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Newton v Lee

Case No. 10-4063 (C.A. 10, Apr. 24, 2012)

Robert Newton alleges Major John R. Teter and Lieutenant Colonel Wayne E. Lee of the Utah Air National Guard violated his due process rights when they suspended and subsequently withdrew his Air Traffic Control Specialist (ATCS) certificate, and when they suspended his employment as an Air Traffic Control Supervisor at Hill Air Force Base in Utah. The district court granted summary judgment to defendants on Mr. Newton’s due process claim regarding the suspension of his employment. Newton v. Utah Nat’l Guard, 688 F. Supp. 2d 1290, 1308-09 (D. Utah 2010). It denied summary judgment on Mr. Newton’s due process claim regarding the withdrawal of his ATCS certificate, holding this claim is not barred by qualified immunity, id. at 1305-07, or by intramilitary immunity under the Feres doctrine, id. at 1311-14. In this interlocutory appeal, defendants challenge the denial of qualified immunity and intramilitary immunity on Mr. Newton’s ATCS certificate claim. Mr. Newton cross-appeals the grant of summary judgment on his employment claim.

We hold that Mr. Newton’s ATCS certificate is not barred by the Feres doctrine, and that we have no jurisdiction over the interlocutory appeal from the denial of qualified immunity to defendants. We decline to exercise pendent jurisdiction over Mr. Newton’s cross-appeal.


The Utah Test and Training Range “is a vast area in western Utah covering approximately one-fourth of the state . . . . [It] is one of the premier military test and training ranges in the nation.” Aplt. App. at 182. Users of the Utah Test and Training Range include military and civilian planes, unmanned aerial vehicles, and experimental military aircraft. The 299th Range Control Squadron of the Utah Air National Guard (UANG) provides air traffic and weapons control services at the Utah Test and Training Range on Hill Air Force Base for the United States Air Force Air Combat Command.


Judge(s): Stephanie Seymour
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Constitutional Law , Employment , Government / Politics , Veterans
Circuit Court Judge(s)
Paul Kelly
Terrence O'Brien
Stephanie Seymour

Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Scott Crook Smith Hartvigsen PLLC
Christopher Preston Smith Hartvigsen PLLC

Defendant Lawyer(s) Defendant Law Firm(s)
Bridget Romano Office of the Utah Attorney General
Mark Shurtleff Office of the Utah Attorney General



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-17- feres doctrine. id. at 1314. this test applies to constitutional claims brought under § 1983. in martelon v. april 24, 2012 protect a defendant from the obligation to participate in the litigation, and not denial of qualified immunity to defendants. we decline to exercise pendent services at the utah test and training range on hill air force base for the negligent act occurred” as among the factors to consider when applying feres); in 1968, mr. newton obtained an atcs certificate from the federal montoya, 662 f.3d 1152, 1161 n.5 (10th cir. 2011) (“section 1983 plaintiffs may and defendants also appeal the denial of qualified immunity on mr. newton’s 1135 (10th cir. 2006). under air force instruction 13-203, which regulates 2001); wright v. park, 5 f.3d 586, 589-91 (1st cir. 1993); stauber v. cline, 837 utah air national guard, major general brian l. tarbet, brigadier general brent the withdrawal of mr. newton’s atcs certificate, lt. col. lee indefinitely between january 2002 and november 2003, defendants assert mr. newton structure of the military establishment and congress’ activity in the field — military discipline and the importance of special relationships between soldiers defendants challenge the denial of qualified immunity and intramilitary immunity b. application of the “incident to service” test to -27- ordnance includes military supplies such as bombs and artillery. judgment on mr. newton’s atcs certificate due process claim. they contend the discharged from the air force at the time of his alleged injuries, we nevertheless in military activities, his supervisors were in a military chain of command, and the district court provided a thorough summary of the evidence in its -19- 2 considered when a contractor providing military equipment to the federal mr. duke denied that he considered one of the new allegations in his cannot take pendent jurisdiction over mr. newton’s cross-appeal. regime.” stanley, 483 u.s. at 682-83. “intramilitary immunity is designed to stanley, 483 u.s. at 682. as the supreme court has observed, “judges are not appeal only by exercising pendent appellate jurisdiction. “our exercise of inapplicable.” ricks, 295 f.3d at 1132. for example, in ricks we applied feres 146); see also ricks, 295 f.3d at 1130 (“stanley thus effectively merged the withdrawal packet included two new allegations of wrongdoing by mr. newton it suffices to subsequent indefinite employment suspension, the court granted defendants on december 7, lt. col. lee issued a written memorandum to mr. newton, due process rights were violated by the procedures used to suspend his but we have not found any cases from the courts of appeals that have military air traffic controllers and applies to the uang, “only personnel holding mcmahon v. presidential airways, inc., 502 f.3d 1331, 1340 (11th cir. 2007); to maj. teter and lt. col. lee on his due process claim arising from the given the task of running the army.” orloff v. willoughby, 345 u.s. 83, 93 newton’s due process rights were clearly established and identified a number of -28- must follow the supreme court’s instruction not to examine “the extent to which ‘best expla[nation]’ for feres.” ricks, 295 f.3d at 1129 (quoting chappell, 462 established that mr. newton had a protectable property interest in his atcs discipline,” dibble, 339 f.3d at 124 (citing united states v. stanley, 483 u.s. 12 the course of activity incident to service.’” id. at 684 (quoting feres, 340 u.s. at military officials.”); bowen v. oistead, 125 f.3d 800, 803 n.2 (9th cir. 1997) for the loss of separation, but it asked, “after the loss of separation occurred did (d.c. no. 2:07-cv-00041-cw) course of activity incident to service.” id. at 146 (emphasis added). courts have the feres doctrine precluded judicial review of the basis for the suspension, but tortfeasor is crucial to the application of the doctrine. . . . instead, the feres las cruces, 535 f.3d 1198, 1205 (10th cir. 2008) (internal quotation marks military service. exception to the ftca established by feres . . . .” (citation and internal the military “has developed a hierarchical structure of discipline and obedience to against state military officials. specialized society.’” johnson, 481 u.s. at 690-91 (quoting parker v. levy, 417 undisputed for appellate purposes.” cortez, 478 f.3d at 1115 (citing johnson v. for injuries incurred incident to service are barred by the feres doctrine because summary judgment is not reviewable as a collateral order “[t]o the extent that the jurisdiction over final decisions of the district courts. see 28 u.s.c. § 1291. an when mr. newton retired in august 2006. 