The Honorable Mark W. Bennett, United States District Judge 1

for the District of Iowa. 

____________

No. 95-1704

____________

Kenneth P. Uhl, *

*

Appellant, *

*

v. *

*

Dennis P. Swanstrom, *

individually and in his * Appeal from the United States

official capacity as 185 TFG * District Court for the

Commander Iowa Air National * Northern District of Iowa

Guard, Warren G. Lawson, *

individually and as *

Adjutant General, Iowa Air *

National Guard, and the *

Iowa Air National Guard, *

*

Appellees. *

____________

 Submitted: October 16, 1995

 Filed: April 4, 1996

____________

Before McMILLIAN, BRIGHT and LOKEN, Circuit Judges.

____________

McMILLIAN, Circuit Judge.

Plaintiff Kenneth P. Uhl appeals from a final order entered in the

United States District Court for the Northern District of Iowa granting

1

summary judgment in favor of defendants Dennis P. Swanstrom, Warren G.

Lawson, and the Iowa Air National Guard on plaintiff's claims of due

process and equal protection violations pursuant to 42 U.S.C. § 1983, a

claim of violation of the Privacy Act of 1974, 5 U.S.C. § 522a et seq., and

a pendent state law claim
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pursuant to the Federal Tort Claims Act (FTCA). Uhl v. Swanstrom, 876

F. Supp. 1545 (N.D. Iowa 1995). For reversal, plaintiff argues that the

district court erred in holding that (1) all of plaintiff's claims were

non-justiciable under the doctrine established in Feres v. United States,

340 U.S. 135 (1950) (Feres) (limiting tort claims against the United States

and its agencies and representatives for injuries incident to military

service); (2) some of plaintiff's claims were barred by the applicable

statutes of limitations; and (3) plaintiff was not entitled to partial

summary judgment based upon the district court's prior rulings. For the

reasons discussed below, we hold that the district court correctly applied

the Feres doctrine, we decline to reach plaintiff's statute of limitations

arguments, and we hold that plaintiff was not entitled to partial summary

judgment based upon the district court's prior rulings. Accordingly, we

affirm.

Background

Plaintiff was a dual-status employee with the Iowa Air National Guard

(IANG). He was a full-time civil engineer at the IANG base in Sergeant

Bluffs, Iowa, and a part-time member of the IANG. His eligibility for

military service was a requirement of his continued employment as a civil

servant. On June 9, 1988, plaintiff was discharged from the IANG after a

Medical Evaluation Board reportedly diagnosed him as mentally unfit for

military duty. As a consequence, plaintiff also lost his civil service

employment. At the time of plaintiff's discharge, defendant Swanstrom was

his commanding officer, and defendant Lawson was the Adjutant General of

the IANG.

Plaintiff filed a complaint with the Department of Defense Office of

the Inspector General (DoD/IG), which investigated the matter and found the

process leading to plaintiff's discharge flawed and the decision to

discharge plaintiff inappropriate and invalid. In its final report, dated

January 24, 1990, the DoD/IG
 The case was initially assigned to the Honorable Donald E.

2

O'Brien, who was, at that time, Chief Judge of the Northern

District of Iowa.

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recommended that plaintiff be reinstated to the positions he would have

occupied had he not had a break in service. Plaintiff also filed an

application with the Air Force Board for Correction of Military Records

(AFBCMR) seeking to have the medical disqualification removed from his

military records. The AFBCMR agreed with the DoD/IG's conclusions and, on

June 21, 1991, recommended that plaintiff's records be expunged of all

references to the medical disqualification. Despite these findings by both

the DoD/IG and the AFBCMR, the IANG has never reinstated plaintiff.

Plaintiff also filed an administrative claim with the Department of

the Air Force under the FTCA and separately filed a civil lawsuit against

Swanstrom and the IANG in Iowa state court alleging defamation and

deprivation of rights under state and federal law, and seeking damages and

reinstatement. On August 31, 1990, the Department of the Air Force denied

plaintiff's administrative claim under the FTCA. On November 26, 1990, the

Iowa state court granted the IANG's motion to dismiss plaintiff's claims

on the basis of the Feres doctrine; then, on September 24, 1991, the state

court granted Swanstrom's motion for summary judgment and dismissed

plaintiff's claims against him, again on the basis of the Feres doctrine.

In the meantime, on January 22, 1991, plaintiff initiated the present

action in federal district court. On February 21, 1991, plaintiff amended 2

his complaint. The amended complaint alleges due process and equal

protection violations, a federal Privacy Act violation, and a state common

law claim of intentional interference with contract, all arising out of

defendants' termination of plaintiff from his service with the IANG. The

amended complaint seeks declaratory and injunctive relief (including

reinstatement),
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actual, incidental, and punitive damages, attorneys' fees, and costs.

