Newton v. Lee

FILED
United States Court of Appeals
Tenth Circuit

April 24, 2012
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT NEWTON,

Plaintiff-Appellee/Cross-
Appellant,

v.

WAYNE E. LEE and JOHN R. TETER,
in their individual capacities,
Nos. 10-4063 and 10-4072
Defendants-Appellants/Cross-
Appellees,

and

BRIAN L. TARBET, BRENT E.
WINGET, and LARRY T. JOHNSON, in
their official and individual capacities,

Defendants.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:07-CV-00041-CW)

Bridget K. Romano, Assistant Utah Attorney General (Mark L. Shurtleff, Utah
Attorney General, with her on the briefs), Salt Lake City, Utah, for Defendants-
Appellants/Cross-Appellees.

D. Scott Crook (R. Christopher Preston with him on the brief) of Smith
Hartvigsen, PLLC, Salt Lake City, Utah, for Plaintiff-Appellee/Cross-Appellant.
Before KELLY, SEYMOUR, and O’BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

Robert Newton alleges Major John R. Teter and Lieutenant Colonel Wayne

E. Lee of the Utah Air National Guard violated his due process rights when they

suspended and subsequently withdrew his Air Traffic Control Specialist (ATCS)

certificate, and when they suspended his employment as an Air Traffic Control

Supervisor at Hill Air Force Base in Utah. 1 The district court granted summary

judgment to defendants on Mr. Newton’s due process claim regarding the

suspension of his employment. Newton v. Utah Nat’l Guard, 688 F. Supp. 2d

1290, 1308-09 (D. Utah 2010). It denied summary judgment on Mr. Newton’s

due process claim regarding the withdrawal of his ATCS certificate, holding this

1
Mr. Newton originally sued Maj. Teter and Lt. Col. Lee in their official
and individual capacities, seeking damages and equitable relief. In addition to
Maj. Teter and Lt. Col. Lee, Mr. Newton also named the Utah National Guard,
Utah Air National Guard, Major General Brian L. Tarbet, Brigadier General Brent
E. Winget, and Colonel Larry T. Johnson as defendants. The claims against these
additional defendants, and against Maj. Teter and Lt. Col. Lee in their official
capacities, are not before us on this interlocutory appeal. Mr. Newton also
brought claims for violations of his equal protection rights. The equal protection
claims are also not before us. Thus, we only discuss the due process claims
against Maj. Teter and Lt. Col. Lee in their individual capacities. See Brown v.
Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (“Section 1983 plaintiffs may
sue individual-capacity defendants only for money damages and official-capacity
defendants only for injunctive relief.” (citing Hafer v. Melo, 502 U.S. 21, 30, 27
(1991)).

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claim is not barred by qualified immunity, id. at 1305-07, or by intramilitary

immunity under the Feres doctrine, 2 id. at 1311-14. In this interlocutory appeal,

defendants challenge the denial of qualified immunity and intramilitary immunity

on Mr. Newton’s ATCS certificate claim. Mr. Newton cross-appeals the grant of

summary judgment on his employment claim.

We hold that Mr. Newton’s ATCS certificate is not barred by the Feres

doctrine, and that we have no jurisdiction over the interlocutory appeal from the

denial of qualified immunity to defendants. We decline to exercise pendent

jurisdiction over Mr. Newton’s cross-appeal.

I.

The Utah Test and Training Range “is a vast area in western Utah covering

approximately one-fourth of the state . . . . [It] is one of the premier military test

and training ranges in the nation.” 3 Aplt. App. at 182. Users of the Utah Test and

Training Range include military and civilian planes, unmanned aerial vehicles,

and experimental military aircraft. The 299th Range Control Squadron of the

Utah Air National Guard (UANG) provides air traffic and weapons control

2
See Feres v. United States, 340 U.S. 135, 146 (1950) (“[T]he 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.”).
3
Because this immunity appeal is from the denial of summary judgment,
we recite the facts in the light most favorable to the nonmoving party, Mr.
Newton. See McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).

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services at the Utah Test and Training Range on Hill Air Force Base for the

United States Air Force Air Combat Command.

An ATCS certificate “authorizes the bearer to perform specified

air-traffic-control duties at a designated facility.” Newton v. FAA, 457 F.3d 1133,

1135 (10th Cir. 2006). Under Air Force Instruction 13-203, which regulates

military air traffic controllers and applies to the UANG, “only personnel holding

a current Air Traffic Control Specialist (ATCS) Certificate [are] authorized to

perform air traffic control duties in USAF facilities.” AFI 13-203, § 14.1 (May 5,

2003), Aplt. App. at 556.

In 1968, Mr. Newton obtained an ATCS certificate from the Federal

Aviation Administration. In 1985, he enlisted in the UANG and began working

part-time as an air traffic controller for the 299th Range Control Squadron. In

1988, while still a member of the UANG, he began working full-time for the

UANG in a civilian capacity as an Air Traffic Control Supervisor, also called a

“watch supervisor.” This civilian position did not require current or prior

military service.

Mr. Newton left the military in December 2002 when he retired from the

UANG, but he continued to work full-time as a civilian Air Traffic Control

Supervisor. His responsibilities as watch supervisor were essentially the same

both before and after his retirement from the military. In this position, Mr.

