                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JUL 17 2003
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    MARSHALL D. DAUGHERTY;
    DEBRA DENISE DAUGHERTY,

               Plaintiffs-Appellants,

    v.                                                  No. 02-5146
                                                (D.C. No. 00-CV-1037-EA(J))
    UNITED STATES OF AMERICA;                           (N.D. Okla.)
    RAYMOND SMITH, RADM, United
    States Department of the Navy,
    Commander, Naval Special Warfare
    Command, ex officio; PETER
    TEONNIES, CAPT, United States
    Department of the Navy, Commander,
    Naval Special Warfare Group TWO,
    ex officio,

               Defendants-Appellees,

    and

    WILLIAM COHEN, Secretary,
    Department of Defense; RICHARD
    DANZIG, Secretary, United States
    Department of the Navy; UNKNOWN
    OFFICIALS,

               Defendants.


                             ORDER AND JUDGMENT          *




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
                                                                       (continued...)
Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Retired Navy Commander Marshall D. Daugherty and his wife Debra

Denise Daugherty, appearing    pro se , appeal from the district court’s order

dismissing their claims against the individual defendants for lack of in personam

jurisdiction and for failure to state a claim or, in the alternative, substituting the

United States for the individual Navy officer/defendants in those tort claims

arising under state common law. They also appeal from the dismissal of the

Federal Tort Claims Act (FTCA), constitutional, and statutory claims against the

remaining defendants for lack of subject matter jurisdiction and for failure to

state a claim, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).

Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.




*
 (...continued)
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                          -2-
                                         I.

      A full factual and procedural history is set forth in the magistrate judge’s

thirty-six page report and recommendations and in the district court’s ten-page

order adopting most of those recommendations and dismissing the suit, and we

need not repeat it except in addressing specific points. Essentially, appellants

continue to assert that the Goldwater-Nichols Department of Defense

Reorganization Act of 1986, 10 U.S.C. §§ 161-168, divested the Navy, and

specifically Captain Toennies (who served as Commander of the Naval Special

Warfare Command in Norfolk, Virginia–and who is subject to the Commander-in-

Chief for the Special Operations Command), of any type of authority over Navy

Commander Daugherty. At the time of the alleged violations, Commander

Daugherty’s unit was permanently assigned to a special operations combatant

command unit in Spain under the operational command authority of Army

Brigadier General Canavan (who, in turn, is subject to the Commander-in-

Chief for Europe). Commander Daugherty essentially argues that, once he was

assigned to Brigadier General Canavan’s special operations unit, Captain

Toennies lost all administrative or command authority over him. He further

asserts that any administrative control over him was either (1) assigned to the

Commander-in-Chief of the U.S. Naval Forces in Europe through a clause




                                        -3-
assigning base operating support to that commander in a “memorandum of

understanding” with Spain or (2) was “subject to” General Canavan’s authority.

       Appellants raise four issues on appeal: (1) whether Captain Toennies had

statutory authority to exercise command functions over Commander Daugherty;

(2) whether Captain Toennies acted within the scope of his employment in issuing

commands that allegedly harmed the plaintiffs; (3) whether the district court used

the proper standard in analyzing its personal jurisdiction over the individual

defendants or erred in failing to find jurisdiction under 18 U.S.C. § 1513; and

(4) whether the district court properly dismissed their action brought pursuant to

42 U.S.C. § 10606 of the Victims’ Rights and Restitution Act of 1990. Because

the issues raised are all questions of law, our review is de novo.   Elder v.

Holloway , 510 U.S. 510, 516 (1994) (general questions of law);      United States v.

Lot 85, County Ridge , 100 F.3d 740, 742 (10th Cir. 1996) (jurisdictional issues);

Sutton v. Utah State Sch. for Deaf & Blind     , 173 F.3d 1226, 1236 (10th Cir. 1999)

(legal sufficiency of complaint).

                                             II.

       Most of the appellants’ brief addresses whether Captain Toennies had

command authority over Commander Daugherty. They argue that, because the

court erred in concluding that Captain Toennies had such authority, its dismissal

of the various claims was in error. We therefore examine the basis of each


                                             -4-
dismissal to determine whether this question of law controls the disposition

of each claim.

      A. Claims for relief against the individual defendants.             We begin

by examining whether the district court properly dismissed the         Bivens 1 and

common-law tort actions against the individual defendants for lack of personal

jurisdiction. In addition to the individual defendants moving for dismissal, the

United States moved to substitute itself for the individual defendants on the

common-law tort actions pursuant to 28 U.S.C. § 2679(d).         2
                                                                     Accordingly, the

attorney general certified that Captain Toennies was acting within the scope of

his employment when he committed the acts the appellants claim violated their

constitutional and common-law rights. The magistrate judge concluded that it

could not determine on the record before it whether Captain Toennies was indeed

acting within the scope of his employment as a matter of law and recommended

1
       See Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971). The
Supreme Court has held that enlisted military personnel may not pursue a
Bivens- type remedy against their superior officers.  Chappell v. Wallace ,
462 U.S. 296, 304 (1983). But since the heart of Commander Daugherty’s
challenge is that Captain Toennies was     not his commanding, or superior,
officer, Chappell does not resolve the issue at this point in the proceedings.
2
       As the magistrate judge noted, under § 2679(d)(1), if the attorney general
certifies that a federal employee was acting in the scope of his office or
employment at the time of the incident, the employee is dismissed and the United
States is substituted as the defendant. The case then falls under the purview of
the Federal Tort Claims Act. But if an exception to the FTCA shields the United
States from suit, “the plaintiff may be left without a tort action against any party.”
See Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 420 (1995).

