. In August of 1992,

he telephoned Captain Mackey’s home around 10:00 p.m.

from a local nightspot and insisted that she meet him there.

Captain Mackey begrudgingly relented when Elmore said that

he had her resume with him and that he would review it with

her, something that she had been trying to get him to do for

some time. Captain Mackey realized that Elmore, as her

superior, held the strings to her future career in his hands.

Elmore abused this power by using it to advance his sexual

interests in Captain Mackey. While the two of them were

seated at the bar, Elmore pulled her stool closer to his and

rubbed his hand up and down her back, dropping his hand

below her waist on several occasions. After being invited by

him to slow dance, Captain Mackey said she had to leave.

Elmore walked her to her car and, by leaning against the

driver’s door, prevented her from leaving for approximately

30 minutes, during which time he expressed his desire to

follow her home and come in for a nightcap.

Colonel Milam pulled the web of sexual harassment

spun by Lieutenant Colonel Elmore even tighter. As

Elmore’s direct superior, Milam not only implicitly approved

of the sexual harassment of Captain Mackey but also took part

in it himself. Captain Mackey alleged that Milam touched her

shoulders, arms and forearms when speaking to her and,

when seated, would place his hand on hers or Squeeze her

arm. Milam appeared to be both pleased and amused when

Captain Mackey blushed or startled at this attention. He even

told her on one occasion that he knew his touching bothered

her. Milam discussed sexually charged topics in Captain

Mackey’s presence, including a description of the “female

entertainment” at a recent bachelor party. He also looked at

her body in a way that made her uncomfortable, leered at her

legs, and told her that he liked to see her in her skirted

uniform. In conversation, he repeatedly stood so close to her

that she could feel his breath on her face and neck. He often

commented upon her perfume and make-up while standing

close. Milam startled her by latching the lock on his office

door when she met with him. He demeaned Captain Mackey

in front of others by talking about the need to “ jump on her

butt” and commenting upon her physical appearance. In

addition, Milam habitually slapped her on the back hard

enough to throw her off balance.

Between September of 1991 and August of 1992,

Captain Mackey made numerous attempts to end the torment

that Milam and Elmore were inflicting upon her and forcing

her to endure. When Captain Mackey reached out for support

9

to a friend who was a civilian employee, Milam ordered her

to cease contact with that person. Another time, she

discreetly approached Milam’s secretary and described the

abuse and harassment. She reported Elmore to Milam. She

reported Milam to Elmore. She also told the chief to a

Wright-Patt general, Milam’s superior officer, about the

difficulties that she was having with Milam.

By mid-spring of 1992, Captain Mackey was

becoming increasingly anxious and apprehensive around

Milam and Elmore. She lost her appetite and her weight

dropped from five to nine pounds each week. She was jumpy

and trembling and unable to sleep for more than a few hours

at atime. She experienced panic attacks, outbursts of crying,

and chest pains.

Unable to cope any further with the sexual harassment,

and viewing an early out as the only way to deal with the

daily physical, mental, and emotional turmoil, Captain

Mackey applied on May 29, 1992 for early separation from

the Air Force. Her application was approved with September

29, 1992 being scheduled as her last day of service.

Following her discharge, Captain Mackey was

hospitalized as an in-patient at a psychiatric facility for major

depression with underlying anxiety syndrome. She has been

treated at two Veterans Administration facilities for post-

traumatic stress syndrome. At the time the complaint was

filed, Captain Mackey was still experiencing generalized

anxiety, dizziness, crying bouts, feelings of being

overwhelmed, night awakening, startling, difficulty in

concentrating, fear of men, withdrawal, disassociation, and

loss of interest in family and life activities. Following her

separation from the Air Force, Captain Mackey sought

10

reinstatement from the Air Force Board for Correction of

Military Records.

C. Statement of Lower Court Jurisdiction

The district court’s jurisdiction was originally invoked

by removal from an Ohio state court on certification of the

United States Attorney under the Westfall Act, 28 U.S.C. §

2679(d)(2). Upon substitution of the United States for Milam

and Elmore, the district court would have had jurisdiction

under 28 U.S.C. § 1346(b)(1). The certification was

successfully challenged in the district court, but that court’s

order was reversed by the Sixth Circuit which had

interlocutory jurisdiction under 28 U.S.C. § 1292(b). In

Captain Mackey’s petition for a writ of certiorari, this Court’s

jurisdiction was invoked under 28 U.S.C. § 1254(1).

Following denial of the petition that challenged the

substitution of the United States for the individual defendants,

the district court had jurisdiction under 28 U.S.C. §§ 1331,

1441(a), 1441(b), 2679(d)(2) and 1346(b)(1). On this appeal

after substitution of the United States, the Sixth Circuit had

jurisdiction under 28 U.S.C. § 1291.

REASONS FOR GRANTING THE WRIT

1. The Court of Appeals’ Application of the Feres

Doctrine to Bar Petitioner’s Claims of Sexual

Harassment and Intentional Infliction of Emotional

Distress Is In Conflict With This Court’s Feres

Jurisprudence and the Piain Language of 28 U.S.C.

§ 2680.

Under the Feres doctrine, “the Government is not

liable under the Federal Tort Claims Act for injuries to

11

servicemen where the injuries arise out of or in the course of

activity incident to service.” Feres v. United States, 340 U.S.

