     Case: 15-60567      Document: 00513476869         Page: 1    Date Filed: 04/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 15-60567                                FILED
                                  Summary Calendar                          April 22, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
GREGORY PAYNE DAVIDSON,

              Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

              Defendant - Appellee


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:14-CV-230


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Gregory Payne Davidson appeals the district court’s order dismissing
Davidson’s claims against his former superiors at the National Guard due to
lack of subject matter jurisdiction. We AFFIRM.
                                     I. Background
       In November of 2014, former Mississippi Army National Guard Staff
Sergeant Gregory Payne Davidson filed suit in Mississippi state court against



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-60567         Document: 00513476869         Page: 2   Date Filed: 04/22/2016


                                        No. 15-60567

two of his former superior officers, acting Commander Michael Gray and acting
First Sergeant Dallas Cleveland. According to Davidson, in response to an
email he wrote to Gray complaining about Cleveland’s conduct, Gray and
Cleveland retaliated against him by causing him to fail two physical fitness
tests and by fabricating Davidson’s Noncommissioned Officer Evaluation
Report to indicate that his physical fitness “need[ed] improvement.” Davidson
alleged that because of Gray and Cleveland’s actions, he was unable to reenlist
in the National Guard.           He asserted state law claims against Gray and
Cleveland for intentional interference with employment and intentional
malicious interference with prospective economic gain.
      Gray and Cleveland jointly removed the action to federal district court.
Upon certifying that Gray and Cleveland were federal employees acting within
the scope of their federal employment at the time of the alleged actions, the
United States of America substituted itself for Gray and Cleveland.                  The
United States then filed a motion to dismiss Davidson’s complaint based on,
among other things, lack of subject matter jurisdiction under the Feres 1
doctrine.     The district court granted the Federal Rule of Civil Procedure
12(b)(1) motion to dismiss, and Davidson timely appealed.
                                        II. Discussion
      We review de novo a district court’s granting of a motion to dismiss under
Rule 12(b)(1). Willoughby v. U.S. ex rel. U.S. Dep’t of the Army, 730 F.3d 476,
479 (5th Cir. 2013). In reviewing a Rule 12(b)(1) disposition, a district court
may consider “(1) the complaint alone; (2) the complaint supplemented by the
undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the that court’s resolution of disputed facts.” Walch v.
Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 293 (5th Cir. 2008) (citation



      1   Feres v. United States, 340 U.S. 135 (1950).
                                                   2
    Case: 15-60567      Document: 00513476869     Page: 3    Date Filed: 04/22/2016


                                  No. 15-60567

omitted); see also Smith v. Reg’l Transit Auth., 756 F.3d 340, 347 (5th Cir.
2014) (“In considering a challenge to subject matter jurisdiction, the district
court is free to weigh the evidence and resolve factual disputes in order to
satisfy itself that it has the power to hear the case.” (citation omitted))
      The Feres doctrine bars claims asserted by military service members
against their superiors “where the injuries arise out of or are in the course of
activity incident to service.” Feres v. United States, 340 U.S. 135, 146 (1950);
see also United States v. Stanley, 483 U.S. 669, 679 (1987) (“[T]he 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 [federal] remedy against their superior
officers.” (citation omitted)); Chappell v. Wallace, 462 U.S. 296, 304–05 (1983)
(“[W]e must be concerned with the disruption of the peculiar and special
relationship of the soldier to his superiors that might result if the soldier were
allowed to hale his superiors into court . . . .” (alteration in original) (citation
omitted)); Crawford v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1035 (5th Cir.
1986) (“[C]ivilian courts may not sit in plenary review over intraservice
military disputes.”).
      The Feres doctrine applies to National Guardsmen. Schoemer v. United
States, 59 F.3d 26, 29 (5th Cir. 1995); Walch, 533 F.3d at 296–97. The Feres
doctrine also applies to state claw claims because “[j]udicial review of a claim
for damages asserted on the basis of state law would constitute no less an
unwarranted intrusion into the military personnel structure than the
entertainment of [federal claims].” Holdiness v. Stroud, 808 F.2d 417, 419–20,
426 (5th Cir. 1987) (dismissing a discharged National Guardsmen’s state law
claim brought against his former superiors for discriminatorily denying him a
promotion and giving him an arbitrarily low job evaluation report).