Newton supervised and directed the activities of air traffic controllers and air

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weapons directors, and was “responsible for the safe, orderly, and expeditious

flow of air traffic, both military and civilian[,] utilizing the [Utah Test and

Training Range].” Aplt. App. at 183. During the relevant time, his direct

supervisor was Maj. Teter, the 299th Range Control Squadron’s Director of

Operations. Maj. Teter, in turn, was supervised by Lt. Col. Lee, the Squadron

Commander.

Between January 2002 and November 2003, defendants assert Mr. Newton

was implicated in five air traffic control incidents at Hill Air Force Base. An

Incident Review Board (IRB) investigated each event. In one incident, an

airspace violation occurred when an aircraft entered airspace without proper

coordination with air traffic control. In another incident, an F-16 improperly

dropped an ordnance in a target area that was closed. 4 The IRB’s reports did not

include any findings that the watch supervisor had caused either of these events,

but after the ordnance drop the IRB recommended that Mr. Newton be counseled

because he did not immediately suspend the culpable air traffic controller.

In the remaining three incidents, a loss of separation occurred between

aircraft. 5 The IRB recommended that the watch supervisor be counseled after the

first loss of separation, but it did not state that he was responsible for the

4
Ordnance includes military supplies such as bombs and artillery.
5
A loss of separation occurs when the distance between planes is either
less than five miles horizontally or less than 1000 feet vertically.

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incident. After the second loss of separation, the IRB concluded Mr. Newton had

“failed to adequately supervise and support the controllers” under his supervision.

Id. at 612. It recommended that he be suspended and retrained.

The third loss of separation and final incident occurred on November 17,

2003. The three members of the IRB disagreed as to what findings they should

make regarding Mr. Newton’s role in the incident. Two members agreed that Mr.

Newton was not at fault for the loss of separation, but the third wanted the report

to place blame on Mr. Newton. Ultimately the report did not blame Mr. Newton

for the loss of separation, but it asked, “After the loss of separation occurred did

the Watch Supervisor make every effort to relieve the controllers involved?” Id.

at 593. It also recommended that Mr. Newton be asked to explain “why facility

procedures were not adhered to when a suspected loss of separation occurred.”

Id.

In the subsequent weeks, actions were taken to withdraw Mr. Newton’s

ATCS certificate and end his employment. On November 20, 2003, a day after

the IRB issued its report on the final loss of separation, Maj. Teter verbally

suspended Mr. Newton’s ATCS certificate, although he lacked the authority to do

so. 6 On December 7, Lt. Col. Lee issued a written memorandum to Mr. Newton,

6
As the district court explained, Maj. Teter “testified that he did not
suspend Newton’s ATCS certificate on November 20, 2003 because he lacked
authority to do so. In contrast, Newton asserts that Major Teter did suspend his
ATCS certificate on that date.” Newton, 688 F. Supp. 2d at 1297 (footnote

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stating that he was suspending Mr. Newton’s ATCS certificate and restricting him

from performing air traffic control duties. Lt. Col. Lee informed Mr. Newton

that, “[a]fter receipt of the evaluation results, I may take action to withdraw your

ATCS certificate without further notice.” Id. at 186. The memo referenced Mr.

Newton’s “repeated failure in performing” his duties, but did not identify the

specific acts which provided the basis for these disciplinary actions. Id. It

notified Mr. Newton that he had a right to counsel and had ten business days to

respond. Defendants concede that when the facts are read in a light most

favorable to Mr. Newton, this written notice violated Air Force Instruction 13-203

because it was untimely.

We need not detail the many twists and turns that followed. 7 It suffices to

say that Mr. Newton struggled to receive information from Lt. Col. Lee and

others regarding the factual basis for, and the process of, suspending and possibly

withdrawing his ATCS certificate. His requests for documents and additional

information often were met with silence, delays, or incomplete replies. See

generally Newton, 688 F. Supp. at 1298-1300.

Ultimately, on January 27, 2004, Lt. Col. Lee sent a package of information

recommending the withdrawal of Mr. Newton’s ATCS certificate to Scott Duke,

omitted). The district court found a disputed fact over whether Mr. Newton “was
suspended from his position, or his ATCS certificate was suspended, or both.” Id.
7
The district court provided a thorough summary of the evidence in its
opinion. See Newton, 688 F. Supp. at 1297-1300.

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the Chief of the National Guard Bureau’s Air Traffic Services Division. Mr.

Duke had the exclusive authority to withdraw the ATCS certificate. In addition to

information about the five air traffic control incidents detailed above, the

withdrawal packet included two new allegations of wrongdoing by Mr. Newton

that had not been disclosed to him. 8 Lt. Col. Lee omitted from the withdrawal

packet a letter from Mr. Newton’s attorney which provided Mr. Newton’s

response to three of the five air traffic control incidents alleged to form the basis

of the withdrawal.

Mr. Duke approved the recommendation and Maj. Teter notified Mr.

