### 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 grantin g 1 summaryjudgment in favor of defendants Dennis P. Swanstrom, Warren G

. Laws on, and the Iowa Air National Guard on plaintiff's claims of du e 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. , an d a pendent state law claim

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pursuant to the Federal Tort Claims Act (FTCA). Uhl v. Swanstrom , 87 6 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 wer e non-justiciable under the doctrine established in Feres v. United States , 340 U.S. 135 (1950) ( Feres ) (limiting tort claims against the United State s and it s agencies and representatives for injuries incident to militar y service); (2) some of plaintiff's claims were barred by the applicabl e statutes of limitations; and (3) plaintiff was not entitled to partia l summaryjudgment based upon the district court's prior rulings. For the reasons discussed below, we hold that the distri ct court correctly applied the Feres doctrine, we decline to reach plaintif f's statute of limitations arguments, and we hol d 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 Guar d (IANG). He was a full-time civil engineer at the IANG base in Sergean t Bluffs, Iowa, and a part-time member of the IANG. His eligibility fo r 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 Medica l Evaluation Board reportedly diagnosed him as mentally unfit fo r militaryduty. As a consequence, plaintiff also lost his civil servic e employment. At the time of plaintiff's discharg e, 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 th e proces s leading to plaintiff's discharge flawed and the decision t o 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 Norther n District of Iowa. -3- rec ommended that plaintiff be reinstated to the positions he would hav e occupied h ad he not had a break in service. Plaintiff also filed a n app lication with the Air Force Board for Correction of Military Record s (AFBCM R) seeking to have the medical disqualification removed from hi s military records. The AFBCMR agreed with the Do D/IG's conclusions and, on June 21, 1991, recommended that plaintiff's records be expunged of al l references to the medical disqualification. Despite these findings by bot h the DoD/IG and the AFBCMR, the IANG has never reinstated plaintiff.

Plaintiff also filedan administrative claim with the Department of the Air Force under t he FTCA and separately filed a civil lawsuit against Swanstro mand the IANG in Iowa state court alleging defamation an d deprivation of rights under state and federal la w, and seeking damages and reinstatement. On August 31, 1990, the Departme nt of the Air Force denied plaintiff's administrative claim under the FTCA. On November 26, 1990, th e Iowa state court granted the IANG's motion to dismiss plaintiff's claims on the basis of the Feres doctrine; then, on Sep tember 24, 1991, the state court granted Swanstrom's motion for summary judgment and dismisse d plaintiff's claims ag ainst him, again on the basis of the Feres doctrine.

Inthe meantime, on January 22, 1991, plaintiff initiated the presen t action in federal district court. On February 21, 1991, plain tiff amended 2 his complaint. The amended complaint alleges due process and equa l protection violations, a federal Privacy Act vio lation, and a state common law claim of intentional interference with contract, all arising out o f defendants' terminati on of plaintiff from his service with the IANG. The
am ended complaint seeks declaratory and injunctive relief (includin g reinstatement),

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

De fendants moved to dismiss, arguing, among other things, tha t 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 distric t court also certified, for purposes of interlocut ory appeal, that the order involved a controllin g 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 fo r reconsideration in the district court. One year later, the district court
ru led on the motion for reconsideration and dismissed two of th e defendants, the United States and the United States Air Force, withou t 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 certificatio n language permitting i nterlocutory appeal. After failing to obtain relief from t he district court on their motion for reconsideration, defendant s Swanstrom, Lawson, and the IANG subsequently filed an interlocutory appeal

. Their interlocutory appeal was dismissed for lac k of jurisdiction. Uhl v. Swanstrom , No. 93-805 9NISC (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 motio n 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, amon g other things, that the district court was bound by its earlier rulings

. Following oral arguments, the district court granted defendants' motion fo r summary judgment, denied plaintiff's cross-motion, and dismissed

### By this time, the case had been reassigned to the Honorable 3 

### Mark W. Bennett.
-5- the case. Uhl v. Swanstrom , 876 F. S upp. at 1570. This appeal followed. 3

Discussion

We review a grant of summary judgment de novo . The question before the district court, a nd this court on appeal, is whether the record, when viewe d in the light most favorable to the non-moving party, shows tha t there is no genuine issue as to any material fact and that the moving part y 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. LibertyLobby, 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,
sum maryjudgment is particularly appropriate. Crain v. Board of Polic e Comm'rs , 920 F.2d 1402, 1405-06 (8th Cir. 1990).
We begin by addressi ng plaintiff's last argument -- that defendants
were precluded from relitigating on summary judgment those issues which ha d pre viouslybeen litigated and decided in the district court's orders o f April 7, 1992, and March 26, 1993. Defendants f ailed to timely appeal the district court's April 7, 1992, order despite the creation of interlocutor y appellate jurisdiction by the district court's c ertification in accordance with 28 U.S.C. § 1292(b). Nevertheless, we hold that plaintiff' s collateral estoppel a rgument is legally flawed for several reasons. Most notab ly, the district court expressly stated in its order of March 26 , 1993:

### -6- It has been brought before the court's attentio n that defendants Swanstrom, Lawson, and the [IANG] hav e further factual issues to raise in this case that the y be lieve would entitle them to relief on a summar y judgment motion. Nothing in this order or in th e previ ous order of this court precludes defendants fro m raising s uch a motion for summary judgment at a late r time if they feel it is appropriate.

