LAWRENCE v. DAVIS, (E.D.La. 2004)

MARCEL LIVAUDAIS, Senior District Judge

Defendant Charles Davis ("Davis") filed a motion to dismiss or alternatively, for summary judgment. The motion was submitted on the briefs on March 31, 2004. For the reasons that follow, the motion is DENIED and the lawsuit is DISMISSED WITHOUT PREJUDICE.

Lt. Col. Davis was represented by the United States Attorney for the Eastern District of Louisiana and a member of the Judge Advocate Corps of the United States Navy. Major Lawrence appeared pro se.

BACKGROUND

This is Round 3, Part 2 of this ongoing legal battle. Plaintiff, Philip Lawrence ("Lawrence") is a Major in the reserve component of the Marine Corps. The underlying dispute involves Lawrence's alleged misconduct during a voluntary ADSW (Active Duty Special Work) assignment in Baltimore from October 17-21, 2001.

In Lawrence v. McCarthy, C.A. 02-2435 (Lawrence I"). the issue before the court was whether the Marine Corps could exercise jurisdiction over Lawrence to recall him to active duty for a court martial. After a hearing on motion for preliminary injunction, the court cancelled the previously issued TRO, denied the injunction and dismissed the case sua sponte, Lawrence appealed. Without reaching the merits of the appeal, the Fifth Circuit on its own raised the issue of whether federal courts have equitable jurisdiction to hear this case under the abstention doctrine promulgated by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 699 (1971).Lawrence v. McCarthy, 344 F.3d 467 (5th Cir. 2003). The Fifth Circuit concluded that the district court should have abstained from considering the case given the presence of parallel proceedings in the military courts, vacated the judgment of the district court and dismissed the complaint without prejudice.

Meanwhile, Lawrence had filed a second lawsuit in the district court. In Lawrence v. McCarthy, C.A. 03-2251, 2003 WL 22077788, (E.D.La. Sept. 5, 2003) ("Lawrence II"), the issue was whether the defendant was entitled to convene a Board of Inquiry ("BOI") (an administrative disciplinary proceeding), while the court martial was pending, in order to administratively separate Major Lawrence from the service. While Lawrence's motion for preliminary and permanent injunction prohibiting defendant LTGEN D. M. McCarthy ("McCarthy") from convening a BOI was under submission, on August 29, 2003, the Fifth Circuit rendered its decision on Lawrence I. Accordingly, following the 5th Circuit's instructions, the district court vacated its prior order granting a TRO pending a decision on the merits of the motion for a preliminary injunction, and, exercising Younger abstention, dismissed Lawrence II without prejudice. Lawrence's appeal to the Fifth Circuit is pending. USCA No. 03-30955.

Major Lawrence proceeded to the BOI. Lt. Colonel Charles Davis testified (by telephone from Texas) for the "recorder" (the military civil version of plaintiff's counsel) at the BOI in rebuttal of Major Lawrence's own testimony. Davis testified generally about his opinion of Lawrence's military character, and specifically about an MORDT inspection that occurred in May, 2000, on which Davis was the commanding officer and Lawrence participated. Davis was not present at the inspection in Baltimore in October 2001, during which Lawrence's alleged misconduct that was the subject of the court martial and BOI occurred. Lawrence was represented at the BOI by civilian counsel. The BOI recommended that Major Lawrence be separated from the Marine Corps Reserves. The final determination by the Secretary of the Navy, has not yet beer, made.

In its reply memorandum to Lawrence's opposition to Davis's motion, the government argued that "evidence concerning military performance and character is material and pertinent to the issue of whether Major Lawrence should be retained in the Marine reserves." Reply Memo, p. 2. The reply memorandum referenced SECNAVINST 1920.6B, para. 2 (a) which provides "[t]he purpose of a BOI is to give an officer a full and impartial hearing at which he or she may respond to and rebut the allegations which form the basis for separation for cause. . . . " Citingid. at para. 2(k)(2)(a), the reply memo further stated:

"In this case, the Board was also tasked with characterizing Major Lawrence's entire service in the Marine Corps because the Board decided that discharge was warranted. Military performance and character is material and pertinent to the issue of characterization of service."

SECNAVINST 1920.6B2(k)(1) and (2)(a) provide as follows:

k. Decision of BOI. The board will make the following determination, by majority vote, based on the evidence presented at the hearing.

(1) A finding on each of the reasons for separation specified (note: . . . a finding on a reason for separation shall be based on a preponderance of the evidence), and

(2) One of the following:

(a) That the respondent is recommended for separation from the Naval Service for the specific reason or reasons provided in paragraph (1) (Separation for Cause). . . .

The argument suggests that the scope of the BOI extended well beyond the original allegation of misconduct during the inspection in Baltimore in 2001.

Apparently, the original court martial proceedings have been dismissed.

Lawrence took matters into his own hands and sued Davis individually in state court for money damages based on state tort law. Davis removed the matter to district court where Lawrence moved for remand and Davis moved that he be dismissed and the United States substituted as the proper defendant, and to dismiss the lawsuit. After hearing oral argument, the district court denied both motions. Davis then filed the pending motion.

