Davidson v. Gray et al

Filing 21

MEMORANDUM OPINION AND ORDER granting 4 Motion to Dismiss. Signed by Louis Guirola, Jr on 7/29/2015. (dlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
GREGORY PAYNE DAVIDSON

PLAINTIFF

v.

CAUSE NO. 1:14CV230-LG-DAS

UNITED STATES OF AMERICA

DEFENDANT

MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO DISMISS
BEFORE THE COURT is the Motion to Dismiss [4] filed by the Defendant,
the United States of America. The Motion has been fully briefed by the parties.
After due consideration of the submissions and the relevant law, the Court finds
that it lacks subject matter jurisdiction of this case. Accordingly, the Motion will be
granted and Plaintiff’s claims dismissed.
BACKGROUND
Plaintiff Davidson filed this lawsuit in the Circuit Court of Lee County,
Mississippi, against two individuals - Michael Gray and Dallas Cleveland. Gray
was the acting Commander and Cleveland was the acting First Sergeant of
Davidson’s National Guard unit in Tupelo, Mississippi. Davidson alleged that Gray
and Cleveland schemed to end Davidson’s military career in retaliation for an email
Davidson wrote to Gray complaining about Cleveland. Specifically, Gray and
Cleveland failed Davidson on the fitness test required for re-enlistment, and
fabricated an NCO Evaluation Report to include ratings of “needs improvement.”
As a result, Davidson could not reenlist in the military. Davidson brought state law
claims against Gray and Cleveland for intentional interference with employment

and intentional malicious interference with prospective economic gain.
The United States of America was substituted for Gray and Cleveland upon
certifications that they were statutorily deemed to be federal employees acting
within the scope of their federal employment at the time of the alleged actions.
(Notice of Substitution Ex. A, ECF No. 3-1). The United States removed the case to
this Court and has filed a motion to dismiss Davidson’s Complaint based on the
Feres doctrine.1 A motion to dismiss pursuant to the Feres doctrine is properly
treated as a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction. Presley v. Jackson Mun. Airport Auth., 94 F. Supp. 2d
755, 764 (S.D. Miss. 2000) (quoting Dreier v. United States, 106 F.3d 844, 847 (9th
Cir. 1996)).
DISCUSSION
Under the Feres doctrine, it is well established that military service members
cannot assert claims against the military, their superiors or other service members
“where the injuries arise out of or are in the course of activity incident to service.”
Feres v. United States, 340 U.S. 135, 146 (1950); United States v. Stanley, 483 U.S.
669, 683-84 (1987); Chappell v. Wallace, 462 U.S. 296, 304-05 (1983). This bar has
been interpreted broadly. “[P]ractically any suit that ‘implicates the military
judgments and decisions’ . . . runs the risk of colliding with Feres.” Persons v.

1

The United States asserted additional grounds for dismissal, but as the
Court finds it lacks subject matter jurisdiction of the case, these additional grounds
are not addressed.
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United States, 925 F.2d 292, 295 (9th Cir. 1991) (quoting United States v. Johnson,
481 U.S. 681, 691 (1987)). Feres bars intentional tort and negligence claims,
regardless of whether they are asserted under federal or state law. Holdiness v.
Stroud, 808 F.2d 417, 426 (5th Cir. 1987); Matreale v. N.J. Dep’t. of Military &
Veterans Affairs, 487 F.3d 150, 156 (3d Cir. 2007); Bowen v. Oistead, 125 F.3d 800,
804 (9th Cir. 1997).
It is clear from Davidson’s allegations that his alleged harm arose from, or in
the course of activity incident to, his military service in the Mississippi Army
National Guard, since his damages allegedly resulted from the conduct and actions
of his superior officers. Although his allegations would seem to place his case
squarely within Feres, Davidson argues that his status as a state, rather than
federal, military employee exempts his claim from the Feres bar. However, the case
law does not support this contention. There is no apparent distinction between
members of the various National Guard units and other members of the United
States military. See Schoemer v. United States, 59 F.3d 26, 29 (5th Cir. 1995) (Feres
applies both to reservists and National Guardsmen); Uhl v. Swanstrom, 79 F.3d 751
(8th Cir. 1996) (applying Feres bar to suit by National Guardsman against his
commanding state officer, the Adjutant General of the Iowa Air National Guard,
and the Iowa Air National Guard); Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.
1988) (“It is beyond question that the Feres doctrine generally applies to claims
brought by National Guard members.”); Townsend v. Seurer, 791 F. Supp. 227, 229

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(D. Minn. 1992) (“[R]egardless of whether the suit is brought against the state
National Guard and individual Guard personnel or against the United States and
individual Guard personnel, the Feres doctrine will bar the action.”).
Finally, even if, as Davidson argues, he could not have been on active duty
with the National Guard because of the federal sequestration in effect at the time of
his fitness testing, that fact does not make Feres inapplicable. See, e.g., Miller v.
United States, 42 F.3d 297, 303 (5th Cir. 1995) (“incident to service” does not equate
to active duty or actively pursuing military duties); Quintana v. United States, 997
F.2d 711, 712 (10th Cir. 1993) (“[A]ctive duty status is not necessary for the Feres
‘incident to service’ test to apply.”); Velez v. United States ex rel. Dep’t. of Army, 891
F. Supp. 61, 63 (D.P.R. 1995) (“The distinction between an ‘active’ and ‘inactive’
National Guard serviceman relative to the Feres doctrine is irrelevant.”).
A liberal interpretation of the facts plead in Davidson’s complaint raises only
allegations about the manner in way his superiors evaluated his fitness for
continued military employment. Pursuant to Feres, matters and decisions which
are incident to military service may not be reconsidered by the Court. See Walch v.
Adjutant General’s Dep’t. of Tex., 533 F.3d 289, 301 (5th Cir. 2008) (court may not
reconsider what a claimant’s superiors did in the name of personnel management or
determining performance level because such decisions are integral to the military
structure). The Court therefore lacks subject matter jurisdiction of this case.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion to

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Dismiss [4] filed by the Defendant, the United States of America, is GRANTED.
This case is dismissed pursuant to Fed. R. Civ. P. 12(b)(1).
SO ORDERED AND ADJUDGED this the 29th day of July, 2015.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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