1115 (10th cir. 2007) (en banc) (applying de novo review to denial of summary dibble v. fenimore, 339 f.3d 120, 125 (2d cir. 2003); lutz v. sec’y of the air a loss of separation occurs when the distance between planes is either monetary damages from the military if the claim is based on an injury that is 1306-07. it also concluded defendants were not immune from suit under the we are persuaded by this fundamental distinction between military life and civilian employee when his injuries arose. furthermore, unlike the plaintiff in procedures were not adhered to when a suspected loss of separation occurred.” determination that the feres doctrine does not bar mr. newton’s atcs certificate the district court granted summary (extending chappell to § 1983 damages claims against national guard officers); tenth circuit f.3d 789, 798 (8th cir. 2010); walch v. adjutant gen.’s dep’t of tex., 533 f.3d -15- temple, 747 f.2d 1348, 1351 (10th cir. 1984), however, we applied the feres judgment motion for qualified immunity); pringle v. united states, 208 f.3d order denying summary judgment is ordinarily not appealable because it is not a other circuits have extended feres to bar claims brought by certain ricks’ injuries were incident to military service because he was a military members against the government based upon service-related injuries.” johnson, air-traffic-control duties at a designated facility.” newton v. faa, 457 f.3d 1133, 1988). the instructors were required to “be on active duty or, if retired, have united states court of appeals training range include military and civilian planes, unmanned aerial vehicles, written on it. as a result, he contends, he will not be able to use his certificate at constitutional claims brought under bivens, the supreme court has never held that suspended from his position, or his atcs certificate was suspended, or both.” id. filed enlisted personnel may not maintain a suit to recover damages from a superior see feres v. united states, 340 u.s. 135, 146 (1950) (“[t]he government occurred in the context of a bivens action, stanley can only be understood to in the bivens context, applies with equal force to a § 1983 claim against state his military service. stating that he was suspending mr. newton’s atcs certificate and restricting him 3 defendants were not entitled to qualified immunity because it was clearly the district court misinterpreted the feres doctrine. see infra part ii.b. first loss of separation, but it did not state that he was responsible for the prisoner at a prison which confined no civilians and was operated by military to require that appellate consideration be deferred until the whole case is (quoting persons v. united states, 925 f.2d 292, 296 n.7 (9th cir. 1991)) the irb recommended that the watch supervisor be counseled after the . . . suggests that a person’s complete discharge creates a per se rule that feres is finally, the court denied summary judgment on mr. newton’s due process (ftca). the court held that the federal government is not liable under the from performing air traffic control duties. lt. col. lee informed mr. newton sustained during incarceration “stemmed from his military relationship such that -22- 1131 (“the paramount inquiry is whether the alleged constitutional violations are condition of their civilian employment. see 32 u.s.c. § 709; stauber, 837 f.2d at bridget k. romano, assistant utah attorney general (mark l. shurtleff, utah because although mr. newton was a civilian employee, he played an integral role service member’s service in the military, not whether injuries are incident to an with regard to the indefinite suspension of employment, the court determined that and congress’ activity in the field constitute ‘special factors’ which dictate that it constitutional violations.” chappell, 462 u.s. at 305. in an appeal from the denial of qualified immunity, “[o]ur interlocutory the broad waiver of sovereign immunity set out in the federal tort claims act safety board, which dismissed the appeal on jurisdictional grounds. mr. newton suspension of his employment. in deciding in favor of defendants on this claim, particular suit would intrude upon military matters or force us to second-guess transpired.” brooks v. united states, 337 u.s. 49, 52 (1949). simply put, aircraft.5 seymour, circuit judge. 10 commitment essential to effective service and thus have the potential to disrupt upheld following an internal appeal. the suspension continued to be in effect extend beyond the situation in which an officer-subordinate relationship exists, personnel. significantly, the uang employed mr. newton as a civilian and did although mr. newton was employed by, and formerly a member of, the uang, he process. newton has therefore sufficiently alleged a constitutional violation.” officer for alleged constitutional violations.” (emphasis added)). indeed, the a current air traffic control specialist (atcs) certificate [are] authorized to before we consider the applicability of the feres doctrine to mr. newton’s instead, “[t]he paramount inquiry is whether the alleged constitutional violations to his military service. see id.; see also ricks, 295 f.3d at 1130-31. opinion. see newton, 688 f. supp. at 1297-1300. relief pursuant to bivens v. six unknown named agents of federal bureau of in the remaining three incidents, a loss of separation occurred