Corey v. United States of

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 20 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk

CHERYL COREY,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA;
UNITED STATES AIR FORCE;
STEVEN TURNER, Colonel,
individually and in his official capacity
as Colonel of the United States Air No. 96-6409
Force; SILAS R. JOHNSON, Brigadier (D.C. No. 96-CV-552)
General, individually and in his official (W.D. Okla.)
capacity as Wing Commander, 552nd
Air Control Wing of the United States
Air Force; PHILIP MANNING,
Lieutenant Colonel, individually and in
his official capacity as Detachment
Commander, 965th Airborne Air
Control Squadron of the United States
Air Force,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY, Circuit Judges.

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Appellant Cheryl Corey appeals from the district court's order granting the

appellees' motion to dismiss. We exercise jurisdiction over Ms. Corey's appeal

pursuant to 28 U.S.C. § 1291, and affirm.

Ms. Corey is a former member of the United States Air Force. She initiated

a civil action in the United States District Court for the Western District of

Oklahoma against the United States of America, Department of the Air Force, Air

Force Colonel Steven Turner, Air Force Brigadier General Silas R. Johnson, Jr.,

and Lieutenant Colonel Philip Manning. Ms. Corey's complaint, which seeks

compensatory and punitive damages, sets forth the following causes of action: (1)

violation of 42 U.S.C. § 2000e et seq.; (2) conspiracy to deprive her of her right

to the equal protection of the law, in violation of 42 U.S.C. § 1985; (3) breach of

contract; 1 (4) sexual assault and battery; (5) intentional infliction of emotional

1
Ms. Corey has not contested the district court's dismissal of her breach of
contract claim on appeal.

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distress; (6) negligence; (7) defamation; and (6) tortious interference with

contract. Ms. Corey's tort claims were brought pursuant to 28 U.S.C. § 1346(b)

and the Federal Tort Claims Act, 28 U.S.C. §§ 2671 - 2679.

In her complaint, Ms. Corey sets forth the following allegations. On March

21, 1991, she enlisted as an Airman in the United States Air Force. While

stationed at Tinker Air Force Base, Oklahoma, she was "repeatedly subjected to

and suffered a continuous history and pattern of sexual harassment and

discrimination" during the course of her employment. In September 1994,

Brigadier General Johnson sent Ms. Corey to Incirlik, Turkey, for a temporary

assignment. In Turkey, Lt. Colonel Manning was Ms. Corey's military

detachment commander, and Colonel Turner was employed with another

detachment.

On September 16, 1994, Colonel Turner's detachment arranged a party on

Incirlik Air Base Turkey. Ms. Corey attended the party, as did numerous

members of her detachment and Colonel Turner's detachment. During the party,

Colonel Turner became intoxicated and "sexually assaulted [Ms. Corey] by

intentionally grabbing [her] buttocks with both hands." Although Ms. Corey and

other officers reported the assault to Lt. Colonel Manning, he took no action to

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assist Ms. Corey and he refused to seriously consider her complaint. Thereafter,

Ms. Corey filed a complaint with the Air Force Office of Special Investigations.

Lt. Colonel Manning attempted to cover up the incident and made threats to

potential witnesses to prevent them from assisting in the investigation of Colonel

Turner. The Air Force failed to take disciplinary action against Colonel Turner

and Lt. Colonel Manning. In fact, both of these individuals were promoted to an

increased level of responsibility.

Ms. Corey claims she has no recourse to pursue her harassment claim

because the Air Force "has established a system and mechanism to discourage

complaints against its senior officers." Furthermore, she claims the Air Force has

generally failed to adequately supervise, train, investigate, and discipline its

military members regarding sexual harassment and discrimination. As a result of

the actions of the Air Force, Ms. Corey felt compelled not to renew her enlistment

contract and suffered monetary damages.

In September 1995, Ms. Corey filed her complaint in federal court against

the United States and individual defendants. The defendants then filed a motion

to dismiss Ms. Corey's complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of

subject matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a cause

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of action for which relief could be granted. In October 1996, the district court

entered an order granting the motion to dismiss. The court determined Ms.

Corey's Title VII claim must be dismissed because Title VII was inapplicable to

uniformed military personnel. The court found Ms. Corey's remaining claims

should be dismissed because they were non-justiciable under the Supreme Court's

decision in Feres v. United States, 340 U.S. 135 (1950). Following the dismissal

of her action, Ms. Corey timely filed a notice of appeal.

Although her appellate arguments are somewhat disjointed, Ms. Corey

appears to assert two principal arguments: (1) the district court erroneously

determined she could not assert a claim under Title VII and (2) the district court

erroneously determined the Feres doctrine barred her § 1985 claims and her

claims under the Federal Tort Claims Act.

