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Gennoe v. Sypolt

February 4, 1991

SHELLY M. GENNOE, APPELLANT,
v.
JACK E. SYPOLT, ET AL, RESPONDENTS



Ringold, J.*fn* Coleman, J., concurs. Webster, A.c.j., dissents by separate opinion.

Author: Ringold

The plaintiff, Shelly M. Gennoe, appeals the trial court's order dismissing this action. The trial court held that: (1) the defendant, Jack Sypolt, and Gennoe were both military personnel; (2) the actions complained of arose out of that employment situation; and (3) the " Feres Doctrine" (Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950)) stripped the civil courts of subject matter jurisdiction in an intramilitary tort action. We affirm.

Shelly Gennoe and respondent Jack Sypolt were both members of the United States Army and were assigned to an Army recruiting office in Seattle. Their association developed into an acrimonious relationship. Gennoe alleges that Sypolt instigated an Army investigation of her for alleged drug use. Sypolt answers that he merely testified in the investigation. Gennoe was cleared of the charges but was subsequently transferred. Gennoe states that during this investigation, and later, she received numerous harassing phone calls which were traced to Sypolt's residence. Gennoe further asserts that Sypolt defamed her character by informing co-workers that she was "a homosexual, drug abuser and . . . traded sexual favors with commanding officers."

Gennoe filed a criminal complaint against Sypolt in the Renton Municipal Court for the telephone harassment, but Sypolt was acquitted. Gennoe then filed the present civil action for defamation and an unnamed tort arising out of the telephone harassment. The matter was set for mandatory arbitration and an award of $18,600 was entered for Gennoe. Sypolt requested a trial de novo.

After the arbitration proceedings Sypolt's counsel passed away and was replaced by present counsel, who sought leave to amend the answer to allege the Feres Doctrine as a

challenge to the court's jurisdiction. Leave to amend was granted and Sypolt's subsequent motion to dismiss based on lack of jurisdiction was granted by the trial court. This appeal timely followed.

Timely Challenge to Jurisdiction

[1] Gennoe presents two assignments of error on appeal. The first is that the trial court erred in allowing Sypolt to amend the answer to raise the Feres Doctrine issue. The Feres Doctrine has been held to be "tantamount to a limitation of subject matter jurisdiction", Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.), cert. denied, 488 U.S. 817 (1988). The timing of its raising is not material. A challenge to the jurisdiction of the court can be raised at any time. See, e.g., Capper v. Callahan, 39 Wash. 2d 882, 887, 239 P.2d 541 (1952).

Application of the Feres Doctrine

[2] Gennoe next contends that the trial court incorrectly applied the Feres Doctrine to find a lack of jurisdiction in this case. This is a new issue presented to the Washington appellate courts. The United States Supreme Court in the case of United States v. Shearer, 473 U.S. 52, 57, 87 L. Ed. 2d 38, 105 S. Ct. 3039 (1985), described the Feres Doctrine:

Our holding in Feres v. United States, 340 U.S. 135 [95 L. Ed. 152, 71 S. Ct. 153] (1950), was that a soldier may not recover under the Federal Tort Claims Act for injuries which "arise out of or are in the course of activity incident to service." Id., at 146. Although the Court in Feres based its decision on several grounds,

"[i]n the last analysis, Feres seems best explained by the 'peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty.'" United States v. Muniz, 374 U.S. 150, 162 [10 L. Ed. 2d 805, 88 S. Ct. 1850] (1963), quoting United States v. Brown, 348 U.S. 110, 112 [99 L. Ed. 139, 75 S. Ct. 141] (1954).

The Feres doctrine cannot be reduced to a few bright-line rules; each case must be examined in light of the statute as it has been construed in Feres and subsequent cases. Here, the Court of Appeals placed great weight on the fact that Private

Shearer was off duty and away from the base when he was murdered. But the situs of the murder is not nearly as important as whether the suit requires the civilian court to secondguess military decisions, see Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673 [52 L. Ed. 2d 665, 97 S. Ct. 2054] (1977), and whether the suit might impair essential military discipline, see Chappell v. Wallace, 462 U.S. 296, 300, 304 [76 L. Ed. 2d 586, 103 S. Ct. 2362] (1983).

(Italics ours.) Feres, and the vast majority of its progeny, concerned a suit against the United States government under the Federal Tort Claims Act, and the cases are distinguishable from the present action. There are several cases, however, concerning claims between military personnel where the Doctrine has been applied. Although Sypolt cites many cases, not all are germane.

The plaintiff in Stauber v. Cline, supra, had sought recovery against three co-workers, including his immediate superior, for intentional infliction of mental anguish and libel arising from a 5-year course of harassing actions both at and away from work. During this whole time the plaintiff and all three of the defendants were members of the Air National Guard and their full-time work as military mechanics was under the direct supervision of a ...


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