Newton by letter on February 24 that his ATCS certificate had been permanently

withdrawn. The letter also stated, “You are . . . not authorized to perform any

function related to [air traffic control] in the Air National Guard or [United States

Air Force].” Aplt. App. at 226. Mr. Newton filed a formal internal grievance

appealing this withdrawal, but the decision was upheld. 9 Mr. Newton was ordered

8
Mr. Duke denied that he considered one of the new allegations in his
decision.
9
Defendants contend on appeal that Colonel C. E. West, Jr., a deputy
director in Arlington, Virginia who reviewed and upheld Mr. Duke’s decision,
was the final decision-maker, rather than Mr. Duke. In the district court,
however, defendants did not argue that Col. West was the final decision-maker.
Instead, defendants asserted in their motion for summary judgment and statement
of undisputed facts that Mr. Duke was the final decision-maker. See Aplt. App. at
119 (“Lt Col Lee had no authority to withdraw Plaintiff’s ATCS Certificate; that
authority rested exclusively with Mr. Duke . . . .”); id. at 70 (“Although Lt Col
Lee had the authority to recommend withdrawal of an ATCS Certificate, he did
not have authority to withdraw an ATCS Certificate; this authority rested with S.

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to submit his ATCS certificate, which was returned to him with the word “VOID”

written on it. As a result, he contends, he will not be able to use his certificate at

any other air traffic control facility, military or civilian. 10

Beginning in December 2003, Maj. Teter also initiated proceedings to

terminate Mr. Newton’s employment. On December 15, Maj. Teter issued Mr.

Newton a Notice of Proposed Removal. He informed Mr. Newton that he

intended to terminate him for “failure to adequately supervise subordinates and

disregard of directives,” primarily based on the November 2003 incident. Id. at

257. The proposed removal was later reduced to a 14-day suspension. Following

the withdrawal of Mr. Newton’s ATCS certificate, Lt. Col. Lee indefinitely

suspended Mr. Newton without pay effective July 25, 2004. This decision was

upheld following an internal appeal. The suspension continued to be in effect

when Mr. Newton retired in August 2006.

Mr. Newton filed this action in December 2006 in Utah state court pursuant

to 42 U.S.C. § 1983, alleging, inter alia, that defendants violated his due process

rights when they withdrew his ATCS certificate, placed him on a 14-day

suspension, and suspended his employment indefinitely without pay. Defendants

Scott Duke . . . .”). We hold defendants to their earlier representation for
purposes of this appeal.
10
Mr. Newton also appealed the decision to the National Transportation
Safety Board, which dismissed the appeal on jurisdictional grounds. Mr. Newton
appealed the Board’s dismissal to this court, and we affirmed. Newton v. FAA,
457 F.3d 1133, 1135-36 (10th Cir. 2006).

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removed the case to federal court. See 28 U.S.C. § 1441.

Maj. Teter and Lt. Col. Lee subsequently filed a motion for summary

judgment. The district court granted their motion on Mr. Newton’s claim that his

due process rights were violated by the procedures used to suspend his

employment for 14 days and, later, to indefinitely suspend his employment

without pay. The court concluded Mr. Newton was afforded adequate procedural

due process for the 14-day suspension. Newton, 688 F. Supp. 2d at 1308-09.

With regard to the indefinite suspension of employment, the court determined that

the Feres doctrine precluded judicial review of the basis for the suspension, but

that the procedures used to enact the suspension were adequate. 11 Id. at 1309.

Finally, the court denied summary judgment on Mr. Newton’s due process

claim relating to the withdrawal of his ATCS certificate. It determined

defendants were not entitled to qualified immunity because it was clearly

established that Mr. Newton had a protectable property interest in his ATCS

certificate and, reading the evidence in favor of Mr. Newton, they had failed to

afford him adequate due process before depriving him of that interest. Id. at

11
The district court interpreted the Feres doctrine as barring only claims
implicating “the substantive decisions of the military,” but not preventing a court
from examining whether the military followed proper procedures in implementing
its decisions. Newton, 688 F. Supp. 2d at 1314 (emphasis added). None of the
parties advocated this substantive/procedural distinction in the district court, and
they do not endorse it on appeal. We agree with Mr. Newton and defendants that
the district court misinterpreted the Feres doctrine. See infra Part II.B.

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1306-07. It also concluded defendants were not immune from suit under the

Feres doctrine. Id. at 1314.

Maj. Teter and Lt. Col. Lee appeal the district court’s denial of summary

judgment on Mr. Newton’s ATCS certificate due process claim. They contend the

claim is barred by the Feres doctrine and, alternatively, they are entitled to

qualified immunity. Mr. Newton cross-appeals, arguing the district court

improperly granted Maj. Teter and Lt. Col. Lee summary judgment on his

employment due process claim.

II.

Before we consider the applicability of the Feres doctrine to Mr. Newton’s

claim regarding the withdrawal of his ATCS certificate, we must address our

jurisdiction to consider this interlocutory appeal from the denial of intramilitary

immunity, an issue this court has not previously decided. Courts of Appeals have

jurisdiction over final decisions of the district courts. See 28 U.S.C. § 1291. An

order denying summary judgment is ordinarily not appealable because it is not a

final order. Stewart v. Oklahoma, 292 F.3d 1257, 1259 (10th Cir. 2002). There

are certain exceptions, however, under the “collateral order” doctrine. See Cohen

v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (collateral order

exception triggered by an assertion of right conclusively decided by a lower court

that is “too important to be denied review and too independent of the cause itself

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to require that appellate consideration be deferred until the whole case is

adjudicated”). “To establish jurisdiction under the collateral order doctrine,

defendants must establish that the district court’s order (1) conclusively

determined the disputed question, (2) resolved an important issue completely

separate from the merits of the case, and (3) is effectively unreviewable on appeal

from a final judgment.” Gray v. Baker, 399 F.3d 1241, 1245 (10th Cir. 2005)

(citing Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989)).

