Marsha L. Lutz v. Secretary of the Air Force, and Gerald L. Ivory, Manuel E. Ferdin, and United States of America

This case involves Bivens and state common law claims brought by a former major in the United States Air Force, Marsha Lutz, who alleges that the individual defendants, Technical Sergeants Ivory and Fer-din (“the sergeants”), broke into her office, took personal papers and disseminated them to other military personnel with the intent to injure her reputation and career. The sergeants, along with the United States, seek to appeal the district court’s denial of their motion to dismiss on grounds of Feres intra-military immunity. They also seek to appeal what they term the district court’s “[denial of] defendants’ motion to substitute the United States as the sole party defendant for plaintiffs common law claims” pursuant to 28 U.S.C. 2679(d)(1).

We conclude, based on the collateral order rule, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), that we have jurisdiction to review the district court’s order denying the motion to dismiss and affirm the district court’s finding that the individual defendants’ actions were not “incident to military service” within the meaning of Feres v. United States, 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed.…