* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 20 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

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 Force; SILAS R. JOHNSON, Brigadier General, individually and in his official 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. No. 96-6409 (D.C. No. 96-CV-552) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY , Circuit Judges.1 Ms. Corey has not contested the district court's dismissal of her breach of

contract claim on appeal. -2- After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.

Appellant Cheryl Corey appeals from the district co urt's order granting the appellees' motion to dismiss. We exercise jurisdic tion over Ms. Corey's appeal pursuant to 28 U.S.C. § 1291, and affirm.

Ms. Corey is a former member of the United States A ir 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 Ge neral Silas R. Johnson, Jr., and Lieutenant Colonel Philip Manning. Ms. Corey's complaint, which seeks compensatory and punitive damages, sets forth the f ollowing 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 in fliction of emotional-3-

distress; (6) negligence; (7) defamation; and (6) t ortious interference with contract. Ms. Corey's tort claims were brought pur suant 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 followin g allegations. On March 21, 1991, she enlisted as an Airman in the United S tates Air Force. While stationed at Tinker Air Force Base, Oklahoma, she w as "repeatedly subjected to and suffered a continuous history and pattern of se xual harassment and discrimination" during the course of her employment . In September 1994, Brigadier General Johnson sent Ms. Corey to Incirli k, Turkey, for a temporary assignment. In Turkey, Lt. Colonel Manning was Ms. Corey's military detachment commander, and Colonel Turner was employ ed with another detachment.

On September 16, 1994, Colonel Turner's detachment arranged a party on Incirlik Air Base Turkey. Ms. Corey attended the p arty, as did numerous members of her detachment and Colonel Turner's deta chment. During the party, Colonel Turner became intoxicated and "sexually ass aulted [Ms. Corey] by intentionally grabbing [her] buttocks with both han ds." Although Ms. Corey and other officers reported the assault to Lt. Colonel Manning, he took no action to-4-

assist Ms. Corey and he refused to seriously consid er her complaint. Thereafter, Ms. Corey filed a complaint with the Air Force Offi ce of Special Investigations. Lt. Colonel Manning attempted to cover up the incid ent 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 in dividuals 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 andmechanism to discourage complaints against its senior officers." Furthermo re, she claims the Air Force has generally failed to adequately supervise, train, in vestigate, and discipline its military members regarding sexual harassment and di scrimination. As a result of the actions of the Air Force, Ms. Corey felt compel led not to renew her enlistment contract and suffered monetary damages.

In September 1995, Ms. Corey filed her complaint infederal court against the United States and individual defendants. The d efendants 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-5-

of action for which relief could be granted. In Oc tober 1996, the district court entered an order granting the motion to dismiss. T he court determined Ms. Corey's Title VII claim must be dismissed because T itle VII was inapplicable to uniformed military personnel. The court found Ms. Corey's remaining claims should be dismissed because they were non-justiciab le 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 disjo inted, 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 distric t 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 p ursuant 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 suc h a dismissal "only when it appears that the plaintiff can prove no set of facts in-6-

support of the claims that would entitle [her] to r elief, 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 inte nded 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 mea ning 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 Tit le 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 o f Title 5." 5 U.S.C. § 102 (1994) defines military departments as the departme nts of the Army, Navy and Air Force. However, 10 U.S.C. § 101(a)(4) defines "arm ed 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 Circ uit concluded "[t]he two differing definitions show that Congress intend ed a distinction between-7-

'military departments' and 'armed forces,' the form er consisting of civilian employees, the latter of uniformed military personn el." 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 m embers 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 protecti on 'to the uniformed personnel of the various armed services.'" Citing Gonzales , we stated: The definitions of "military departments" and "arme d forces" contained in the United States Code ... compel the view "that the term 'military departments' in section 717(a) of Ti tle VII ... can be fairly understood to include only civilian employee s 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 arme d forces. See, e.g., Roper v. Department of Army , 832 F.2d 247, 248 (2d Cir. 1987) ("we cannot agre e 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 no t applicable to those who enlist or apply for enlistment in United States arm ed forces). Ms. Corey has provided this court with no circuit precedent to th e contrary.2Although Ms. Corey appears to argue military pers onnel 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 firs t time that the Feres doctrine should no longer apply since she is no lon ger a member of the military. Because this issue was not raised in her opening br ief, 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 wi ll generally not be considered).

4Even 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.