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

. Moreov er, defendants' interlocutory appeal from the April 7, 1992, an d March 26, 1993, orders was dismissed for lack of jurisdiction because it
was unt imely with respect to the April 7, 1992, order and the March 26 , 1993, order was not properly certified by the district court. As such, an d because the appeal wa s interlocutory, the dismissal was without prejudice and the district court's orders did not become f inal. Collateral estoppel applies only where the issue in controversy has previously been determined bya valid and final judgment. In re Miera , 926 F.2d 741, 743 (8th Cir. 1991 ). We therefore hold that the district court correctly rejecte d plaintiff's collatera l estoppel argument. Uhl v. Swanstrom , 876 F. Supp. at 1550. Also, as no ted 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 Na t'l Can Corp. , 988 F.2d 50 (8th Cir. 1993)). In the present case, this court's decision in Wood v. U nited States , 968 F.2d 738 (8thCir. 1992) ( Wood ), was decided after the district court's April 7 , 1992, and March 26, 1 993, orders were filed, and the district court found the Ei ghth Circuit's decision in Wood to be dispositive on th e applic abilityof the Feres doctrine in the present case. See Uhl v

. Swanstrom , 876 F. Sup p. at 1550 n.3. Therefore, the district court acted within its discretion in deciding that the Feres doctrine preclude s plaintiff's claims, notwithstanding its earlier rulings to the contrary.

### -7- We next turn to the legal merits of the distric t 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 conclud ed 

### "with great reluctance" that it was legally constrained to apply th e Fe res doctrine based upon Supreme Court and Eighth Circui t pr ecedents, including Wood , 968 F.2d at 739-40 (National Guar d member 's claim based upon adverse employment decision was barre d unde r the Feres doctrine because personnel decisions within th e National Guard ordinarily require assessment of militar y qualif ications), and Watson v. Arkansas National Guard , 886 F.2 d 1004 (8th Cir. 1989) ( Watson ) ( Feres doctrine applies to National Guard member's claim that his discharge was racially motivated)

. See Uh l v. Swanstrom , 876 F. Supp. at 1561-70. Upon de nov o review, we find ourselves equa lly reluctant, yet legally bound, to hold t hat plaintiff's claims in the present case are non

justiciable under the Feres doctrine.

In th is appeal, plaintiff acknowledges that the Suprem e Court' s decision in Feres , and its progeny, have drasticall y
narro wed the scope of permissible lawsuits against militar y ag encies and military officers. However, plaintiff notes tha t there are exceptions to the Feres doctrine and argues that th e present case falls within one of those exceptions. He maintain s that it is beyond dispute that his due process rights wer e violated, as evidenced by the two agency decisions finding hi s disc harge invalid and recommending reinstatement. He maintain s that all he seeks by the present lawsuit is to compel defend ants to do wh at two administrative agencies have already instructe d defendants to do, that is, reinstate him. On this basis, he claims that there need not be any int erference in military decisionmaking bythe 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 a n alternative remedy. -9- and policy considerations against application of the Feres d octrine in cas es such as this one. For example, as the district cour t noted, it is unfair that, in the context of the National Gua rd, the Guard is allowed to benefit from the protections of the Fere s doctrine, yet it is not required to follow directives from th e milita ry's central command (in this case, the DoD/IG and AFBCM R reinstatement orders). See Uhl v. Swanstrom , 876 F. Supp. a t 1570. Th is dichotomy is particularly unfair, plaintiff argues, becaus e one of the justifications for the Feres doctrine is the pres umption that nonjudicial administrative remedies are available within the military. See id. 4



### In re sponse, defendants argue that the district court' s decision is well-grounded in Eighth Circuit and Supreme Cour t prec edents. Defendants argue that it is well-established that : (1) members of the National Guard are covered by the Fere s doctrine; (2) individual defendants, in their individua l capaci ties, are protected by the Feres doctrine; and (3) th e doct rine applies to decisions concerning the composition of th e military. Defendants further suggests that this case, like Watson , involves a personnel decision and therefore, like Watson , it does not f all within one of the two exceptions to the Feres doctrin e
reco gnized in Watson . Plaintiff is neither challenging th e constitutionality of a militar y 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 plaintif f had been confronted with refusal by the highest officer in th e

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cha in of command to follow the recommendation resulting from th e 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 stat es that although a hearing officer found in favor of Lt.Col. Wood, th e Adj utant General declined to assign him as the Air Commander"))

. Co nsistent with the holding in Wood , defendants argue, th e pe rsonnel decision being challenged in the present case i s precisely the type of intramil itary decision with which the courts may not interfere under the Feres doctrine.
Upon carefu l 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 th e facts of the present case. Uhl v. Swanstrom , 876 F. Supp. a t 1561- 70. W e find it unnecessary to modify or to elaborate upon th e 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.