Petition for Writ of Certiorari — Lovely v. United States (No. 09-370)

Supreme Court, U.S.

FILED

7-370 SEP 24 2009

FICE OF THE CLEAK

Bn The Wien K. Suter, Cierk

Supreme Court of the Anited States

WAYNE G. LOVELY.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

o¢—

KEVIN P. PODLASKI

Counsel of Record

DIANA ©. BAUER

CARSON BOXBERGER LLP

1400 One Summit Square

Fort Wayne, IN 46802

Telephone: (260) 423-9411

Facsimile: (260) 423-4329

Attorneys for Petitioner,

Wayne G. Lovely

COWKLE LAW BRIEF PRINTING CO (800) 225 6964

OR CALL COLLECT (402) 342 2831

QUESTIONS PRESENTED

1. Whether the “incident to service” test

provided by the jurisprudence of this Court in Feres v.

United States, 340 U.S. 135 (1950) and its progeny

requires inquiry into the (1) duty status of the

claimant, (2) the site of injury, and (3) the activity

being performed by the claimant to determine

whether a claim under the Federal Tort Claims Act

(“FTCA”) is barred by the Feres doctrine when the

United States Court of Appeals for the Sixth Circuit

extends the doctrine to all injuries suffered by any

claimant that are even remotely related to the

claimant’s status, relationship or affiliation with the

military service and where the standard adopted by

the Sixth Circuit effectively abolishes FTCA actions

in the Sixth Circuit and is in conflict with a wealth of

decisions of this Court and other circuit courts.

2. Whether the Sixth Circuit Court properly

bars a FTCA claim under the “incident to service” test

provided by the jurisprudence of this Court in Feres v.

United States and its progeny when the Sixth

Circuit’s analysis examines if the claim implicates

military discipline and where the Sixth Circuit’s

analysis conflicts with this Court’s most recent

decision on the matter in United States v. Stanley,

483 U.S. 669 (1987).

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS AND ORDERS BELOW

JURISDICTIONAL STATEMENT

STATUTORY PROVISION INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

QUESTION OMB ccsecceccssceesecerscecsese........ -..

TABLE OF CONTENTS

Majority Approach

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two

3

4,

Military

claimed Injury analysis....................

Employment law analysis................

Duty status analysis ......................65

Status at time of injury analysis .....

Sixth Circuit Approach

D. Question One Conclusion......................

ALOP e ey

United States v. Shearer

TABLE OF CONTENTS ~- Continued

Page

B. United States v. Stanley ..............000 0.00008 18

C. Question Two Conclusion...................66. 19

CONCLUSION................ fepieaesis4sausseavansnisganyasasoees 21

APPENDIX

Opinion of the Court of Appeals filed on June

26, 2009 Lovely v. United States, 570 F.3d

718 (GOH Cit ZOOB) cn cccccsnssncconscsncsascescivessessecsenes App. 1

Decision of the district court dated March 17,

ID sans ean ceuapevev ens atvanvugucsasetivereesersverssererenseveeees App. 18

LV

TABLE OF AUTHORITIES

Page

CASES

Borden v. Veterans Admin., 41 F.3d 763 (1st

a ee ee 9 10, 11

Feres v. United States, 340 U.S. 135 (1950)....... passim

Hass v. United States, 518 F.2d 1138 (4th Cir.

SS | Ee nea eee te Rae ennne Sep ema Pye Weegee RCE 12, 20

Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974)....... 13

Johnson v. United States, 481 U.S. 681 (1987) ......... 17

Johnson v. United States, 714 F.2d 1431 (9th

ee a eee ecu 9

Lovely v. United States, 570 F.3d 778 (6th Cir.

INT a csuseciaccassasciasanakecsntehahesenssetadecebinpeckereiasien passim

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

EE ic vn cs caduicnacs ucsadeaiuauka ian tenineneeaseeadekieas 4,9,14

Miller v. United States, 643 F.2d 481 (8th Cir.

er re ere ee 9

Parker v. United States, 611 F.2d 1007 (5th Cir.

Ter eee ee ree 6, 7,10

Pierce v. United States, 813 F.2d 349 (11th Cir.

gf ee ARE NORE aR SSM ODL Ach Deg ile ae ee een Y

Regan v. Starcraft Marine, 524 F.3d 627 (5th

Se et te OE 8 Ue 7, 14, 18, 19, 20

Richards v. United States, 176 F.3d 652 (3rd

RINE ON ci cece cna onunare a seicn neat obusbaapuandalaseetouatiedeie 9

Schnitzer v. Harvey, 389 F.3d 200 (D.C. Cir.

BT vgs caves snrensducnsercecavsccscisisesavecspesctauadeiecatensenss a

TABLE OF AUTHORITIES — Continued

Page

Sidley v. United States, 861 F.2d 988 (6th Cir.

has t iksl ta nede cletacebensk sete taounase ods evcent auntie 6

Skees v. United States, 107 F.3d 421 (6th Cir.

of RRSP O Lee ROA ue AUR Lie NAN OE CL OEP SSRN SAE 6

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

ee a vino sedi dasysevaavctunsanvdaseivucidsshiesaesears tal 4

Stephenson v. United States, 21 F.3d 159 (7th

5S RMON A ERO ADEE RTA MIEN RD DD ONAN RAT RD ry UANE g

Taber v. Maine, 67 F.3d 1029 (2nd Cir. 1995)....9, 11, 12

United States v. Johnson, 481 U.S. 681 (1987)......... 4,5

United States v. Shearer, 473 U.S. 52 (1985)..... passim

United States v. Standard Oil Co., 332 U.S. 301

RN, ial cats as sccauedevistcacunctadndenchunssenie tegatana 5

United States v. Stanley, 483 U.S. 669 (1987) .... passim

STATUTES

BEGG, © GOD) soosivsivsssscinscesseouaeisvsvescecsecdavcesavsavesvereile y)

QB U.S.C. § 12541) .ecccecccccccesescescsceseseesescescssesececsecseeacee |

BUG © BIE ooo vccnicesessssuecosscasvancoiaidocsoncrnrsebeaie 2

2B U.S.C. § 2680(j) .cccccccecececceccecsececescesescessevaeeseeseseaeeaes 3

Other Authority

Army Regulation 145-1, Reserve Officer’s Train-

ing Corps Program: Organization, Adminis-

tration and Training, July 22, 1996.............0.0....... 15

OPINIONS AND ORDERS BELOW

The decision by the Sixth Circuit Court of

Appeals that gives rise to this Petition is reported at

570 F.3d 778 (6th Cir. 2009), Lovely v. United States.

A copy of that decision is reprinted in the Appendix

hereto, App. 1. The decision of the District Court

granting the government’s motion to dismiss was not

reported. A copy of the decision is reprinted in the

Appendix hereto, App. 18.

JURISDICTIONAL STATEMENT

On March 17, 2008, the District Court granted

the government’s motion to dismiss Wayne QG.

Lovely’s (“Lovely”) Complaint.

On March 31, 2008, Lovely initiated an appeal to

the United States Court of Appeals for the Sixth

Circuit.

On June 26, 2009, the Sixth Circuit affirmed the

District Court’s decision.

This Petition for Writ of Certiorari is being

timely filed in accordance with Rule 13.1 of the Rules

of the Supreme Court of the United States. 28 U.S.C.

§ 1254(1) confers jurisdiction on this Court to review

on Writ of Certiorari the Opinion of the Sixth Circuit

Court of Appeals.

STATUTORY PROVISION INVOLVED

Lovely’s claim arises under the Federal Tort

Claims Act. 28 U.S.C. § 2674 provides, in part: “[t]he

United States shall be liable, respecting the pro-

visions of this title relating to tort claims, in the same

manner and to the same extent as a _ private

individual under like circumstances, but shall not be

liable for interest prior to judgment or for punitive

damages.”

STATEMENT OF THE CASE

On June 9, 2006, Lovely filed a Complaint

against the Government in which he alleged that the

Government violated his rights under the Privacy Act

(5 U.S.C. § 552(a)) and Army Regulation (“AR” 340-

21) by releasing a document or record of Lovely to a

third party, which was maintained in the University

of Dayton, Military Science Department files/records

under these authorities. Lovely requested compen-

satory damages, costs and fees, and equitable relief

arising from the Privacy Act violation.

The Government filed a Motion to Dismiss for

Lack of Jurisdiction on August 18, 2006. Lovely was

granted leave to amend his Complaint to add a claim

for intentional infliction of emotional distress (“ITED”)

under the Federal Tort Claims Act (“FTCA”). In his

Amended Complaint, Lovely alleged that Versalle

Washington (“Professor Washington”), a professor of

military science at the University of Dayton, Dayton,

Ohio, “wrongfully and intentionally inflicted emo-

tional distress upon Lovely, by releasing the Privacy

Act protected document, making false statements

about Lovely to University of Dayton students,

wrongfully interfering with the University of Dayton

Non-Academic Disciplinary Board ... and intimi-

dating Lovely’s intended witnesses before this

proceeding.

The Government filed a Second Motion to Dis-

miss on November 20, 2006, which the District Court

granted on March 17, 2008.

Lovely filed a Notice of Appeal with the Sixth

Circuit on March 31, 2008. On June 26, 2009, the

Sixth Circuit affirmed the District Court’s decision.

Lovely, 570 F.3d at 778-85. (A at p. A-1).

Senior Sixth Circuit Court Judge Karen N. Moore

wrote the opinion for the Court. In support of its

decision, the Court said:

The language of the FTCA [Federal Tort

Claims Act] exempts from this waiver of

immunity claims “arising out of the com

batant activities of the military or naval

forces or the Coast Guard, during time of

war”. 28 U.S.C. § 2680(j). In Feres v. United

States, 340 U.S. 135 (1950), the Supreme

Court significantly broadened this exception

and created the Feres doctrine, pursuant to

which “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.” 340 U.S. at 146; accord Fleming,

186 F.3d at 699.

As this Court previously noted, subsequent

Supreme Court cases have further extended

this doctrine.

Review of these Supreme Court

precedents make it clear that in

recent years the Court has em-

barked on a course dedicated to

broadening the Feres doctrine to

encompass, at a minimum, a//

injuries suffered by military per-

sonnel that are even remotely

related to the individual's status as

a member of the military, without

regard to the location of the event,

the status (military or civilian) of

the tortfeasor, or any nexus between

the injury-producing event and the

essential defense/combat purpose of

the military activity from which it

arose. Major v. United States, 835

F.2d 641, 644-45 (6th Cir. 1987).

In the most recent Supreme Court case

examining the Feres doctrine, the Court

explained that, “a service member is injured

incident to service” if the injury is “because

of his military relationship with the

Government,” United States v. Johnson, 481

U.S. 681, 689 (1987), and reiterated the

three broad rationales underlining the

doctrine, id. at 689-90: see also United States

v. Shearer, 473 U.S. 52, 57 (1985); Stencel

Aero Eng’g Corp. v. United States, 431 US

666, 671-72 (1977). “First, ‘t]he relationship

hetween the Government and members of its

armed forces is “distinctively federal in

character.”’” Johnson, 481 U.S. at 689 (al-

teration in original) (quoting Feres, 340 U.S.

at 143 (quoting United States v. Standard

Orl Co., 332 U.S. B01, 305 (1947))). “Second,

the existence of [] generous statutory dis-.

ability and death benefits is an independent

reason why the Feres doctrine bars suit for

service-related injuries.” /d. “Third suits

brought by service members against the

Government for injuries incurred incident to

service ... are the ‘typels] of claims that, if

generally permitted, would invelve the

judiciary in sensitive military affairs at the

expense of military discipline and effec

tiveness.” /d. at 690 (alteration in original)

(quoting Shearer, 473 U.S. 59)

Although this is a close case presenting

unique circumstances that do _ not fall

directly in line with other cases applying the

Feres doctrine, we conclude, in light of the

doctrine’s rationales and the Court’s broad

interpretation of the doctrine, that the

district court properly dismissed Lovely’s

IIED [Intentional Infliction of Emotional

Distress] claim as barred by the Feres

doctrine. Initially, Lovely argues that his

claims are not subject to the Feres doctrine

because he was not on active duty or subject

to military command or discipline while

attending classes at UD or while involved in

the UD disciplinary proceedings. We have

noted, however, that “the Fere doctrine

extends beyond situations where the soldier

is acting pursuant to orders or while subject

to direct military command or discipline

Sidley v. United States, 861 F.2d 988, 990

(6th Cir. 1988): accord Skees v. United States,

107 F.3d 421, 423 (6th Cir. 1997) (“[T|he term

incident to service’ is not a term limited

vy and combat

to military trainin

Lovely, 570 F.3d at 782-83. (App. 1

The Sixth Circuit Court supports its holding by

citing to a limited number of other circuits’ decisions

concerning claims of other candidates for military

service. As explained below, the Circuit Court’s

decision misconstrued the admittedly unique facts of

Lovely’s case and misapplied the Feres doctrine

In Feres v. United States, this Court limited the

applicability of the FTCA with respect to military

personnel when it held that “the Government is not

liable under the [FTCA] for injuries to |service

members] where the injuries arise out of or are in the

course of activity incident to service.” Feres, 340 U.S

at 146. Accordingly, the answer to the question

whether an activity or injury is “incident to military

ervice” determines whether a service member may

pursue an FTCA cause of action. Parker v. United

States, 611 F.2d 1007, 1009 (5th Cir. 1980)

Feres and its progeny do not articulate a specific

method for determining whether an injury is

“incident to military service’. This Court's decisions

in United States v. Stanley, 483 U.S. 669 (1987) and

United States v. Shearer, 473 U.S. 52 (1985) conflict

with respect to whether a court should examine the

likelihood of disruption of military judgments in a

particular case to determine if an activity is “incident

to military service”. Lower courts adopt varying

approaches to determine whether an activity is

incident to service and bars a FTCA claim under the

Keres doctrine. See Parker, 611 F.2d at 1009 (noting

“Itlhe Supreme Court cases under the Feres doctrine

offer policy reasons for implying an exception

funder the FTCA for injuries to service members|], but

do not provide many clear signposts to the

parameters of ‘incident to service’”); see also Regan v.