between military commands. . . . the “incident to service” test, by contrast, denial of a summary judgment motion asserting intramilitary immunity, applying remedy against their superior officers.” id. at 304; see also id. at 299 (describing and experimental military aircraft. the 299th range control squadron of the injuries were unrelated to his prior military service. the feres doctrine does not the servicemember’s duty status.” ricks, 295 f.3d at 1228. immunity under the feres doctrine,2 mr. newton was ordered question whether this was appropriate. adjutant general’s department, 233 f.3d 332 (5th cir. 2000). there, the summary judgment on his employment claim. -6- brought claims for violations of his equal protection rights. the equal protection u.s. at 299) (second alteration in original). “suits brought by service members under bivens, an individual can seek damages from a federal official for beginning in december 2003, maj. teter also initiated proceedings to incident. after the second loss of separation, the irb concluded mr. newton had united states air force air combat command. 1127-28 (10th cir. 2002) (collecting cases). 334, and she also “happened to be a non-commissioned officer in the texas air decidedly military nature and his claimed injury indisputably arose incident to his claims are also not before us. thus, we only discuss the due process claims jurisdiction is limited to legal questions drawn from facts that are deemed wayne e. lee and john r. teter, immunity on summary judgment is not appealable if it merely determines the in chappell v. wallace, 462 u.s. 296 (1983). there, navy enlisted men sought newton, 688 f. supp. 2d at 1311. additional defendants, and against maj. teter and lt. col. lee in their official are incident to the plaintiff’s military service.” id. “[i]f a servicemember’s 13 discharged from the military.” id. at 1133. despite having been discharged, mr. defendants must establish that the district court’s order (1) conclusively cir. 2008) (internal quotation marks omitted). the grant of immunity to (1953). “the complex subtle, and professional decisions as to the composition, 289, 297 (5th cir. 2008); overton v. n.y. state div. of military & naval affairs, jurisdiction to consider this interlocutory appeal from the denial of intramilitary (alteration in original) (additional emphasis added). the “incident to service” test the military status of defendants does not change our analysis. the than it has been with respect to ftca suits, where we adopted an ‘incident to incident to service”); jones v. n.y. state div. of military & naval affairs, 166 mr. newton cross-appeals the grant of qualified and intramilitary immunity -3- newton a notice of proposed removal. he informed mr. newton that he doctrine, and that we have no jurisdiction over the interlocutory appeal from the we lack jurisdiction over their interlocutory appeal of this issue. qualified immunity. mr. newton cross-appeals, arguing the district court 4 narcotics, 403 u.s. 388 (1971),12 judiciary in sensitive military affairs at the expense of military discipline and adjudicated”). “to establish jurisdiction under the collateral order doctrine, final order. stewart v. oklahoma, 292 f.3d 1257, 1259 (10th cir. 2002). there newton, 688 f. supp. 2d at 1307. in so doing, the district court concluded mr. authority to do so. in contrast, newton asserts that major teter did suspend his incident to service. overton, 373 f.3d at 92. notably, in all of these cases mr. newton also appealed the decision to the national transportation without pay. the court concluded mr. newton was afforded adequate procedural others regarding the factual basis for, and the process of, suspending and possibly (1991)). in feres, 340 u.s. 135, the supreme court created a judicial exception to claim is barred by the feres doctrine, we do not speculate or inquire how his opinion. and individual capacities, seeking damages and equitable relief. in addition to ricks, 295 f.3d at 1132 (“[a] person’s military status may affect the applicability provides a line that is relatively clear and that can be discerned with 1997). “we do not have jurisdiction to review the district court’s factual defendants on the employment claim is not necessarily resolved by our chappell’s holding and clarified that the feres doctrine’s application to bivens “military characteristic” of their work and the difficulty of attempting to (10th cir. 1998). injuries did not stem from his military relationship with the uang. his position -16- it held that “no bivens remedy is available for injuries that ‘arise out of or are in feres to purely civilian employees of the military. in presley, the district court merely from an adverse result. the loss of such a benefit cannot be vindicated by suspend newton’s atcs certificate on november 20, 2003 because he lacked defendants contend on appeal that colonel c. e. west, jr., a deputy specific acts which provided the basis for these disciplinary actions. id. it able to prove at trial.” clanton v. cooper, 129 f.3d 1147, 1152 (10th cir. 1997) the question we must decide here is whether the feres doctrine’s “incident no basis upon which to distinguish [§ 1983 claims by national guard members] § 1983 claims are equivalent for purposes of official immunity. see butz v. generally newton, 688 f. supp. at 1298-1300. supervisor at hill air force base in utah.1 dropped an ordnance in a target area that was closed.4 supreme court “has never suggested that the military status of the alleged military decisions. instead, we ask whether his suit arises from injuries incident claims are incident to service, it is immaterial whether the plaintiff has been fully issued by the faa – a civilian government agency – before he enlisted in the e. lee of the utah air national guard violated his due process rights when they service’ rule.”); see also id. at 683-84 (“we therefore reaffirm the reasoning of would itself require judicial inquiry into, and hence intrusion upon, the court also granted maj. teter and lt. col. lee intramilitary immunity to the was a civilian employee whose alleged injuries were not in any way incident to and not injuries caused by the military to civilians.” id. ‘special factors’ analysis which would consider how military discipline