Other circuits have held that a defendant’s appeal from the denial of

intramilitary immunity under Feres satisfies these three requirements. See

McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1340 (11th Cir. 2007);

Dibble v. Fenimore, 339 F.3d 120, 125 (2d Cir. 2003); Lutz v. Sec’y of the Air

Force, 944 F.2d 1477, 1484 (9th Cir. 1991). Because all three factors of the

collateral order doctrine are satisfied, we agree with those circuits that we have

jurisdiction to consider defendants’ interlocutory appeal from the denial of

intramilitary immunity.

First, the district court’s summary judgment order “conclusively

determined” the availability of intramilitary immunity. See Newton, 688 F. Supp.

2d at 1314. Second, whether Mr. Newton’s injuries were incident to military

service is a separate question from the merits of his action. Third, just as

qualified immunity provides “an entitlement not to stand trial or face the other

burdens of litigation,” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), immunity

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under the Feres doctrine is justified, in part, by the Court’s concern “that the

process of defending a lawsuit, not merely the end result, compromises military

discipline,” Dibble, 339 F.3d at 124 (citing United States v. Stanley, 483 U.S.

669, 682-83 (1987)). The Feres doctrine reduces “the prospect of compelled

depositions and trial testimony by military officers concerning the details of their

military commands,” and the disruptions such lawsuits pose to the “military

regime.” Stanley, 483 U.S. at 682-83. “Intramilitary immunity is designed to

protect a defendant from the obligation to participate in the litigation, and not

merely from an adverse result. The loss of such a benefit cannot be vindicated by

appeal from an adverse final judgment.” Dibble, 339 F.3d at 124. Thus, the

denial of intramilitary immunity will be “effectively unreviewable” on appeal

from a final judgment.

Given our jurisdiction to proceed, we review de novo the district court’s

denial of a summary judgment motion asserting intramilitary immunity, applying

the same standard as the district court and construing the evidence in the light

most favorable to the nonmoving party. See Cortez v. McCauley, 478 F.3d 1108,

1115 (10th Cir. 2007) (en banc) (applying de novo review to denial of summary

judgment motion for qualified immunity); Pringle v. United States, 208 F.3d

1220, 1223 (10th Cir. 2005) (applying de novo review to grant of summary

judgment under Feres doctrine).

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 A. The Feres Doctrine and its Application to § 1983 Claims

In Feres, 340 U.S. 135, the Supreme Court created a judicial exception to

the broad waiver of sovereign immunity set out in the Federal Tort Claims Act

(FTCA). The Court held that the federal 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.” Id. at 146 (emphasis added). Courts have

since extended Feres’s “incident to service” test to bar a range of damages actions

against military and civilian officials. See Ricks v. Nickels, 295 F.3d 1124,

1127-28 (10th Cir. 2002) (collecting cases).

The Supreme Court extended the Feres doctrine to bar constitutional claims

in Chappell v. Wallace, 462 U.S. 296 (1983). There, Navy enlisted men sought

relief pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), 12 for alleged racial discrimination by their

superior officers. The Court explained that while the case at bar “concern[ed] the

limitations on the type of nonstatutory damage remedy recognized in Bivens,

rather than Congress’ intent in enacting the [FTCA],” its reasoning in Feres

guided its analysis. Chappell, 462 U.S. at 299. The Court concluded that

12
Under Bivens, an individual can seek damages from a federal official for
a violation of his Fourth Amendment rights. 403 U.S. at 397. The Supreme
Court has extended Bivens to allow damages actions under the Eighth and Fifth
Amendments. See Carlson v. Green, 446 U.S. 14 (1980); Davis v. Passman, 442
U.S. 228 (1979).

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“[t]aken together, the unique disciplinary structure of the military establishment

and Congress’ activity in the field constitute ‘special factors’ which dictate that it

would be inappropriate to provide enlisted military personnel a Bivens-type

remedy against their superior officers.” Id. at 304; see also id. at 299 (describing

military discipline and the importance of special relationships between soldiers

and their superiors as best explaining Feres); Ricks, 295 F.3d at 1129 (discussing

cases emphasizing importance of military disciplinary structure as basis for

applying Feres doctrine). Thus, the Court held “that enlisted military personnel

may not maintain a suit to recover damages from a superior officer for alleged

constitutional violations.” Chappell, 462 U.S. at 305.

In United States v. Stanley, 483 U.S. 669 (1987), the Court reiterated

Chappell’s holding and clarified that the Feres doctrine’s application to Bivens

claims was coextensive with its application to FTCA claims. See id. at 681

(“Today, no more than when we wrote Chappell, do we see any reason why our

judgment in the Bivens context should be any less protective of military concerns

than it has been with respect to FTCA suits, where we adopted an ‘incident to

service’ rule.”); see also id. at 683-84 (“We therefore reaffirm the reasoning of

Chappell that the special factors counselling hesitation — the unique disciplinary

structure of the Military Establishment and Congress’ activity in the field —

extend beyond the situation in which an officer-subordinate relationship exists,

and require abstention in the inferring of Bivens actions as extensive as the

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exception to the FTCA established by Feres . . . .” (citation and internal

quotation marks omitted)). Indeed, the Court emphasized that the precise

language of the “incident to service” test was directly applicable to Bivens claims.