Starcraft Marine, 524 F.3d 627, 636 (5th Cir. 2008)

(noting “[t/he clarity with which Shearer stated that

the likelihood of disruption of military judgments in a

particular case was critical in determining whether to

apply the Feres bar, despite the later Stanley

decision’s equally clear statement that it was not”)

This Court should grant Petitioner, Wayne G. Lovely’s

(“Lovely”), Petition for Writ of Certiorari to clarify the

Feres doctrine’s proper application, foster uniformity

amony the circuit courts, and prevent the unjust

decisions such as those that have resulted from the

application of the circuit courts’ varying standards

*

8

REASONS FOR GRANTING THE PETITION

I. QUESTION ONE

This Court should grant Lovely’s Petition for

Writ of Certiorari to determine whether the “incident

to services” test provided by the jurisprudence of this

Court in Feres and its progeny requires inquiry into

the (1) duty status of the claimant, (2) the site of

injury, and (3) the activity being performed by the

claimant to determine whether a claim under the

FTCA is barred by the Feres doctrine where the

United States Court of Appeals for the Sixth Circuit

extends the doctrine to all injunes suffered by

military personnel that are even remotely related to

the claimant’s status as a member of the military and

where the standard adopted by the Sixth Circuit

effectively abolishes FTCA actions in the Sixth

Circuit and is in conflict with a wealth of decisions of

this Court and other Circuit Courts.

It is well settled that “the Government is not

liable under the FTCA 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

emphasis added). In determining whether a par-

ticular claim is Feres barred, most lower courts apply

a three-part “incident to service” test. Schnitzer vu

Harvey, 389 F.2d 200, 203 (D.C. Cir. 2004)

Jurisdictions that do not follow the majority approach

continue to engage in an analysis of the claimant's

purported military status or the scope of the

claimant's employment in relation to the claimant's

9

injury. See Borden v. Veterans Admin., 41 F.3d. 763

(lst Cir. 1994); Taber v. Maine, 67 F.2d 1029 (2nd Cir.

1995). However, the Sixth Circuit follows neither of

these approaches. See Major v. United States, 835

F.2d 641, 644 (6th Cir. 1987).

The Sixth Circuit expands the Feres doctrine and

applies it “at a minimum, [to] a// injuries suffered by

military personnel that are even remotely related to

the individual’s status as a member of the military.”

Id. at 644 (emphasis added). The Sixth Circuit

Court’s opinion in both this matter and in Major so

broadly reads Feres that the Court effectively

precludes a// tort claims brought by any claimant who

is in any way affiliated with the military service. See

Lovely, 570 F.3d at 782-83. (App. 1). As such, the

Sixth Circuit’s approach to the Feres bar leads the

Court to inconsistent results in relation to other

circuits, starkly contrasts with the Feres doctrine’s

rationale, and leaves claimants such as Lovely with

no cause of action under any set of circumstances.

A. Majority Approach

In determining whether a particular claim is

Feres barred, the majority of courts apply a three-part

“incident to service” test. See Schnitzer, 389 F.3d at

203: Richards v. United States, 176 F.3d 652, 655 (3rd

Cir. 1999); Stephenson v. United States, 21 F.3d 159

(7th Cir. 1994): Pierce v. United States, 813 F.2d 349

(llth Cir. 1987); Johnson v. United States, 714 F.2d

1431, 1436-41 (9th Cir. 1983): Miller v. United States

10

643 F.2d 481, 483 (8th Cir. 1981); and Parker, 611

F.2d at 1013-15. These courts analyze (1) the injured

service member’s duty status, (2) the site of the

injury, and (3) the nature of the activity engaged in by

the service member at the time of his injury to

determine whether a member of the military may

bring a claim against the government under the

FTCA. Id. In applying the three factor test, none of

the three factors are itself dispositive and each factor

contributes to the Court’s assessment of the totality of

the circumstances in determining whether the injury

is properly understood as “incident to service” within

the meaning of Feres. Id.

B. Minority Approaches

The minority of jurisdictions approach the Feres

bar by focusing primarily on the claimant’s status as

a service member or the scope of the claimant’s

military service in relation to the claimant’s injury.

The results vary as to whether the minority

approaches reach the same or similar result as the

majority approach.

1. Military status in relation to claimed

injury analysis

In the First Circuit, the Court examines the

claimant’s military status in relation to the injury

suffered to determine whether the injury occurred

incident to service. Borden at 763-64. Although not

explicitly stated, it is clear that the Court determined

mt

the claimant’s military status by looking at the

traditional indicia such as the claimant’s orders to

active duty, enlistment contract, military identi-

fication card, and witness testimony. See id. The First

Circuit also determines whether the claimant’s injury

results from an activity that is the benefit of military

service. Id.

2. Employment law analysis

In the Second Circuit, the Court first considers

the claimant’s purported status as a military service

member and then examines the same traditional

indicia used by the First Circuit to determine the

claimant’s military status. Taber, 67 F.2d at 1049-50.

Further, the Second Circuit reviews the activity in

which the claimant was involved at the time of the

injury and applies the general principles found in

ernployment law to determine whether the claimant

was “engaged in activities that fell within the scope of

the plaintiff’s military employment.” /d. at 1050. If

the claimant’s activity falls within the scope of the

claimant’s military employment, the Court bars the

claim. /d. If the activity does not fall within that

scope, the Court does not bar the claim “absent

unusual circumstances that would call into play the

Feres discipline rationale.” Jd. With regard to

“discipline rationale” the Jaber Court recognized that

its authority extended to all cases except where its

12

exercise of authority constituted “significant inter-

ference” with military decisions.’ Jd. at 1046.

3. Duty status analysis

The Fourth Circuit uses a relatively mechanical]

test derived from Feres to determine whether an

injury is incident to service. Hass v. United States,

518 F2d 1138, 1140 (4th Cir. 1975). The Fourth

Circuit notes that

‘

[t]he phrase “incident to service” was given

context by Justice Jackson in Feres when,

after setting out the facts of the three

appeals there under review, he stated: “the

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.”

Id. (citing Feres, 340 U.S. at 138). Noting that the

Feres test has the virtue of simplicity and is

supported by cogent policies, the Fourth Circuit

places an emphasis on the claimant’s duty status,

ignores the subjective rationales of the Feres doctrine,

and looks to the benefits the claimant was enjoying at

the time of the suffered injury. See Id.

The Second Circuit’s analysis of the “incident to service’

test provides one example of how lower courts commingle the

“incident to service” test with the third rationale behind the

Feres doctrine as a result of the conflict between this Court’s

decisions in Shearer and Stanley discussed infra

13

4. Status at time of injury analysis

The Tenth Circuit’s analysis focus for “[wJhether

a serviceman’s injury arises out of activity ‘incident to

service’ depends on whether it stems from an official

military relationship between the negligent person

and the serviceman.” Harten v. Coons, 502 F.2d 1363,

1365 (10th Cir. 1974). Put differently, the Circuit

focuses on the military status of the claimant at the

time the claimant suffers injury to determine if the

Feres bar applies. Jd. The Circuit also looks to

whether the claimant is on leave or inactive at the

time of injury, if the injury stems from a military

relationship, and whether the benefits being enjoyed

by the claimant at the time of injury were a result of

the claimant’s military status. Jd. As such, the

primary focus of the Tenth Circuit is on the claimant’s

military status at the time of injury. See id.

C. Sixth Circuit Approach

The Sixth Circuit’s opinion in the case at bar

affirms the Court’s overly-broad stance with respect

to the Feres doctrine and the “incident to services”

test. Lovely, 570 F.3d at 782-83. The Court expands

the Feres doctrine:

to encompass, at a minimum, ai/ injuries

suffered by military personnel that are even

remotely related to the individual’s status as

a member of the military, without regard to

the location of the event, the status (military

or civilian) of the tortfeasor, or any nexus

between the injury-producing event and the

14

essential defense/combat purpose of the

military activity from which it arose.

Id. (citing Major, 835 F.2d at 644-45) (emphasis

added). The expansive approach taken by the Sixth

Circuit conflicts with a wealth of decisions of this

Court and other Circuit courts.

Unlike the majority approach, the Sixth Circuit

analysis focuses entirely on the status of the claimant

in the military rather than examining the claimant’s

duty status in relation to the location of the injury

and activity being performed when the claimant

suffered injury. This results in a claimant’s suit being

barred solely because of the claimant’s status in the

military. In addition, it ignores factual inquiries the

majority of jurisdictions emphasize and provide an

incomplete analysis of the totality of circumstances

resulting in a serviceman’s injury.”

* In the case at bar, the Sixth Circuit's decision relies solely

upon Lovely’s status as a university ROTC student in deciding

to bar Lovely’s claim to the exclusion of the location of Lovely’s

injury and the nature of the activity Lovely participated in when

injured. Effectively, the Court’s decision acted as a blanket

denial of Lovely’s claim, simply because he was in the ROTC

program. Using the majority approach’s analysis, a university

ROTC student cannot be a service member within the meaning

and intent of Feres, absent some qualifying activity or additional

authorization. See, e.g., Regan, 524 F.3d at 636-38 (recognizing

the necessity of analyzing both the status of an active duty

service member on the continuum between performing tasks of

an assigned mission to being on extended leave from duty and

the activity in which the claimant was involved when injured as

essential to a proper analysis under Feres). This holds true

(Continued on following page)

15

Although more analogous to the minority

approaches, the Sixth Circuit’s analysis differs from

the minority approaches in that it is more expansive.

In addition, the minority approaches analyze in depth

the relationship between the status and scope of the

military service and the activity in which the

claimant was injured, which the Sixth Circuit does

not do.

D. Question One Conclusion

Because the approach taken by the Sixth Circuit

effectively abolishes FTCA actions by service mem-

bers in the Sixth Circuit and conflicts with a wealth

of decisions of this Court and other Circuit courts by

reading the Feres doctrine too broadly, this Court

should grant Lovely’s Petition for Writ of Certiorari to

because ROTC students have a conditions precedent contract

and do not have the proper duty status to apply the Feres bar.

See Army Regulation 145-1, Reserve Officer’s Training Corps

Program: Organization, Administration and Training, July 22,

1996 (under revision) (noting that before an ROTC student may

be commissioned as an officer or enlisted in the service, the

student has to meet certain conditions precedent, including

completing certain educational requirements, passing a physical

examination, passing drug screening and sexually transmitted

diseases tests, undergoing a criminal background investigation,

attending basic training, undergoing a background check for

gaining access to classified information, and having physical,

psychological, and mental ability tests administered) (emphasis

added). Thus, unless the student is “on orders” or participating

in military-related activity when injured, an ROTC student’s

role 1s too far removed from the core concerns of Feres to apply

the Feres bar

16

determine the reach of the Feres bar and the factors

Circuit courts should employ in administering the

“incident to service” test.

II. QUESTION TWO

This Court should grant Lovely’s Petition for

Writ of Certiorari to determine whether the Sixth

Circuit Court properly bars a FTCA claim under the

“incident to service” test provided by the juris-

prudence of this Court in Feres and its progeny when

the Sixth Circuit’s analysis examines if the claim

implicates military discipline and where the Sixth

Circuit’s analysis conflicts with this Court’s most

recent decision on the matter in Stanley. Although

Feres and its progeny do not provide clear signposts

to the parameters of “incident to service”, the

Supreme Court cases interpreting the doctrine offer

policy reasons for implying an exception to a service

member’s FTCA cause of action. The policy reasons

explain the Supreme Court’s justifications for the

Feres doctrine and provide as follows:

[First], |t)Jhe relationship between’ the

Government and members of its armed

forces is distinctively federal in character.

This federal relationship is implicated to the

greatest degree when a service member is

performing activities incident to his federal

service

17

Second, the existence of these generous

statutory disability and death benefits is an

independent reason why the Feres doctrine

bars suit for service-related injuries. In

Feres, the Court observed that the primary

purpose of the FTCA “was to extend a

remedy to those who had been without; if it

incidentally [benefitted] those already well

provided for, it appears to have been

unintentional.”

Third, Feres and its progeny indicate that

suits brought by service members against

the government for injuries incurred incident

to service are barred by the Feres doctrine

because they are the “typels] of claims that,

if generally permitted, would involve the

judiciary in sensitive military affairs at the

expense of the military discipline and

effectiveness.”

Johnson v. United States, 481 U.S. 681, 689-90

(1987). This Court addressed the application of the

Feres doctrine’s policy rationale in Shearer and

Stanley.

A. United States v. Shearer

This Court handed down its decision in Shearer

on June 27, 1985, finding the third Feres doctrine

rationale critical in making a case-by-case analysis.

Shearer, 473 U.S. at 57. In Shearer, the first two

rationales were found to be “no longer controlling”,

18

and the location of the incident was deemed less

important in deciding whether Feres should apply. Jd.

The Shearer decision stood for the proposition that

allegations going directly to the management of the

military and litigation of that issue would imper

missibly involve the courts in reviewing military

judgments. Jd. at 58-59. However, just as the Shearer

court stated with such clarity that the likelihood of

disruption of military judgments in a particular case

was critical in determining whether to apply the

Feres bar, this Court’s subsequent decision in Stanley

made it equally clear that such an inquiry was nof

critical. See, e.g., Regan, 524 F.3d at 635-36

Bb. United States v. Stanley

The majority in Stanley sought a straightforward

application of the “incident to service” test and set

forth “an objective rule that did not examine whether

specific litigation would interfere with military judg-

ments, discipline, and management” under the third

Feres rationale. 7d. at 635. The Stanley court

reasoned that the “incident to service” test “provides

a line that is relatively clear and that can be

discerned with less extensive inquiry into military

matters.” Stanley, 483 U.S. at 682-83. The Court

explained that “discovery procedures such _ as

depositions that would be needed to determine how

disruptive a review of the military judgment would

be, would themselves be disruptive.” /d. As a result,

the Stanley court highlighted a bright line rule that

required a less extensive inquiry into military

19

matters and imposed the Feres bar only when the

injury was incident to service. /d

C. Question Two Conclusion

The conflicting direction provided by Shearer and

Stanley creates uncertainty at the District and

Circuit court levels and leads to inconsistent results.

