Duffy v. U.S.

Page 307

966 F.2d 307

Randy DUFFY, Plaintiff-Appellant, v. UNITED STATES of America; United States Air Force Reserve Secretary of the Air Force; Wallace W. Whaley, individually and in his official capacity as a Lieutenant Colonel in the Air Force Reserves; Rieno C. Lanto, individually and in his official capacity as a Major in the Air Force Reserves; and Grant R. Mulder, individually and in his official capacity as Lieutenant Colonel in the Air Force Reserves, Defendants-Appellees.

No. 91-2790.

United States Court of Appeals Seventh Circuit.

Argued April 16, 1992.

Decided July 6, 1992.

Rehearing Denied Aug. 10, 1992.

Robert J. Trizna, argued, Trizna & Lepri, Daniel J. Fumagalli, Fumagalli & Tecson, Chicago, Ill., for plaintiff-appellant.

Gail C. Ginsberg, Asst. U.S. Atty., Fred Foreman, U.S. Atty., Charles E. Ex, Asst. U.S. Atty., argued, Criminal Div., Chicago, Ill., for defendants-appellees.

Eugene N. Traunfeld, Vanduzer, Gershon, Jordan, Peterson & Loeffler, Chicago, Ill., for Grant R. Mulder.

Before BAUER, Chief Judge, FLAUM, Circuit Judge, and WOOD, Jr., Senior Judge.

BAUER, Chief Judge.

Between 1970 and 1986, plaintiff Randy Duffy was a member of the United States Air Force Reserves ("AFRES"). He served as a Technical Sergeant assigned to the 64th Tactical Airlift Squadron ("TAS"), a unit of the 928th Tactical Airlift Group ("TAG"), based at O'Hare Air Reserve Force Field ("ARFF"). In March 1985, Duffy's immediate commander, Lieutenant Colonel Grant R. Mulder, Commander of the 64th TAS, initiated administrative discharge proceedings against him pursuant to Air Force regulations. The papers Mulder filed cited multiple occurrences of unsatisfactory performance or misconduct on Duffy's part between 1983 and 1985. No embusque, Duffy attempted to block this action by filing a petition with the AFRES Directorate of Personnel Programs to terminate the administrative discharge proceedings. The petition, however, was denied.

Because of Duffy's unsatisfactory performance and the detrimental affect he was having on his unit, the Commander of the 928th TAG, defendant AFRES Lieutenant Colonel Wallace Whaley, reassigned Duffy pending resolution of the discharge proceedings, from the 64th TAG to the 928th Combat Support Squadron. When Duffy protested the reassignment, Whaley rescinded his transfer, but refused to reinstate him to his original unit because of his belief that Duffy's presence would affect the 64th TAS's morale, welfare, and mission readiness. Duffy thus was a reservist without a unit.

In November 1985, Whaley ordered defendant AFRES Major Reino C. Lanto, Staff Judge Advocate assigned to the 928th TAG, to advise him of the procedural and legal requirements to obtain a psychiatric evaluation of Duffy in connection with the pending discharge action. Lanto took the matter to a psychiatrist at Chanute Air Force Base, Major Dwight Bearden, and provided him with the file in support of the administrative discharge. Dr. Bearden's preliminary recommendation was that Duffy be referred to the mental health clinic at Chanute Air Force Base for a mental health evaluation.

On April 1, Whaley ordered Duffy to report to O'Hare ARFF on June 9, 1986, for his annual fifteen-day tour. When he arrived on the 9th, Duffy received two further orders issued by Whaley. The first required him to report to the Commander of the United States Air Force Hospital Squadron at Chanute Air Force Base on June 11. The second ordered him to report to the base mental health clinic on June 11, and the hospital for a physical examination on June 12. On the 10th, Duffy hand-delivered a letter to Whaley in which he refused to comply with these orders on the grounds they violated Air Force regulations.

Two days later, Whaley preferred court-martial charges against Duffy for willfully disobeying the commands of a superior officer and for failure to report to his appointed place of duty. Duffy was taken into pretrial confinement at Chanute. At a hearing the following day, a military magistrate found there was probable cause to believe that Duffy committed the offenses with which he was charged, but released him from pretrial confinement. On the 19th, Duffy was notified that his travel orders were amended and, effective immediately, he was reassigned to the 3345th Air Base Group ("ABG") at Chanute while awaiting court-martial. On June 26, Whaley preferred superseding court-martial charges alleging three specifications of willful disobedience of his superior officer's orders.