Defendants moved to dismiss, arguing, among other things, that

plaintiff's claims were barred under the Feres doctrine. On April 7, 1992,

the district court denied defendants' motion. Uhl v. Swanstrom, No. C 91-

4012 (N.D. Iowa Apr. 7, 1992). In its order of April 7, 1992, the district

court also certified, for purposes of interlocutory appeal, that the order

involved a controlling question of law as to which there were substantial

grounds for a difference of opinion. See 28 U.S.C. § 1292(b). Defendants

did not immediately appeal the district court's order and instead moved for

reconsideration in the district court. One year later, the district court

ruled on the motion for reconsideration and dismissed two of the

defendants, the United States and the United States Air Force, without

prejudice; however, the remaining defendants, Swanstrom, Lawson, and the

IANG, were not dismissed. Uhl v. Swanstrom, slip op. at 8 (Mar. 26, 1993).

The district court's order of March 26, 1993, did not contain certification

language permitting interlocutory appeal. After failing to obtain relief

from the district court on their motion for reconsideration, defendants

Swanstrom, Lawson, and the IANG subsequently filed an interlocutory appeal.

Their interlocutory appeal was dismissed for lack of jurisdiction. Uhl v.

Swanstrom, No. 93-8059NISC (8th Cir. Apr. 27, 1993) (order entered by the

clerk of court dismissing appeal for lack of jurisdiction).

Thereafter, defendants Swanstrom, Lawson, and the IANG filed a motion

for summary judgment in the district court, again asserting, among other

things, that plaintiff's claims were barred under the Feres doctrine.

Plaintiff filed a cross-motion for partial summary judgment, arguing, among

other things, that the district court was bound by its earlier rulings.

Following oral arguments, the district court granted defendants' motion for

summary judgment, denied plaintiff's cross-motion, and dismissed
 By this time, the case had been reassigned to the Honorable 3

Mark W. Bennett.

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the case. Uhl v. Swanstrom, 876 F. Supp. at 1570. This appeal followed. 3

Discussion

We review a grant of summary judgment de novo. The question before

the district court, and this court on appeal, is whether the record, when

viewed in the light most favorable to the non-moving party, shows that

there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Get Away Club, Inc. v.

Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St. Paul Fire & Marine Ins. Co.

v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992).

Where the unresolved issues are primarily legal rather than factual,

summary judgment is particularly appropriate. Crain v. Board of Police

Comm'rs, 920 F.2d 1402, 1405-06 (8th Cir. 1990). 

We begin by addressing plaintiff's last argument -- that defendants

were precluded from relitigating on summary judgment those issues which had

previously been litigated and decided in the district court's orders of

April 7, 1992, and March 26, 1993. Defendants failed to timely appeal the

district court's April 7, 1992, order despite the creation of interlocutory

appellate jurisdiction by the district court's certification in accordance

with 28 U.S.C. § 1292(b). Nevertheless, we hold that plaintiff's

collateral estoppel argument is legally flawed for several reasons. Most

notably, the district court expressly stated in its order of March 26,

1993:
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It has been brought before the court's attention

that defendants Swanstrom, Lawson, and the [IANG] have

further factual issues to raise in this case that they

believe would entitle them to relief on a summary

judgment motion. Nothing in this order or in the

previous order of this court precludes defendants from

raising such a motion for summary judgment at a later

time if they feel it is appropriate.

Uhl v. Swanstrom, slip op. at 8 (Mar. 26, 1993) (emphasis added).

Moreover, defendants' interlocutory appeal from the April 7, 1992, and

March 26, 1993, orders was dismissed for lack of jurisdiction because it

was untimely with respect to the April 7, 1992, order and the March 26,

1993, order was not properly certified by the district court. As such, and

because the appeal was interlocutory, the dismissal was without prejudice

and the district court's orders did not become final. Collateral estoppel

applies only where the issue in controversy has previously been determined

by a valid and final judgment. In re Miera, 926 F.2d 741, 743 (8th Cir.

1991). We therefore hold that the district court correctly rejected

plaintiff's collateral estoppel argument. Uhl v. Swanstrom, 876 F. Supp.

at 1550. Also, as noted by the district court, the so-called "law of the

case" doctrine does not apply when an intervening decision from a higher

tribunal renders a prior determination erroneous. Id. at 1550 n.3 (citing

Morris v. American Nat'l Can Corp., 988 F.2d 50 (8th Cir. 1993)). In the

present case, this court's decision in Wood v. United States, 968 F.2d 738

(8th Cir. 1992) (Wood), was decided after the district court's April 7,

1992, and March 26, 1993, orders were filed, and the district court found

the Eighth Circuit's decision in Wood to be dispositive on the

applicability of the Feres doctrine in the present case. See Uhl v.