would intramilitary immunity. the utah test and training range “is a vast area in western utah covering whether feres applies, however. “nothing in the supreme court’s jurisprudence so.6 their official and individual capacities, was implicated in five air traffic control incidents at hill air force base. an elected branches of government and to the military to decide which employment the district court interpreted the feres doctrine as barring only claims v. beneficial indus. loan corp., 337 u.s. 541, 546 (1949) (collateral order different, and the relationship between an enlisted person and the military is arising from her civilian employment. id. at 334. the court noted that the served in the armed services on active duty for at least 20 years.” id. at 285. the mr. newton was a purely civilian employee of the military whose alleged complete discharge from the military “does not automatically transform a in the subsequent weeks, actions were taken to withdraw mr. newton’s 1290, 1308-09 (d. utah 2010). it denied summary judgment on mr. newton’s narrow” to address a contractor’s liability. id. at 510. the court explained that they are the ‘type[s] of claims that, if generally permitted, would involve the tenth circuit guided its analysis. chappell, 462 u.s. at 299. the court concluded that “[t]aken together, the unique disciplinary structure of the military establishment the supreme court extended the feres doctrine to bar constitutional claims i. “nominally civilian” employees of the military. for example, the eleventh delve into the internal affairs of the military” counsel in favor of the intramilitary due process for the 14-day suspension. newton, 688 f. supp. 2d at 1308-09. the supreme court has never suggested that feres applies to suits brought aplt. app. at 182. users of the utah test and make regarding mr. newton’s role in the incident. two members agreed that mr. the irb issued its report on the final loss of separation, maj. teter verbally continued to be subject to the uniform code of military justice. see id. at 1132. held his claims were incident to his military service. we explained that a military matters. whether a case implicates those concerns would violated a statutory or constitutional right when they suspended him . . . .” id. was not required to enlist for her employment. id. at 338 n.4. it also observed that had not been disclosed to him.8 has been interpreted to encompass even those injuries “that are attenuated from -29- “watch supervisor.” this civilian position did not require current or prior rights when they withdrew his atcs certificate, placed him on a 14-day from a final judgment.” gray v. baker, 399 f.3d 1241, 1245 (10th cir. 2005) air force].” aplt. app. at 226. mr. newton filed a formal internal grievance elisabeth a. shumaker and training ranges in the nation.”3 thus, any injury he suffered “arose out of or was in the course of activity incident -12- certificate, and when they suspended his employment as an air traffic control commander. 8 as air traffic control supervisor was a civilian position that did not require appellants/cross-appellees. different from civilian patterns.” id. we therefore must “adhere to the line finder could conclude that newton was not afforded an appropriate level of argues that because he was not a service member at the time of his alleged duke had the exclusive authority to withdraw the atcs certificate. in addition to related injuries.” (emphasis added)); chappell, 462 u.s. at 300 (“we hold that v. disputed fact issues relating to this claim. see, e.g., id. at 1297, 1307 n.151. 257. the proposed removal was later reduced to a 14-day suspension. following district court’s denial of the defendant’s motion for summary judgment is uang, but he continued to work full-time as a civilian air traffic control government could be held liable for injury caused by a design defect. although applying feres doctrine). thus, the court held “that enlisted military personnel respond. defendants concede that when the facts are read in a light most maj. teter and lt. col. lee, mr. newton also named the utah national guard, immunity may help ensure effective military operations, but we leave it to the and their superiors as best explaining feres); ricks, 295 f.3d at 1129 (discussing employee of the military who was not required to have any military service for 1983 to the same extent that it protects federal military personnel from defending authority rested exclusively with mr. duke . . . .”); id. at 70 (“although lt col id. at 1309. 1220, 1224 (10th cir. 2000) (listing “the duty status of the plaintiff when the facts asserted by the plaintiff are sufficiently supported by evidence in the record in the course of military duty.” united states v. brown, 348 u.s. 110, 113 suspension of his employment. newton v. utah nat’l guard, 688 f. supp. 2d is not liable under the federal tort claims act for injuries to servicemen where reserved for the political branches of government. id.; see also stanley, 483 u.s. appeal from the united states district court 2003), aplt. app. at 556. 481 u.s. 681, 691 (1987). in light of the nature of military life, “feres and its guard. since then, many of our sister circuits have followed suit. see speigner employment for 14 days and, later, to indefinitely suspend his employment at 338. for these reasons, the fifth circuit held feres was inapplicable. id. burdens of litigation,” mitchell v. forsyth, 472 u.s. 511, 526 (1985), immunity individual’s status as a member of the military.’” pringle, 208 f.3d at 1223-24 nos. 10-4063 and 10-4072 concluded the doctrine was “in some respects too broad and in some respects too afford him adequate due process before depriving him of that interest. id. at approximately one-fourth of the state . . . . [it] is one of the premier military test (internal quotation marks omitted). that is, “[a]n order denying qualified atcs certificate without further notice.” id. at 186. the memo referenced mr. claim is barred by the feres doctrine and, alternatively, they are entitled to sue individual-capacity defendants only for money damages and official-capacity and control.” aplt. br. on cross-appeal at 18. all of this may be true, but we utah air national guard (uang) provides air traffic and weapons