Pursuant to Stanley, this Court made the “incident to

service” analysis controlling for the Feres bar,

regardless of whether the particular litigation would

intrude alarmingly on military judgments. Stanley,

483 U.S. 682-83; see also Regan, 524 F.3d at 646. As

noted by the Fifth Circuit, the conflict between this

Court’s decision in Shearer and Stanley “may be what

has caused this and other circuits since the date of

both precedents to continue to examine the appli

cability and rationales in specific cases.” Reagan, 524

F.3d. at 636. Certainly, if a claim is based on an injury

that was incident to service and, if resolving that

claim would also demand second-guessing of military

judgment, an application of Feres is clear. 7d.

However, an application of Feres is not clear where

the “incident to service” test and the military

judgment rational conflict or are commingled. See id

As a result of the Stanley and Shearer decisions,

there exists a split in authority with respect to the

analysis courts should conduct with respect to the

“incident to service” test and the third Feres

rationale. Courts remain unsure whether to make the

straightforward and objective application of the

20

“incident to service” test provided in Stanley or to

follow the Court’s prior decision in Shearer by looking

at the likelihood of disruption of military judgments

in each particular case. As noted in Regan, courts

often continue to examine the applicability of the

rationales in specific cases, much like the Sixth

Circuit did in the Lovely opinion. Following this

Court’s most recent opinion in Stanley, lower courts

should not engage in an analysis of the Feres

doctrine’s third rationale.

The Feres test is the virtue of simplicity, always

an important consideration, while examining the

rationale behind the Feres test presents difficult fact

questions in every instance. Hass, 518 F.2d at 1141.

Consequently, the Sixth Circuit, by examining the

impact allowing this suit to proceed would have on

military command or discipline, turned the simplistic

Feres test into a difficult fact question.

Although the Sixth Circuit notes that the Lovely

case is a close case presenting unique circumstances

that do not fall directly in line with other cases

applying the Feres doctrine, a proper examination of

the matter by applying the straightforward and

mechanical approach highlighted in Stanley would

have eliminated the difficulty in assessing Lovely’s

situation. Because the conflict between Stanley and

Shearer has given rise to differences in application

across the Circuits, this Court should grant Lovely’s

Petition for Writ of Certiorari to determine whether

courts should apply the straightforward application of

the “incident to services” test as provided in Stanley

or undertake the subjective inquiry into. the

likelihood of disruption of military judgments

highlighted in Shearer

CONCLUSION

For all the foregoing reasons herein, the Court

should grant the Petition for Writ of Certiorari and

reverse the decision of the Sixth Circuit Court of

Appeals

Respectfully submitted,

CARSON BOXBERGER LLP

KEVIN P. PODLASKI

Counse! of Record

DIANA C. BAUER

1400 One Summit Square

Fort Wayne, Indiana 46802

Telephone: (260) 423-9411

Facsimile: (260) 423-4329

App. 1

570 F.3d 778

United States Court of Appeals,

Sixth Circuit.

Wayne G. LOVELY, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

No. 08-3524.

Argued: June 18, 2009.

Decided and Filed: June 26, 2009.

ARGUED: Kevin P. Podlaski, Carson Boxberger LLP,

Fort Wayne, Indiana, for Appellant. Patrick D. Quinn,

Assistant United States Attorney, Dayton, Ohio, for

Appellee. ON BRIEF: Kevin P. Podlaski, Diana Carol

Bauer, Carson Boxberger LLP, Fort Wayne, Indiana,

for Appellant. Patrick D. Quinn, Assistant United

States Attorney, Dayton, Ohio, for Appellee.

Before MOORE and GILMAN, Circuit Judges;

PHILLIPS, District Judge.*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant Wayne G. Lovely appeals the

order of the district court dismissing for lack of

subject-matter jurisdiction Lovely’s claim brought

under the Federal Tort Claims Act (“FTCA”), 28

* The Honorable Thomas W. Phillips, United States District

Judge for the Eastern District of Tennessee, sitting by

designation.

App. 2

U.S.C. §§ 1346(b), 2671-2680. Lovely, a former

student at the University of Dayton (“UD”) and

member of the Army Reserve Officers’ Training Corps

(“ROTC”), brought claims against Defendant-Appellee

the United States of America and its agency, the

United States Army ROTC Battalion at UD, for

violation of Lovely’s rights under the Privacy Act, 5

U.S.C. §552a, and for intentional infliction of

emotional distress (“ITED”) under the FTCA. Lovely’s

claims were based on actions taken by Lovely’s ROTC

commander in relation to a UD _ disciplinary

proceeding initiated against Lovely by another ROTC

cadet. The district court dismissed Lovely’s IIED

claim under the Feres doctrine, which precludes

claims brought under the FTCA “for injuries to

servicemen where the injuries arise out of or are in

the course of activity incident to service.” Feres uv.

United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95

L.Ed. 152 (1950).' On appeal, Lovely argues that the

district court erred in dismissing the IED claim

under Feres because Lovely was a UD student and

not involved in any military activity at the time of his

injury. For the reasons discussed below, we AFFIRM

the judgment of the district court dismissing Lovely’s

ITED claim as barred by the Feres doctrine.

1

The distmct court also dismissed Lovely’s Privacy Act

claim on statute-of-limitations grounds. Because Lovely does not

appeal the dismissal of his Privacy Act claim, we have no

occasion to address that claim

App. 3

I. BACKGROUND

Beginning in August 2001, Lovely was a student

at UD and an ROTC cadet with an ROTC scholarship

to UD. In the summer of 2003, Lieutenant Colonel

Versalle Washington became the Professor of Military

Science and Chair of the Department of Military

Science at UD. As Professor of Military Science,

Washington was the ROTC Battalion Commander at

UD, with responsibility for training cadets so that

they may attain commission as Army officers. As

Lovely’s ROTC contract states, “the sole purpose of

the ROTC scholarship program is to produce officers

for the United States Army.” Record on Appeal

(“ROA”) at 156 (Contract at 1). The contract sets forth

the financial terms of Lovely’s scholarship, under

which the government agreed to pay Lovely’s tuition,

educational fees, and textbooks for three years, as

well as a subsistence allowance and pay during

certain periods. The contract also specifies that

Lovely’s education was to be completed in May 2005

and that Lovely agreed to “[rlemain a full-time

student at [UD] until [receiving his} degree.” ROA at

157 (Contract at 2). Lovely also agreed to “[mJaintain

eligibility for enrollment in ROTC, enlistment in the

USAR, and commissioning, as defined by statute,

Army regulation, and this contract, throughout the

period of this contract.” /d. If Lovely failed to

complete the educational requirements or other terms

of the contract or committed misconduct, he could

either be ordered to active duty or instead be required

App. 4

to reimburse the United States for his educational

costs paid under the contract.

In December 2003, Dr. Mark Ensalaco, Director

of the Department of International Studies at UD,

discovered that Lovely had plagiarized a research

paper for one of Ensalaco’s courses. At that time,

Ensalaco orally told Washington of the plagiarism

and offered to prepare for Washington a written

statement about the plagiarism. It does not appear

that Washington took Ensalaco up on the offer at that

time.

In January 2004, a female cadet reported to

Washington that Lovely had sexually assaulted her in

September 2003. She declined to press criminal

charges, but accepted Washington’s recommendation

that she see a counselor at UD’s counseling center.

Upon the advice of Dr. Carol Cummins-Collier at the

counseling center, the female cadet decided to pursue

proceedings against Lovely through the UD

disciplinary board. A UD disciplinary-board hearing

was scheduled for February 17, 2004. The female

cadet asked Washington if he would testify for her at

the hearing, but he declined. The female cadet,

however, already knew of Lovely’s plagiarism and

asked Washington to obtain a statement about the

plagiarism from Ensalaco so that she could use it at

the hearing to discredit Lovely. Washington contacted

Ensalaco and asked him to send Washington the

previously offered statement. The day before the

hearing, Ensalaco sent Washington an_ email

describing the plagiarism incident, and Washington

App. 5

then printed the email and gave a copy to the female

cadet. The female cadet presented the statement to

the UD disciplinary board at the February 17

hearing. After the hearing, Lovely asked Washington

about the email, and Washington confirmed that he

had requested the statement from Ensalaco and had

given the email to the female cadet at her request.

Lovely also asked Ensalaco how the female cadet

received the document, and Ensalaco stated that he

sent the email to Washington at Washington’s

request.

The board found that Lovely engaged “in non-

consensual sexual intercourse” with the female cadet.

ROA at 52 (Lovely Aff. 6/11/2004 at 5). The UD

Judicial Review Committee denied Lovely’s sub-

sequent appeal, and he was suspended on March 8,

2005.

In his complaint, Lovely makes _ several

allegations that Washington took other actions

against Lovely in relation to the hearing. Lovely

alleges that Washington told other ROTC cadets that

Lovely had admitted at the hearing that he had

sexually assaulted the female cadet. Lovely also

alleges that Washington told other cadets that they

should support the female cadet and that Washington

intimidated one of Lovely’s witnesses so that the

witness did not testify at the hearing.

After the UD _ di§sciplinary proceedings,

Washington initiated proceedings to remove Lovely

from the ROTC program. Lovely claims that

App. 6

Washington improperly inserted himself into these

proceedings by, for example, rejecting the suggestion

of the UD Dean of Students that disenrollment could

be prevented and insisting on proceeding with

disenrollment using UD’s documents as supporting

evidence. Lovely eventually was disenrolled from

ROTC for misconduct, preventing any eligibility to re-

enroll. Lovely also had to repay the ROTC

scholarship money that he had been awarded.

Lovely filed a claim for damages with the Army,

which was denied, primarily on the basis that Feres

precluded Lovely, who was enlisted in the Army at

the time of the alleged injury, from recovering for an

injury incident to service. On June 9, 2006, Lovely

filed a complaint in the United States District Court

for the Southern District of Ohio asserting a claim

based on violation of the Privacy Act. Lovely then

filed an amended complaint on November 6, 2006,

adding his IIED claim under the FTCA. The amended

complaint alleged that Lovely suffered economic

damages, including loss of his college funding and

other earnings, and mental, emotional, and

psychological damages, such as loss of reputation,

depression, and humiliation. The government filed a

motion to dismiss the Privacy Act claim, and later a

motion to dismiss the IIED claim under Rules

12(b\1) and (b)(6) of the Federal Rules of Civil

Procedure, arguing that the district court lacked

subject-matter jurisdiction due to the Feres doctrine

and that Lovely’s complaint failed to state a claim. On

March 17, 2008, the district court entered a decision

App. 7

granting the government’s motion to dismiss both

claims. The district court dismissed the IIED claim

on the basis that the court lacked subject-matter

jurisdiction as a result of the Feres doctrine because

Lovely’s alleged injuries arose out of or were in the

course of activity incident to military service. Lovely

now appeals the district court’s dismissal of his ITED

claim.

Il. ANALYSIS

A. Standard of Review

“We review de novo a district court’s deter-

mination of the applicability of the Feres doctrine.”

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

698 (6th Cir.1999). Here, the district court dismissed

Lovely’s IIED claim for lack of subject-matter

jurisdiction pursuant to the Feres doctrine.” “We

> Neither party disputes that the Feres doctrine is

jurisdictional in nature. Although the Supreme Court has not

considered this question, at least six courts of appeals have

specifically held that, because “[slovereign tmmunity is a

jurisdictional doctrine, ... [t]he Feres doctrine, which limits the

scope of the FTCA’s waiver of sovereign immunity, is likewise

jurisdictional.” Brown v. United States (Brown I), 151 F.3d 800,

803-04 (8th Cir.1998): see also Schnitzer v. Harvey, 389 F.3d 200,

202 (D.C.Cir.2004); Jones v. United States, 112 F.3d 299, 301

(7th Cir.1997); Wake v. United States, 89 F.3d 58, 57 (2d

Cir.1996); Atkinson v. United States, 825 F.2d 202, 204 n. 2 (9th

Cir.1987); Stanley v. CIA, 639 F.2d 1146, 1157 (5th Cir.1981).

The Sixth Circuit likewise has treated the application of Feres as

a jurisdictional question, although without explicitly so holding.

See, e.g., Brown v. United States (Brown IT), 451 F.3d 411, 412,

(Continued on following page)

App. 8

normally review de novo the district court’s decision

to dismiss for lack of subject matter jurisdiction

under Federal Rule of Civil Procedure 12(b)(1).”

Howard v. Whitbeck, 382 F.3d 633, 636 (6th Cir.2004).

“Where the district court does not merely analyze the

complaint on its face, but instead inquires into the

factual predicates for jurisdiction, the decision on the

Rule 12(b)(1) motion resolves a ‘factual’ challenge

rather than a ‘facial’ challenge, and we review the

district court’s factual findings for clear error.” /d.;

accord RMI Titanium Co. v. Westinghouse Elec. Corp.,

78 F.3d 1125, 11385 (6th Cir.1996) (“Where a trial

court’s ruling on jurisdiction is based in part on the

resolution of factual disputes, a reviewing court must

accept the district court’s factual findings unless they

are clearly erroneous.”). “However, review of the

district court’s application of the law to the facts is de

novo.” RMI Titanium, 78 F.3d at 1135. Even when the

parties raise a “factual” challenge by submitting

exhibits relating to subject-matter jurisdiction, we

give deference to the district court only to the extent

the district court actually made factual findings. See

Howard, 382 F.3d at 636-37.

416 (6th Cir.2006) (concluding that the district court had “no

jurisdiction to award damages for the military’s conduct related

to [the injured serviceman] while he was on active duty” under

the Feres doctrine). Because we review de novo the district

court’s application of the Feres doctrine regardless of whether it

is a jurisdictional doctrine, we need not decide this question.

App. 9

B. Application of the Feres Doctrine

With the Federal ‘Tort Claims Act, Congress

created a waiver of sovereign immunity under which

the United States may be held liable for “tort claims,

in the same manner and to the same extent as a

private individual under like circumstances.” 28

U.S.C. § 2674; see also 28 U.S.C. § 1346(b)(1)

(granting exclusive jurisdiction to the federal district

courts “of civil actions on claims against the United

States, for money damages ... for injury or loss of

property, or personal injury or death caused by the

negligent or wrongful act or omission of any employee

of the Government while acting within the scope of

his office or employment, under circumstances where

the United States, if a private person, would be liable

to the claimant in accordance with the law of the

place where the act or omission occurred,” subject to

the procedures set forth in the FTCA). The language

3

The intentional-torts exception to the FTCA states that

the United States has not waived 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.”