It held that “no Bivens remedy is available for injuries that ‘arise out of or are in

the course of activity incident to service.’” Id. at 684 (quoting Feres, 340 U.S. at

146); see also Ricks, 295 F.3d at 1130 (“Stanley thus effectively merged the

‘special factors’ analysis [of Bivens] with the incident to service test.”).

Although Stanley clarified that the “incident to service” test is applicable to

constitutional claims brought under Bivens, the Supreme Court has never held that

this test applies to constitutional claims brought under § 1983. In Martelon v.

Temple, 747 F.2d 1348, 1351 (10th Cir. 1984), however, we applied the Feres

doctrine to bar a § 1983 claim against officers of the Colorado Army National

Guard. Since then, many of our sister circuits have followed suit. See Speigner

v. Alexander, 248 F.3d 1292, 1295 (11th Cir. 2001) (applying “incident to

service” test in § 1983 case because under Feres, Chappell, and Stanley “there is

no recognized cause of action for a member of the armed forces to request

monetary damages from the military if the claim is based on an injury that is

incident to service”); Jones v. N.Y. State Div. of Military & Naval Affairs, 166

F.3d 45, 51 (2d Cir. 1999) (“[T]he reasoning of Chappell and Stanley, developed

in the Bivens context, applies with equal force to a § 1983 claim against state

military officials.”); Bowen v. Oistead, 125 F.3d 800, 803 n.2 (9th Cir. 1997)

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(“[I]nsofar as the Feres doctrine extends to the state National Guard units, it

shields state military officers from constitutional claims brought under section

1983 to the same extent that it protects federal military personnel from defending

against Bivens actions raising the very same claims.”); Wright v. Park, 5 F.3d

586, 591 (1st Cir. 1993) (“[W]hile the Stanley Court’s clarification of Chappell

occurred in the context of a Bivens action, Stanley can only be understood to

apply equally to civil rights claims against state officials under section

1983 . . . .”); Knutson v. Wisc. Air Nat’l Guard, 995 F.2d 765, 770 (7th Cir. 1993)

(extending Chappell to § 1983 damages claims against National Guard officers);

Watson v. Ark. Nat’l Guard, 886 F.2d 1004, 1007 (8th Cir. 1989) (explaining that

“the logic of Chappell” extends “to actions brought against National Guard

officers under § 1983” because “[t]he concern for the disruption of military

discipline upon which Feres, Chappell, and Stanley are based applies equally

when a court is asked to entertain an intra-military suit under § 1983”); Crawford

v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1036 (5th Cir. 1986) (“[W]e perceive

no basis upon which to distinguish [§ 1983 claims by National Guard members]

from those held impermissible by Chappell.”).

Accordingly, we follow the Supreme Court’s direction that Bivens and

§ 1983 claims are equivalent for purposes of official immunity. See Butz v.

Economou, 438 U.S. 478, 500 (1978) (“[I]n the absence of congressional direction

to the contrary, there is no basis for according to federal officials a higher degree

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of immunity from liability when sued for a constitutional infringement as

authorized by Bivens than is accorded state officials when sued for the identical

violation under § 1983.”). The “incident to service” test applies to § 1983 claims

against state military officials.

B. Application of the “Incident to Service” Test to
Claims Brought by Civilians

The question we must decide here is whether the Feres doctrine’s “incident

to service” test bars Mr. Newton’s claim despite his civilian status. Mr. Newton

argues that because he was not a service member at the time of his alleged

injuries, the Feres doctrine does not apply. 13

The rationales underlying the Feres doctrine have shifted over time, but

“the importance of the military disciplinary structure . . . has been labeled the

‘best expla[nation]’ for Feres.” Ricks, 295 F.3d at 1129 (quoting Chappell, 462

U.S. at 299) (second alteration in original). “Suits brought by service members

against the Government for service-related injuries could undermine the

commitment essential to effective service and thus have the potential to disrupt

military discipline in the broadest sense of the word.” United States v. Johnson,

481 U.S. 681, 691 (1987). In light of the nature of military life, “Feres and its

13
The district court concluded that Mr. Newton’s civilian status would not
impact its analysis regarding whether the Feres doctrine barred his claims. See
Newton, 688 F. Supp. 2d at 1311.

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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 ‘type[s] of claims that, if generally permitted, would involve the

judiciary in sensitive military affairs at the expense of military discipline and

effectiveness.’” Id. at 690 (quoting United States v. Shearer, 473 U.S. 52, 59

(1985)) (alteration in original).

Relatedly, “separation of powers concerns that the judiciary should not

delve into the internal affairs of the military” counsel in favor of the intramilitary

immunity doctrine. Ricks, 295 F.3d at 1129. The Feres doctrine prevents courts

from second-guessing military decision-making and interfering in matters

reserved for the political branches of government. Id.; see also Stanley, 483 U.S.

at 683; Johnson, 481 U.S. at 691; Shearer, 473 U.S. at 57; Chappell, 462 U.S.

301-02.