control determined” the availability of intramilitary immunity. see newton, 688 f. supp. actually be affected in a particular case.” ricks, 295 f.3d at 1130 (discussing discipline or the military hierarchy,” and “could quit whenever she wanted.” id. newton’s “repeated failure in performing” his duties, but did not identify the the irb’s reports did not (“today, no more than when we wrote chappell, do we see any reason why our the position. the fifth circuit encountered similar facts in meister v. texas parties advocated this substantive/procedural distinction in the district court, and military decision-making. the supreme court in stanley “explicitly rejected a -5- uang more than a year before his atcs certificate was withdrawn, so he was a against military and civilian officials. see ricks v. nickels, 295 f.3d 1124, separate from the merits of the case, and (3) is effectively unreviewable on appeal jones, 515 u.s. 304, 313 (1995); mitchell, 472 u.s. at 528). the denial of newton by letter on february 24 that his atcs certificate had been permanently in applying the incident to service test, we must not conflate a civilian’s by civilian employees of the military. instead, the court has consistently cabined but after the ordnance drop the irb recommended that mr. newton be counseled part-time as an air traffic controller for the 299th range control squadron. in apply. process of defending a lawsuit, not merely the end result, compromises military 301-02. supervisor. his responsibilities as watch supervisor were essentially the same suspended mr. newton’s atcs certificate, although he lacked the authority to do perform air traffic control duties in usaf facilities.” afi 13-203, § 14.1 (may 5, from examining whether the military followed proper procedures in implementing claims brought by civilians mr. newton left the military in december 2002 when he retired from the purposes of this appeal. to submit his atcs certificate, which was returned to him with the word “void” stanley, 483 u.s. at 681). the court explained: guidance, in evaluating whether mr. newton’s atcs certificate due process plaintiff-appellee/cross- held that although the plaintiff, a civilian firefighter for the state air national suspended mr. newton without pay effective july 25, 2004. this decision was his atcs certificate. the district court denied summary judgment because, to the contrary, there is no basis for according to federal officials a higher degree -10- the same standard as the district court and construing the evidence in the light lee had the authority to recommend withdrawal of an atcs certificate, he did improperly granted maj. teter and lt. col. lee summary judgment on his military personnel may not maintain a suit to recover damages from a superior 1983 . . . .”); knutson v. wisc. air nat’l guard, 995 f.2d 765, 770 (7th cir. 1993) 119 (“lt col lee had no authority to withdraw plaintiff’s atcs certificate; that iv. “the logic of chappell” extends “to actions brought against national guard director in arlington, virginia who reviewed and upheld mr. duke’s decision, 457 f.3d 1133, 1135-36 (10th cir. 2006). plaintiff was a full-time civilian employee of the texas national guard, id. at military service was a prerequisite for the plaintiffs’ civilian employment. 586, 591 (1st cir. 1993) (“[w]hile the stanley court’s clarification of chappell injuries, “except in the sense that all human events depend upon what has already ricks, 295 f.3d at 1132, or dual-status national guard employees, mr. newton’s mr. newton filed this action in december 2006 in utah state court pursuant a. the feres doctrine and its application to § 1983 claims doctrine to bar a § 1983 claim against officers of the colorado army national hartvigsen, pllc, salt lake city, utah, for plaintiff-appellee/cross-appellant. current or prior military service. mr. newton’s atcs certificate was originally rather than congress’ intent in enacting the [ftca],” its reasoning in feres ftca “for injuries to servicemen where the injuries arise out of or are in the intended to terminate him for “failure to adequately supervise subordinates and summary judgment. armijo v. wagon mound pub. sch., 159 f.3d 1253, 1259 (1954). employment by the military with an enlisted person’s service in the military. the against bivens actions raising the very same claims.”); wright v. park, 5 f.3d incident to the plaintiff’s military service.” (emphasis added)). no recognized cause of action for a member of the armed forces to request watson v. ark. nat’l guard, 886 f.2d 1004, 1007 (8th cir. 1989) (explaining that when a court is asked to entertain an intra-military suit under § 1983”); crawford would call into question military discipline and decisionmaking apply equally to civil rights claims against state officials under section jurisdiction over mr. newton’s cross-appeal. of the feres doctrine.”). as we have previously noted, “the supreme court has claim regarding the withdrawal of his atcs certificate, we must address our he would not have been in the military prison but for his military service. -2- service to the military.” id. we respectfully disagree with the reasoning in of undisputed facts that mr. duke was the final decision-maker. see aplt. app. at jurisdiction to consider defendants’ interlocutory appeal from the denial of national guard,” id. at 338 n.4. the suit alleged several title vii violations drawn in [feres] between injuries that did and injuries that did not arise out of or “failed to adequately supervise and support the controllers” under his supervision. implicating “the substantive decisions of the military,” but not preventing a court clerk of court not have authority to withdraw an atcs certificate; this authority rested with s. would be inappropriate to provide enlisted military personnel a bivens-type e. winget, and colonel larry t. johnson as defendants. the claims against these both before and after his retirement from the military. in this position, mr. defendants argue that this case must be barred by the feres doctrine individual’s service to the military. see chappell, 462 u.s. at 305 (“[e]nlisted ii. at 593. it also recommended that mr. newton be asked to explain “why facility ‘special factors’ analysis [of bivens] with the incident to service test.”). 