                                           -5-
denying the motion to substitute. But the magistrate judge further concluded it

was unnecessary to determine whether the appellants could state a claim against

the individual defendants if the court had no personal jurisdiction over them.

After conducting a standard minimum contacts analysis, the magistrate judge

concluded that the district court had no personal jurisdiction. The district court

agreed that the claims against the individual defendants should be dismissed for

lack of personal jurisdiction. In the alternative, the court concluded that the

motion to substitute should be granted because appellants failed to meet their

burden to show the individual defendants were not acting within their scope of

employment.

      Appellants argue that we should disregard the minimum contacts analysis

and order a “scope certification hearing” to first determine the federal question of

whether Captain Toennies had any command authority over Commander

Daugherty. We disagree. We cannot proceed to the merits of a claim in the

absence of personal jurisdiction over the individual parties sued. We have

carefully reviewed the record, the parties’ briefs, and the applicable law and we

conclude that, for substantially the same reasons stated on pages 7-12 in the

magistrate judge’s report and recommendation filed May 14, 2002, the district

court properly dismissed the claims against the individual defendants for lack of

personal jurisdiction.


                                         -6-
       Appellants’ argument that 18 U.S.C. § 1513, a criminal statute, provides

personal jurisdiction over the individual defendants is without merit. As the

district court held, that statute does not apply to the facts of this civil action.

Generally, a private citizen has no authority to initiate a federal criminal

prosecution. See COK v. Cosentino , 876 F.2d 1, 2 (1st Cir. 1989). In the absence

of personal jurisdiction over the individual parties sued, the issues regarding

scope of employment and command authority, insofar as they affect the claims

against the individual defendants, are moot.

       B. Relief under 42 U.S.C. § 10606.         As both the district court and the

magistrate judge pointed out, the appellants’ claim for restitution under the

Victims of Crimes Act borders on being frivolous. Whether Captain Toennies had

command authority is not relevant to the dismissal of this claim. For substantially

the same reasons stated by the district court and magistrate judge, we affirm the

dismissal of those claims.

       C. Dismissal of claims against the Department of Defense and

Department of the Navy.        A review of the pleadings reveals that the appellants

did not object to the magistrate judge’s recommendation that the district court

dismiss their claims against the two agencies on the basis that neither      Bivens

actions nor the FTCA provides for relief directly against agencies of the United




                                            -7-
States. See FDIC v. Meyer , 510 U.S. 471, 476, 486 (1994). The district court

properly dismissed those claims.

       D. Dismissal of claims against the United States.                 Appellants alleged

two types of claims against the United States: violation of the FTCA and

violation of the Administrative Procedures Act (APA).

              1. FTCA claims.        The district court held that the FTCA claims were

barred by the doctrine enunciated in       Feres v. United States , 340 U.S. 135, 146

(1950), upon its finding that Commander Daugherty’s injuries resulted from

activity “incident to service.” R., Doc. 63 at 5 (quoting         Feres ). On appeal, the

appellants argue that the    Feres doctrine does not apply because

       [Captain Toennies’] tortious interference[] with the Government
       armed forces member relationship [was] not derived from federal law
       or governed by federal authority . . . [, thus t]he Petitioners’ injuries
       (the challenged actions) did not arise out of or during the course of
       activity (federally defined command functions) incident to CDR
       Daugherty’s service (to CINCEUR [the European special operations
       command]).

Aplt. Br. at 22 (emphasis in original). We first note that the appellants have

erroneously equated “challenged actions” with “injuries.”               Feres holds that

“service members cannot bring tort suits against the Government for injuries that

‘arise out of or are in the course of activity incident to service.’”          United States v.

Johnson , 481 U.S. 681, 686 (1987). The focus is on the injury suffered, and an

injury is “incident to service” if it occurs “because of [the plaintiff’s] military


                                              -8-
relationship with the Government.”       Id. at 689. We have held that the   Feres

doctrine bars recovery under the FTCA for injuries that are even “remotely”

related to the individual’s status as a member of the military.     Pringle v. United

States , 208 F.3d 1220, 1223-24 (10th Cir. 2000).

       As the magistrate judge pointed out at pages 19-20 of his report and

recommendations, there is no question that appellants’ alleged injuries are related

to Commander Daugherty’s military status because they all arise from military

orders that he claims were wrongfully issued by military personnel asserting

authority over him. Application of the      Feres doctrine does not depend on whether

Captain Toennies had valid command authority over Commander Daugherty.