There is no bright-line rule for determining if the Feres doctrine applies to

a given case. See Shearer, 473 U.S. at 57. In applying the “incident to service”

test, however, we do not delve into how each case would implicate issues of

military decision-making. The Supreme Court in Stanley “explicitly rejected a

‘special factors’ analysis which would consider how military discipline would

actually be affected in a particular case.” Ricks, 295 F.3d at 1130 (discussing

Stanley, 483 U.S. at 681). The Court explained:

A test for liability that depends on the extent to which particular suits

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 would call into question military discipline and decisionmaking
would itself require judicial inquiry into, and hence intrusion upon,
military matters. Whether a case implicates those concerns would
often be problematic, raising the prospect of compelled depositions
and trial testimony by military officers concerning the details of their
military commands. . . . The “incident to service” test, by contrast,
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 (emphasis added). Thus, following the Court’s

guidance, in evaluating whether Mr. Newton’s ATCS certificate due process

claim is barred by the Feres doctrine, we do not speculate or inquire how his

particular suit would intrude upon military matters or force us to second-guess

military decisions. Instead, we ask whether his suit arises from injuries incident

to his military service. See id.; see also Ricks, 295 F.3d at 1130-31.

In applying the “incident to service” test, an individual’s military status

quite obviously plays a role in the inquiry. See Pringle v. United States, 208 F.3d

1220, 1224 (10th Cir. 2000) (listing “the duty status of the plaintiff when the

negligent act occurred” as among the factors to consider when applying Feres);

Ricks, 295 F.3d at 1132 (“[A] person’s military status may affect the applicability

of the Feres doctrine.”). As we have previously noted, “the Supreme Court has

broadened Feres, to the point where it now ‘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.’” Pringle, 208 F.3d at 1223-24

(quoting Persons v. United States, 925 F.2d 292, 296 n.7 (9th Cir. 1991))

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(alteration in original) (additional emphasis added). The “incident to service” test

has been interpreted to encompass even those injuries “that are attenuated from

the servicemember’s duty status.” Ricks, 295 F.3d at 1228.

An individual’s military status will not necessarily be determinative of

whether Feres applies, however. “Nothing in the Supreme Court’s jurisprudence

. . . suggests that a person’s complete discharge creates a per se rule that Feres is

inapplicable.” Ricks, 295 F.3d at 1132. For example, in Ricks we applied Feres

to bar the claims of a former airman for injuries he allegedly incurred while held

in a military prison. See id. at 1126. Although Mr. Ricks had been fully

discharged from the Air Force at the time of his alleged injuries, we nevertheless

held his claims were incident to his military service. We explained that a

complete discharge from the military “does not automatically transform a

servicemember into a civilian for purposes of Feres analysis.” Id. at 1131.

Instead, “[t]he paramount inquiry is whether the alleged constitutional violations

are incident to the plaintiff’s military service.” Id. “[I]f a servicemember’s

claims are incident to service, it is immaterial whether the plaintiff has been fully

discharged from the military.” Id. at 1133. Despite having been discharged, Mr.

Ricks’ injuries were incident to military service because he was a military

prisoner at a prison which confined no civilians and was operated by military

personnel, he was incarcerated for offenses committed during active duty, and he

continued to be subject to the Uniform Code of Military Justice. See id. at 1132.

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He would not have been in the military prison but for his military service.

Consequently, his incarceration at the military prison and the alleged injuries

sustained during incarceration “stemmed from his military relationship such that

[his claims were] incident to his military service.” Id. (internal quotation marks

omitted).

Other circuits have extended Feres to bar claims brought by certain

“nominally civilian” employees of the military. For example, the Eleventh

Circuit held Feres barred a suit brought by a retired naval officer working as a

Junior ROTC instructor. See Norris v. Lehman, 845 F.2d 283, 287 (11th Cir.

1988). The instructors were required to “be on active duty or, if retired, have

served in the armed services on active duty for at least 20 years.” Id. at 285. The

court held that although the plaintiff in Norris was “nominally a civilian,” his

position as an instructor was “in its very essence” military in nature. Id. at 287.

Thus, any injury he suffered “arose out of or was in the course of activity incident

to service.” Id. Similarly, some circuits have applied Feres to bar claims brought

by dual-status National Guard Technicians. See, e.g., Wetherill v. Geren, 616

F.3d 789, 798 (8th Cir. 2010); Walch v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d

289, 297 (5th Cir. 2008); Overton v. N.Y. State Div. of Military & Naval Affairs,

373 F.3d 83, 91-96 (2d Cir. 2004); Fisher v. Peters, 249 F.3d 433, 443 (6th Cir.

2001); Wright v. Park, 5 F.3d 586, 589-91 (1st Cir. 1993); Stauber v. Cline, 837

F.2d 395, 400 (9th Cir. 1988). Although National Guard Technicians are civilian

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employees of the military, they are required to enlist in the National Guard as a

condition of their civilian employment. See 32 U.S.C. § 709; Stauber, 837 F.2d at

396. As an illustrative example, the Second Circuit explained that the Feres

doctrine could apply to suits brought by Guard Technicians because of the

“military characteristic” of their work and the difficulty of attempting to

disentangle a plaintiff’s civilian and military duties when determining if a suit is

incident to service. Overton, 373 F.3d at 92. Notably, in all of these cases

military service was a prerequisite for the plaintiffs’ civilian employment.