135, 146 (1950). Feres, and all of the cases decided under

the Feres doctrine by the U.S. Supreme Court, have involved

allegations of negligent acts. See United States v. Johnson,

481 U.S. 681, 686 (1987); see also United States v. Shearer,

473 U.S. 52, 57 (1985) (extreme results might obtain if suits

were allowed for “negligent orders given or negligent acts

committed”) (citing United States v. Muniz, 374 U.S. 150,

162 (1963)). The Feres doctrine is, at heart, a bar to any

negligence claim against the United States where either the

victim or the negligent party is a uniformed member of the

armed services.

Feres itself was a consolidation of three cases that

arose under the FTCA, each of which alleged negligence by

the military in a non-combat context. The Feres plaintiff

alleged negligence in the quartering of a serviceman who died

in a barracks fire; the Jefferson plaintiff alleged medical

negligence following the removal of an 18 by 30-inch towel

marked “Medical Department U.S. Army” from the abdomen

of a serviceman who had undergone surgery prior to

discharge; the Griggs plaintiff alleged medical negligence in

the death of a serviceman at the hands of an Army surgeon.

340 U.S. at 136-37. The Feres court stated that “[t]he

common fact underlying the three cases is that each claimant,

while on active duty and not on furlough, sustained injury due

to negligence of others in the armed forces.” /d. at 138.

Subsequent Supreme Court decisions reaffirmed the

Feres doctrine’s bar of negligence claims to military

personnel. In United States v. Brown, 348 U.S. 110, 110-11

(1954), a veteran had filed suit for a medical malpractice

injury from an operation at a Veteran’s Administration

Hospital. Although the surgery was necessary to correct an

12

injury he had sustained while he was stili on active duty, the

medical malpractice injury was sustained when he was no

longer in the service. The dissent noted that if the veteran

had still been in the service, Feres would have barred his

medical malpractice claim. /d. at 113 (Black, J. , dissenting).

In Indian Towing Co. v. United States, 350 U.S. 61, 62

(1955), the plaintiff alleged negligence in the operation of a

lighthouse by the U.S. Coast Guard, which failed to warn that

the lighthouse beam was not functional, Causing a ship to go

aground. In Stencel Aero Eng’g Corp. v. United States, 431

U.S. 666, 667 (1977), a negligence and third-party

indemnification action, a military F-100 fighter pilot sued the

United States and the manufacturer of an emergency eject

system that had malfunctioned. In Johnson, the wife of a

deceased Coast Guard helicopter pilot alleged negligence on

the part of Federal Aviation Administration officials who,

after assuming positive radar control over her husband’s

helicopter, permitted it to crash. 481 U.S. at 682-83. In

Sheridan v. United States, 487 U.S. 392, 394-96, 403 (1988),

the plaintiff alleged negligence in his injury by a drunken

naval medical aide who fired several rifle shots into his

automobile and who was not prevented from doing so by

three navy corpsmen who did nothing to stop him, although

they knew that the aide was drunk and brandishing a weapon.

Even this Court’s Feres-like cases do not give the

Feres doctrine reach beyond claims of negligence. United

States v. Shearer, 473 U.S. 52, 54-55 (1985), often is cited

as a Feres case, see e.g., Smith v. United States, 196 F.3d

774 (7th Cir. 1999), cert. denied, 120 S.Ct. 1676 (2000)

(citing Jones v. United States, 112 F.3d 299 (7th Cir.), cert.

denied, 522 U.S. 865 (1997), but it is not. The complaint of

the Shearer plaintiff, the mother of an Army serviceman who

was kidnapped and murdered by another serviceman, asserted

negligence but this Court looked behind the pleadings and

13

determined that, since battery caused the death of the

plaintiff's son, the claim was expressly barred by the

“assault” and “battery” exceptions to the waiver of Federal

tort liability. Shearer, 473 U.S. at 55. Thus, even though

this Court said that the Shearer result was consistent with the

rationale of Feres, this Court relied not on the Feres doctrine

but, rather, on the statutory bar to suit provided by 28 U.S.C.

§ 2680(h).

Nor is the Feres doctrine’s bar to negligence actions

broadened by Chappell v. Wallace, 462 U.S. 296 (1983), or

United States v. Stanley, 483 U.S. 669 (1987), each of which

involved a Constitutional claim under Bivens v. Six Unknown

Federal Narcotic Agents, 403 U.S. 388 (1971). The Court of

Appeals erroneously concluded that Feres had been applied to

bar claims of constitutional violations in Chappell. See

Mackey v. United States, 226 F.3d at 775. While it is true

that this Court in Chappell and Stanley found, in Feres, the

“special factors” which mitigated against the allowance of a

Bivens claim based upon the United States Constitution, this

Court also noted that it might have felt freer to compromise

military concerns under the FTCA, which explicitly

authorizes certain suits against the Government. Stanley, 483

U.S. at 681-82. Because a Bivens action is inferred from the

Constitution, the judiciary must exercise greater caution when

the Constitution directs Congress to make rules for the armed

forces. Id. at 682.

Although petitioner’s claims did not sound in

negligence, the Sixth Circuit misapplied the Feres doctrine to

bar them. The Sixth Circuit misapplied this Court’s prior

precedents by stretching the Feres doctrine beyond its roots

in negligence to bar non-Constitutional intentional tort claims,

which are not explicitly excluded by 28 U.S.C. § 2680.

it

Contrary to the thrust of this Court’s Feres

jurisprudence, the Court of Appeals expticitly found that the

Feres doctrine stems from the exception for claims “arising

out of the combatant activities of the military or naval forces,

or the Coast Guard, during time of war.” See 226 F.3d at

775 (citing 28 U.S.C. § 2680(j) and Fleming v. United States

Postal Serv., 186 F.3d 697, 699 (6th Cir. 1999)).

