                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                 JAN 13 1999
                                      TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 ANGELA MORSE; STACY HANDLEY,

          Plaintiffs-Appellants,
 v.
                                                            No. 97-1386
                                                        (D.C. No. 97-D-579)
 TOGO WEST, as Secretary of the Army;
                                                        (District of Colorado)
 JAMES LIEDLE; RUSSELL DANIS,

          Defendants-Appellees.




                                   ORDER AND JUDGMENT*


Before TACHA, Circuit Judge, HENRY, Circuit Judge, and McWILLIAMS, Senior
Circuit Judge.


      This case involves the Federal Torts Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),

2671-2680.

      On March 21, 1997, Angela Morse and Stacey Handley filed a complaint in the

United States District Court for the District of Colorado, naming as defendants Togo




      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court 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
West as Secretary of the Army, James Liedle and Russell Danis.1 In that complaint the

parties were identified as follows: Morse and Handley are both citizens of Colorado

residing in El Paso County, Colorado; West was the Secretary of the Army (“Secretary”);

Liedle was a Colonel in the United States Army and stationed at Fort Carson, Colorado;

and Danis was a cadet in the Reserve Officer Training Corp (“ROTC”) program at the

University of Colorado at Colorado Springs, Colorado. Under the heading of “General

and Jurisdictional Allegations,” the plaintiffs alleged that the district court had subject

matter jurisdiction under the FTCA and the Fifth and Fourteenth Amendments. The

plaintiffs went on to allege that each was at all pertinent times a cadet in the ROTC

program at the University of Colorado at Colorado Springs, Colorado, and that at all

pertinent times Liedle and Danis “were operating under the color of law and their

authority as representatives of the Army’s Reserve Officer Training Corp program at the

University of Colorado at Colorado Springs.”

       The first claim for relief was Morse’s claim against the Secretary under the FTCA.

In that claim Morse alleged that while she was participating in and completing an ROTC

course of study as a cadet at the University of Colorado at Colorado Springs, she was

subjected to acts of gender bias and sexual harassment, including unwanted sexual



       1
        During the pendency of this proceeding, Robert M. Walker replaced Togo West as
Secretary of the Army, and was accordingly substituted for West. Defendants Liedle and
Danis were never served with process, and did not otherwise appear in any proceeding in
the district court, nor in this court.

                                             -2-
advances, by a fellow cadet, Russell Danis, and others, in the ROTC program, and that

she suffered retaliation when she reported the acts of sexual harassment to her superiors.

Such acts of gender bias and sexual harassment, according to Morse, “constitute personal

injury to the Plaintiff, and therefore [are] violations of the Federal Tort Claims Act,” for

which she sought “both economic and non-economic” damages.

       In the second claim for relief, Handley asserted her claim against the Secretary

under the FTCA. The allegations of sexual harassment and the like in the second claim

paralleled those alleged in the first claim, although Handley identified Liedle, as well as

Danis, and unidentified “others” as being the perpetrators thereof.2

       In the third claim for relief, Morse asserted a claim under “Section 1983/5th and

14th Amendments.” She stated that the “acts of Defendant Russell Danis and others

constituted an intentional deprivation of Plaintiff Morse’s civil rights and denial of due

process under color of Federal law.” In a fourth claim, Handley set forth a claim which

paralleled the third claim. In a fifth claim, Morse asserted a claim based on outrageous

conduct and intentional infliction of emotional distress by Danis. In a sixth, and last

claim, Handley also asserted a claim for outrageous conduct and malicious prosecution by

Liedle, Danis and others.

       In response to the complaint, the Secretary filed a motion to dismiss, setting forth



       2
         In the second claim for relief, Handley also mentioned that defendant Liedle had
initiated a “civil lawsuit” against her.

                                             -3-
three grounds for dismissal: (1) under Fed. R. Civ. P. 12(b)(1), the district court lacked

“subject matter jurisdiction over tort claims under the Feres doctrine, because such claims

are brought by military personnel against military personnel incident to military service”;

(2) plaintiffs’ claims against the Secretary based on constitutional torts fail to state a

claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6); and (3) the claims

of malicious prosecution also fail to state a claim under 28 U.S.C. § 2680(h). The

plaintiffs thereafter filed a response to the Secretary’s motion to dismiss, in which counsel

resisted the Secretary’s motion to dismiss as it related to the first four claims in the

complaint. As to the fifth and sixth claims, counsel stated that those particular claims

were “directed against defendants other than Togo West, and need not be addressed by

this brief.” Counsel attached to his response to the Secretary’s motion to dismiss certain

correspondence, reports and statements made by the two plaintiffs. To that response, the