First, we review Ms. Corey's contention the district court erred in

concluding she could not assert a claim under Title VII. The district court's

dismissal of Ms. Corey's Title VII claim was made pursuant to Rule 12(b)(6). We

review de novo a district court's dismissal for failure to state a claim. Kidd v.

Taos Ski Valley, Inc., 88 F.3d 848, 854 (10th Cir. 1996). We uphold such a

dismissal "only when it appears that the plaintiff can prove no set of facts in

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support of the claims that would entitle [her] to relief, accepting the well-pleaded

allegations of the complaint as true and construing them in the light most

favorable to the plaintiff." Fuller v. Norton, 86 F.3d 1016, 1020 (10th Cir. 1996).

Ms. Corey contends her Title VII claim against the United States should be

allowed to proceed. Ms. Corey argues Congress intended Title VII to apply to

uniformed military personnel, just as it intended the statute to apply to other

citizens. According to Ms. Corey, "[t]he plain meaning of Title VII suggests that

no distinction exists between uniformed employees and civilian employees under

Title VII."

Unfortunately for Ms. Corey, it is well settled Title VII does not afford

protections to uniformed personnel of the various armed forces. 42 U.S.C.

§ 2000e-16(a) (1994 & Supp. 1997) extends Title VII coverage to "employees ...

in military departments as defined in section 102 of Title 5." 5 U.S.C. § 102

(1994) defines military departments as the departments of the Army, Navy and Air

Force. However, 10 U.S.C. § 101(a)(4) defines "armed forces" as the Army,

Navy, Air Force, Marine Corps, and Coast Guard. In Gonzalez v. Department of

the Army, 718 F.2d 926, 928 (9th Cir. 1983), the Ninth Circuit concluded "[t]he

two differing definitions show that Congress intended a distinction between

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'military departments' and 'armed forces,' the former consisting of civilian

employees, the latter of uniformed military personnel." Thus, the court held that

Title VII is only applicable to civilian employees of the Army, Navy, and Air

Force; the statute is not applicable to uniformed members of the armed forces. Id.

at 928-29.

In Salazar v. Heckler, 787 F.2d 527, 530 (10th Cir. 1986), we recognized

that "§ 717 [of Title VII] does not afford protection 'to the uniformed personnel

of the various armed services.'" Citing Gonzales, we stated:

The definitions of "military departments" and "armed forces"
contained in the United States Code ... compel the view "that the
term 'military departments' in section 717(a) of Title VII ... can be
fairly understood to include only civilian employees of the Army,
Navy, and Air Force and not both civilian employees and enlisted
personnel."

Id. The other circuits that have considered the issue are in agreement that Title

VII does not apply to uniformed members of the armed forces. See, e.g., Roper v.

Department of Army, 832 F.2d 247, 248 (2d Cir. 1987) ("we cannot agree to the

extension of Title VII to uniformed members of the armed forces."); Taylor v.

Jones, 653 F.2d 1193, 1200 (8th Cir. 1981) (Title VII not applicable to those who

enlist or apply for enlistment in United States armed forces). Ms. Corey has

provided this court with no circuit precedent to the contrary.

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 Because Title VII is not applicable to uniformed members of the armed

forces, the trial court's dismissal of Ms. Corey's Title VII claim was appropriate.

Ms. Corey's argument that Congress intended Title VII to apply to uniformed

personnel is clearly without merit in light of prevailing law. 2

Next, we review Ms. Corey's claim the district court erroneously

determined her § 1985 claims and her claims under the Federal Tort Claims Act

were precluded under the Feres doctrine. 3 Although not specifically stated in its

order, we assume the district court dismissed Ms. Corey's claims under the Feres

doctrine pursuant to Fed. R. Civ. P. 12(b)(1). 4 See Dreier v. United States, 106

F.3d 844, 847 (9th Cir. 1997) (motion to dismiss under Feres doctrine properly

treated as Rule 12(b)(1) motion to dismiss). "We review de novo whether the

2
Although Ms. Corey appears to argue military personnel should not be
immune from Title VII under the Feres doctrine, we need not address this
argument. The trial court's dismissal of Ms. Corey's Title VII claim was not
pursuant to the Feres doctrine.

3
In her reply brief, Ms. Corey argues for the first time that the Feres
doctrine should no longer apply since she is no longer a member of the military.
Because this issue was not raised in her opening brief, we refuse to consider it on
appeal. See Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 724 (10th Cir. 1993)
(issues raised for the first time in reply brief will generally not be considered).

4
Even if the district court dismissed Ms. Corey's claims under Rule
12(b)(6), the standard of review would still be de novo. See Kidd, 88 F.3d at 854.