This was wrong for two reasons. First, root for the

Feres doctrine in the “combatant activities” exception is

unlikely given this Court’s admonition against reading

“exemptions into the Act beyond those provided by -

Congress.” Rayonier, Inc. v. United States, 352 U.S. 315,

320 (1957). Congress is presumed to mean what it says and

thus the explicit exception for combatant activities during time

of war implicitly excludes, from exception to the broad

waiver of tort liability, claims arising out of non-combatant

activities of the military. This is particularly true where the

Constitution mandates that Congress, and not the judicial

branch, has the power “To make Rules for the Government

and Regulation of the land and naval Forces” as well as the

power “To make all Laws which shall be necessary and

proper for carrying into Execution the foregoing Powers . .

..” U.S. Const. art. 1, § 8.

Root in the “combatant activities” exception is

unlikely for a second reason as well. Because the Feres

doctrine developed in the context of negligence, the

discretionary function exception to the waiver of tort liability,

see 28 U.S.C. § 2680(a), is more consistent with the Feres

case law. For example, in Dalehite v. United States, 346

U.S. 15 (1953), an action under the FTCA alleging

negligence by Federal agents in the adoption of a post-war

plan to produce and distribute fertilizer grade ammonium

nitrate, in the manufacturing process itself and in the failure

15

to police the loading of the product for shipment by water,

this Court barred the action based upon the discretionary

function exception set forth in 28 U.S.C. § 2680(a). Accord

Boyle v. United Technologies Corp., 487 U.S. 500, 511

(1988); see also Note, Boyle v. United Technologies Corp.

and the Government Contractor Defense: An Analysis Based

on the Current Circuit Split Regarding the Scope of the

Defense, 40 Wm. & Mary L. Rev. 687, 694 (1999).

In contrast to the negligence claims typically barred by

the Feres doctrine are petitioner's non-Constitutional

intentional tort claims arising from the non-combatant

activities of military personnel. The Federal Tort Claims Act

allows civil actions against the government based on the

negligent acts or omissions of its employees, including

members of the military. See 28 U.S.C. §§ 1346(b), 2671,

2674. Dorothy Mackey’s claims of intentional infliction of

emotional distress and sexual harassment are not explicitly

excepted by the plain language of 28 U.S.C. § 2680. First,

her claims do not arise out of the “combatant activities of the

military or naval forces” and thus are not barred by 28

U.S.C. § 2680(j). Second, her claims arose entirely in the

United States, rather than a foreign military post, and are thus

not barred by 28 U.S.C. § 2680(k). Third, her complaint

alleges claims that are not specifically barred by 28 U.S.C. §

2680(h). The first two counts of the complaint, for example,

allege causes of action for intentional infliction of emotional

distress, a cause of action that is distinct from the “assault,

battery, false imprisonment, false arrest, malicious

prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract

rights,” claims which are explicitly barred by 28 U.S.C. §

2680(h).

16

In contrast to the approach suggested by the Sixth

Circuit, the Fifth Circuit had held that a claim of sexual

harassment could be read as stating a claim for intentional

infliction of emotional distress, and that such a claim would

not be barred by section 2680(h) of the Federal Tort Claims

Act. See Truman v. United States, 26 F.3d 592, 596 (Sth

Cir. 1994). In Truman, a male Air Force employee who

worked at the commissary had the right to supervise a woman

who worked for a vendor-stocker: She alleged that he created

a hostile work environment through a series of off-color

remarks, dirty jokes, and untoward winks and nods. The

harassment continued until the woman resigned from her

Position. She then sought compensation for her mental

anguish, anxiety, embarrassment, and humiliation. The

United States moved to dismiss the claims as barred by

several exceptions to the FTCA listed in 28 U.S.C. § 2680(h).

That exception retains sovereign immunity for “[a]ny claim

arising out of assault, battery, false imprisonment, false

arrest, malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract

rights.” Jd.

In reversing the district court’s dismissal of Truman’s

case, the Fifth Circuit noted that there was no justification for

any court to read exemptions into the Federal Tort Claims Act

beyond those provided by Congress. Truman, 26 F.3d at 594

(citing Rayonier, Inc. v. United States, 352 U.S. 315, 320

(1957)). The court found that the numerous sexual insults,

comments, innuendoes and other allegations “could be read

to state a claim for intentional infliction of emotional distress

~ hot a claim for assault, battery, or slander” and determined

that a claim for intentional infliction of emotional distress

based on the conduct described in Truman’s complaint was

not barred by an exception to the FTCA. /d. at 595. Citing

its own list of cases, the Fifth Circuit said that it was

17

following the lead of the First, Second, Eighth, and Ninth

Circuits in holding that a “claim for intentional infliction of

emotional distress does not fall within the definition of a tort

listed in section 2680(h).” Jd. at 597.

In Dorothy Mackey’s complaint, Counts I and II allege

“intentional infliction of emotional distress” against each of

her two supervisors. That tort is not specifically listed in

section 2680(h). Furthermore; even in the case where the

facts of the complaint might give rise to similar torts, the —

partial overlap between two tort actions does not support the

conclusion that if one is excepted under the Tort Claims Act

the other must be as well.” Santiago-Ramirez v. Secretary of

the Dept. of Defense, 984 F.2d 16, 20 (1st Cir. 1993) (citing

Block v. Neal, 460 U.S. 289, 298 (1983)).