28 U.S.C. § 2680(h). The government does not dispute that the

FTCA applies to ITED claims generally, and we have not

previously treated such claims as barred by the § 2680(h)

exception. See Mackey v. United States, 226 F.3d 773, 775 n. 1

(6th Cir.2000) (applying Feres doctrine to dismiss IIED claim);

cf. Sabow v. United States, 93 F.3d 1445, 1456 (9th Cir.1996) (“In

determining whether a claim ‘arises out of’ one of the

enumerated torts, we look beyond a plaintiff's classification of

the cause of action to examine whether the conduct upon which

the claim is based constitutes one of the torts listed in

(Continued on following page)

App. 10

of the FTCA exempts from this waiver of immunity

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. § 2680(j). In Feres v. United

States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152

(1950), the Supreme Court significantly broadened

this exception and created the Feres doctrine,

pursuant to which “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.” 340 U.S. at

146, 71 S.Ct. 153; accord Fleming, 186 F.3d at 699.

As this court previously noted, subsequent

Supreme Court cases have further extended this

doctrine:

Review of these Supreme Court precedents

makes it clear that in recent years the Court

has embarked on a course dedicated to

broadening the Feres doctrine to encompass,

at a minimum, al// injuries suffered by

military personnel that are even remotely

related to the individual’s status as a

member of the military, without regard to

the location of the event, the status (military

or civilian) of the tortfeasor, or any nexus

between the injury-producing event and the

§ 2680(h).”). Because we affirm the district court’s dismissal of

Lovelys claim as barred by the Feres doctrine, we do not

consider whether § 2680(h) would bar Lovely’s particular [1ED

claim.

App. 11

essential defense/combat purpose of the

military activity from which it arose.

Mayor v. United States, 835 F.2d 641, 644-45 (6th

Cir.1987). In the most recent Supreme Court case

examining the Feres doctrine, the Court explained

that “a service member is injured incident to service”

if the injury is “because of his military relationship

with the Government,” United States v. Johnson, 481

U.S. 681, 689, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987),

and reiterated the three broad rationales underlying

the doctrine, id. at 689-90, 107 S.Ct. 2063; see also

United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct.

3039, 87 L.Ed.2d 38 (1985); Stencel Aero Eng’g Corp.

v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054,

52 L.Ed.2d 665 (1977). “First, ‘[t]he relationship

between the Government and members of its armed

forces is “distinctively federal in character.”’”

Johnson, 481 U.S. at 689, 107 S.Ct. 2063 (alteration

in original) (quoting Feres, 340 U.S. at 148, 71 S.Ct.

153 (quoting United States v. Standard Oil Co., 332

U.S. 301, 305, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947))).

“Second, the existence of [| generous statutory

disability and death benefits is an independent

reason why the Feres doctrine bars suit for service-

related injuries.” Jd. “Third, ... suits brought by

service members against the Government for injuries

incurred incident to service ... are the ‘type[s] of

claims that, if generally permitted, would involve the

judiciary in sensitive military affairs at the expense

of military discipline and effectiveness.’” /d. at 690,

App. 12

107 S.Ct. 2063 (alteration in original) (quoting

Shearer, 473 U.S. at 59, 105 S.Ct. 3039).

Although this is a close case presenting unique

circumstances that do not fall directly in line with

other cases applying the Feres doctrine, we conclude,

in light of the doctrine’s rationales and the courts’

broad interpretation of the doctrine, that the district

court properly dismissed Lovely’s IIED claim as

barred by the Feres doctrine. Initially, Lovely argues

that his claims are not subject to the Feres doctrine

because he was not on active duty or subject to

military command or discipline while attending

classes at UD or while involved in the UD disci-

plinary proceedings. We have noted, however, that

“the Feres doctrine extends beyond situations where

the soldier is acting pursuant to orders or while

subject to direct military command or discipline.”

Sidley v. United States, 861 F.2d 988, 990 (6th

Cir.1988): accord Skees v. United States, 107 F.3d 421,

423 (6th Cir.1997) (“[T]he term ‘incident to service’

is not a term limited to military training and

combat.”).

As an ROTC cadet, Lovely was enlisted in the

Army and was therefore a member of the armed

forces, even if not on active duty. Although we have

not yet considered the Feres doctrine as applied to

claims brought by ROTC cadets, both the Eighth and

the Second Circuits have done so, concluding that the

doctrine applied when the ROTC cadet’s injuries

occurred in the course of activity incident to military

service. See Brown v. United States (Brown I), 151

App. 13

K.3d 800, 805 (8th Cir.1998) (concluding that the

Feres doctrine barred ROTC cadet’s’ medical-

negligence claim against Army physicians who

initially treated an injury the cadet sustained during

required ROTC activities); Wake v. United States, 89

F.3d 53, 58-59 (2d Cir.1996) (concluding that Feres

doctrine barred claim of ROTC cadet injured in a car

accident while returning from a required physical

examination even though “as a member of the

NROTC and as an enlisted, inactive member of the

Navy Reserves she lacked an official military status

at the time of the accident”). Moreover, the Tenth

Circuit, in an unpublished opinion, upheld the

district court’s dismissal under the Feres doctrine of

the sexual-harassment claims of two ROTC cadets

even though the cadets were not on active duty. Morse

v. West, No. 97-1386, 1999 WL 11287, at *4 (10th Cir.

Jan. 13, 1999). We agree and conclude that Lovely’s

inactive status as an ROTC cadet does not preclude

his claims from being subject to the Feres doctrine.

Lovely next argues that his injury did not arise

from an activity incident to military service but

instead from his activities as a UD student attending

a UD disciplinary proceeding, activities which Lovely

claims are “distinctly non-military.” Lovely Br. at 15.

We conclude, however, that application of the Feres

doctrine to Lovely’s claim is supported by the third

rationale stated in Johnson, because Lovely’s injuries

stemmed from the manner in which his commanding

officer chose to conduct the affairs and discipline of

his ROTC battalion. See Shearer, 473 U.S. at 57, 105

App. 14

S.Ct. 3039 (noting that the Feres doctrine is best

explained in part by “the peculiar and _ special

relationship of the soldier to his superiors [and] the

effects of the maintenance of such suits on discipline”

(internal quotation marks omitted)).’

Lovely’s complaint alleges that he suffered eco-

nomic as well as mental, emotional, and psychological

injuries when Washington released the Ensalaco

email to a fellow cadet, made false statements about

Lovely to other UD students, wrongfully interfered

with the UD disciplinary board and the ROTC

disenrollment proceedings, and intimidated Lovely’s

witness prior to the UD proceedings.’ Lovely’s

Although Lovely does not discuss his claims in light of the

other two rationales behind the Feres doctrine, we note that one

of the rationales, the availability of alternative compensation

systems for servicemen, is not implicated here. Most cases under

the Feres doctrine have arisen from physical injuries or death

due to alleged negligence on the part of the United States. See,

e.g., Johnson, 481 U.S. at 683, 107 S.Ct. 2063 (serviceman died

during a rescue mission allegedly because of helicopter pilot's

negligence). In such cases, the serviceman or his or her family

may be entitled to statutory benefits from the death or injury

See, e.g., id. at 691, 107 S.Ct. 2063. As long as Lovely’s injury

arose from activity incident to service, however, this factor is not

dispositive. See Sidley, 861 F.2d at 991 (“While the existence of

an alternate compensation system, such as the [Veterans Benefit

Act], makes the sometimes harsh effect of the Feres doctrine

more palatable, the denial or unavailability of these benefits

does not affect the applicability of the Feres doctrine.”)

Finding no factual support for the allegations that

Washington intimidated Lovely’s witness or exerted unlawful

influence over the UD proceedings, the district court refused to

consider these allegations. Even if, however, we accept the

(Continued on following page)

App. 15

injuries, such as loss of his college funding and loss of

his reputation, would not have occurred had Lovely

not been an ROTC cadet under Washington’s com-

mand and therefore arose “because of his military

relationship with the Government.” Johnson, 481

U.S. at 689, 107 S.Ct. 2063. All of the students

involved in these incidents were ROTC cadets.

Washington would not have been offered or have been

able to obtain the email from Ensalaco had he not

been Lovely’s commanding officer. Similarly,

Washington would not have had any involvement in

Lovely’s UD disciplinary hearing had he not been

Lovely’s ROTC commanding officer. To the extent

Lovely alleges that Washington interfered in the

ROTC disenrollment process, this injury even more

clearly would seem to arise from an activity incident

to military service. Overall, as the district court

noted, “|f lor the Court to question LtC. Washington’s

interactions with the cadets assigned to his ROTC

unit would involve the Court in just the sort of prying

into military affairs, at the expense of military

discipline and effectiveness, that the Feres doctrine

cautions against.” Dist. Ct. Op. at 36 (citing Brown v.

United States (Brown III), 462 F.3d 609, 614-15 (6th

Cir.2006)).

statements in Lovely’s affidavits as true, these allegations would

actually support the application of the Feres doctrine, as they

concern Washington's conduct of the ROTC program and his

relationship with other ROTC cadets.

App. 16

The structure of the ROTC program also

supports the conclusion that Lovely was engaged in

activity incident to service. As the district court

explains in detail, attendance at UD was a require-

ment of Lovely’s ROTC contract, and Lovely received

an ROTC scholarship to attend UD in exchange for

his performance under the contract. See Wake, 89

F.3d at 58 (“Also relevant is whether the activity is

limited to military personnel and whether the service

member was taking advantage of a privilege or

enjoying a benefit conferred as a result of military

service.”). Washington’s job as ROTC Commander

was to screen cadets as candidates for commissioning

as Army officers. Washington’s treatment of Lovely,

even if tortious, was an exercise of military discipline.

Lovely argues that his injuries could not have arisen

incident to service because they arose “because of

Washington’s deviation from his military obligations.”

Lovely Br. at 18. A primary rationale behind the Feres

doctrine, however, is that this very question is for the

military, not the courts, to decide. Lovely cannot

escape the application of Feres simply by alleging

that Washington improperly exercised his authority

over Lovely and the other cadets. See Mackey v.

United States, 226 F.3d 7738, 776 (6th Cuir.2000)

(concluding that plaintiff’s sexual-harassment claims

were barred by Feres and rejecting plaintiff’s argu-

ment “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’”). Lovely’s injuries

stemmed directly from the disciplinary decisions of

App. 17

his commanding officer. Although Lovely is correct

that he was engaged in the activity of attending

school, he also was engaged in the activity of serving

as an ROTC cadet and an ROTC scholarship student.

The two are not mutually exclusive.

lil. CONCLUSION

Because we conclude that the injuries underlying

Lovely’s claim arose from activity incident to his

military service, we AFFIRM the judgment of the

district court dismissing Lovely’s IIED claim as

barred by the Feres doctrine.

App. 18

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

WAYNE G. LOVELY,

Plaintiff, - Case No. 3:06cv169

VS. * JUDGE WALTER

THE UNITED STATES HERBERT RICE

OF AMERICA. : (Filed Mar. 17, 2008)

Defendant.

DECISION AND ENTRY SUSTAINING DEFEN-

DANT’S MOTION TO DISMISS (DOC. #19) AND

OVERRULING, AS MOOT, PLAINTIFF'S MOTION

TO COMPEL DISCOVERY AND FOR SANCTIONS

(DOC. #30); JUDGMENT TO ENTER IN FAVOR

OF DEFENDANT AND AGAINST PLAINTIFF;

INSTRUCTIONS TO COUNSEL; TERMINATION

ENTRY

The Plaintiff, Wayne G. Lovely, a former student

at the University of Dayton (“U.D.” or “University”)

and member of the Reserve Officer Training Corps

(“ROTC”), brings suit against the United States and

its agency, the United States Army ROTC Battalion,

at the University of Dayton. Doc. #1 (Compl.). The

original Complaint alleged that the United States

violated Lovely’s rights, under the Privacy Act (5

U.S.C. §552a) and Army Regulation 340-21, by

releasing a copy of an e-mail regarding Lovely to a

third party. Jd. at 1. Lovely requested compensatory

App. 19

damages, costs and fees, and all other equitable relief

to which he was entitled. Jd. at 4. Subsequently, the

Court granted Lovely leave to file an Amended

Complaint, in which he reiterated his Privacy Act

claim and added thereto a claim for intentional

infliction of emotional distress, pursuant to the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-

2680, claiming that the Government “wrongfully and

intentionally inflicted emotional distress upon Lovely

by releasing the [aforementioned e-mail], making

false statements about Lovely to U.D. students,

wrongfully interfering with the U.D. non-academic

disciplinary board and ROTC disenrollment hearings

and intimidating Lovely’s intended witnesses

before these proceedings.” Doc. #16 4 21. Lovely’s

prayer tor relief, in his Amended Complaint, mirrored

that of his original Complaint. /d. at 6.

Currently pending before the Court are the

Motion to Dismiss (Doc. #19) of the United States’

and Lovely’s Motion to Compel Discovery and for

Sanctions (Doc. #30). The Court will address each

Motion in turn.

1

The Defendant previously filed a Motion to Dismiss, at

Docket #7. In response to the Plaintiff filing an Amended

Complaint, the Defendant filed a Second Motion to Dismiss at

Docket #19, which incorporates its briefings on its earlier

Motion. Thereafter, the Court overruled the Defendant’s original

Motion to Dismiss, without prejudice, given that the second

Motion superseded the first such. Doc. #26. In ruling on the

Defendant's Motion to Dismiss herein, the Court will consider

the parties’ briefings on both of the Motions to Dismiss.

App. 20

I. FACTS

A. General Facts

The Plaintiff, Wayne G. Lovely, Jr., was a student

at the University of Dayton and an ROTC scholarship

cadet, at the time of the incidents in question. Doc.

#7, Attach. #1 (2004 Lovely Aff.). Just prior to the

beginning of Lovely’s junior year, in the summer of

2003, Lieutenant Colonel Versalle Washington (“LtC.

Washington”) became the Professor of Military

Science (“PMS”) and Director of the Department of

Military Science, at the University of Dayton. Doc.

#7, Attach. #3 (Washington Aff.) at 1. As such, he was

a full professor on the faculty at the University, as

well as being an active duty Army officer. /d.