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Feres doctrine is applicable to the facts reflected in the record." Id. (citation and

internal quotation marks omitted). Furthermore, because the district court

apparently did not look beyond the allegations contained in the complaint, we

must accept the plaintiff's factual allegations as true. Id.

In Feres, the Supreme Court held "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. In cases

subsequent to Feres, the Supreme Court has ruled that enlisted military personnel

may not maintain a suit against other military personnel that seeks damages for

constitutional violations arising out of or incident to service. Chappell v.

Wallace, 462 U.S. 296, 305 (1983); United States v. Stanley, 483 U.S. 669, 683-

84 (1987). The rationale for these decisions is threefold: "'(1) the distinctly

federal nature of the relationship between the government and members of its

armed forces ...; (2) the availability of alternative compensation systems; and (3)

the fear of damaging the military disciplinary structure.'" Madsen v. United

States, 841 F.2d 1011, 1013 (10th Cir. 1987) (quoting Atkinson v. United States,

825 F.2d 202, 205 (9th Cir. 1987), cert. denied, 485 U.S. 987 (1988)). The Tenth

Circuit has stated "[t]he Feres rationales extend beyond a damage action based on

FTCA and Bivens and require abstention in a damage action arising from the

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Constitution if the Feres 'incident to service' test is met." Walden v. Bartlett, 840

F.2d 771, 773 (10th Cir. 1988). Furthermore, the Tenth Circuit has noted that

courts have routinely ruled that the protection of the Feres doctrine
extends to officers and other servicemen, as well as to the United
States.... Indeed, in Feres, ... the Supreme Court stated: "We know
of no American law which ever has permitted a soldier to recover for
negligence against either his superior officers or the Government he
is serving."

Hefley v. Textron, Inc., 713 F.2d 1487, 1491 (10th Cir. 1983) (quoting Feres, 340

U.S. at 141).

Courts applying the Feres doctrine have broadly construed the "incident to

service" test and have barred recovery "for injuries that at first blush may not

have appeared to be closely related to their military status." Dreier, 95 F.3d at

1440. "[P]ractically any suit that 'implicates the military judgments and

decisions,' ... runs the risk of colliding with Feres." Persons v. United States, 925

F.2d 292, 295 (9th Cir. 1991) (quoting United States v. Johnson, 481 U.S. 681,

691 (1987)). In determining whether the "incident to service" test is met, a key

inquiry is "whether the suit requires the civilian court to second-guess military

decisions ... and whether the suit might impair essential military discipline."

United States v. Shearer, 473 U.S. 52, 57 (1985).

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 Ms. Corey contends her § 1985 claims and her claims brought pursuant to

the Federal Tort Claims Act are not barred by Feres because the conduct she

complains of was not "incident to service." Ms. Corey claims the court is not

being called upon to second-guess any military decisions and she argues the

functioning of the military will not be disrupted by holding the United States

accountable for the unlawful conduct.

Ms. Corey's tort and § 1985 claims can be divided into two general

categories: (1) the claims based on her allegations that she was subjected to a

continued history and pattern of discrimination and sexual harassment while

stationed in Oklahoma, and (2) the claims based on her allegations of sexual

harassment that occurred during the on-base party in Incirlik, Turkey, and the

military's failure to provide her with adequate relief from this harassment. With

respect to the general allegations of sexual harassment and discrimination that

occurred while Ms. Corey was stationed in Oklahoma, Ms. Corey admits in her

complaint these actions occurred "[d]uring the course of her employment." Thus,

by her own admission, this conduct arose from Ms. Corey's military status, her

military duties, and her relationship with other officers. This conduct was clearly

"incident to service." Consequently, Ms. Corey's tort and § 1985 claims based on

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the conduct that occurred while she was stationed in Oklahoma were properly

dismissed pursuant to the Feres doctrine.

Next, we review whether the conduct that occurred during and subsequent

to the party in Turkey was "incident to service." The September 16, 1994 on-base

party was arranged and attended by military members. During the party, Colonel

Turner allegedly became intoxicated and sexually assaulted Ms. Corey by

grabbing her buttocks with both hands. Ms. Corey asserts that although she

reported Colonel Turner's improper conduct, the Air Force did not take

disciplinary action against Colonel Turner. Ms. Corey states the conduct of the

Air Force and other defendants violated a number of military regulations.

Furthermore, Ms. Corey contends the Air Force "has established a system ... to

discourage complaints against its senior officers" and the Air Force has generally

failed to adequately supervise, train, investigate, and discipline its military

members regarding sexual harassment and discrimination. Ms. Corey contends

the defendants conspired against her and deprived her of her right to due process

and equal protection, in contravention of 42 U.S.C. § 1985.