In the absence of an explicit statutory bar to claims of

sexual harassment, the Court of Appeals erred by relying

upon the Feres doctrine to deprive petitioner of her day in

court. This Court should grant Mackey’s petition to correct

that grievous error. Furthermore, to the extent that the

decision of the Sixth Circuit and the authorities cited by it

represents a split between it and the decision by the Fifth

Circuit and the authorities cited by it, the Supreme Court

should take this opportunity to resolve those differences.

2. Allowing the Litigation Would Support the

Military’s Own Efforts to Rid Itself of

Sexual Harassment.

The rationales cited by the Sixth Circuit in support of

its extension of Feres to negligent acts do not, in fact, support

that decision. First, the court cited the rationales as stated in

Shearer, 473 U.S. at 57:

18

a. The peculiar and special relationship of the

soldier to his superiors;

b. The effect of the maintenance of such suits

on discipline; and

c. The extreme results that might obtain if

suits under the FTCA were allowed for

negligent orders given or negligent acts

committed in the course of duty.

Mackey, 226 F.3d at 774.

As to the first two rationales, it is disingenuous to

forget that it is not the threat of litigation but rather the

pervasive problem of sexual harassment itself that is the cause

of breakdowns in good order and discipline. See 1 Secretary

of the Army’s Senior Review Panel Report on Sexual

Harassment 12 (1997). As to the third rationale, it boggles

the mind to consider how the Sixth Circuit could misread a

rationale expressly based on liability for negligent acts as

supporting an extension of the Feres doctrine to intentional

acts. It also boggles the mind to ccasider how the Court

could look at those first two elements without considering the

third. Perhaps implicitly recognizing that these Shearer

rationales did not support the decision that it reached, the

Sixth Circuit then immediately listed the rationales stated in

Johnson, 481 U.S. at 689-91, decided just two years after

Shearer:

(1) The distinctively federal character of the

relationship between the government: and

members of its armed forces;

19

(2) The existence of generous statutory

* disability and death benefits; and

(3) The impact of allowing lawsuits, which

would involve the judiciary in sensitive

military matters at the expense of military

discipline and effectiveness.

Mackey, 226 F.3d 775.

As to this set of rationales, the generous benefits are

unavailable to women who are forced out of their military

careers by harassers. The military simply does not have any

effective mechanism for protecting the victims of sexual

harassment or for compensating them for the harms that they

suffer. See, e.g., Spak & Tomes, Sexual Harassment in the

Military: Time for a Change of Forum?, 47 Clev. St. L. Rev.

335, 369 (1999). As to the remaining rationales, a lawsuit

challenging sexual harassment serves to strengthen the

integrity of military discipline and would reinforce the

military’s current policies against sexual harassment.

The Feres doctrine should not shield acts of sexual

harassment, especially when the military is trying to rid itself

of sexual harassment that does not advance any military or

governmental purpose.

3. If the Court of Appeals Correctly Applied the Feres

Doctrine To Bar Mackey’s Sexual Harassment

Claims, This Court Should Revisit the Wisdom of

that Doctrine In Light of the Strong National Policy

Against Sexual Harassment.

Workplace sexual harassment takes a significant toll

on its victims and society as a whole. “It is by now well

20

,

recognized that hostile environment sexual harassment by

supervisors (and, for that matter, co-employees) is a persistent

problem in the workplace.” Faragher v. City of Boca Raton,

524 U.S. 775, 798 (1998). Where a supervisor carries out

the sexual harassment, the problem is compounded because

“the victim may well be reluctant to accept the risks of

blowing the whistle on a superior.” /d. at 803. A victim can

often remove herself from the reach of a co-worker who is

sexually harassing her, but it is more difficult to do so when

the harasser is a supervisor with the unspoken power of

retaliation. See id. at 805. This Court has recognized that

proximity and regular contact can create a Captive pool of

potential victims for an harassing supervisor. See Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 760 (1998).

Most employees in this country, men and women, are

protected from sexual harassment. Under most

circumstances, Title VII affords employees the right to work

in an environment free from discriminatory intimidation,

ridicule and insult. Meritor Sav. Bank v. Vinson, 477 U.S.

57, 65 (1986). An employee may establish a violation of

Title VII by proving that discrimination based on sex has

created a hostile or abusive work environment. /d. at 66.

Supervisors are entrusted with daily supervision of the work

environment and with ensuring a safe and productive

workplace. /d. at 76. A supervisor who violates this trust,

where the violation culminates in a tangible employment

action, creates vicarious liability in the employer. Faragher,

524 U.S. at 808.

Dorothy Mackey, in contrast, had no effective remedy

when her superior officers subjected her to sexual harassment.