Swanstrom, 876 F. Supp. at 1550 n.3. Therefore, the district court acted

within its discretion in deciding that the Feres doctrine precludes

plaintiff's claims, notwithstanding its earlier rulings to the contrary.
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We next turn to the legal merits of the district court's application

of the Feres doctrine in the present case. Upon careful consideration of

the controlling case law on this issue, the district court concluded "with

great reluctance" that it was legally constrained to apply the

Feres doctrine based upon Supreme Court and Eighth Circuit

precedents, including Wood, 968 F.2d at 739-40 (National Guard

member's claim based upon adverse employment decision was barred

under the Feres doctrine because personnel decisions within the

National Guard ordinarily require assessment of military

qualifications), and Watson v. Arkansas National Guard, 886 F.2d

1004 (8th Cir. 1989) (Watson) (Feres doctrine applies to National

Guard member's claim that his discharge was racially motivated).

See Uhl v. Swanstrom, 876 F. Supp. at 1561-70. Upon de novo

review, we find ourselves equally reluctant, yet legally bound, to

hold that plaintiff's claims in the present case are nonjusticiable under the Feres doctrine.

In this appeal, plaintiff acknowledges that the Supreme

Court's decision in Feres, and its progeny, have drastically

narrowed the scope of permissible lawsuits against military

agencies and military officers. However, plaintiff notes that

there are exceptions to the Feres doctrine and argues that the

present case falls within one of those exceptions. He maintains

that it is beyond dispute that his due process rights were

violated, as evidenced by the two agency decisions finding his

discharge invalid and recommending reinstatement. He maintains

that all he seeks by the present lawsuit is to compel defendants to

do what two administrative agencies have already instructed

defendants to do, that is, reinstate him. On this basis, he claims

that there need not be any interference in military decisionmaking

by the court and, thus, his case is distinguishable from Wood.

Plaintiff also argues that this case is distinguishable from Watson

because, in Watson, no agency had made a final determination that
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the plaintiff's discharge was improper. Plaintiff further argues

that this court should be compelled by the overwhelming equitable
 Plaintiff also makes the policy argument that, in a situation 4

such as this, there are no veteran's benefits available as an

alternative remedy.

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and policy considerations against application of the Feres doctrine

in cases such as this one. For example, as the district court

noted, it is unfair that, in the context of the National Guard, the

Guard is allowed to benefit from the protections of the Feres

doctrine, yet it is not required to follow directives from the

military's central command (in this case, the DoD/IG and AFBCMR

reinstatement orders). See Uhl v. Swanstrom, 876 F. Supp. at 1570.

This dichotomy is particularly unfair, plaintiff argues, because

one of the justifications for the Feres doctrine is the presumption

that nonjudicial administrative remedies are available within the

military. See id. 

4

In response, defendants argue that the district court's

decision is well-grounded in Eighth Circuit and Supreme Court

precedents. Defendants argue that it is well-established that:

(1) members of the National Guard are covered by the Feres

doctrine; (2) individual defendants, in their individual

capacities, are protected by the Feres doctrine; and (3) the

doctrine applies to decisions concerning the composition of the

military. Defendants further suggests that this case, like Watson,

involves a personnel decision and therefore, like Watson, it does

not fall within one of the two exceptions to the Feres doctrine

recognized in Watson. Plaintiff is neither challenging the

constitutionality of a military regulation or statute on its face,

nor is he seeking limited judicial review of a final agency action.

Moreover, defendants argue, Wood is directly on point because, as

the district court observed, "the court in Wood ordered dismissal

of the claims under the Feres doctrine even though the plaintiff

had been confronted with refusal by the highest officer in the
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chain of command to follow the recommendation resulting from the

internal administrative process." Uhl v. Swanstrom, 876 F. Supp.
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at 1570 (citing Wood, 968 F.2d at 740 ("[t]he complaint states that

although a hearing officer found in favor of Lt.Col. Wood, the

Adjutant General declined to assign him as the Air Commander")).

Consistent with the holding in Wood, defendants argue, the

personnel decision being challenged in the present case is

precisely the type of intramilitary decision with which the courts

may not interfere under the Feres doctrine.

Upon careful review of the issues and arguments presented in

this appeal, we agree with the district court's interpretation of

the law regarding the Feres doctrine and its application to the

facts of the present case. Uhl v. Swanstrom, 876 F. Supp. at 1561-

70. We find it unnecessary to modify or to elaborate upon the

district court's thorough analysis. Accordingly, the judgment of

the district court is affirmed. See 8th Cir. R. 47B.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.