Secretary filed a reply.3

       It was on this state of the record that the district court granted the Secretary’s

motion to dismiss the first four claims in the complaint, which, as indicated, were the only


       3
         The plaintiffs also filed a separate action against the Regents of the University of
Colorado, alleging, inter alia, claiming that they reported the acts of sexual harassment
here complained of to the University and that it did not adequately respond thereto. The
district court granted a 12(b)(6) motion to dismiss that particular claim, as well as certain
other claims of the plaintiffs. On appeal, we reversed that part of the district court’s order
which held that the plaintiffs had failed to state a valid claim under Title IX of the
Educational Amendments of 1972, compiled at 20 U.S.C. §§ 1681-1688 and remanded
the case for further proceedings. Morse v. Regents of the University of Colorado, 154
F.3d 1124 (10th Cir. 1998).

                                              -4-
claims directed at the Secretary, the fifth and sixth claims being directed at Danis and

Liedle, and others, but not the Secretary. Morse v. West, 975 F.Supp. 1379 (D. Colo.

1997).

         In granting the Secretary’s motion to dismiss the plaintiffs’ first and second claims

for relief based on the FTCA, the district court relied on the so-called Feres doctrine as

enunciated in Feres v. United States, 340 U.S. 135 (1950). In so doing, the district court

rejected counsel’s suggestion that Feres only applied if plaintiffs were on “active duty” in

the military at the time of their “injuries,” and that, since they were not on active military

duty, Feres was inapplicable. The district court also concluded that any acts of

harassment “were incident to military service,” and that the plaintiffs’ FTCA claims were

barred under the Feres doctrine. Morse v. West, 975 F.Supp. at 1381. In this regard, the

district court spoke as follows:

                        Here, I find that the alleged incidents of harassment
                were incident to military service since they occurred during
                the Plaintiffs’ involvement with the ROTC program and its
                military cadets and officials. Indeed, Plaintiffs admit in their
                complaint that the claims arose during their service in the
                ROTC program. This holding is consistent with one of the
                main reasons for application of the Feres doctrine, namely,
                the fear of damaging the military system. Burkins, 865
                F.Supp. at 1493. Here, as in Burkins, the claims of Plaintiffs
                would require “delving into the acts of the Defendants and the
                investigation surrounding Plaintiffs’ injury” which would, “in
                all likelihood require judicial second-guessing of military
                orders.” Id. at 1494-95. Thus, application of Feres to
                Plaintiffs’ claims is warranted. The Second Circuit reached a
                similar result as to ROTC students in Wake v. United States,
                89 F.3d 53 (2nd Cir. 1996). Accordingly, I find that Plaintiffs’

                                              -5-
                 first and second claims against West must be dismissed.

       Id. at 1381-82.

       As concerns the plaintiffs’ third and fourth claims for relief based on intentional

violations by Danis and Liedle of plaintiffs’ rights under the Fifth and Fourteenth

Amendments, the district court concluded that those claims, insofar as they related to the

Secretary, were also barred because “the military enjoys an immunity to Bivens claims

that is coextensive with its Feres immunity,” Id. (citing Maddick v. United States, 978

F.2d 614, 615 (10th Cir. 1992)). We are in general accord with the district court’s analysis

of the matter.

       Certain matters are not in dispute. It is agreed that we are only concerned with

plaintiffs’ claims as they relate to the Secretary, since Danis and Liedle were never served

with process. It is also agreed that plaintiffs’ claims against the Secretary, acting in his

official capacity as Secretary of the Army, are, in reality, claims against the United States.

It is further agreed that the United States enjoys governmental immunity from the type of

claims here asserted by the plaintiffs, unless the United States has waived its immunity.

In this latter regard, the plaintiffs assert that the United States has waived its immunity

under the FTCA, and that in connection with the plaintiffs’ third and fourth claims against

the Secretary the district court “inappropriately applied” Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971). We are not in accord with either of these two propositions.

       We should first look at the factual basis for plaintiffs’ claims. The record indicates


                                             -6-
that the basis for plaintiffs’ claims against Danis are based on alleged sexual harassment

occurring during an ROTC program maintained at the University of Colorado at Colorado

Springs, Colorado, by the United States Army. It would appear that the basis for

plaintiffs’ claims against Liedle, who was a Colonel in the United States Army and

stationed at nearby Fort Carson, was that he, as an administrator of the ROTC program,

did not take proper remedial measures after learning of the harassment charges.

       As indicated, under the authority of Feres v. United States, supra, the district court

concluded that plaintiffs’ claims did not come within the ambit of the FTCA. We agree.

