                                 ____________

                                  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 Court1 for the Northern District of Iowa granting
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




     1
      The Honorable Mark W. Bennett, United States District Judge
for the District of Iowa.
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




                                     -2-
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.2     On February 21, 1991, plaintiff amended
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),




        2
      The case was initially assigned to the Honorable Donald E.
O'Brien, who was, at that time, Chief Judge of the Northern
District of Iowa.

                                       -3-
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




                                        -4-
the case.      Uhl v. Swanstrom, 876 F. Supp. at 1570.3       This appeal followed.


                                        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:




        3
      By this time, the case had been reassigned to the Honorable
Mark W. Bennett.

                                           -5-
             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.




                                        -6-
        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   non-
justiciable 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

                                           -7-
the plaintiff's discharge was improper.   Plaintiff further argues
that this court should be compelled by the overwhelming equitable




                               -8-
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


      4
     Plaintiff also makes the policy argument that, in a situation
such as this, there are no veteran's benefits available as an
alternative remedy.

                                         -9-
chain of command to follow the recommendation resulting from the
internal administrative process."    Uhl v. Swanstrom, 876 F. Supp.




                              -10-
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.




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