5 operations. maj. teter, in turn, was supervised by lt. col. lee, the squadron against the government for service-related injuries could undermine the shields state military officers from constitutional claims brought under section to 42 u.s.c. § 1983, alleging, inter alia, that defendants violated his due process -20- may not maintain a suit to recover damages from a superior officer for alleged “it is appropriate to exercise pendent appellate jurisdiction only where because the district court found that genuine issues of fact precluded we hold that mr. newton’s atcs certificate is not barred by the feres personnel, he was incarcerated for offenses committed during active duty, and he the doctrine to reach only injuries to service members. see, e.g., johnson, 481 scott duke . . . .”). we hold defendants to their earlier representation for response to three of the five air traffic control incidents alleged to form the basis say that mr. newton struggled to receive information from lt. col. lee and was the final decision-maker, rather than mr. duke. in the district court, disentangle a plaintiff’s civilian and military duties when determining if a suit is the district court concluded mr. newton was “afforded procedural due process on v. chappell that the special factors counselling hesitation — the unique disciplinary qualified immunity with respect to the procedures used to indefinitely suspend officers under § 1983” because “[t]he concern for the disruption of military of the appealable one.” buck v. city of albuquerque, 549 f.3d 1269, 1293 (10th recommending the withdrawal of mr. newton’s atcs certificate to scott duke, employees of the military, they are required to enlist in the national guard as a court has even characterized the feres doctrine as failing to reach claims by not require military service as a prerequisite for the position. it is not our job to capacities, are not before us on this interlocutory appeal. mr. newton also -21- [his claims were] incident to his military service.” id. (internal quotation marks junior rotc instructor. see norris v. lehman, 845 f.2d 283, 287 (11th cir. 7 position as an instructor was “in its very essence” military in nature. id. at 287. test, however, we do not delve into how each case would implicate issues of due process claim. nor is our review of the employment claim necessary to a violation of his fourth amendment rights. 403 u.s. at 397. the supreme findings, including its finding that a genuine issue of fact existed” to preclude denial of intramilitary immunity will be “effectively unreviewable” on appeal because he did not immediately suspend the culpable air traffic controller. suspended and subsequently withdrew his air traffic control specialist (atcs) force, 944 f.2d 1477, 1484 (9th cir. 1991). because all three factors of the in the military, however, this is reversed, for military necessity makes demands discipline upon which feres, chappell, and stanley are based applies equally d. scott crook (r. christopher preston with him on the brief) of smith in their individual capacities, at 683; johnson, 481 u.s. at 691; shearer, 473 u.s. at 57; chappell, 462 u.s. resolution of the appealable issue necessarily resolves the nonappealable issue, or unrelated to his current or former military service. mr. newton retired from the appeal from an adverse final judgment.” dibble, 339 f.3d at 124. thus, the on mr. newton’s atcs certificate claim. mr. newton cross-appeals the grant of executive branches.” gilligan v. morgan, 413 u.s. 1, 10 (1973). intramilitary lt. col. lee omitted from the withdrawal his claims “call into question basic choices about military discipline, supervision, the district court and defendants both rely on presley v. jackson municipal on its personnel without counterpart in civilian life.” chappell, 462 u.s. at 300 publish the third loss of separation and final incident occurred on november 17, function without strict discipline that would be unacceptable in a civilian setting,” f.2d 287, 288 (10th cir. 1991). we therefore may review mr. newton’s cross- often be problematic, raising the prospect of compelled depositions we need not detail the many twists and turns that followed.7 relatedly, “separation of powers concerns that the judiciary should not omitted). an individual’s military status will not necessarily be determinative of to place blame on mr. newton. ultimately the report did not blame mr. newton instead, defendants asserted in their motion for summary judgment and statement judgment. the district court granted their motion on mr. newton’s claim that his 669, 682-83 (1987)). the feres doctrine reduces “the prospect of compelled for the district of utah newton. see mcbeth v. himes, 598 f.3d 708, 715 (10th cir. 2010). weapons directors, and was “responsible for the safe, orderly, and expeditious -11- before kelly, seymour, and o’brien, circuit judges. training, equipping, and control of a military force are essentially professional given our jurisdiction to proceed, we review de novo the district court’s suspension, and suspended his employment indefinitely without pay. defendants atcs certificate and end his employment. on november 20, 2003, a day after as the district court explained, maj. teter “testified that he did not united states court of appeals “[v]iewing the[] facts in a light most favorable to newton, a reasonable fact- -7- stanley, 483 u.s. at 682-83 (emphasis added). thus, following the court’s id. at 1311-14. in this interlocutory appeal, f.3d 45, 51 (2d cir. 1999) (“[t]he reasoning of chappell and stanley, developed “[a]n order granting immunity is not a collateral order which is include any findings that the watch supervisor had caused either of these events, resolve the questions properly before us on interlocutory appeal. accordingly, we withdrawing his atcs certificate. his requests for documents and additional command, unique in its application to the military establishment and wholly notified mr. newton that he had a right to counsel and had ten business days to for alleged racial discrimination by their where review of the nonappealable issue is necessary to ensure meaningful review -13- a test for liability that depends on the extent to which particular suits maj. teter and lt. col. lee appeal the district court’s denial of summary claim that they violated his due process rights when suspending and withdrawing u.s. 733, 743 (1974)). “in the civilian life of a democracy many command few; because it was untimely. any other air traffic control facility, military or civilian.10 11 defendants only for injunctive relief.” (citing hafer v. melo, 502 u.s. 21, 30, 27 we affirm and remand for further proceedings in accordance with this servicemember into a civilian for purposes of feres analysis.” id. at 1131. 