But we have not found any cases from the Courts of Appeals that have

extended Feres to bar the claims of an individual like Mr. Newton: a civilian

employee of the military who was not required to have any military service for

the position. The Fifth Circuit encountered similar facts in Meister v. Texas

Adjutant General’s Department, 233 F.3d 332 (5th Cir. 2000). There, the

plaintiff was a full-time civilian employee of the Texas National Guard, id. at

334, and she also “happened to be a non-commissioned officer in the Texas Air

National Guard,” id. at 338 n.4. The suit alleged several Title VII violations

arising from her civilian employment. Id. at 334. The court noted that the

plaintiff’s enlistment in the Texas Air National Guard was irrelevant because she

was not required to enlist for her employment. Id. at 338 n.4. It also observed

that the plaintiff was employed in a civilian capacity, “was not subject to military

discipline or the military hierarchy,” and “could quit whenever she wanted.” Id.

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at 338. For these reasons, the Fifth Circuit held Feres was inapplicable. Id.

The Supreme Court has never suggested that Feres applies to suits brought

by civilian employees of the military. Instead, the Court has consistently cabined

the doctrine to reach only injuries to service members. See, e.g., Johnson, 481

U.S. at 687-88 (“[T]he Feres doctrine has been applied consistently to bar all

suits on behalf of service members against the Government based upon service-

related injuries.” (emphasis added)); Chappell, 462 U.S. at 300 (“We hold that

enlisted personnel may not maintain a suit to recover damages from a superior

officer for alleged constitutional violations.” (emphasis added)). Indeed, the

Court has even characterized the Feres doctrine as failing to reach claims by

civilians. In Boyle v. United Technologies Corp., 487 U.S. 500 (1988), the Court

considered when a contractor providing military equipment to the federal

government could be held liable for injury caused by a design defect. Although

the Court considered extending the Feres doctrine to bar such claims, it

concluded the doctrine was “in some respects too broad and in some respects too

narrow” to address a contractor’s liability. Id. at 510. The Court explained that

the Feres doctrine was too narrow because it “covers only service-related injuries,

and not injuries caused by the military to civilians.” Id.

The district court and defendants both rely on Presley v. Jackson Municipal

Airport Authority, 94 F. Supp. 2d 755 (S.D. Miss. 2000), to support applying

Feres to purely civilian employees of the military. In Presley, the district court

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held that although the plaintiff, a civilian firefighter for the state Air National

Guard, “was not actually an enlisted member of the military,” the Feres doctrine

barred the suit. Id. at 761. The court reasoned that “his position was of a

decidedly military nature and his claimed injury indisputably arose incident to his

service to the military.” Id. We respectfully disagree with the reasoning in

Presley. The “incident to service” test asks whether injuries are incident to a

service member’s service in the military, not whether injuries are incident to an

individual’s service to the military. See Chappell, 462 U.S. at 305 (“[E]nlisted

military personnel may not maintain a suit to recover damages from a superior

officer for alleged constitutional violations” (emphasis added)); Ricks, 295 F.3d at

1131 (“The paramount inquiry is whether the alleged constitutional violations are

incident to the plaintiff’s military service.” (emphasis added)).

In applying the incident to service test, we must not conflate a civilian’s

employment by the military with an enlisted person’s service in the military. The

Court has repeatedly noted that civilian life and military life are necessarily

different, and the relationship between an enlisted person and the military is

distinct from anything in civilian life. “In every respect the military is . . . ‘a

specialized society.’” Johnson, 481 U.S. at 690-91 (quoting Parker v. Levy, 417

U.S. 733, 743 (1974)). “In the civilian life of a democracy many command few;

in the military, however, this is reversed, for military necessity makes demands

on its personnel without counterpart in civilian life.” Chappell, 462 U.S. at 300

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(internal quotation marks omitted). And because “no military organization can

function without strict discipline that would be unacceptable in a civilian setting,”

the military “has developed a hierarchical structure of discipline and obedience to

command, unique in its application to the military establishment and wholly

different from civilian patterns.” Id. We therefore must “adhere to the line

drawn in [Feres] between injuries that did and injuries that did not arise out of or

in the course of military duty.” United States v. Brown, 348 U.S. 110, 113

(1954).

We are persuaded by this fundamental distinction between military life and

civilian life that Mr. Newton’s suit cannot be barred by the Feres doctrine.

Injuries cannot arise “incident to service” if a plaintiff’s claims are wholly

unrelated to his current or former military service. Mr. Newton retired from the

UANG more than a year before his ATCS certificate was withdrawn, so he was a

civilian employee when his injuries arose. Furthermore, unlike the plaintiff in

Ricks, 295 F.3d at 1132, or dual-status National Guard employees, Mr. Newton’s

injuries did not stem from his military relationship with the UANG. His position

as Air Traffic Control Supervisor was a civilian position that did not require

current or prior military service. Mr. Newton’s ATCS certificate was originally

issued by the FAA – a civilian government agency – before he enlisted in the

UANG. His prior National Guard service had nothing to do with his alleged

injuries, “except in the sense that all human events depend upon what has already

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transpired.” Brooks v. United States, 337 U.S. 49, 52 (1949). Simply put,

although Mr. Newton was employed by, and formerly a member of, the UANG, he

was a civilian employee whose alleged injuries were not in any way incident to

his military service.