First, in 1994, most all of the courts which had

considered the issue had ruled that Title VII of the Civil

21

Rights Act of 1964, 42 U.S.C. § 2000e ef seg., does not

apply to uniformed members of the military. See, e.g., Roper

v. Department of Army, 832 F.2d 247, 248 (2d Cir. 1987);

Gonzales v. Department of Army, 718 F.2d 926, 928-29 (9th

Cir. 1983); Johnson v. Alexander, 572 F.2d 1219, 1224 (8th

Cir.), cert. denied, 439 U.S. 986 (1978). That still appears

to be the case. See, e.g., Hodge v. Dalton, 107 F.3d 705,

707-08 (9th Cir.), cert. denied, 522 U.S. 815 (1997); Randall

v. United States, 95 F.3d 339, 343 (4th Cir. 1996), cert.

denied, 519 U.S. 1150 (1997), reh’g denied, 520 U.S. 1182

(1997); see also 29 C.F.R. § 1614.103(d)(1) (2000) (Part

1614 does not apply to uniformed members of the military

- departments).

Second, Mackey’s “internal” military remedies were

inadequate even if one were to assume that a military victim

of sexual harassment could put her fear of retaliation aside

and blow the whistle on a superior officer. In the early

1990’s, uniformed military personnel had three options for

advancing claims of discrimination. They could: (1) file a

complaint under the Department of Defense Equal

Opportunity Program [32 C.F.R. § 191]; (2) pursue a claim

under Article 138 of the Uniform Code of Military Justice

(“UCMJ”) [10 U.S.C. § 938]; or (3) proceed before the

Board of Correction of Military Records [10 U.S.C. § 1552].

Rogers, A Proposal for Combating Sexual Discrimination in

the Military: Amendment of Title VII, 78 Calif. L. Rev. 165,

182 (1990).

A servicewoman who pursued relief under either the

Equal Opportunity Program or UCMJ Article 138 was

required to use the chain of command by first presenting her

claim to her superior officer who might also be, and in this

case was, the offending officer. /d. at 184. A comparable

procedure by a non-military employer - mandating processing

22

ne cane inc ae micas cmanmnmncinaninnae ena tmmatemmmmnt te,

Re et ee

unreasonable as a matter of law. See Faragher, 524 U.S. at

806-09. Furthermore, superior officers who next reviewed a

claim might give little credence to complaints against their

colleagues brought by lower ranking servicemembers and

many complainants apparently believed that claims processed

in this.manner went unheeded or provoked retaliation.

Rogers, supra, at 184 (citing Women in the Military:

Hearings Before the Military Personnel and Compensation

Subcomm. of the House Comm. on Armed Services, 100th

Cong., Ist and 2d Sess. 28, 136 (1987 and 1988)). Although

the chances of success were slim, Dorothy Mackey tried on

at least five separate occasions to seek such supervisory help

in stopping the varied and inappropriate behavior.

A further problem with the Article 138 approach is

that the UCMJ lacks a specific article explicitly covering

sexual harassment. Greenlaw & Port, Military Versus

Civilian Judicial Handling of Sexual Harassment Cases, 44

Lab. L. J. 368, 368-69 (1993). As a result, the victim of

harassment could make a complaint only obliquely by alleging

a violation of some other provision of the UCMJ. /d. at 369.

The claim under military law, therefore, might be far more

difficult to establish than a comparable claim of sexual

harassment under Title VII (for example, indecent assault

requires proof that acts were done with intent to gratify the

lust or sexual desire of the accused and that the conduct

prejudiced good order and discipline or brought discredit on

the armed forces). The complaint procedure involving the

Board of Corrections of Military Records did not require use

of the chain of command but the various boards of correction

had the authority only to correct an error or remove an

injustice from an individual’s military records. Id. at 184-85.

Petitioner in fact used the board of correction avenue after her

departure from the Air Force, but it could not halt the sexual

harassment.

23

Captain Mackey alleged that her former superior

officers subjected her to persistent and varied forms of sexual

harassment from 1991 until 1992. During this period, the

public was learning about the extent of sexual harassment in

the military, including reports of the now famous “Tailhook”

Convention (where 26 women were molested), and allegations

after the Persian Gulf War of sexual assaults that were

reported but never prosecuted. See, e.g., Greenlaw & Port,

supra, at 368-69; Holzer, The Endless Ordeals of Jacqueline

Ortiz: A Desert Storm Soldier’s Unsuccessful Attempt to

Recover for a Sexual Assault By Her First Sergeant, 24.N. M.

L. Rev. 51, 68 (1994).

The Sixth Circuit invoked the Feres doctrine to bar

claims of supervisory sexual harassment in peacetime. If,

indeed, the Court of Appeals correctly applied this Court’s

Feres jurisprudence to bar petitioner’s claims against the

United States, petitioner respectfully urges this Court to issue

a writ of certiorari in this case to consider whether the

customary adherence to stare decisis is warranted and,

ultimately, whether the Feres doctrine should be overruled as

it applies to claims of sexual harassment by military personnel

in a non-combatant setting.

Members of this Court will recall that the Feres

doctrine has been the subject of considerable criticism,

including Justice Scalia’s characterization of Feres as a

“clearly wrong” decision that has bred “unfairness and

irrationality.” Johnson, 481 U.S. at 703 (Scalia, J.,

dissenting, joined by Brennan, Marshall, and Stevens, JJ.).

See also Stanley, 483 U.S. at 709 (O’Connor, J., concurring

in part and dissenting in part); Stanley, 483 at 686 (Brennan,

J., dissenting, joined by Marshall and Stevens); Stencel Aero,

431 U.S. at 676-77 (Marshall, J., dissenting).

24

J., dissenting, joined by Marshall and Stevens); Stencel Aero, q

431 U.S. at 676-77 (Marshall, J., dissenting). ‘

Lower courts have been critical of the doctrine as

well. They have criticized the shifting rationale for the

doctrine. See, e.g., Taber v. Maine, 67 F.3d 1029, 1032,

1038-44 (2d Cir. 1995) (as amended) (Feres doctrine has gone

off in so many different directions that its precise meaning is

difficult to know); Fleming, 186 F.3d at 699 (the rule may be

simply stated but its application is not so neat). Even courts

which apply the doctrine recognize the harm shielded by it.