1220, 1223 (10th cir. 2005) (applying de novo review to grant of summary since extended feres’s “incident to service” test to bar a range of damages actions omitted). the district court found a disputed fact over whether mr. newton “was positions within the armed forces should be held by civilians, rather than enlisted appellant, consequently, his incarceration at the military prison and the alleged injuries against maj. teter and lt. col. lee in their individual capacities. see brown v. 481 u.s. at 686-88. most favorable to the nonmoving party. see cortez v. mccauley, 478 f.3d 1108, first, the district court’s summary judgment order “conclusively broadened feres, to the point where it now ‘encompass[es], at a minimum, all f.2d 395, 400 (9th cir. 1988). although national guard technicians are civilian brian l. tarbet, brent e. intramilitary immunity under feres satisfies these three requirements. see they do not endorse it on appeal. we agree with mr. newton and defendants that and require abstention in the inferring of bivens actions as extensive as the of the withdrawal. civilians. in boyle v. united technologies corp., 487 u.s. 500 (1988), the court injuries cannot arise “incident to service” if a plaintiff’s claims are wholly and trial testimony by military officers concerning the details of their 396. as an illustrative example, the second circuit explained that the feres exception triggered by an assertion of right conclusively decided by a lower court -4- the watch supervisor make every effort to relieve the controllers involved?” id. the feres doctrine was too narrow because it “covers only service-related injuries, doctrine has been applied consistently to bar all suits on behalf of service claim is not barred by qualified immunity, id. at 1305-07, or by intramilitary under the feres doctrine is justified, in part, by the court’s concern “that the are certain exceptions, however, under the “collateral order” doctrine. see cohen officer for alleged constitutional violations” (emphasis added)); ricks, 295 f.3d at the court considered extending the feres doctrine to bar such claims, it aviation administration. in 1985, he enlisted in the uang and began working superior officers. the court explained that while the case at bar “concern[ed] the terminate mr. newton’s employment. on december 15, maj. teter issued mr. withdrawn. the letter also stated, “you are . . . not authorized to perform any in a military prison. see id. at 1126. although mr. ricks had been fully court has repeatedly noted that civilian life and military life are necessarily military commands,” and the disruptions such lawsuits pose to the “military 6 cases emphasizing importance of military disciplinary structure as basis for collateral order doctrine are satisfied, we agree with those circuits that we have 9 that is “too important to be denied review and too independent of the cause itself however, defendants did not argue that col. west was the final decision-maker. training range].” aplt. app. at 183. during the relevant time, his direct a given case. see shearer, 473 u.s. at 57. in applying the “incident to service” to service.” id. similarly, some circuits have applied feres to bar claims brought other circuits have held that a defendant’s appeal from the denial of to service” test bars mr. newton’s claim despite his civilian status. mr. newton atcs certificate on that date.” newton, 688 f. supp. 2d at 1297 (footnote although stanley clarified that the “incident to service” test is applicable to accordingly, we follow the supreme court’s direction that bivens and claims was coextensive with its application to ftca claims. see id. at 681 guard, “was not actually an enlisted member of the military,” the feres doctrine an atcs certificate “authorizes the bearer to perform specified decision. violation under § 1983.”). the “incident to service” test applies to § 1983 claims certificate and, reading the evidence in favor of mr. newton, they had failed to suits on behalf of service members against the government based upon service- function related to [air traffic control] in the air national guard or [united states mr. newton originally sued maj. teter and lt. col. lee in their official less than five miles horizontally or less than 1000 feet vertically. to bar the claims of a former airman for injuries he allegedly incurred while held impact its analysis regarding whether the feres doctrine barred his claims. see military judgments, subject always to civilian control of the legislative and in applying the “incident to service” test, an individual’s military status in united states v. stanley, 483 u.s. 669 (1987), the court reiterated the district court concluded that mr. newton’s civilian status would not appellees, -23- the injuries arise out of or are in the course of activity incident to service.”). civilian life that mr. newton’s suit cannot be barred by the feres doctrine. 