Metropolitan News-Enterprise


Thursday, July 10, 2003


Page 3


Government Immune From Reservist’s Suit Over Call-Up—Ninth Circuit


By a MetNews Staff Writer


A military reservist’s suit against national guard officers who erroneously called her back to active duty 12 days after her discharge is barred by the doctrine of intra-military immunity, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The suit by Air Force reservist Theresa Zaputil was properly dismissed for lack of jurisdiction under Feres v. United States (1950) 340 U.S. 135, Judge Barry G. Silverman explained in writing for a unanimous panel which also included U.S. District Frederick J. Martone of the District of Arizona, sitting by designation, and Senior Judge Betty B. Fletcher.

Zaputil filed her suit, alleging violation of the 13th Amendment’s prohibition against involuntary servitude, deprivation of life, liberty, or property without due process in violation of the 14th Amendment, false imprisonment, and retaliatory harassment, in November, 2001. She had been honorably discharged from the California Air National Guard and transferred to the United States Air Force Reserve a year earlier.

Twelve days after her discharge, Zaputil was informed her discharge had been revoked and she was ordered to return to active duty immediately, which she did under protest. Two months later she was again honorably discharged.

Silverman said Senior U.S. District Court Judge Robert J. Kelleher of the Central District of California properly dismissed Zaputil’s suit, which named as defendants the National Guard officers who ordered her back to duty. Her action, Silverman said, was barred by Feres and its progeny.

“The issue before us is not whether the orders issued to Zaputil were lawful, unlawful, or otherwise, and therefore we express no opinion on whether a unit of the Air National Guard may call up a member of the Air Force Reserve,” the judge explained. “Under the Feres doctrine, military service personnel simply do not enjoy a federal tort remedy for damages caused by even indisputably erroneous military decisions and orders.”

He added:

“If an order to a reservist to report for duty is wrongful or invalid, it can be challenged through military channels (as Zaputil successfully did), or its invalidity raised as a defense in a court-martial....Furthermore, habeas corpus relief is available if the military exceeds its jurisdiction....However, under the Feres doctrine, federal courts simply do not provide a forum for civil damage claims for such events.”

Silverman distinguished the Third Circuit’s 1983 decision in Valn v. United States, 708 F.2d 116. The plaintiff in Valn, he noted, had been discharged from both the U.S. Army and the Delaware National Guard and was a “private citizen” when ordered back into military service.

“The Valn court,” Silverman explained, “was careful to distinguish its situation, in which the plaintiff had been completely discharged from all his military obligations, from a situation in which the plaintiff was still a member of the Army ‘Standby Reserve’ and was called up erroneously for active duty.”

The case is Zaputil v. Cowgill, 02-56063.


Copyright 2003, Metropolitan News Company