Feres also precludes federal court subject matter jurisdiction over a tort suit for

damages against the United States for injuries allegedly suffered as a result of

invalid command authority because the injuries were incident to Commander

Daugherty’s military service. The court properly dismissed the appellants’ FTCA

claims.

              2. APA claims.      Appellants alleged that the defendants violated

Commander Daugherty’s rights under 5 U.S.C. § 702 of the APA and, as remedy,

requested expungement from his military record of all court martial actions,

findings, and conclusions resulting from Captain Toennies’ allegedly unlawful

exercise of command over him. The magistrate judge and the district court


                                             -9-
engaged in a thorough analysis of the factors articulated in         Mindes v. Seaman ,

453 F.2d 197, 201-02 (5th Cir. 1971), and adopted by this Circuit in          Lindenau v.

Alexander , 663 F.2d 68, 71 (10th Cir. 1981), to determine whether the issues

raised were justiciable.

       The court concluded that Commander Daugherty’s APA claims were not

justiciable under the third step set forth in     Mindes. Under a Mindes analysis, even

if (step one) the plaintiff alleges the deprivation of a constitutional right or

violation of applicable statute or regulation          and (step two) proves exhaustion of

available intraservice corrective measures, “a court should not review internal

military affairs” unless, after weighing “(1) the nature and strength of the

plaintiff’s challenge to the military determination; (2) the potential injury to the

plaintiff if review is refused; (3) the type and degree of anticipated interference

with the military function; and [(4)] the extent to which the exercise of military

expertise and discretion is involved,” it determines that the necessity for review

outweighs the policy reasons behind nonreview of military matters. R., Doc. 63

at 6-7 (Order filed July 15, 2002) (quotations omitted) (applying and quoting

Mindes ).

       In considering the first factor, the district court noted the Navy asserted

that Captain Toennies continued to have administrative command authority over

Commander Daugherty and that section 165 of the Goldwater-Nichols Act


                                                -10-
apparently provided for the Secretary of the Navy to remain responsible for

administration of forces assigned to combatant commands. The court thus found

the appellants’ key argument challenging Captain Toennies’ command authority

to be “exceedingly weak.”   Id. at 8.

      The court determined that the second factor also weighed against

justiciability because the injury alleged (damage to his reputation caused by the

allegedly unlawful court martial) and remedy requested (expungement of his

records) would not affect Commander Daugherty in his status as medically retired

with an honorable discharge since February 1997.   3
                                                       Id. at 8-9.

      The court determined that the third factor also weighed against review

because expungement of the records would necessarily require a determination

that Captain Toennies unlawfully exercised command authority. Making such

a determination would embroil the courts in determining the legitimacy of the

military’s command structure, a “‘basic choice[] about the discipline, supervision,

and control of a serviceman’” in which courts traditionally have been reluctant to

intervene. Id. at 9 (quoting United States v. Shearer , 473 U.S. 52, 58 (1985)).



3
      Regarding the second factor, we also note that Commander Daugherty may
have achieved expungement or sealing of the offending records through
application to the Board for the Correction of Naval Records, which “may correct
any military record . . . when the Secretary of the Navy acting through the Board
considers it necessary to correct an error or remove an injustice.” Chappell v.
Wallace , 462 U.S. 296, 302 (1983) (quotations omitted); 10 U.S.C. § 1552(a), (f).

                                         -11-
Finally, the court determined that the fourth factor weighed against review

because the issue squarely involved military expertise and discretion in

interpreting its chain of command and administration.        Id.

       The appellants continue to argue that the APA claims are justiciable

because “they did not concern internal military matters.” Aplt. Br. at 16. They

also assert their case is different from   Mindes because they have not asked the

district court “to delve into the judgments or decisions of military officials that

Congress, by federal law, left for them to make at their discretion.”   Id. at 16-17.

They argue: “In Mindes and Lindenau , the issue was one of whether military

officials made the correct judgment or decision. In the Daugherty case it is

whether the individual Respondents [] had federal authority to act at all.”

Id. at 17-18. Again, their focus is on Captain Toennies’ alleged lack of command

authority over Commander Daugherty because of Unit Ten’s permanent

assignment to Brigadier General Canavan’s special operations unit in Europe.

But appellants ignore that they requested a determination of whether Captain

Toennies’, Rear Admiral Smith’s, Brigadier General Canavan’s, and the

Department of the Navy’s (through its Chief of Naval Operations) interpretations

of the relevant command statutes were all incorrect. This is exactly the kind of

internal military question that the military, and not the courts, should usually

resolve in the first instance absent factors outweighing the policy of nonreview.


                                            -12-
We agree with the district court that after consideration of all the    Mindes factors,

and especially the fact that expungement of his records after his retirement would

have no prospective effect on his military career, Commander Daugherty’s APA

claims are not justiciable.

       The judgment of the district court is AFFIRMED.


                                                          Entered for the Court



                                                          Mary Beck Briscoe
                                                          Circuit Judge




                                             -13-