-8- Because Title VII is not applicable to uniformed me mbers 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 V II to apply to uniformed personnel is clearly without merit in light of prev ailing 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. C orey'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 un der Feres doctrine properly treated as Rule 12(b)(1) motion to dismiss). "We r eview de novo whether the-9-

Feres doctrine is applicable to the facts reflected in t he record." Id. (citation and internal quotation marks omitted). Furthermore, be cause the district court apparently did not look beyond the allegations cont ained 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 servic e." 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 pers onnel 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 th reefold: "'(1) the distinctly federal nature of the relationship between the gove rnment and members of its armed forces ...; (2) the availability of alternati ve compensation systems; and (3) the fear of damaging the military disciplinary stru cture.'" 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-10-

Constitution if the Feres 'incident to service' test is met." Walden v. Bartlett , 840 F.2d 771, 773 (10th Cir. 1988). Furthermore, the T enth Circuit has noted that courts have routinely ruled that the protection of the Feres doctrine extends to officers and other servicemen, as well a s to the United States.... Indeed, in Feres, ... the Supreme Court stated: "We know of no American law which ever has permitted a soldi er 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 injurie s that at first blush may not have appeared to be closely related to their milita ry status." Dreier , 95 F.3d at 1440. "[P]ractically any suit that 'implicates th e 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 es sential military discipline." United States v. Shearer , 473 U.S. 52, 57 (1985).-11-

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. Co rey claims the court is not being called upon to second-guess any military deci sions and she argues the functioning of the military will not be disrupted b y holding the United States accountable for the unlawful conduct.

Ms. Corey's tort and § 1985 claims can be divided i nto two general categories: (1) the claims based on her allegation s that she was subjected to a continued history and pattern of discrimination andsexual harassment while stationed in Oklahoma, and (2) the claims based on her allegations of sexual harassment that occurred during the on-base party i n Incirlik, Turkey, and the military's failure to provide her with adequate rel ief from this harassment. With respect to the general allegations of sexual harass ment and discrimination that occurred while Ms. Corey was stationed in Oklahoma, Ms. Corey admits in her complaint these actions occurred "[d]uring the cour se of her employment." Thus, by her own admission, this conduct arose from Ms. C orey's military status, her military duties, and her relationship with other of ficers. This conduct was clearly "incident to service." Consequently, Ms. Corey's t ort and § 1985 claims based on-12-

the conduct that occurred while she was stationed i n Oklahoma were properly dismissed pursuant to the Feres doctrine.

Next, we review whether the conduct that occurred d uring 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 as saulted Ms. Corey by grabbing her buttocks with both hands. Ms. Corey a sserts that although she reported Colonel Turner's improper conduct, the AirForce did not take disciplinary action against Colonel Turner. Ms. Co rey 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 discriminat ion. Ms. Corey contends the defendants conspired against her and deprived h er 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 a ll relevant authorities, we conclude, as did the district court, that Ms. Co rey's § 1985 claims and her5 To the extent Ms. Corey argues her sexual assaultand battery claims

against the United States should have been allowed to proceed, we conclude these claims are barred pursuant to the "intentional tortexception" to the Federal Tort Claims Act. This exception shields the United Stat es 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. C orey's assault and battery claims against the United States are barredunder the intentional tort exception, we need not decide whether these claims are "incident to service" and barred under Feres

. -13- claims brought under the Federal Tort Claims Act ar ose "incident to service." 5
The Feres doctrine "'encompass[es], at a minimum, all injuri es suffered by military personnel that are even remotely related t o 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 whi ch her injuries occurred was a consequence of her military status. The party occu rred on base and was organized and attended by military members. Those participat ing in the party -- including Ms. Corey and the individual defendants -- were sub ject to military discipline and control. Thus, we believe the injuries suffered byMs. Corey were at least "remotely related" to her military status.

The fact Ms. Corey's injuries occurred during a rec reational 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-14-

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 pr ecluded under
Feres the claims of an active duty servicewoman, on auth orized leave, who was injured in a boating accident that occurred on or n ear 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 Fed eral Tort Claims Act where decedent, an off-duty military policeman, was served drinks at NonCommissioned Officers' club and was killed subseque ntly in off-base accident).

Allowing Ms. Corey's lawsuit to proceed would invol ve judicial inquiry into, and intrusion upon, military discipline. In effect, we would be inviting the district court to second-guess the military decisio ns made concerning the conduct that occurred at the on-base party. Furthermore, w e 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 office rs would have to stand6Ms. Corey contends the United States failed to di sclose to the court

whether the conduct of the individual defendants wa s 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. § 1 986, 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, w e 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 wi ll 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 equ itable relief", we refuse to review this claim because her complaint only requested mon etary damages. Finally, we deny Ms. Corey's request for permission to amend he r complaint. Ms. Corey did not seek leave to amend her complaint from the tria l court, and Ms. Corey makes no attempt to argue how any of her claims would survive if such leave were granted. -15- prepared to convince a civilian court of the wisdomof 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 h er 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 precludedby 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