# Petition for Writ of Certiorari — Mackey v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 943

## Text

= 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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(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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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

10a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0804%3A1. Public record. Not legal advice.