In December 2003, Dr. Mark Ensalaco, the

Director of the Department of International Studies,

discovered that Lovely had plagiarized a research

paper that accounted for one-half of his grade, in

Dr. Ensalaco’s course. /d.; Doc. #10, Ex. K7 (Ensalaco

E-mail to Washington, dtd. Feb. 16, 2004).* In

* The Plaintiff filed all of the exhibits to Docket #10

(Plaintiffs Response to the Defendant’s original Motion to

Dismiss) manually with the Court.

Like many other documents contained in the record, in this

case, this e-mail from Dr. Ensalaco to LtC. Washington is not

authenticated. Since there is no dispute between the parties as

to the contents of this document, the Court will rely upon it, in

ruling on the issues presented here. Specific instructions are

given to Defendant, at the conclusion of this Decision, however,

regarding placing this evidence in proper Rule 56 form. Failure

to comply will cause this Court to vacate its ruling herein.

App. 21

accordance with University policy, Lovely received a

failing grade for the course, due to the plagiarism.

Doc. #10, Ex. K7. Shortly thereafter, Dr. Ensalaco

verbally informed LtC. Washington of the plagiarism

incident. Jd.; Doc. #7, Attach. #3 at 1. Dr. Ensalaco

then offered to prepare a statement concerning the

incident, if LtC. Washington would find it useful. Doc.

#7, Attach. #3 at 1.

The following month, a female ROTC cadet

reported to LtC. Washington that Lovely had sexually

assaulted her, alleging that the incident had occurred

four months earlier, in September 2003. Doc. #16, Ex.

B (Washington E-mail to Col. Garcia, dtd. June 18,

2004).” LtC. Washington suggested that she contact

the police, but she declined. Doc. #7, Attach. #3 at 2.

LtC. Washington then advised her to go to the

University counseling center, which she did. Jd. At

the advice of a counselor at the counseling center, the

female cadet pursued University disciplinary

proceedings against Lovely. Jd. The University

scheduled a disciplinary board hearing for February

17, 2004. Doc. #7, Attach. #1 (2004 Lovely Aff.) at 4.

Prior to the sexual assault disciplinary hearing,

the female cadet approached LtC. Washington. She

was aware of Lovely’s plagiarism incident through

> This e-mail from LtC. Washington to Col. Garcia is not

authenticated. Since there is no dispute between the parties as

to the contents of this document, the Court will rely upon it, in

ruling on the issues presented here. But see supra note 2.

App. 22

other means and asked LtC. Washington if he could

get a statement from Dr. Ensalaco about it. Doc. #7,

Attach. #3 at 2. LtC. Washington contacted Dr.

Ensalaco and reminded him of his previous offer of a

written statement regarding Lovely’s plagiarism, to

which Dr. Ensalaco responded by sending an e-mail

describing the events in question.* Jd. at 1-2. LtC.

“The text of the e-mail from Dr. Ensalaco to LtC.

Washington reads as follows:

As per your request, I am writing in regards to Mr.

Wayne Lovely who is registered as an International

Studies major (Latin American concentration). As |

informed you at the end of the fall semester, I

assigned Mr. Lovely a failing grade (“F”) for my

course, United States-Latin American Relations (POL

404), for the fall term. I assigned the failing grade

after 1 discovered Mr. Lovely had plagiarized a

research paper. According to the course syllabus, the

final paper counted towards 50 percent of the final

grade. The failing grade for the paper resulted in a

failing grade for the course.

I should mention also that during a meeting in my

office in early January, Mr. Lovely admitted to having

plagiarized a paper which he found on the Internet. (1

had suspected plagiarism in the case, and found the

article independently on the Internet.) Mr. Lovely

admitted to this after he had received notification of

the failing grade in the course. During the meeting,

Mr. Lovely made an effort to explain his action but to

my consternation, he made no effort to apologize for

conduct that violated university policy with regard to

academic honesty. | took the lack of remorse to be

troubling.

As director of the International Studies program, I

explained to Mr. Lovely that by failing the course it

was unlikely that he would be able to graduate with a

(Continued on following page)

App. 23

Washington printed the e-mail and gave a copy to the

female cadet. Jd. This action is the crux of Lovely’s

Privacy Act claim.

The female cadet presented the copy of the e-mail

at the University disciplinary hearing regarding the

alleged sexual assault, held on February 17, 2004, in

Lovely’s presence. Doc. #7, Attach. #1 at 4.° At the

conclusion of the hearing, the Board voted to suspend

Lovely from all University activities, until May 2005.

Id. at 5; Doc. #10, Ex. K8 (Ltr. from University of

Dayton to LtC. Washington, dtd. Mar. 18, 2004).°

The morning after the hearing, Lovely ap-

proached LtC. Washington about the e-mail the

degree in International Studies with a concentration

in Latin America, because POL 404 is required for all

INS-Latin American concentrators.

Should you require any further information please do

not hesitate to contact me at [xxxx].

Doc. #10, Ex. K7.

* According to Lovely’s affidavit testimony, “[a]t the very

end of the board hearing as the members were leaving |the

female cadet] handed out a document which was assumed to be

a summation of her argument([, but instead the] document was

an e-mail pertaining to my plagiarism incident. It had been

written by Dr. Mark Ensalaco, the professor who taught the

class in which I plagiarized, and addressed to LtC. Washington.”

Doc. #7, Attach. #1 at 4.

* This letter from Mary Sue Hufnagle, Assistant Dean of

Students, University of Dayton, to LtC. Washington is not

authenticated. Since there is no dispute between the parties as

to the contents of this document, the Court will rely upon it, in

ruling on the issues presented here. But see supra note 2

App. 24

female cadet had presented at the hearing. Doc. #7,

Attach. #1 at 4. LtC. Washington acknowledged giv-

ing the e-mail to the other cadet. Jd.’ In later cor-

respondence about this issue, LtC. Washington stated

that he gave her the e-mail at the recommendation of

her counselor, who told LtC. Washington that the e-

mail “might be useful to address [Lovely’s] character”

at the upcoming disciplinary hearing. Doc. #16, Ex. B

(Washington E-mail to Col. Garcia).

Six days later, on February 24, 2004, Lovely

confronted Dr. Ensalaco about the e-mail. Doc. #7,

Attach. #1 at 5. Dr. Ensalaco acknowledged sending

the e-mail to LtC. Washington. Jd. He told Lovely

that LtC. Washington had asked for it for “records

purposes” and never mentioned that it would be used

for a University disciplinary board hearing. /d.

The following month, Lovely talked to several

fellow cadets about the happenings surrounding the

University hearing. Lovely states that these cadets

told him that LtC. Washington told other cadets that

Lovely had admitted to sexually assaulting the

female cadet, at the hearing, which was not true. Doc.

#10, Ex. B at 2 (2006 Lovely Aff.). Furthermore,

Lovely states that LtC. Washington said he learned of

this admission by listening to tapes from the hearing,

' Specifically, Lovely’s affidavit reads, “(u]pon learning of

the e-mail, I immediately went to speak with LtC. Washington

on 18 February at approximately 0845 hours. I asked him how

[the female cadet] obtained the document. He verified that he

gave it to her.” Doc. #7, Attach. #1 at 4.

App. 25

which University personnel say did not happen. /d.

LtC. Washington also seemingly told other cadets

that they should support the female cadet in this

situation, rather than Lovely. Jd.

Eventually, on October 7, 2005, the United States

Army disenrolled Lovely from ROTC. Doc. #7, Attach.

#1 at 6-7; Doc. #10, Ex. Q (Dept. of Army Memo., dtd.

Oct. 7, 2005).° During the disenrollenment process,

Lovely requested a copy of the Ensalaco e-mail, on

April 12, 2005, along with other documents asso-

ciated with that process. Doc. #10, Ex. 1 at 2 (Ltr.

from Atty. Podlaski to Col. Frusha, dtd. Apr. 12,

2005). After initially not complying with the request,

the Government finally released some of the records,

on July 12, 2005, to include the subject e-mail and a

letter from LtC. Washington to Col. Garcia (which

Lovely will later assert demonstrates LtC. Washing-

ton’s willfulness in disclosing the subject e-mail). Doc.

#10, Ex. M (Fax from Command Judge Adv. to Atty.

Podlaski, dtd. July 12, 2005).””

" This memorandum from the Department of the Army is

not authenticated. Since there is no dispute between the parties

as to the contents of this document, the Court will rely upon it,

in ruling on the issues presented here. But see supra note 2.

* This letter from Lovely’s legal counsel, Kevin P. Podlaski,

to Col. Robert J. Frusha is not authenticated. Since there is no

dispute between the parties as to the contents of this document,

the Court will rely upon it, in ruling on the issues presented

here. But see supra note 2.

" The facsimile from the Command Judge Advocate to

Lovely’s legal counsel, Kevin P. Podlaski is not authenticated

(Continued on following page)

App. 26

On December 15, 2005, Lovely filed a claim

against the United States Army, alleging, among

other things, a violation of the Privacy Act and

intentional infliction of emotional distress. Doc. #10,

Ex. R (Ltr. from Atty. Podlaski to Armor Ctr. Cmdr.,

dtd. Dec. 15, 2005 & SF 95)."' The Army denied the

claim on December 21, 2005. Doc. #10, Ex. S (Ltr.

from Staff Judge Adv. to Atty. Podlaski, dtd. Dec. 21,

2005).'* Lovely then filed the subject litigation, on

June 9, 2006. Doc. #1.

B. Lovely’s ROTC Contract

Lovely’s Army Senior Reserve Officers’ Training

Corps (ROTC) Scholarship Cadet Contract (“ROTC

Contract”) is included in the record as Attachment #1

to the Defendant’s Motion to Dismiss. Doc. #19,

Since there is no dispute between the parties as to the contents

of this document, the Court will rely upon it, in ruling on the

issues presented here. But see supra note 2

ion

rhe letter from Lovely’s legal counsel, Kevin P. Podlaski,

to the Commander, United States Army Armor Center at Fort

Knox and accompanying Standard Form 95, is_ not

authenticated. Since there is no dispute between the parties as

to the contents of this document, the Court will rely upon it, in

ruling on the issues presented here. But see supra note 2

“ The letter the Office of the Staff Judge Advocate to

Lovely’s legal counsel, Kevin P. Podlaski is not authenticated

Since there is no dispute between the parties as to the contents

of this document, the Court will rely upon it, in ruling on the

issues presented here. But see supra note 2

App. 27

Attach. #1 (ROTC Contract, dtd. Aug. 26, 2002)."

Pertinent to the issues at hand are the following

details of that Contract:

¢ The preamble’s statement that “the sole purpose

of the ROTC scholarship program is to produce

officers for the United States Army.” /d. at 1.

¢ The date Lovely’s education is to commence —

August 26, 2002; the date his education is to be

completed — May 2005. /d.

¢ Lovely’s agreement to “[rjemain a_ full-time

student at the [University of Dayton] until I

receive my degree.” /d. at 2 ] lc.

¢ Lovely’s agreement to “[mJaintain eligibility for

enrollment in ROTC, enlistment in the USAR,

and commissioning, as defined by statute, Army

regulation, and this contract, throughout the

period of this contract... .” Jd. ¥ li

¢ An expression of understanding that if Lovely is

disenrolled from the ROTC program for, among

other things, “failing to complete the educational

requirements specified in this agreement or other

educational requirements for ROTC cadets as

specified in Army Regulations, incorporated here-

in by reference” or “misconduct,” that the Army

~“ This ROTC Contract is not authenticated. Since there is

no dispute between the parties as to the contents of this

document, the Court will rely upon it, in ruling on the issues

presented here. Rut see supra note 2

App. 28

may order him to active duty as an enlisted sol-

dier or require him to reimburse the Government

for his educational] costs. /d. at 6 ¥ 7.

The ROTC Contract also sets forth the financial

terms of the Contract, to include the Government's

agreement to pay, for three years, Lovely’s tuition,

educational fees, textbooks, a subsistence allowance,

and pay, during certain periods. /d. at 9.

Il RULE 12(b)1) MOTION TO DISMISS STAN-

DARD

When a defendant moves to dismiss on grounds

of lack of subject matter jurisdiction, “the plaintiff

has the burden of proving jurisdiction in order to

survive the motion.” Nichols v. Muskingum College,

318 F.3d 674, 677 (6th Cir. 2003) (quoting Moir v.

Greater Cleveland Reg'l Transit Auth., 895 F.2d 266,

269 (6th Cir. 1990)). This Court has previously

recognized that the procedural framework for ruling

on a motion to dismiss for lack of subject matter

jurisdiction, brought under Federal Rule of Civil

Procedure 12(b)(1), is as follows:

Rule 12(b)(1) motions to dismiss based upon

subject matter jurisdiction generally come in

two varieties. A facial attack on the subject

matter jurisdiction alleged by the complaint

merely questions the sufficiency of the

pleading. In reviewing such a facial attack, a

trial court takes the allegations in the com-

plaint as true, which is a similar safeguard

employed under 12(b)(6) motions to dismiss.

App. 29

On the other hand, when a court reviews a

complaint under a factual attack, ... no pre-

sumptive truthfulness applies to the factual

allegations. Such a factual attack on subject

matter jurisdiction commonly has been re-

ferred to as a “speaking motion.”

McGuire v. Ameritech Servus., 253 F. Supp. 2d 988,

993-94 (S.D. Ohio 2003) (quoting Ohio Nat'l Life Ins.

Co. v. United States, 922 F.2d 320, 325 (6th Cir.

1990)); Fed. R. Civ. P. 12(b)(1). Courts may consider

facts outside the pleadings, in ruling on a factual

attack 12(b)(1) motion. Courts do not, however, con-

vert Rule 12(b)(1) motions into motions for summary

judgment, “as facts which bear on jurisdiction are not

the same as facts which bear on the merits.” McGuire,

253 F. Supp. 2d at 994.

Ill. ANALYSIS

The United States moves to dismiss both the

Privacy Act claim and the Plaintiff’s claim under the

FTCA, asserting that this Court lacks subject matter

jurisdiction, as to both claims. Specific to the Privacy

Act claim, the Government argues, among other

things, that the Plaintiff’s claim is time-barred since

he did not file it within the statutorily required time

frame. Doc. #7. The Court finds this argument to be

dispositive, so it will not address the remaining

App. 30

arguments, on this claim.’ With regard to the

Plaintiff’s claim of intentional infliction of emotional

distress, under the FTCA, the Government argues,

and the Court agrees, that the claim is barred by the

Feres doctrine. Doc. #19. The Court will address these

arguments in turn.