After thoroughly reviewing the record, as well as all relevant authorities,

we conclude, as did the district court, that Ms. Corey's § 1985 claims and her

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claims brought under the Federal Tort Claims Act arose "incident to service." 5

The Feres doctrine "'encompass[es], at a minimum, all injuries suffered by

military personnel that are even remotely related to the individual's status as a

member of the military.'" Persons, 925 F.2d at 296 n.7 (quoting Major v. United

States, 835 F.2d 641, 644 (6th Cir. 1987), cert. denied, 487 U.S. 1218 (1988)).

Here, Ms. Corey's participation in the party at which her injuries occurred was a

consequence of her military status. The party occurred on base and was organized

and attended by military members. Those participating in the party -- including

Ms. Corey and the individual defendants -- were subject to military discipline and

control. Thus, we believe the injuries suffered by Ms. Corey were at least

"remotely related" to her military status.

The fact Ms. Corey's injuries occurred during a recreational activity does

not prevent the application of Feres. In Millang v. United States, 817 F.2d 533,

534-35 (9th Cir. 1987), cert. denied, 485 U.S. 987 (1988), an off-duty military

5
To the extent Ms. Corey argues her sexual assault and battery claims
against the United States should have been allowed to proceed, we conclude these
claims are barred pursuant to the "intentional tort exception" to the Federal Tort
Claims Act. This exception shields the United States from liability for claims
arising from an assault or battery. See 28 U.S.C. § 2680(h); Satterfield v. United
States, 788 F.2d 395, 399 (6th Cir. 1986). Because Ms. Corey's assault and
battery claims against the United States are barred under the intentional tort
exception, we need not decide whether these claims are "incident to service" and
barred under Feres.

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police officer sought to recover for injuries that occurred when he was run over

by an on-duty military police officer at an on-base picnic site. However, the

Ninth Circuit concluded the plaintiff's claims were barred by Feres because they

"could well call military decisions into question." Id. at 535. Similarly, in Bon v.

United States, 802 F.2d 1092, 1096 (9th Cir. 1986), the court precluded under

Feres the claims of an active duty servicewoman, on authorized leave, who was

injured in a boating accident that occurred on or near a Navy Special Services

Facility. See also Bozeman v. United States, 780 F.2d 198, 202 (2d Cir. 1985)

(Feres barred widow's claims against government under Federal Tort Claims Act

where decedent, an off-duty military policeman, was served drinks at Non-

Commissioned Officers' club and was killed subsequently in off-base accident).

Allowing Ms. Corey's lawsuit to proceed would involve judicial inquiry

into, and intrusion upon, military discipline. In effect, we would be inviting the

district court to second-guess the military decisions made concerning the conduct

that occurred at the on-base party. Furthermore, we would be authorizing the

court to review the Air Force's application (or non-application) of its own rules of

military discipline. This is precisely the type of second-guessing and intrusion

into military affairs that the Feres doctrine was designed to prevent. "To permit

this type of suit would mean that commanding officers would have to stand

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

and disciplinary decisions ...." Shearer, 473 U.S. at 58. Thus, we agree with the

district court that Ms. Corey's § 1985 claims and her claims brought under the

Federal Tort Claims Act "arise out of or are in the course of activity incident to

service." Consequently, these claims are precluded by Feres. 6

Based on the foregoing reasons, we hereby AFFIRM the district court's

order dismissing Ms. Corey's claims.

Entered for the Court

WADE BRORBY
United States Circuit Judge

6
Ms. Corey contends the United States failed to disclose to the court
whether the conduct of the individual defendants was within the scope of their
employment pursuant to the Westfall Act, 28 U.S.C. § 2679. Because we have
determined Ms. Corey's claims are precluded under the Feres doctrine, we find
this contention irrelevant and need not address it. Ms. Corey also appears to
argue she is entitled to relief under 42 U.S.C. § 1986, the Victims' Rights and
Restitution Act of 1990, and Department of Defense Instruction 103.2.2.
However, these claims were not raised in Ms. Corey's complaint and they were
not decided by the district court. Consequently, we will not review any issues
concerning these claims on appeal. See Walker v. Mather (In re Walker), 959
F.2d 894, 896 (10th Cir. 1992) (generally, court will not consider an issue on
appeal that was not raised below). Furthermore, to the extent Ms. Corey argues
she is entitled to receive "injunctive or other equitable relief", we refuse to review
this claim because her complaint only requested monetary damages. Finally, we
deny Ms. Corey's request for permission to amend her complaint. Ms. Corey did
not seek leave to amend her complaint from the trial court, and Ms. Corey makes
no attempt to argue how any of her claims would survive if such leave were
granted.

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