1988, while still a member of the uang, he began working full-time for the “the importance of the military disciplinary structure . . . has been labeled the immunity, an issue this court has not previously decided. courts of appeals have of immunity from liability when sued for a constitutional infringement as robert newton alleges major john r. teter and lieutenant colonel wayne v. alexander, 248 f.3d 1292, 1295 (11th cir. 2001) (applying “incident to court held that although the plaintiff in norris was “nominally a civilian,” his defendants-appellants/cross- (“[i]nsofar as the feres doctrine extends to the state national guard units, it from those held impermissible by chappell.”). -31- information often were met with silence, delays, or incomplete replies. see favorable to mr. newton, this written notice violated air force instruction 13-203 (1985)) (alteration in original). that the procedures used to enact the suspension were adequate.11 removed the case to federal court. see 28 u.s.c. § 1441. disregard of directives,” primarily based on the november 2003 incident. id. at immunity doctrine. ricks, 295 f.3d at 1129. the feres doctrine prevents courts depositions and trial testimony by military officers concerning the details of their -8- pendent appellate jurisdiction . . . is generally disfavored.” vondrak v. city of defendants. because this immunity appeal is from the denial of summary judgment, mr. duke approved the recommendation and maj. teter notified mr. injuries suffered by military personnel that are even remotely related to the military discipline in the broadest sense of the word.” united states v. johnson, mr. newton’s employment because he “failed to show defendants’ conduct plaintiff’s enlistment in the texas air national guard was irrelevant because she quite obviously plays a role in the inquiry. see pringle v. united states, 208 f.3d extent the claim challenged the reason for the suspension. from second-guessing military decision-making and interfering in matters service is a separate question from the merits of his action. third, just as predicated on ‘evidence sufficiency,’ i.e. which facts a party may, or may not, be to survive summary judgment.” foote v. spiegel, 118 f.3d 1416, 1422 (10th cir. doctrine could apply to suits brought by guard technicians because of the winget, and larry t. johnson, in particular suits would call into question military discipline and decisionmaking.” incident review board (irb) investigated each event. in one incident, an 2d at 1314. second, whether mr. newton’s injuries were incident to military appealed the board’s dismissal to this court, and we affirmed. newton v. faa, its decisions. newton, 688 f. supp. 2d at 1314 (emphasis added). none of the extended feres to bar the claims of an individual like mr. newton: a civilian airport authority, 94 f. supp. 2d 755 (s.d. miss. 2000), to support applying -24- -9- progeny indicate that suits brought by service members against the government barred the suit. id. at 761. the court reasoned that “his position was of a robert newton, court has extended bivens to allow damages actions under the eighth and fifth qualified immunity provides “an entitlement not to stand trial or face the other 2003. the three members of the irb disagreed as to what findings they should presley. the “incident to service” test asks whether injuries are incident to a ultimately, on january 27, 2004, lt. col. lee sent a package of information (citing midland asphalt corp. v. united states, 489 u.s. 794, 799 (1989)). less extensive inquiry into military matters. -25- -26- supervisor was maj. teter, the 299th range control squadron’s director of newton supervised and directed the activities of air traffic controllers and air information about the five air traffic control incidents detailed above, the circuit held feres barred a suit brought by a retired naval officer working as a distinct from anything in civilian life. “in every respect the military is . . . ‘a injuries, the feres doctrine does not apply.13 economou, 438 u.s. 478, 500 (1978) (“[i]n the absence of congressional direction u.s. at 687-88 (“[t]he feres doctrine has been applied consistently to bar all -18- language of the “incident to service” test was directly applicable to bivens claims. authorized by bivens than is accorded state officials when sued for the identical by dual-status national guard technicians. see, e.g., wetherill v. geren, 616 the rationales underlying the feres doctrine have shifted over time, but judgment under feres doctrine). amendments. see carlson v. green, 446 u.s. 14 (1980); davis v. passman, 442 from a final judgment. newton was not at fault for the loss of separation, but the third wanted the report granting qualified immunity to defendants, see newton, 688 f. supp. 2d at 1307, maj. teter and lt. col. lee subsequently filed a motion for summary -30- determined the disputed question, (2) resolved an important issue completely that the plaintiff was employed in a civilian capacity, “was not subject to military immediately appealable under 28 u.s.c. § 1291 . . . .” clemens v. kansas, 951 id. at 612. it recommended that he be suspended and retrained. 373 f.3d 83, 91-96 (2d cir. 2004); fisher v. peters, 249 f.3d 433, 443 (6th cir. coordination with air traffic control. in another incident, an f-16 improperly claim relating to the withdrawal of his atcs certificate. it determined u.s. 228 (1979). quotation marks omitted)). indeed, the court emphasized that the precise omitted). there is no bright-line rule for determining if the feres doctrine applies to employment due process claim. packet a letter from mr. newton’s attorney which provided mr. newton’s effectiveness.’” id. at 690 (quoting united states v. shearer, 473 u.s. 52, 59 flow of air traffic, both military and civilian[,] utilizing the [utah test and judgment to defendants on mr. newton’s due process claim regarding the his fourteen-day suspension.” id. at 1309. with respect to mr. newton’s due process claim regarding the withdrawal of his atcs certificate, holding this id. uang. his prior national guard service had nothing to do with his alleged iii. uang in a civilian capacity as an air traffic control supervisor, also called a the chief of the national guard bureau’s air traffic services division. mr. airspace violation occurred when an aircraft entered airspace without proper appealing this withdrawal, but the decision was upheld.9 judgment in the bivens context should be any less protective of military concerns we recite the facts in the light most favorable to the nonmoving party, mr. 1 v. tex. army nat’l guard, 794 f.2d 1034, 1036 (5th cir. 1986) (“[w]e perceive service” test in § 1983 case because under feres, chappell, and stanley “there is -14- that, “[a]fter receipt of the evaluation results, i may take action to withdraw your attorney general, with her on the briefs), salt lake city, utah, for defendants- limitations on the type of nonstatutory damage remedy recognized in bivens, (internal quotation marks omitted). and because “no military organization can

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