A. Privacy Act Claim

The Plaintiff brings suit for a violation of the

Privacy Act, claiming that LtC. Washington’s release,

to the female cadet, of his e-mail from Dr. Ensalaco

violates the Privacy’s [sic] Act prohibition on dis-

closing a record that is contained in a system of

records, without the prior written consent of the

individual to whom the record pertains. Doc. #16

(Am. Compl.) at J 17; 5 U.S.C. § 552a(b), (g1)(D).

Specifically, the Plaintiff alleges that, by giving the

female cadet a copy of the subject e-mail, LtC. Wash-

ington wrongfully disclosed a record, in violation of 5

U.S.C. § 552a(b). See Doc. #16 (Compl.) 917. That

Section provides that

“ The Defendant also argues that the Privacy Act claim

should be dismissed because it does not comport with the

following requirements of that Act: the document in question

(the e-mail from Dr. Ensalaco to LtC. Washington) is not a

“record contained within a system of records,” the Complaint

does not seek actual damages and the Complaint fails to name a

proper party. Doc. #7 (Original Mot. to Dismiss) at 9-14.

App. 31

injo agency shall disclose any record which is

contained in a system of records by any

means of communication to any person, or to

another agency, except pursuant to a written

request by, or with the prior written consent

of, the individual to whom the record per-

tains....

5 U.S.C. §552a(b). This language is followed by

certain delineated exceptions, none of which are

applicable in this case. /d. Paragraph (g)(1), of the

Privacy Act, further provides that an individual may

bring a civil action against an agency, for a violation

of this provision, and the United States district courts

shall have jurisdiction over any such actions. 5 U.S.C.

§ 552a(g)1)(D).

‘he Privacy Act also contains a statute of limi-

tations, which reads, in pertinent part, as follows:

An action to enforce any liability created

under this section may be brought in the

district court of the United States in the

district in which the complainant resides

., within two years from the date on which

the cause of action arises, except that where

an agency has materially and willfully mis-

represented any information required under

this section to be disclosed to an individual

and the information so misrepresented ts

material to establishment of the liability of

the agency to the individual under this sec-

tion, the action may be brought at any time

within two years after discovery by the in-

dividual of the misrepresentation....

App. 32

5 U.S.C. § 552a(g)(5) (emphasis added). Thus, a plain-

tiff must bring a Privacy Act claim within two years

from the date on which the cause of action arises. Id.;

see also Cannon-Harper v. United States Postmaster

Gen., 2006 U.S. Dist. LEXIS 66981, *6 (E.D. Mich.

Sept. 19, 2006) (noting that a cause of action is

considered to have arisen, in a 5 U.S.C. § 552a(b)

wrongful disclosure case, when the plaintiff knows or

has reason to know of the alleged violation) (cit-

ing Tiyerina v. Walters, 821 F.2d 789, 798 (D.C. Cir.

1987))."° An exception to the rule occurs, however.

under the following conditions: (1) when an agency

has materially and willfully misrepresented any inf-

ormation required, under the Privacy Act, to be

disclosed to an individual, and (2) when the infor-

mation so misrepresented is material to the estab-

lishment of the agency’s liability to the individual,

under the Privacy Act. 5 U.S.C. § 552a(g)(5). If the

exception applies, the action must be brought within

two years after the individual discovers the mis-

representation. Jd."

Contrast Edwards v. Horner, which applies a slightly

different standard in the context of a denial of a request to

amend records, under 5 U.S.C. § 552a(d\(2). 1991 U.S. App.

LEXIS 15963 (6th Cir. July 11, 1991). In these cases, a cause of

action arise [sic] “when the agency issues a final decision on the

matter and when a person knows or has reason to know that the

request has been denied.” /d. at *11.

'° The Ninth Circuit summarizes the rule and its exception

as follows:

In general then, an individual must briny suit within

two vears of the unauthorized disclosure except where

(Continued on following page)

App. 33

The Defendant argues that the Plaintiff’s

Privacy Act claim is barred by the Act’s two-year

statute of limitations, because the Plaintiff “knew or

should have known” of the violation, on or about

February 17, 2004, which was the day of the dis-

ciplinary hearing, but he did not file this action until

June 9, 2006 — almost four months too late. Doc. #7

(Original Mot. to Dismiss) at 6-9; Doc. #13 (Second

Mot. to Dismiss) at 1-5. The Plaintiff responds with

the following arguments: (1) the statutory period did

not begin to run on February 17, 2004, because the

Government “materially and willfully misrepre-

sented” certain information required to be disclosed;

(2) the statutory period did not begin to run untii the

Plaintiff suffered “adverse effects” when he was

officially disenrolled by the Army; and (3) the statu-

tory period was tolled while the Plaintiff exhausted

his administrative remedies. Doc. #10 at 8-15. The

Court will address these three arguments in turn,

after first taking note that the Court lacks juris-

diction, under the Privacy Act, if the Plaintiff did

not bring his action within the statutory parameters

of 5 U.S.C. § 552a(g)(5). Davis v. Gross, 1984 U.S.

an agency has willfully misrepresented information

required to be disclosed to the individual and which

would be material to establishing the agency’s lia-

bility under the Privacy Act; in such exceptional cir-

cumstances, § 552a(g)(5) affords the individual two

years from the time he discovers the agency’s actions.

Oja v. United States Arniy Corps of Eng’rs, 440 F.3d 1122, 1128

(9th Cir. 2006)

App. 34

App. LEXIS 14279, *4 (6th Cir. 1984); see also

Akutowicz v. United States, 859 F.2d 1122, 1126

(2d Cir. 1988) (““[W]here the government’s consent as

sovereign to be sued is conditioned upon the filing of

suit within a specified period of time, strict com-

pliance with that condition is a jurisdictional pre-

requisite.”) (internal quotations omitted); Cannon-

Harper v. United States Postmaster Gen., 2006 U.S.

Dist. LEXIS 75313, **3-4 (E.D. Mich. Oct. 17, 2006)

(same principle).

1. Willful Misrepresentation of Information

Required to be Disclosed

The Plaintiff argues the “material and willful

misrepresentation” exception to the two-year statute

of limitations, based on the fact that the Government

was dilatory in sending him two requested documents

- the e-mail at issue and a copy of a letter from LtC.

Washington to Col. Garcia (which allegedly demon-

strates LtC. Washington’s willfulness in disclosing

the subject e-mail).'’ Doc. #10 at 8-12; see also id. at

11 (noting that Lovely submitted his request for these

documents on April 12, 2005, but did not receive the

same until three months later). The Plaintiff goes on

to argue that “[bly refusing to produce these docu-

ments|,] the Government materially misrepresented

" In order to be awarded damages in a wrongful disclosure

Privacy Act suit, a plaintiff must demonstrate that an agency

acted “in a manner which was intentional or willful.” 5 U.S.C

§ 552(g)(4)

App. 35

their existence.” Jd. at 11." In support of this argu-

ment, the Plaintiff cites four cases, all from the

Federal District Court of the District of Columbia, for

the proposition that the Privacy Act limitations

period may be tolled when a plaintiff “despite all due

diligence is unable to obtain vital information bearing

on the existence of his claim.” Jd. at 8-9 (quot-

ing Levant v. Roche, 384 F.Supp. 2d 262, 270

(D.D.C. 2005) and citing Lacey v. United States, 74

F. Supp. 2d 13 (D.D.C. 1999); Marin v. United States

Dept. of Def., 1998 WL 779101 (D.D.C. Oct. 23, 1998);

Pope v. Bond, 641 F. Supp. 489 (D.D.C. 1986)).

‘“ Although the Court finds it unnecessary to decide this

issue, since it finds that possession of the documents was not

material to the establishment of the Defendant’s liability, it is

leery of adopting the Plaintiff’s proposition that the Government

“materially misrepresented the existence of the documents” by

refusing to produce them. First and foremost, the Court notes

that there is no doubt that the e-mail, which is the subject of

this litigation, existed. The Plaintiff saw the e-mail at the

hearing (although it is unclear whether he actually read it) and

spoke to both LtC. Washington and Dr. Ensalaco about it shortly

thereafter. Further, withholding a document, of which a plaintiff

knows its existence and knows, at least generally, of its

contents, is not the type of “material and willful misrepre-

sentation” found by other courts to be violative of 5 U.S.C.

§ 552a(g)(5). E.g., Lacey v. United States, 74 F. Supp. 2d 13, 10-

17 (D.D.C. 1999) (over the course of a year, government agent

repeatedly advised plaintiffs not to sue, telling them they lacked

evidence to bring suit and that they should wait for the agency

to finish its investigation); Jarrell v. United States Postal

Service, 1985 U.S. App. LEXIS 27521, **11-12 (D.C. Cir. 1985)

(agency had excised certain parts of documents and the plaintiff

had no knowledge of the excised information)

App. 36

The Defendant counters by pointing out that, on

or about February 17, 2004 (the date of the Plaintiff’s

University disciplinary hearing), the Plaintiff knew of

the contents of the e-mail and knew that LtC.

Washington had willfully disclosed the same to the

female cadet, based on the Plaintiff’s attendance at

the hearing and his confrontations with both LtC.

Washington and Dr. Ensalaco, within days after the

hearing. Doc. #13 at 3. In effect, the Defendant

argues that the Government’s transmittal of the two

documents to the Plaintiff was not “material to the

establishment of the liability of the agency to the

[Plaintiff ],” as required by the Privacy Act and, thus,

the “material and willful” exception to the statute of

limitations is inapplicable. Jd. The Court agrees.

The Plaintiff in this case admittedly knew that

LtC. Washington had intentionally given the female

cadet the subject e-mail on or about February 17,

2004, because he witnessed her in possession of the

e-mail and because LtC. Washington apprised him of

both the disclosure and the intentional nature of the

disclosure of the same the next day. Doc. #7, Attach.

#1 (2004 Lovely Aff.) at 4-5. Thus, the Plaintiff’s

actual possession of the e-mail was not “material to

the establishment of the agency’s liability to the

individual, under the Privacy Act,” as required for the

statute of limitations exception under 5 U.S.C.

§ 552a(g)(5). Accord Bowyer v. Untted States Dep't of

Air Force, 875 F.2d 632, 636 (7th Cir. 1989) (in suit

alleging improper maintenance of records, “the rele-

vant fact is not when the plaintiff first had physical

App. 37

possession of the particular records, but rather when

he first knew of the existence of the records. For this

purpose, even unsubstantiated hearsay and rumors

are enough to find knowledge sufficient to trigger the

statute of limitations”) (internal quotations omitted);

Nwangoro v. Department of the Army, 952 F. Supp.

394, 397 (N.D. Tex. 1996) (“A cause of action accrues

once the plaintiff knows or has reason to know of the

adverse action. Thus, the limitations period com-

mences not when the plaintiff first obtains possession

of the particular records at issue, but rather when he

first knew of their existence.”) (citing Rose v. United

States, 905 F.2d 1257, 1259 (9th Cir. 1990) and

Bowyer, 875 F.2d at 637). Thus, even assuming that

this Court was in agreement with the cited cases

from the District Court of the District of Columbia,

the proposition propounded therein (that the Privacy

Act limitations period may be tolled when a plaintiff,

“despite all due diligence is unable to obtain vital

information bearing on the existence of his claim”) is

inapposite here, because the possession of the e-mail

was not “vital information bearing on the existence of

his claim,” since the Plaintiff already knew of the

disclosure of the contents of the subject document, as

well as the intentionality of the same.”

'’ Besides the inapplicability to the facts of this case, the

holdings in the cited cases are also inapposite for various other

factual and legal reasons. E.g., Levant v. Roche, 384 F. Supp. 2d

262, 270 (D.D.C. 2005) (which recited the quoted proposition,

but did not apply it; finding that the plaintiff was not deprived

of a reasonable time in which to file suit so his claims were

(Continued on following page)

App. 38

Even assuming, arguendo, that the Defendant’s

withholding of the requested documents could be

framed as being material to the establishment of the

Defendant’s liability, the time period between his

request and receipt of the same was only three

months (April 12 — July 12, 2005). Therefore, the

statutory period would only have been tolled for three

months. However, the Plaintiff was almost four

months late in filing his Complaint, in that he had all

the facts necessary to “Know or have reason to know”

of the Privacy Act violation on the day after the

disciplinary hearing, February 18, 2004, when LtC.

time-barred); Lacey v. United States, 74 F.Supp. 2d 13, 16

(D.D.C. 1999) (finding the plaintiffs’ claims were not time

barred, but not because they had been unable to obtain vital

information, but because the government made “material and

willful misrepresentations to [them]” by, for example, advising

them not to sue, telling them they lacked evidence to bring a

suit and advising them to wait for the INS to finish its

investigation before bringing a suit); Marin v. United States

Dept. of Def., 1998 WL 779101, *2 (D.D.C. Oct. 23, 19998 [sic])

(not addressing plaintiff’s inability to obtain information, but,

instead, plaintiff’s allegations of the government’s deliberate

alteration of his records after the statute began to run, which

triggered the material and willful tolling provision); Pope uv.

Bond, 641 F. Supp. 489, 499-500 (D.D.C. 1986) (finding that the

statute of limitations had not run, in part, because “plaintiff's

specific requests for access to the FAA files containing the

evidence of violations [were] repeatedly denied by the FAA,” but

this case is differentiated from the present case, because the

Pope plaintiff was not aware of the existence of, or the disclosure

of, some of the files in question until discovery, when the FAA

was forced to turn over the files it had previously refused to turn

over and, therefore, did not know or have reason to know of the

Privacy Act violation until such time)

App. 39

Washington confirmed that he had given the subject

e-mail to the female cadct.

In sum, then, the Court is not persuaded that the

two year statute of limitations was tolled by the

Defendant’s failure to directly produce the requested

documents. Even assuming, arguendo, that it was sc

tolled, however, the Plaintiff was still late in initi-

ating the present litigation. Thus, the Court will turn

to the Plaintiff’s next argument in opposition to the

Defendant’s statute of limitations challenge.