On the same day, Duffy filed a complaint under Article 138 of the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. § 938, with the Commander and Chief of the AFRES, contesting the legality of the actions taken against him. This complaint was denied. Duffy also filed petition for a writ of habeas corpus with the United States Air Force Court of Military Review, seeking release from active duty. This petition also was denied. Duffy then sent a letter to the Commander of the 3345th ABG at Chanute requesting a discharge in lieu of trial by court-martial. This request was approved. Duffy was discharged immediately with a general discharge under honorable conditions.

Duffy then filed a ten-count complaint against the defendants in the district court on December 24, 1987. Count one, directed against the United States, the AFRES, and the Secretary of the Air Force, is a claim for declaratory and equitable relief seeking a declaration that Duffy was unlawfully called into active duty, arrested, transferred to Chanute, incarcerated, and detained there by the AFRES. Count one also alleges that Duffy's general discharge pursuant to a request for discharge was improperly procured and, as a remedy, he seeks an injunction requiring reinstatement with backpay and benefits, and correction of his military records to expunge evidence of the proceedings that preceded his request for discharge.

Count two is a Bivens ¹ claim for money damages against Whaley, Lanto, and Mulder (Duffy's superior officers, collectively "the officers"), for alleged violations of his constitutional rights. Count three seeks money damages against the officers for alleged violations of Duffy's civil rights under 42 U.S.C. § 1985(1), based on their actions as AFRES officers. Count four makes the same claim against the officers, alternatively based on their actions as civilians.

Counts five, six, and seven are common law state tort claims against the officers for false imprisonment, intentional infliction of emotional distress, and interference with contract. Count eight is a common law tort claim against the United States for negligent training and supervision of the officers. Counts nine and ten seek money damages from the AFRES and the officers for violations of the Freedom of Information Act and the Privacy Act.

Defendants filed a motion to dismiss, or in the alternative for summary judgment, on April 11, 1988. While that motion was pending, Congress amended the Federal Tort Claims Act ("FTCA") to provide that a suit against the United States is the exclusive remedy for persons with common law tort claims resulting from the actions of federal employees taken within the scope of their employment. See 28 U.S.C. § 2679(b)(1). The revision requires the substitution of the United States as the sole defendant in such tort claims upon certification by the Attorney General ("scope certification") that a federal employee was acting within the scope of his employment at the time of the incident out of which the claim arose. Defendants then filed a scope certification from the Attorney General, and a motion to substitute the United States as the sole defendant on the tort claims in counts five, six, and seven.

The district court granted the motion to substitute. The United States, as the sole defendant on counts five, six, and seven, then filed a motion to dismiss, or in the alternative for summary judgment, as to those counts. On May 31, 1991, the district court granted the defendants' pending motions to dismiss. As a preliminary matter, it dismissed defendant Whaley for insufficient service of process. ² It then dismissed: count one for Duffy's failure to exhaust intramilitary remedies; counts two, three, and four as barred under the Feres and Chappell doctrines; counts five, six, seven, and eight for failure to exhaust FTCA administrative remedies; counts nine and ten against the officers because they were improper parties, and against the AFRES for failure to state a claim upon which relief could be granted.

Duffy filed a timely notice of appeal, challenging the district court's dismissal of counts one through eight. He does not challenge the court's dismissal of Whaley for insufficient service, nor its dismissal of counts nine and ten. For the reasons that follow, we affirm.

Succinctly put, the district court dismissed counts one through eight for lack of subject matter jurisdiction. That is a question of law, which we review de novo. Houck ex rel. United States v. Folding Carton Admin., 881 F.2d 494, 504 (7th Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1471, 108 L.Ed.2d 609 (1990). The district court's findings of fact we review for clear error. Bowyer v. U.S. Dept. of Air Force, 875 F.2d 632, 635 (7th Cir.1989), cert. denied, 493 U.S. 1046, 110 S.Ct. 846, 107 L.Ed.2d 840 (1990).

We turn first to count one, in which Duffy charges that his call to active duty violated 10 U.S.C. § 672(b). ³ He further claims his arrest and confinement were unlawful, and his discharge was improperly procured, all in violation of a multiplicity of Air Force regulations, the Articles of the UCMJ, and the Rules of the Manual for Courts-Martial. The district court found that Duffy's failure to file a claim with the Air Force Board for Correction of Military Records ("BCMR") constituted a failure to exhaust intramilitary administrative remedies and precluded the relief Duffy seeks in count one. It reasoned that...