See, e.g., Smith v. United States, 196 F.3d 774, 778 (7th Cir.

1999), cert. denied, __ U.S. ___, 120 S.Ct. 1676 (2000)

(sexual assault and harassment is always demeaning, often

permanently scars the victim, renders the workplace less

productive, and deprives the servicemember of the satisfaction

that military service should bring). Because of this

recognition, “the Feres doctrine is slowly eroding.” Darpino,

Eroding the Feres Doctrine - A Critical Analysis of Three

Decisions, 1996 Army Law. 26, 28.

axe

Criticism comes from other camps as_ well.

Academicians and lawmakers have joined in criticizing the

Feres doctrine. See, e.g., Hornbrook & Kirschbaum, The

Feres Doctrine: Here Today - Gone Tomorrow?, 33 Air

Force L. Rev. 1, 18 (1990); Seidelson, From Feres v. United

States to Boyle _v. United Technologies Corp.: An

Examination of Supreme Court Jurisprudence and a Couple

of Suggestions, 32 Dug. L. Rev. 219 (1994); Spak & Tomes,

supra, at 362 and 369; Tomes, Feres to Chappell to Stanley:

Three Strikes and Servicemembers Out, 25 U. Rich. L. Rev.

93, 97-98 (1990) (the Feres doctrine “engendered a storm of

criticism”). Even the military recognizes that the Feres

doctrine has been “a target of widespread criticism,” see

Mattern, Lutz v. Secretary of the Air Force: At the Edge of

25

Perlstein, 7DRL and the Feres Doctrine, 43 Air Force L.

Rev. 259, 259 (1997). Thus, even a Justice who agrees with

the result reached by the Sixth Circuit should vote to accept

this petition for certiorari, if only to assuage the military

lawyers who are apprehensive about invoking this Court’s

own precedent in appropriate cases.

Feres should not bar state law claims for sexual

harassment or intentional infliction of emotional distress.

Personnel who volunteer for military service voluntarily

assume risks of injuries in combat or training. They do not,

however, volunteer to be sexually harassed. Such conduct

“simply cannot be considered a part of the military mission.”

See Stanley, 483 U.S. at 709 (O’Connor, J., concurring in

part and dissenting in part) (criticizing LSD tests).

The time has come for this Court to revisit the Feres

doctrine and determine whether the harm that the doctrine

seeks to prevent is real and whether the harm caused by the

doctrine is greater than any harm prevented. The Feres

doctrine is the only judicially created exception to the Federal

Tort Claims Act (“FTCA”). See Hornbrook & Kirschbaum,

supra, at 18. The lower courts now apply the Feres doctrine

to bar recovery under the FTCA for intentional acts of

murder, rape, and sexual harassment. This could not have

been the intention of Feres, nor is such application in our own

national interest. If the lower courts are misapplying the

Feres doctrine, the error must be corrected. If, however, the

lower courts are correctly applying Feres, the doctrine must

be set aside.

26

CONCLUSION

The Court of Appeals erred in affirming the district

court’s grant of judgment to the United States under Feres

because application of the doctrine to claims of sexual

harassment by military supervisors in a non-combat context

revives sovereign immunity for acts over which sovereign

immunity has been explicitly waived by the Federal Tort

Claims Act, 28 U.S.C. §§ 1346(b), 2671, 2674. For the

foregoing reasons, petitioner Dorothy Mackey prays that this

Court grant her petition for a writ of certiorari to review the

judgment and opinion of the United States Court of Appeals

for the Sixth Circuit.

Respectfully submitted,

/s/

JOANNE JOCHA ERVIN

Counsel of Record

135 W. Dorothy Lane, Suite 101

Dayton, Ohio 45429-1477

(937) 294-8420

MARK E. WOJCIK

The John Marshall Law School

315 S. Plymouth Court

Chicago, Illinois 60604-3639

(312) 987-2391

Counsel for Petitioner

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 99-4022

DOROTHY MACKEY,

Plaintiff-Appellant,

V,

UNITED STATES OF AMERICA,

Defendant-Appellee.

i, a a a a a a

Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 96-00140 - Susan J. Dlott, District Judge.

Argued: August 3, 2000

Decided and Filed: September 12, 2000

Before: NELSON and NORRIS, Circuit Judges; MATIA,

District Judge.”

* The Honorable Paul R. Matia, United States District

Judge for the Northern District of Ohio, sitting by designation.

la

Court of Appeals Opinion - 9/12/00

OPINION

ALAN E. NORRIS, Circuit Judge. This appeal comes

to us for the second time. In 1998, this court reversed an

order of the district court holding that the individual

defendants named in the complaint were not acting within the

scope of their employment. On remand, the district court

entered an order substituting the United States as defendant

and dismissing the case pursuant to the Feres doctrine, which

bars claims under the Federal Tort Claims Act ("FTCA") for

injuries that arise incident to military service. See Feres v.

United States, 340 U.S. 135 (1950).