2. Statutory Period did not Begin until

Plaintiff Suffered “Adverse Effects”

The Plaintiff next argues that the statutory

period did not begin to run until the Army disenrolled

him, on October 7, 2005, because it was then that he

suffered “adverse effects” from the Privacy Act viola-

tion. Doc. #10 at 12-13. In so arguing, the Plaintiff

asserts that “[a] claim for unlawful disclosure of infor-

mation under the Privacy Act, § 552a(g)(5), does not

accrue for statute of limitation purposes until a claim

for damages is substantiated.” Doc. #10 at 12 (citing

Lacy v. United States, 74 F. Supp. 2d 13 (D.D.C. 1999)

and Marin v. United States, 1998 WIL 779101 (D.D.C.

1998)).

The Plaintiff’s argument here is not well taken.

First, because the two cited cases from the District

Court for the District of Columbia do not support the

Plaintiff’s contention that, as a blanket rule, the

Privacy Act statutory period does not start until a

App. 40

plaintiff suffers “adverse effects” from a violation.

Lacy, 74 F. Supp. 2d at 16-27 (statutory period didn’t

start until claim had been substantiated, but only

because, in the meantime, the Government had

repeatedly advised the plaintiffs that their claim was

insufficient and they should not bring suit); Marin,

1998 WL 779101 at *2 (pinning start of statute of

limitations on date on which the “injury for which

relief is sought was triggered,” which was not the

same as the date on which the claim for damages was

substantiated). Furthermore, and most importantly,

however, the Privacy Act quite clearly spells out when

the statutory period runs and when it is tolled, in 5

U.S.C. § 552a(g)(5), but does not include a tolling

period pending an “adverse effect.” Since the Plaintiff

has pointed to no relevant case law that supports a

tolling of the limitations period until such time as a

plaintiff substantiates that he has suffered an

adverse effect, and, since the Court has found none,

the Court finds that the statute of limitations was not

tolled until the date that the Army disenrolled the

Plaintiff.

3. Exhaustion of Administrative Remedies

The Plaintiff’s final argument as to why his

claim is not time barred is that the two year statue

[sic] of limitations was tolled while he pursued his

administrative remedies. Doc. #10 at 13-15. In so

arguing, the Plaintiff concedes that the Privacy Act

does not specifically require a claimant to exhaust

administrative remedies before bringing suit, but

App. 41

asserts that “such a requirement is imposed as a

general principal of administrative law.” /d. at 13

(quoting Hammie v. SSA, 765 F. Supp. 1224, 1225

(E.D. Pa. 1981); citing Haase v. Sessions, 282 U.S.

App. D.C. 163 (D.C.Cir. 1990) and Nurse v. Sec’y of

the Air Force, 231 F. Supp. 2d 323 (D.D.C. 2002)). The

Plaintiff goes on to explain that he filed a claim for

damages with the Army on December 15, 2005, which

was denied on December 21, 2005, at which time he

suggests that the “Government thereby ceded juris-

diction to this Court over [LtC.] Washington’s willful

violation of the Privacy Act.” /d. at 14. The Plaintiff is

apparently arguing that the statute of limitations

should not have begun to run until December 15,

2005. See td. (“Plaintiff filed this Complaint on June

9, 2006, within ... six months of the Government

ceding jurisdiction after Lovely exhausted his ad-

ministrative remedies.”).

The Privacy Act sets forth four causes of action,

to wit:

1. Failure to amend an individual’s record,

in accordance with his request. 5 U.S.C.

§ 552a(g\ 1A).

ho

Refusal to comply with an individual’s

request for records. 5 U.S.C. § 552a(g)( 1B).

3. Failure to maintain accurate records,

when an individual suffers an adverse

determination based on those inaccurate

records. 5 U.S.C. § 552e(g)1)C).

App. 42

4. A catchall provision, which authorizes

suit if an agency fails to comply with any

other command of the Privacy Act. One

of those commands is contained in sec-

tion (b) of the Act, which forbids an

agency from disclosing a record to a

third party without the prior written

consent of the individual to whom the

record pertains. 5 U.S.C. § 552a(b),

(g)1)(D).”

The statute further provides that the United States

may he liable for damages, in certain circumstances,

for violations of the third and fourth causes of action,

but not for violations of the first or second such. 5

U.S.C. § 552a(g)(4) (imposing liability for damages, if

a court determines that the agency acted in an

intentional or willful manner, in violating either

§ 552a(g)(1)C) or (D)).

Although the Sixth Circuit has not addressed

this issue, the consensus of the courts that have is

that plaintiffs are required to exhaust administrative

remedies when alleging that an agency has failed to

act, in violation of paragraphs (A) and (B) of

§ 552a(g)(1)) (failure to amend or disclose records),”'

~” The Plaintiff's claim, in this case, falls within the fourth

provision. Doc. #16 (Compl.) { 17.

" E.g., Quinn v. Stone, 978 F.2d 126 (3rd Cir. 1992) (hold-

ing that there is an administrative exhaustion requirement for

suits for amendment of records); see also Pollack v. Department

of Justice, 49 F.3d 115, 117 n.1 (4th Cir. 1995) ‘noting that the

plaintiff’s Privacy Act claim was not properly before the district

(Continued on following page)

App. 43

but are not required to do so, when seeking damages

for alleged violations of paragraphs (C) and (D) of

§ 552a(g)(1) (failure to properly maintain a record,

which leads to an adverse determination, or some

other failure to comply with the Privacy Act that

causes an adverse effect).” This distinction is logical,

given that an agency should be afforded an

opportunity to first respond to a_ request for

documents or amendments to documents, before a

court gets involved. As to claims for damages,

however, there is no statutory authority for an agency

to award damages for improper actions it has already

taken, so those claims are more appropriately within

the court’s area of responsibility. See Pope v. Bond,

641 F. Supp. 489, 500 (D.D.C. 1986).

The first two cases cited by the Plaintiff fall

within the first such category of suits, wherein the

court because he did not first exhaust administrative remedies

where he was requesting documents).

“ E.g., Christensen v. United States Dept. of Interior, 2004

U.S. App. LEXIS 19835, **5-6 (10th Cir. Sept. 22, 2004)

(“(T]here is no basis for tolling the limitations period while

Plaintiff pursued his administrative claim, because there is no

administrative exhaustion requirement when a plaintiff seeks

damages under the Privacy Act”); Haase v. Sessions, 893 F.2d

370, 374 (D.C. Cir. 1990) (noting that § 552a(g)(1)(D) claims do

not require exhaustion); Diederich v. Dept. of Army, 878 F.2d

646, 647-48 (2d Cir. 1989) (holding that the exhaustion doctrine

does not bar suits for damages); Salih Rashad Muayjted v. United

States, 2007 U.S. Dist. LEXIS 29068, **12-14 (W.D. Va. 2007)

(same); UAl v. Swanstrom, 876 F. Supp. 1545, 1560-61 (N D

lowa 1995), aff'd 79 F.3d 751 (8th Cir. 1996) (same).

App. 44

courts determined that exhaustion was appropriate

when an agency allegedly failed to release records, in

violation of § 552a(g)(1)(B) (rather than (g)(1)(D)), so

are not applicable here. Nurse v. Sec’y of the Air

Force, 231 F.Supp.2d 323, 327 (D.D.C. 2002);

Hammuie v. SSA, 765 F. Supp. 1224, 1225 (B.D. Pa.

1991). Nor is the third case cited by the Plaintiff

helpful to his case, in that it specifically states that

claims brought under § 552a(g)(1)(D) “dof{] not

require exhaustion.” Haase v. Sessions, 893 F.2d 370,

374 (D.C. Cir. 1990).

The Court finds, therefore, that the Privacy Act

does not require that the Plaintiff exhaust adminis-

trative remedies before bringing suit for an alleged

violation of 5 U.S.C. § 552a(g)(1)(D) and, thus, is not

persuaded by the Plaintiff’s third and final argument

as to why his Privacy Act claim should not be time

barred.

Since the Plaintiff filed his claim over four

months after the two year statutory period expired

and because the statute was not tolled in the mean-

time, the Plaintiff’s Privacy Act claim is barred by

the statute of limitations and the Defendant’s Motion

to Dismiss the Plaintiff’s Privacy Act claim (Doc.

#19), for lack of subject matter jurisdiction, is

SUSTAINED.

App. 45

B. FTCA Claim for Intentional! Infliction of

Emotional! Distress

The Plaintiff’s Complaint alleges that the

Defendant wrongfully and intentionally inflicted

emotional distress upon him, in violation of the

FTCA, by taking the following actions: releasing the

e-mail to the female cadet, making false statements

about him to other students, wrongfully interfering

with the University non-academic disciplinary board

hearing process, wrongfully interfering with the

ROTC disenrollment hearing process and _ intimi-

dating his intended witnesses in these hearings. Doc.

#16 920-24. Among other things, the Defendant

argues that the Court does not have subject matter

jurisdiction to hear this claim, because it is barred by

the Feres doctrine, which disallows tort claims that

arise from activities incident to military service. Doc.

#19 (Def.’s Mot. to Dismiss) at 4-12 (citing Feres v.

United States, 340 U.S. 135 (1950)); Doc. #24 (Def.’s

Reply Mem.) at 1-4.

The Court will now turn to an analysis of the

Feres doctrine, as it applies to the facts of this case.

As an initial matter, however, the Court notes that if

the Plaintiff’s claim is Feres-barred, the Court does

not have subject matter jurisdiction over the liti-

gation, pursuant to Federal Rule of Civil Procedure

12(b)(1)."° Jackson v. United States, 110 F.3d 1484,

“ As further explained by the Second Circuit:

The FTCA was intended as a partial waiver of sover-

eign immunity. “Absent a waiver, sovereign immunity

(Continued on following page)

App. 46

1486 (9th Cir. 1997); Wake v. United States, 89 F.3d

53, 57 (2d Cir. 1996); Wojton v. United States, 199

F. Supp. 2d 722, 731-34 (S.D. Ohio 2002) (considering

Feres challenge as factual] attack on court’s subject

matter jurisdiction).

1. The Feres Doctrine in General

The FTCA allows a plaintiff to sue the gov-

ernment for injuries caused by a government em-

ployee’s negligence, whe thin the scope of

employment, under ci! where a private

individual would be lable for such negligence. 28

U.S.C. § 1346(b). This provision, however, is subject

to a judicially-created exception, as spelled out by the

United States Supreme Court, in Feres v. United

States, 340 U.S. 135 (19590). In Feres, the Court held

that the FTCA’s waiver of sovereign immunity does

not apply to certain né ctions brought by

military personnel. Sp yurt ruled that

the government “is 1 he [FTCA] for

injuries to service! e out of

shields the federal | encies from

suit.... [Thus, slove jurisdictional

in nature.” Because t e concerns the

Walver of sovereiyn in on of whether a

FTCA claim is barr: arily one of

jurisdiction.

Wake v. United States, 89 ir. 1996) (quoting

Dorking Genetics v. Unite '61, 1264 (2d Cir

1996) and citing Fer ("S135 (1950),

among others))

App. 47

or are in the course of activity incid

at 146.

When deciding cases involving a Fe’

a court’s analysis often turns on wheth

vidual has sustained an injury “incident to 1

service.” The Sixth Circuit instructs that suc}

injuries are Feres-barred because they are the type:

of claims “that, if generally permitted, would involve

the judiciary in sensitive military affairs at the ex

pense of military discipli: Brow

v. United States, 462 |

(quoting United States

(1985)).“* The Appellate Court

“ The Sixth Circuit has provided an excelle:

the two subsequent Supreme Court cases, whic!

the Feres doctrine, in cases similar to the one at bar

In [United States v. Shearer, 473 U.S. 52 (1985)

plaintiff’s decedent wa e who wa

kidnapped and mur rvicematl

while off duty and laintil

alleged that Army

death. In rever

that “an off-dut

and not engaged

injury, can recover |

States, 723 F.2d 1102

found the relevant ing

act or incident but

civilian court to secu:

whether the suit mi

discipline.” 473 U.S ted) TT

Court concluded that e level

civilian judicial invol t if this type

of case were permitt ling) officers

(Continued

App. 48

“courts should take a flexible approach to government

claims of immunity in actions brought under the

Federal Tort Claims Act,” zd. at 615 (citing Shearer,

473 U.S. at 57), and points out that

Supreme Court precedents make it clear that

in recent years the Court has embarked on a

course dedicated to broadening the Feres

doctrine to encompass, at a minimum, all

injuries suffered by military personnel that

are remotely related to the individual’s status

as a member of the military, without regard

to the location of the event, the status

would likely have to testify about their practices and

policies in disciplining subordinates and dictating

their off-base conduct. Jd. at 58.

In [United States v. Johnson, 481 U.S. 681 (1987)],

Johnson, plaintiff’s husband was killed in a helicopter

crash during a rescue mission due to the alleged

negligence of an air traffic controller employed by the

Federal Aviation Administration (FAA). The Court

once again reversed the court of appeals by applying

the Feres doctrine, even though the alleged negligence

involve any military personnel. In the same

had held that the situs of the incident was not

leterminative in Shearer, the Court found that the

status of the tortfeasor as a civilian governmental

employee was similarly insignificant. Since the acci-

dent had occurred while the pilot was engaged in a

service-related mission, suit was barred because its

maintenance would “necessarily implicate[] the mil-

tary judgments and decisions that are inextricably

intertwined with the conduct of the military mission.”

107 S. Ct. at 2069

Mayor United States, 835 F.2d 641, 644 (6th Cir. 1987).

App. 49

(military or civilian) of the tortfeasor

nexus between the injury-producing

and the essential defense/combat purp

the military activity from which it aros:

Fleming v. United States Postal Serv., 186 F.3d |

699 (6th Cir. 1999) (emphasis added) iitine Ske es

United States, 107 F.3d 421, 423-24 (6th Cir. 1997)

(noting that incident-to-service is not “limited to

military training and combat”); Sidley v. United

States, 861 F.2d 988, 990 (6th Cir. 1988) (“The Feres

doctrine extends beyond situations where the soldier

is acting pursuant to orders or while subject to dirt

military command or discipline.”); Major

States, 835 F.2d 641, 644-45 (6th Cir. 1987

Mackey v. United States, 226 F.3d 773, 776

2000) (“[T]he Feres doctrine applies to inte:

torts.”).

