Naylor v. United States

53 Fed. Cl. 172, 2002 U.S. Claims LEXIS 197, 2002 WL 1876953
CourtUnited States Court of Federal Claims
DecidedAugust 14, 2002
DocketNo. 96-602C
StatusPublished
Cited by1 cases

This text of 53 Fed. Cl. 172 (Naylor v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Naylor v. United States, 53 Fed. Cl. 172, 2002 U.S. Claims LEXIS 197, 2002 WL 1876953 (uscfc 2002).

Opinion

OPINION

SMITH, Senior Judge.

Before the Court is defendant’s Motion to Dismiss for failure to state a claim on which relief can be granted and for lack of jurisdiction. Plaintiff seeks a determination that he was improperly dismissed from the Michigan Air National Guard. The defendant challenges this court’s jurisdiction because plaintiffs claims are torts which were previously litigated in the United States District Court for the Eastern District of Michigan and at the Air Force Board for the Correction of Military Records. In addition, any remaining claims are tort claims, which plaintiff failed to add to his complaint and the court lacks jurisdiction to hear. Plaintiff pursues this claim pro se and asked the court to waive oral argument.

FACTS

Mr. Naylor, the plaintiff in this case, was a military policeman with the Michigan Air National Guard from 1973 to 1993. Plaintiff was assigned to Selfridge Air National Guard Base (Selfridge) in Michigan. In 1993 he was discharged for psychological problems that arose out of the following events.

In 1991, plaintiff sought counseling for stress due to the possibility that he would be sent to the Gulf to assist in Desert Storm. A social worker at Selfridge agreed to provide counseling. From October 1991 to September 1992, they met weekly for more than 90 sessions which the plaintiff believed were confidential. On September 11, 1992, the plaintiff and his social worker had a disagreement when the social worker refused to hold additional sessions with the plaintiff. She called the Base Military Police to remove plaintiff from her office and take him to the Army Health Clinic at Selfridge. At the Army Health Clinic plaintiff was to consult with an Army medical doctor. Prior to plaintiffs interview, with the doctor, the social worker told the doctor about what she had learned during the course of her counseling sessions with the plaintiff.

Plaintiff was evaluated three times by psychologists and had complete physical exams an additional three times over the course of the next six months to determine his ability to continue in his job. During those evaluations, the psychologists relied on information the social worker had provided as well as interviews with plaintiff. They found that plaintiff was not a threat to himself or others. They determined, however, that he suffered from a psychosis and recommended that his weapons authorization and world-wide qualification be revoked. In November 1992 his supervisor removed plaintiffs weapons authorization, which precluded him from serving in his job as a military policeman. In addition, plaintiff was denied unescorted access to his job, denied access to classified information, and restricted to administrative duties.

On August 2, 1993, plaintiffs commander informed plaintiff that he was recommending Naylor be involuntarily terminated from the Active Guard Reserve Program. Plaintiff learned on September 21,1993, that he would be involuntarily discharged on October 1, 1993, without a finding that he was medically unfit to serve.

On September 27, 1995, Naylor filed an action with the District Court for the Eastern District of Michigan. In that complaint the plaintiff sued the Air Force, Adjutant General of Michigan, and his original social worker under theories of 1) deprivation of due process and equal protection rights, 2) a declaratory judgement that the Adjutant General of Michigan did not have authority [174]*174to discharge members of the Active Guard Reserve Program, and 3) that the social worker was negligent per se and inflicted emotional distress on the plaintiff through her actions. The court dismissed the action against the Adjutant General because the court lacked subject matter jurisdiction under the 11th Amendment and because the matter was not justiciable because it involved a military personnel decision. See Transcript of Defendant Stump’s Motion to Dismiss p. 36, argued before the Honorable Anna Diggs Taylor (Febr.5, 1996). The court allowed the case to proceed against the federal defendants.

Plaintiff filed an amended complaint in the District Court on March 4, 1996. At the oral argument on defendant’s motion to dismiss, Judge Taylor dismissed the case because military personnel cannot bring constitutional tort claims against the military. Judge Taylor said the other tort claims fell under the Federal Tort Claims Act, but the plaintiff had failed to follow the procedures outlined in the Act. In addition, the Act does not allow for suits on discretionary actions like employment decisions. However, Judge Taylor dismissed without prejudice any remaining tort actions the plaintiff might have, which could be filed with this court. In September 1996, plaintiff appealed this District Court decision to the Sixth Circuit Court of Appeals where it was summarily upheld.

While the District Court case was pending, plaintiff sought similar relief from the Air Force Board for the Correction of Military Records on June 21, 1996. The AFBCMR denied plaintiffs application on July 29,1998.

On September 26, 1996, the plaintiff filed his complaint in this court. It is virtually identical to the complaint and amended complaint he filed in the District Court. The only new information contained in the complaint filed with this court focuses on the role of the State Adjutant General and his ability — or lack thereof — to control and direct the actions of federal Air National Guard troops (¶ 44-45) and on the previous litigation between the plaintiff and defendant (¶ 53-63). Plaintiff, however, raises no new claims before this court.

In his complaint the plaintiff asks this court to grant the following relief in his complaint:

1. A determination that federal regulations prevent state officers from firing a air national guard employee;
2. Order the Secretary of the Air Force to modify promulgating regulations to establish federal control and military justice jurisdiction for those who are active duty under 32 U.S.C. § 502(f);
3. Order the Secretary of the Air Force to review all other promulgating regulations pursuant to the Air National Guard to eliminate any authority in a state adjutant general to control full-time military personnel.
4. Order the Secretary of Air Force to reinstate plaintiff in the Air Guard Reserve program with backdated seniority and benefits.
5. Award plaintiff backpay, fees, and costs.
6. Other relief the court deems just and equitable.

The United States argues that the plaintiff is barred from litigating this case by the principle of res judicata and this court lacks jurisdiction over the case. In his response, plaintiff raises new arguments, which he states will require his complaint to be amended. Plaintiff, however, never filed a motion to amend his complaint with this court. Thus, the court must proceed under the original complaint.

DISCUSSION

I. JURISDICTION

The United States is immune from suit unless Congress specifically waives the government’s sovereign immunity. See United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); Soriano v. United States,

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Related

Peterson v. United States
68 Fed. Cl. 773 (Federal Claims, 2005)

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Bluebook (online)
53 Fed. Cl. 172, 2002 U.S. Claims LEXIS 197, 2002 WL 1876953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/naylor-v-united-states-uscfc-2002.