On appeal, plaintiff Dorothy Mackey maintains that

the Feres doctrine does not apply to claims involving

intentional torts. She also argues that, even if the doctrine is

generally applicable to such claims, it does not apply to this

case.

I.

The circumstances giving rise to this case are fully set

forth in our earlier opinion and we will not restate them in

detail here. See Mackey v. Milam, 154 F.3d 648, 649-50 (6th

Cir. 1998), cert. denied, 119 S. Ct. 2393 (1999). Briefly,

Mackey filed suit in state court against her superior officers

in the United States Air Force, alleging sexual harassment.

When the U.S. Attorney certified that the officers were acting

within the scope of their employment, the case was removed

to federal court and the United States was substituted as

defendant. The district court determined that the officers were

not acting within the scope of their employment, but certified

that decision for interlocutory appeal. We reversed, holding

2a

Court of Appeals Opinion - 9/12/00

that the officers were acting within the scope of their

employment when they allegedly harassed Mackey. See id. at

652.

On remand, the district court entered judgment for the

United States, stating:

This matter is before the Court upon

the mandate of the [Sixth Circuit]. Based upon

such mandate, the Court finds that the

individual defendants were acting within the

scope of their employment. Therefore, the

United States is hereby substituted as the

defendant in this case, and the matter is not

remanded to the Ohio state court. Under the

Feres doctrine, "the Government is not liable

where the injuries arise out of or are in the

course of activity incident to service." Feres v.

United States, 340 U.S. 135, 146 (1950).

Il.

The FTCA waives the United States' liability for tort

claims, subject to certain exceptions. See 28 U.S.C. §§ 2674,

2680. The "Feres doctrine" refers to the Supreme Court's

conclusion that "the Government is not liable under the

Federal Tort Claims Act for injuries to servicemen where the

injuries arise out of or are in the course of activity incident to

service.” Feres, 340 U.S. at 146.

3a

Court of Appeals Opinion - 9/12/00

With respect to the claims that are at issue in this

appeal, Mackey makes two major arguments.' First, she

argues that the Feres doctrine does not apply to intentional

torts. Second, she argues that, even if the Feres doctrine does

apply to intentional torts, it should not be applied under the

circumstances of this case. Neither argument is persuasive.

A. Application to Claims of Intentional Torts

Mackey argues that the Feres doctrine applies only to

claims of negligence. She correctly points out that the

situations addressed in Feres involved claims of negligence.

_ She further maintains that the doctrine is derived from the

first exception to the FTCA, which excludes from suit "[a]ny

claim based upon an act or omission of an employee of the

Government, exercising due care, in the execution of a statute

or regulation." 28 U.S.C.A. § 2680(a) (1994). Mackey's

implicit argument seems to be that if the Feres doctrine is

derived from an exception using terms of negligence, it must

be targeted solely at negligence.

Nothing in Feres suggests that it is derived from the

"due care" exception to the FTCA. Instead, the Feres doctrine

stems from the exception for claims "arising out of the

combatant activities of the military or naval forces, or the

Coast Guard, during time of war." 28 U.S.C.A. § 2680(j);

see Fleming v. United States Postal Serv., 186 F.3d 697, 699

' The only claims at issue in this appeal are those for

intentional infliction of emotional distress, sexual harassment, and

sex discrimination. See 28 U.S.C.A. § 2680(h) (providing that the

FTCA does not apply to "[a]ny claim arising out of assault, battery,

. . . or interference with contract rights").

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Court of Appeals Opinion - 9/12/00

(6th Cir. 1999) (indicating that the Feres doctrine is a

broadening of the section 2680(j) exception).

Furthermore, the rationales behind the doctrine are not

limited to situations of negligence. In United States v.

Shearer, 473 U.S. 52 (1985), the Court identified the

underlying rationales as: (1) the peculiar and special

relationship of the soldier to his superiors; (2) the effects of

the maintenance of such suits on discipline; and (3) the

extreme results that might obtain if suits under the FTCA

were allowed for negligent orders given or negligent acts

committed in the course of military duty. See id. at 57

(quoting United States v. Muniz, 374 U.S. 150, 162 (1963)).

A later case, United States v. Johnson, 481 U.S. 681 (1987),

set out the underlying rationales as: (1) the distinctively

federal character of the relationship between the government

and members of its armed forces; (2) the existence of

generous statutory disability and death benefits; and (3) the

impact of allowing lawsuits, which would involve the

judiciary in sensitive military affairs at the expense of military

discipline and effectiveness. See id. at 689-91.

The Supreme Court has also applied the Feres doctrine

to more than just negligence claims. Specifically, Feres has

been applied to claims of constitutional violations alleged in

Bivens actions. See, e.g., Chappell v. Wallace, 462 U.S. 296,

303-04 (1983) (involving claim of race discrimination). In

Chappell, the Court indicated that:

The special nature of military life - the need

for unhesitating and decisive action by military

officers and equally disciplined responses by

enlisted personnel - would be undermined by

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Court of Appeals Opinion - 9/12/00

a judicially created remedy exposing officers

to personal liability at the hands of those they

are charged to command. Here, as in Feres,

we must be "concern[ed] with the disruption of

‘{t]he peculiar and special relationship of the

soldier to his superiors’ that might result if the

soldier were allowed to hale his superiors into

court.”