       Feres involved three cases. Feres perished in a fire in army barracks while on active

service in the United States Army. His executrix sued the United States, alleging negligence

in the Army’s maintenance of the barracks. Jefferson, while in the Army, underwent an

abdominal operation by military personnel. Eight months later, after discharge, he had a

second operation in which a towel marked “Medical Department U.S. Army” was removed

from his stomach. He brought suit against the United States for negligence. In the third case,

Griggs’ executrix brought suit against the United States, alleging that Griggs while on active

duty in the United States Army met death because of negligent and unskillful medical

treatment by army surgeons. In Feres, the Second Circuit affirmed the district court’s

dismissal of the action. Feres v. United States, 177 F.2d 535 (2nd Cir. 1949). In Jefferson,

the Fourth Circuit affirmed the district court’s holding that the FTCA did not charge the

United States with liability. Jefferson v. United States, 178 F.2d 518 (4th Cir. 1949). In


                                             -7-
Griggs, the Tenth Circuit reversed the district court and held that the complaint in that case

stated a viable cause of action under the FTCA. Griggs v. United States, 178 F.2d 1 (10th Cir.

1949).

         On certiorari, the Supreme Court affirmed in Feres and Jefferson, but reversed in

Griggs. In so doing the Supreme Court spoke as follows:

                      We conclude that the Government is not liable under the
               Federal Tort Claims Act for injuries to servicemen where the
               injuries arise out of or are in the course of activity incident to
               service. Without exception, the relationship of military
               personnel to the Government has been governed exclusively by
               federal law. We do not think that Congress, in drafting this Act,
               created a new cause of action dependent on local law for
               service-connected injuries or death due to negligence. We
               cannot impute to Congress such a radical departure from
               established law in the absence of express congressional
               command. Accordingly, the judgments in the Feres and
               Jefferson cases are affirmed and that in the Griggs case is
               reversed.

Feres, 340 U.S. at 146.

         Counsel first argues that Feres does not apply to the present case because neither

plaintiff was an “active member of the military.” In Wake v. United States, 89 F.3d 53 (2nd

Cir. 1996), the Second Circuit held that the Feres doctrine applied to an enlisted inactive

member in the Naval ROTC program at Norwich University. In Brown v. United States, 151

F.3d 800, 805 (8th Cir. 1998), the Eighth Circuit recently held that Feres bars suits by ROTC

cadets for injuries sustained during ROTC activities, citing the Wake case. And in Quintana

v. United States, 997 F.2d 711 (10th Cir. 1993), we held that the Feres doctrine barred an


                                             -8-
action against the United States by an injured service member who was on reserve status and

was not on active duty.

       Alternatively, counsel argues that if the Feres doctrine applies to the plaintiffs, the

injuries did not “arise out of or . . . in the course of activity incident to service,” as required

by Feres. We disagree. Indeed, in their complaint, the plaintiffs alleged that while

“participating and completing a so-called ROTC course of study,” injuries were sustained

during their “tenure as an ROTC cadet.” The alleged “tort” in the instant case clearly

occurred in “activity incident to service.”4 Thus, plaintiffs’ third and fourth claims against

the United States are subject to the same infirmity as their FTCA claims against the United

States. The military enjoys an immunity to Bivens claims that is co-extensive with its Feres

immunity. United States v. Stanley, 483 U.S. 669, 684 (1987) and Maddick v. United States,

978 F.2d 614, 615 (10th Cir. 1992).5


       In an unpublished opinion we held that the claim of a former member of the
       4

United States Air Force based on a pattern of sexual harassment was “incident to service”
and hence her FTCA claim was barred by Feres. Corey v. United States, 124 F.3d 216 ,
(Table), 1997 WL 474521, cert. denied, 118 S.Ct. 865 (1998).
       5
        In an unpublished Order and Judgment, the United States District Court for the
Southern District of New York in Callis v. Shannon, 1994 WL 116007, dismissed the
claim of a cadet in an ROTC program that she had been the victim of sexual harassment
by her superior. In that case the plaintiff claimed, inter alia, that there was a tort violation
of the 14th Amendment. In dismissing that claim, the court stated that “[t]he United States
has not waived its sovereign immunity for constitutional torts.” As concerns an FTCA
claim, that court spoke in footnote 2 as follows:
                      Plaintiff cannot sustain a tort claim against the Army
              because the Feres doctrine bars such a claim since the actions
              taken against plaintiff, by the terms of her complaint, were
              “incident to military service” as they occurred while she was a

                                               -9-
Judgment affirmed.



                     ENTERED FOR THE COURT


                     Robert H. McWilliams
                     Senior Circuit Judge




      ROTC cadet.

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