                                            3
     Case: 15-60567        Document: 00513476869           Page: 4      Date Filed: 04/22/2016


                                         No. 15-60567

       In determining whether Davidson’s claimed injuries occurred in the
course of activity incident to service and are thus barred under Feres, we
examine the totality of the circumstances. 2 See Schoemer, 59 F.3d at 28. The
“incident to service” test has been broadly construed to immunize the United
States and members of the military from any suit that might intrude upon
military affairs, second-guess military decisions, or impair military discipline.
See Miller v. United States, 42 F.3d 297, 302 (5th Cir. 1995).
       It is readily apparent that the actions alleged in Davidson’s complaint
occurred “in the course of activity incident to service” in the National Guard.
See Feres, 340 U.S. at 146. The complaint notes that Davidson was a member
of the National Guard, with Gray serving as his acting Commander and
Cleveland as his acting First Sergeant. Attached to the complaint is an email,
sent to Gray’s National Guard email address, in which Davidson expresses
misgivings about Cleveland’s conduct. Davidson’s complaint further disagrees
with the manner in which Cleveland and Gray conducted two physical fitness
tests that Davidson failed. Finally, Davidson’s complaint also attaches his
noncommissioned officer’s evaluation report—allegedly falsified by Gray and
Cleveland—that states that Davidson “need[ed] improvement” in certain
categories, including physical fitness. 3 In sum, it is clear that the alleged




       2 “In particular, we consider: (1) the serviceman’s duty status; (2) the site of his injury;
and (3) the activity he was performing.” Schoemer, 59 F.3d at 28.
       3 Davidson does not dispute that he has yet to pursue administrative remedies for his
claims with the Army Board for Correction of Military Records. In any event, even assuming
Gray and Cleveland acted maliciously, Davidson’s claim that Feres is inapplicable to common
law intentional torts is incorrect. See Holdiness, 808 F.2d at 419, 426 & n.51 (dismissing a
state law claim based on the allegedly discriminatory denial of a promotion, and citing Trerice
v. Pederson, 769 F.2d 1398, 1404 (9th Cir. 1985) (noting that Feres has been extended to cover
“actions for injuries arising out of intentional tortious conduct”)).

                                                    4
     Case: 15-60567       Document: 00513476869          Page: 5     Date Filed: 04/22/2016


                                       No. 15-60567

actions within the complaint occurred “in the course of activity incident to
service” in the National Guard. 4 Id.
       Davidson unconvincingly argues that Feres is inapplicable because he
was not on active duty due to the federal sequestration in effect at the time of
his failed physical fitness tests. However, “[t]he fact that an injured service
member is not on active duty when the injury occurs does not preclude
application of the Feres doctrine.” Miller, 42 F.3d at 303. A prime rationale
for the Feres doctrine is that military training decisions—such as how to
conduct physical fitness tests and evaluate military personnel—are
professional military judgments best left to the legislative and executive
branches and not to civilian courts. See id. at 303–04; see also Walch, 533 F.3d
at 301 (“[A] court may not reconsider what a claimant’s superiors did in the
name of personnel management—demotions, determining performance level,
reassignments to different jobs—because such decisions are integral to the
military structure.”). The Feres doctrine applies here, and the district court
did not err in determining that it lacked subject matter jurisdiction.
       We AFFIRM. 5




       4 Davidson also attempts to argue that his injuries did not occur incident to his service
in the National Guard because, according to his complaint, his evaluation report was not
provided to him until after his discharge. This argument is specious at best. The injury
Davidson complains of is the discharge itself. For the allegedly false evaluation report to
have contributed to his injury, it inevitably would have had to influence the decision to
discharge Davidson before the discharge actually occurred. The mere fact that Davidson did
not receive the evaluation report until after his discharge is irrelevant.
       5Due to the lack of jurisdiction, Davidson’s request that we re-substitute the initial
individual defendants is dismissed as moot.
                                                  5