Id. at 304. The Court also indicated that Congress had not

provided a damages remedy for claims by military personnel

of violations of constitutional rights. See id. Putting together

the “unique disciplinary structure" of the military and

Congress’ (lack of) activity in the field, the Court held that

military personnel did not have available to them a Bivens-

type remedy against their superior officers. See id. While

Congress’ activity in the field is different with respect to

Mackey's claims as opposed to Bivens-type claims, the

rationale expressed in Chappell regarding the special nature

of military life applies equally to the present case.

There is no authority in the FTCA or Supreme Court

precedent to apply the Feres doctrine only to claims of

negligence and not to claims of intentional torts. We join with

the other United States Courts of Appeals that have addressed

the issue and hold that the Feres doctrine applies to intentional

torts. See Bois v. Marsh, 801 F.2d 462, 471 (D.C. Cir.

1986); Trerice v. Summons, 755 F.2d 1081, 1084-85 (4th Cir.

1985); Stubbs v. United States, 744 F.2d 58, 59-61 (8th Cir.

1984); Mollnow v. Carlton, 716 F.2d 627, 628 (9th Cir.

1983); Jaffee v. United States, 663 F.2d 1226, 1235 (3d Cir.

1981) (en banc); Citizens Nat'l Bank of Waukegan v. United

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Court of Appeals Opinion - 9/12/00

States, 594 F.2d 1154, 1157 (7th Cir. 1979); Rotko v.

Abrams, 455 F.2d 992 (2d Cir. 1972) (per curiam).

B. Application to Circumstances of this Case

Mackey also argues that, even if the Feres doctrine

applies to intentional tort claims, the underlying principles of

the doctrine do not apply to her case. Her argument focuses

on the potential impact to military discipline.

According to Mackey, allowing her suit would not

negatively impact military discipline because the need for

such discipline has never been adequately supported. Despite

her arguments, the Supreme Court has held that military

discipline is a matter of concern and that allowing lawsuits

would impair such discipline. See Shearer, 473 U.S. at 57;

Johnson, 481 U.S. at 690-91.

Mackey also argues that her claims do not implicate

issues of judgment, discretion, or command because the

activities she complains of "simply cannot be viewed as

acceptable in any fashion." She maintains that she is not

challenging any work assignments, discipline, or evaluations,

nor is she challenging her superiors’ authority to give her

orders. Review of the Supreme Court's concerns with respect

to military discipline demonstrates that this case would impact

military discipline. In Shearer, a serviceman was kidnaped

and murdered by another serviceman who had been convicted

of manslaughter while assigned to a different Army base. See

473 U.S. at 53-54. The deceased serviceman's mother sued

the Army alleging that it was negligent in how it dealt with

the previously convicted serviceman. The Court found that

the allegations in Shearer went directly to the management of

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the military, calling into question "basic choices about the

discipline, supervision, and control of a serviceman." /d. at

58. The Court pointed out that the claims would require

officers to testify as to each other's decisions and actions,

meaning that commanding officers would have to stand

prepared to convince a civilian court of the wisdom of a wide

range of military and disciplinary decisions. See id. In the

present case, the same sort of testimony would be required.

See also Major v. United States, 835 F.2d 641, 645 (6th Cir.

1987) (applying Feres doctrine to claims that military officers

failed to follow regulations prohibiting on-base consumption

of alcohol because a challenge to the officers' actions would

require them to testify about military decisions relating to

alcohol on base as well as disciplinary policies for infractions

of rules).

Mackey also maintains that any potential harm to

military discipline cannot overcome the actual harm to the

public interest of denying her a remedy for the conduct

alleged in this case. The government counters by pointing out

that application of the immunity doctrine neither minimizes

the seriousness of the alleged sexual misconduct, nor

completely deprives Mackey of a remedy in light of the

availability of discipline through the Uniform Code of

Military Justice, 10 U.S.C. § 801, et seq., and the existence

of benefits programs available to injured service members.

See Smith v. United States, 196 F.3d 774, 778 (7th Cir.

1999), cert. denied, 120 S. Ct. 1676 (2000). The logic of

Mackey's argument is also undermined by Feres progeny in

general. See, e.g., Shearer, 472 [sic] U.S. at 53 (implying

that interest in military discipline overcomes public interest in

preventing kidnaping and murders).

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Finally, Mackey appears to argue that Feres should be

overruled. While there are many arguments available to

criticize the Feres doctrine, see, e.g., Johnson, 581 [sic] U.S.

at 692-701 (Scalia, J., dissenting), this court cannot overrule

Supreme Court precedent. See Hutto v. Davis, 454 U.S. 370,

375 (1982).

iil.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

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APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

[Filed July 16, 1999]

No. C-3-96-140

DOROTHY MACKEY,

Plaintiff(s),

Vv.

DAVID W. MILAM, et al.

Defendant(s).

i i i i i i

District Judge Susan J. Dlott

ORDER

This matter is before the Court upon the mandate of

the United States Court of Appeals for the Sixth Circuit.

Based upon such mandate, the Court finds that the individual

defendants were acting within the scope of their employment.

Therefore, the United States is hereby substituted as the

defendant in this case, and the matter is not remanded to the

Ohio state court. Under the Feres doctrine, “the Government

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i Mieniheinemitiviutucm.

a

is not liable where the injuries arise out of or are in the course

of activity incident to service.” Feres v. United States, 340

U.S. 135, 146 (1950). .

Accordingly, judgment is hereby entered on behalf of

the defendant.

IT IS SO ORDERED.

/s/

Susan J. Dlott

United States District Judge

lla