*” Contrast Fleming v. United States Postal Serv., 186 F.3d

697 (6th Cir. 1999), where the Sixth Circuit determined that th

Feres doctrine was inapplicable. The plaintiff’s injury in that

case occurred when he was in an accident driving to a1

rant, which was not on military property, before report

military duty. Because the act in question was _ not

motely related to the individual's status as a memb

military, the Court determined that Feres did not

against the driver of the other vehicle. In so doing, the |

cited favorably the holding in Green v. Hall, 8 F.3d 695, 700 (9t}

Cir. 1993), which determined that a challenged action was not

Feres barred if it was a “distinctly nonmilitary act, [that was]

not done under orders, was not intended to benefit the military

and did not occur on military property.” 186 F.3d at 700

App. 50

Other courts have determined that “whether the

activity [was] limited to military personnel and

whether the service member was taking advantage of

a privilege or enjoying a benefit conferred as a result

of military service” is also relevant in deciding these

cases. Wake v. United States, 89 F.3d 53, 58 (2d Cir.

1996) (finding plaintiff’s claim Feres-barred where

ROTC cadet suffered injuries while a passenger in a

car, which was owned and operated by the ROTC

program and the cadet was being transported to a

military clinic for a mandatory physical examination)

(citing Sanchez v. United States, 878 F.2d 633, 634

(2d Cir. 1989), which barred a claim for negligent

servicing of automobile where use of base service

station was limited to service members and civilians

connected with military mission and suit would

involve impermissible civilian inquiry into policies

and procedures for operation of military controlled

facility).

2. Feres Doctrine and ROTC Students

Although the Sixth Circuit has not had occasion

to decide such a case, other courts have determined

that the Feres doctrine applies to ROTC cadets and is

to be applied, as in the case of other military per-

sonnel, to bar claims made by ROTC cadcts for

injuries sustained incident to military service. E.g.,

Brown v. United States, 151 F.3d 800, 805 (8th Cir.

1998) (injury allegedly caused by negligence of Army

surgeon); Wake v. United States, 89 F.3d 53 (2d Cir.

1996) (barring claim for injury sustained in military

App. 51

vehicle accident while returning from naval hospital

where cadet had undergone precommissioning physi-

cal); Morse v. West, 975 F. Supp. 1379, 1381 (D. Colo.

1997) (alleging, among other things, unwanted sexual

advances from male cadet, hostile environment, re-

taliation for reporting sexual harassment, intentional

infliction of emotional distress); Mangan v. Wein-

berger, 1987 U.S. Dist. LEXIS 14159 (D. Minn. Feb.

13, 1987) (contending improper assessment of cadet

as possessing a personality disorder and that various

defendants conspired together to disenroll him from

ROTC, based upon affiliation with certain political

party). The focus in these cases, just as it is in all

Feres cases, is whether the ROTC cadet sustained his

or her alleged injuries incident to service. The Court’s

task in this case, then, is to do the same.

3. Whether Lovely Sustained his Alleged

Injuries Incident to Military Service

In his Complaint, the Plaintiff alleges that he

suffered emotional distress because of the following

actions by LtC. Washington: release of the e-mail to

the female cadet, making false statements about him

to other students, wrongfully interfering with the

University non-academic disciplinary board hearing

process, wrongfully interfering with the ROTC dis-

enrollment hearing process, and intimidating his

intended witnesses in these hearings. Doc. #16

49120-24. In his Memorandum in Opposition to the

Defendant’s Motion to Dismiss, the Plaintiff seems to

App. 52

have dropped the emphasis on the ROTC disenroll-

ment hearings, in that he points only to the following

actions, of LtC. Washington, relative to the Uni-

versity disciplinary board hearing:

¢ Conspiring with the female cadet and _ her

counselor to discredit the Plaintiff before the

University board

¢ Giving the female cadet the e-mail for her use at

the University board

¢ Making false statements to Dr. Ensalaco, in

obtaining the e-mail at issue”

* Falsely telling other students that the Plaintiff

admitted to “raping” the female cadet at the

hearing, when, in fact, he denied this accusation;

further, wrongfully stating that he, Washington,

had learned of this admission because he listened

to tapes of the hearing

Doc. #22 at 3, 15. In both his Complaint and his

Memorandum, the Plaintiff also alleges that LtC.

Washington’s acts included intimidating and unlaw-

fully influencing the Plaintiff’s witnesses before the

University hearing. Doc. #16 921; Doc. #22 at 3, 15.

In support of this allegation (and the other allega

tions in the Memorandum), the Plaintiff points gen-

erally to Exhibits A, B, C and D, to his first response

to the Defendant’s Motion to Dismiss (Doc. #10).

Doc. #22 at 3, 15. The Court was unable to find any

support in the generally cited documents for the

* Presumably, the false statement is that LtC. Washington

intended to put the e-mail in Lovely’s records

App. 53

intimidation/unlawful influence allegation, however,

so will not consider the same herein.

In order to determine whether the Plaintiff's

claim is Feres-barred, the Court must now determine

whether the noted actions were taken “incident to the

Plaintiff’s military service.” In so doing, the dis-

positive inquiry is whether the Plaintiff “stood in

some sort of relationship to the service such that the

events arose out of activity incident to service.” Morse

v. West, 975 F. Supp. 1379, 1381 (D. Colo. 1997) (cit-

ing Quintana v. United States, 997 F.2d 711, 712

(10th Cir. 1993)); see also Duffy v. United States, 966

F.2d 307, 312 (7th Cir. 1992) (same).

The Plaintiff was a senior ROTC scholarship

cadet, at the time of the actions in question.’ Sections

2001-2199, of Title 10 of the United States Code,

pertain to the training and education of members of

the armed forces, to include ROTC cadets. Section

2005 covers “Advanced Education Assistance: Active

Duty Agreement; Reimbursement Requirements,”

and provides that the Secretary of the Army may

require, as a condition to providing advanced edu-

cation assistance to any person, that such person

enter into a written contract under which he agrees

’ According to the Eighth Circuit, “Senior ROTC members

are required to swear an oath of loyalty, join a reserve compo-

nent of an armed force, and agree both to complete the course of

training and to accept a commission for a term of service in the

military following training.” Brown v. United States, 151 F.3d

800, 805 (8th Cir. 1998) (citing 10 U.S.C. §$§ 2104(b), 2105)

App. 54

(1) to complete the educational requirements

specified in the agreement and to serve

on active duty for a period specified in

the agreement;

(2) that if such person fails to complete the

education requirements specified in the

agreement, such person will serve on

active duty for a period specified in the

agreement;

(3) that if such person, voluntarily or be

cause of misconduct, fails to complete

the period of active duty specified in the

agreement, or fails to fulfill any term or

condition prescribed pursuant to clause

(4), such person will reimburse the

United States in an amount that bears

the same ratio to the total cost of ad-

vanced education provided such person

as the unserved portion of active duty

bears to the tota] period of active duty

such person agreed to serve;

(4) to such other terms and conditions as the

Secretary concerned may prescribe to

protect the interest oj the United States

1O U.S.C. § 2005(a) (effective 2004) (emphasis added).

In pertinent part, Army Regulation 145-1 (“Senior

Reserve Officers’ Training Corps Program: Organiza-

tion, Administration, and Training), provides that a

senior ROTC scholarship cadet “will be Jisenrolled for

the following reasons:”

° Because of withdrawal or dismissal from

the academic institution

App. 55

¢ Misconduct, demonstrated by disorderly

or disrespectful conduct in the ROTC

classroom or during training, or other

misconduct that substantially interferes

with the ROTC mission, including par

ticipation in unlawful demonstrations

against the ROTC, tllegal interference

with rights of other ROTC students, or

similar acts

° Undesirable character demonstrated by

chealing on exurminations, stealing, un

lawful possession Such acts may

also be characterized as misconduct

¢ Breach of contract (including formerly

used term willful evasion). (Note: Breach

is defined as any act, performance or

nonperformance on the part of a student

that breaches the terms of the contract

regardless of whether the act, perform-

ance or nonperformance was done with

specific intent to breach the contract or

whether the student knew that the act,

performance or nonperformance breaches

the contract)

AR 145-1, 4 3-43a(4), (12), (14), (16) (Wwww.army

usapa/epubs/pdf/rl45_1) (emphasis added). Fin

the contract entered into between the Plaintiff

mil

ally,

and

the Government, in the present case, provides that in

return

a

for the Government's payment ol cducation

tance the Plaintiff appre ed to the follow Inyv

App. 56

¢* To remain a full-time student at the

University of Dayton until he received

his degree.

¢ To complete his degree by May 2005.

¢ To maintain eligibility for enrollment in

ROTC, enlistment in the USAR, and

commissioning, as defined by statute,

Army regulation, and this contract,

throughout the period of the Contract.

¢ If disenrolled from the ROTC program

for, among other things, failing to

complete the educational requirements

specified in the agreement or other edu-

cational requirements for ROTC cadets

as specified in Army Regulations or for

misconduct, that the Army may order

him to active duty as an enlisted soldier

or require him to reimburse the Gov-

ernment for his educational costs.

Doc. #19, Attach. #1 (ROTC Contract).

The actions complained of by the Plaintiff were

all geared towards LtC. Washington’s allegedly im-

proper interference with the University disciplinary

hearing, which pertained to the female cadet’s alleya-

tions of improper sexual advances by the Plaintiff. As

is clear by the outcome of that hearing, a potential

result of the same was that the Plaintiff might have

been suspended from the University. Such an

outcome would violate the Plaintiff's obligation under

the afore-cited statutory section, Army Regulation

and ROTC Contract, to remain a full-time student at

the University of Dayton until completion of his

App. 57

degree. Accord United States v. Bush, 247 F. Supp. 2d

783 (M.D.N.C. 2002) (ROTC scholarship terminated

due to cadet’s misconduct); Molls v. Keenan, 1996 U.S.

Dist. LEXIS 847, *2 (N.D.N.Y. Jan. 26, 1996) (ROTC

cadet’s scholarship removed after he failed to obtain

the required grade point average); Rameaka v. Kelly,

F. Supp. 303 (D.R.I. 1972) (ROTC cadet’s scholarship

withdrawn for academic and attendance reasons). For

this reason alone, the Army had a vested interest in

knowing whether the Plaintiff was to remain a

student in good standing at the University of Dayton.

Thus, LtC. Washington’s actions were more than

remotely related to the Plaintiff’s status as a member

of the military, which is what the Sixth Circuit

requires, in a Feres analysis. Fleming v. United States

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

Along these same lines, the Plaintiff was a

student at the University of Dayton, pursuant to a

ROTC scholarship. Thus, he was “taking advantage of

a privilege or enjoying a benefit conferred as a result

of military service,” which is a relevant consideration

in Feres decision. Wake v. United States, 89 F.3d 53,

58 (2d Cir. 1996).

Furthermore, the complained-of actions al] in-

volved LtC. Washington’s interactions with the ROTC

cadets at the University of Dayton. Army Regulation

145-1 describes the responsibilities of a PMS, such as

LtC. Washington, as follows:

Professors of Military Science (PMS) are the

key to the success of the ROTC Program.

They will —

App. 58

(1) Structure and manage the Military

Science (MS) Program to blend the phi-

losophies of the host academic insti-

tution with the needs of the Army.

(2) Command the military personnel as-

signed to the Department of Miuilitary

Science (ROTC detachment). All per-

sonnel assigned to ROTC at the host

institution and any extension center will

be assigned to this department. They

will be directly under the control of the

PMS in ali matters related to their

military status and assigned duties.

(3) Ensure that the ROTC Program is prop-

erly administered as prescribed by ap-

plicable statues [sic], DOD Directives,

Army regulations, programs, objectives,

and policies.

AR 145-1, 7 1-41 (www.army.mil/usapa/epubs/pdfr145_1.

pdf). Thus, the PMS plays an integral role in the

functioning of the ROTC component at his or her

assigned academic institution. For the Court to ques-

tion LtC. Washington’s interactions with the cadets

assigned to his ROTC unit would involve the Court in

just the sort of prying into military affairs, at the

expense of military discipline and effectiveness, that

the Feres doctrine cautions against. Brown v. United

States, 462 F.3d 609, 614-15 (6th Cir. 2006). It is not

the judiciary’s province to interfere with how the

PMS of a ROTC unit conducts the business of that

organization.

App. 59

For the reasons set forth above, the Court finds

that the Plaintiff’s FTCA claim is barred by the Feres

Doctrine. Therefore, the Defendant’s Motion to Dis-

miss the Plaintiff’s FTCA claim (Doc. #19), for lack of

subject matter jurisdiction, is SUSTAINED.

IV. CONCLUSION

The Defendants’ Motion to Dismiss (Doc. #19) is

SUSTAINED, as to both the Plaintiff’s Privacy Act

claim and FTCA claim. Consequently. the Plaintiff’s

Motion to Compel Discovery and for Sanctions (Doc.

#30) is OVERRULED, as moot. Judgment will be

entered in favor of the Defendant and against the

Plaintiff herein.

All rulings hereunder are made on the condition

that the Defendant provides proper Rule 56 evidence

of the following documents, to the Court, within ten

(10) days of the date of this Order:

e Ensalaco e-mail to Washington, dated

February 16, 2004 (Doc. #10, Ex. K7)

e Washington e-mail to Col. Garcia, dated

June 18, 2004 (Doc. #16, Ex. B)

¢ Letter from University of Dayton to LtC.

Washington, dated March 18, 2004 (Doc.

#10, Ex. K8)

¢ Department of Army Memorandum,

dated October 7, 2005 (Doc. #10, Ex. Q)

¢ Letter from Attorney Podlaski to Col.

Frusha, dated April 12, 2005 (Doc. #10,

Ex. I)

App. 60

e Facsimile from Command Judge Advo-

cate to Attorney Podlaski, dated July 12,

2005 (Doc. #10, Ex. M)

e Letter from Attorney Podlaski to Armor

Center Commander, dated December 15,

2005 & Standard Form 95 (Doc. #10, Ex.

R)

e Letter from Staff Judge Advocate to

Attorney Podlaski, dated December 21,

2005 (Doe.

e ROTC C

(Doc. #1

Failing this, the

hereon will be va

The above capt

terminated upon the docket records of the Unite

States District Court for the Southern District of

Ohio, Western Division, at Dayton.

March 17, 2008

/s/ Walter Herbert Rice

WALTER HERBERT RICE,

JUDGE UNITED STATES

DISTRICT COURT

Copies to:

Counsel of record