The complaint alleges that the 301 recommendation was substantially based on Davis's perjured testimony; that Lawrence will lose hundreds of thousands of dollars in retirement pay and benefits; and that he was "defamed, embarrassed and humiliated" by Davis's perjured testimony.

Davis does not raise the issue of abstention, but argues on the merits that the suit should be dismissed for the following reasons:

1) That the suit is barred by Feres v. United States, 340 U.S. 135 (1950) (a service member may not sue another service member for injuries that arise incident to military service). Lawrence counters that Freres doesn't apply because Davis was not acting "under color of such office" because he appeared as a witness voluntarily, he was not under subpoena, he was not on active duty, under orders, in a drilling status or training status, nor was he being paid by the military.

2) That he is immune from suit pursuant to Marrogi v. Howard, 805 So.2d 1118 (La. 2002) (a witness in a judicial or quasi-judicial proceeding is immune from suit alleging defamation/slander). Lawrence argues that Davis is not immune because the BOI is not a judicial or "quasi-judicial" proceeding since its members were not "exercising discretion of a judicial nature"; that such immunity does not extend to perjured testimony; and that Davis's testimony WHS not pertinent and material to the issue before the Board.

3) That perjury is not a cognizable civil claim. Lawrence's opposition does not respond to this argument. However, he is not claiming damages for Davis's alleged perjury per se, but that Davis's perjured testimony defamed, embarrassed and humiliated him. He claims general damages for the defamation and special damages of lost retirement pay and benefits.

ANALYSIS

It is not necessary for the court to reach the merits of Davis's motion. This lawsuit ("Lawrence III") is in an unusual posture. It is, or purports to be, a tort claim against an individual in which the government is not a party. As such, it is distinguishable from Lawrence I and Lawrence II, both of which prayed only for equitable relief against the government, or more specifically, against Lieutenant General McCarthy, U.S. Marine Corps, as a defendant in his official capacity. Lawrence 111 does not automatically fall into line with those two cases on the issue of Younger abstention. On the other hand, in whatever form it is presented to this court, Lawrence III is nevertheless inextricably intertwined with Lawrence's ongoing battle with the U.S. Marine Corps Reserves. All of the facts and actions giving rise to Lawrence III are the same underlying facts from whichLawrence I and Lawrence II arose, except that the military process has proceeded another step along the way. Lawrence has simply chosen a collateral attack rather than a direct attack on that military process.

Lawrence still has remedies (but no money damages) available within the military process. He had an opportunity to "submit a statement in rebuttal to the findings and recommendations of the BOI for consideration by CHNAVPERS and SECNAV." SECNAVINST 1920.6B2f(13). Moreover, the Administrative Board Procedures provide as follows:

The counsel for respondent . . . shall be provided a copy of the record of proceedings and shall be provided an opportunity to submit written comments to CHNAVPERS or DC/S (M RA) within 10 days of service. Such comments will be submitted via the respondent's chain of command, however, the respondent may submit a copy directly to CHNAVPERS or DC/S (M RA).

SECNAVINST 1920.631. Ultimately, the Secretary of Navy may overrule the BOI recommendation. SECNAVINST 1920.6Bn. As of this date, the Secretary has not acted on the BOI recommendation. The military proceedings are therefore not yet final, and Lawrence has not yet suffered the loss of his pension and benefits.

Applying the Younger abstention doctrine in Lawrence I, the Fifth Circuit reasoned as follows:

Although federalism concerns are not implicated when federal intervention is sought in military matters, abstention, as much as the exhaustion requirement, assists in "maintaining the balance between military authority and the power of federal courts." Von Hoffburg v. Alexander, 615 F.2d 633, 637 (5th Cir. 1980). "Because the military constitutes a specialized community governed by a separate discipline from that of the civilian, orderly government requires that the judiciary scrupulously avoid interfering with legitimate Army matters." Id. Accord Schlesinger, 420 U.S. at 757.

Lawrence I, 344 F.3d at 470-71. The Court further observed that:

In abstaining from exercising equitable jurisdiction in this case, we take advantage of the court-martial's comparative expertise, allow it to create a complete record, and offer the military tribunals the opportunity to correct their own mistakes on appeal.

Id. at 473-74, citing Schlesinger v. Councilman, 420 U.S. 738, 756 (1975). In its judgment in Lawrence I, the Fifth Circuit explained that the application of Younger to that case also promotes judicial efficiency and conservation of judicial resources by avoiding duplicative proceedings. "The need for federal intervention may be obviated entirely simply by allowing the military institutions, both judicial and administrative, to run their course." Id. at 474 (Emphasis added).

Once again, this court concludes that the principles ofYounger abstention as explained by the Fifth Circuit inLawrence I apply to the case at bar, and the district court must abstain from exercising its jurisdiction in this case given the pendency of parallel military administrative proceedings.

Accordingly, IT IS ORDERED that the defendant's motion to dismiss, or alternatively, for summary judgment is DENIED, and the case is DISMISSED WITHOUT PREJUDICE.