The military status of defendants does not change our analysis. The

Supreme Court “has never suggested that the military status of the alleged

tortfeasor is crucial to the application of the doctrine. . . . Instead, the Feres

doctrine has been applied consistently to bar all suits on behalf of service

members against the Government based upon service-related injuries.” Johnson,

481 U.S. at 686-88.

Defendants argue that this case must be barred by the Feres doctrine

because although Mr. Newton was a civilian employee, he played an integral role

in military activities, his supervisors were in a military chain of command, and

his claims “call into question basic choices about military discipline, supervision,

and control.” Aplt. Br. on Cross-Appeal at 18. All of this may be true, but we

must follow the Supreme Court’s instruction not to examine “the extent to which

particular suits would call into question military discipline and decisionmaking.”

Stanley, 483 U.S. at 682. As the Supreme Court has observed, “judges are not

given the task of running the Army.” Orloff v. Willoughby, 345 U.S. 83, 93

(1953). “The complex subtle, and professional decisions as to the composition,

training, equipping, and control of a military force are essentially professional

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military judgments, subject always to civilian control of the Legislative and

Executive Branches.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Intramilitary

immunity may help ensure effective military operations, but we leave it to the

elected branches of government and to the military to decide which employment

positions within the armed forces should be held by civilians, rather than enlisted

personnel. Significantly, the UANG employed Mr. Newton as a civilian and did

not require military service as a prerequisite for the position. It is not our job to

question whether this was appropriate.

Mr. Newton was a purely civilian employee of the military whose alleged

injuries were unrelated to his prior military service. The Feres doctrine does not

apply.

III.

Defendants also appeal the denial of qualified immunity on Mr. Newton’s

claim that they violated his due process rights when suspending and withdrawing

his ATCS certificate. The district court denied summary judgment because,

“[v]iewing the[] facts in a light most favorable to Newton, a reasonable fact-

finder could conclude that Newton was not afforded an appropriate level of

process. Newton has therefore sufficiently alleged a constitutional violation.”

Newton, 688 F. Supp. 2d at 1307. In so doing, the district court concluded Mr.

Newton’s due process rights were clearly established and identified a number of

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disputed fact issues relating to this claim. See, e.g., id. at 1297, 1307 n.151.

In an appeal from the denial of qualified immunity, “[o]ur interlocutory

jurisdiction is limited to legal questions drawn from facts that are deemed

undisputed for appellate purposes.” Cortez, 478 F.3d at 1115 (citing Johnson v.

Jones, 515 U.S. 304, 313 (1995); Mitchell, 472 U.S. at 528). The denial of

summary judgment is not reviewable as a collateral order “[t]o the extent that the

district court’s denial of the defendant’s motion for summary judgment is

predicated on ‘evidence sufficiency,’ i.e. which facts a party may, or may not, be

able to prove at trial.” Clanton v. Cooper, 129 F.3d 1147, 1152 (10th Cir. 1997)

(internal quotation marks omitted). That is, “[a]n order denying qualified

immunity on summary judgment is not appealable if it merely determines the

facts asserted by the plaintiff are sufficiently supported by evidence in the record

to survive summary judgment.” Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir.

1997). “We do not have jurisdiction to review the district court’s factual

findings, including its finding that a genuine issue of fact existed” to preclude

summary judgment. Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1259

(10th Cir. 1998).

Because the district court found that genuine issues of fact precluded

granting qualified immunity to defendants, see Newton, 688 F. Supp. 2d at 1307,

we lack jurisdiction over their interlocutory appeal of this issue.

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 IV.

Mr. Newton cross-appeals the grant of qualified and intramilitary immunity

to Maj. Teter and Lt. Col. Lee on his due process claim arising from the

suspension of his employment. In deciding in favor of defendants on this claim,

the district court concluded Mr. Newton was “afforded procedural due process on

his fourteen-day suspension.” Id. at 1309. With respect to Mr. Newton’s

subsequent indefinite employment suspension, the court granted defendants

qualified immunity with respect to the procedures used to indefinitely suspend

Mr. Newton’s employment because he “failed to show Defendants’ conduct

violated a statutory or constitutional right when they suspended him . . . .” Id.

The court also granted Maj. Teter and Lt. Col. Lee intramilitary immunity to the

extent the claim challenged the reason for the suspension.

“[A]n order granting immunity is not a collateral order which is

immediately appealable under 28 U.S.C. § 1291 . . . .” Clemens v. Kansas, 951

F.2d 287, 288 (10th Cir. 1991). We therefore may review Mr. Newton’s cross-

appeal only by exercising pendent appellate jurisdiction. “Our exercise of

pendent appellate jurisdiction . . . is generally disfavored.” Vondrak v. City of

Las Cruces, 535 F.3d 1198, 1205 (10th Cir. 2008) (internal quotation marks

omitted).

“It is appropriate to exercise pendent appellate jurisdiction only where

resolution of the appealable issue necessarily resolves the nonappealable issue, or

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where review of the nonappealable issue is necessary to ensure meaningful review

of the appealable one.” Buck v. City of Albuquerque, 549 F.3d 1269, 1293 (10th

Cir. 2008) (internal quotation marks omitted). The grant of immunity to

defendants on the employment claim is not necessarily resolved by our

determination that the Feres doctrine does not bar Mr. Newton’s ATCS certificate

due process claim. Nor is our review of the employment claim necessary to

resolve the questions properly before us on interlocutory appeal. Accordingly, we

cannot take pendent jurisdiction over Mr. Newton’s cross-appeal.

V.

We AFFIRM and REMAND for further proceedings in accordance with this

opinion.

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