PLANNER v. MCHUGH

Filing 22

ORDER OF DISMISSAL. The motion to dismiss 16 is GRANTED. The motion for preliminary injunction, as amended, 7 is DENIED. The scheduled hearing on the motion is canceled. Signed by JUDGE ROBERT L HINKLE on 2/21/14. (sms)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

KEITH PLANNER,
Plaintiff,
v.

CASE NO. 4:14cv20-RH/CAS

THE HONORABLE JOHN
McHUGH, Secretary of the
Department of the Army, United
States of America,
Defendant.
_______________________________/

ORDER OF DISMISSAL

The plaintiff is a former member of the Army Reserves who is now a
civilian employee of the Army. The plaintiff seeks an injunction that would
preclude the defendant Secretary of the Army from terminating the plaintiff’s
civilian employment. The Secretary has moved to dismiss for lack of jurisdiction
and failure to exhaust administrative remedies. This order grants the motion.

Case No. 4:14cv20-RH/CAS

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I
The plaintiff Keith Planner long held a dual-status position with the United
States Army. He was both a member of the Army Reserves and, as a civilian, a
full-time military technician or “miltech.”
Service in the Army Reserves is a requirement for holding a miltech
position. A person who separates from the Reserves can continue as a miltech for
no more than another year. But there is an exception: a soldier who separates from
the Reserves because of a “combat-related” disability may continue as a miltech
without limitation. 10 U.S.C. § 10216(g)(1).
While deployed in Kuwait in support of the second war in Iraq, Mr. Planner
lifted a duffel bag that contained military equipment, injuring his back. Mr.
Planner says the injury was combat-related. That term is defined to include a
disability caused by an “instrumentality of war.” See 10 U.S.C. § 1413a(e)(D).
The Army says a duffel bag—even one containing military equipment in a war
zone during a war—is not an “instrumentality of war.”
The injury rendered Mr. Planner unable to perform as required in the
Reserves. The Army terminated Mr. Planner’s Reserve status as of March 6, 2013,
through a disability retirement. The Army intends to terminate Mr. Planner’s
civilian miltech employment as of March 6, 2014.

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Mr. Planner seeks to block the termination. He has moved for a preliminary
injunction. The Secretary has moved to dismiss on grounds that include lack of
jurisdiction and failure to exhaust administrative remedies.
II
As a prerequisite to a preliminary injunction, a plaintiff must establish a
substantial likelihood of success on the merits, that the plaintiff will suffer
irreparable injury if the injunction does not issue, that the threatened injury
outweighs whatever damage the proposed injunction may cause a defendant, and
that the injunction will not be adverse to the public interest. See, e.g., Charles H.
Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir. 2005); Siegel v.
LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). When a federal
employee seeks a preliminary injunction blocking a discharge, the standard is
especially stringent. See Sampson v. Murray, 415 U.S. 61 (1974). Mr. Planner is
not entitled to a preliminary injunction because, as set out below, his complaint
must be dismissed; he has not established a likelihood of success on the merits.
III
The Army has discharged Mr. Planner from the Reserves and proposes to
terminate his civilian employment. Two lines of authority indicate that if this case
is viewed as a challenge to the discharge from the Reserves, the case cannot
proceed. A third line of authority indicates that even if the case is viewed as a

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challenge only to the termination of Mr. Planner’s civilian employment, the case
still cannot proceed. This order addresses in turn these three lines of authority.
A
First, in Von Hoffburg v. Alexander, 615 F.2d 633 (5th Cir. 1980), a soldier
challenged the Army’s decision to discharge him based on homosexuality. The
Fifth Circuit—in a decision now binding in the Eleventh—held that the soldier
could proceed in court only after exhaustion of administrative remedies. The Fifth
Circuit said, “this court has consistently held that a plaintiff challenging an
administrative military discharge will find the doors of the federal courthouse
closed pending exhaustion of administrative remedies.” Von Hoffburg, 615 F.2d at
637. The court added:
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. In the military context, the exhaustion
requirement promotes the efficient operation of the military’s judicial
and administrative systems, allowing the military an opportunity to
fully exercise its own expertise and discretion prior to any civilian
court review. Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974).
Von Hoffburg, 615 F.2d at 637-38. See also Winck v. England, 327 F.3d 1296,
1303 (11th Cir. 2003) (holding that a sailor was required to exhaust administrative
remedies before challenging in court the Navy’s refusal to discharge him).
In asserting the contrary, Mr. Planner relies primarily on Watkins v. United
States Army, 875 F.2d 699 (9th Cir. 1989) (en banc). There the Ninth Circuit
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allowed a challenge to the Army’s refusal to reenlist a soldier, apparently on the
view that pursuing the matter further within the Army would be futile and that the
soldier thus had exhausted all available remedies. The basis of the Army’s
underlying decision in Watkins, as in Von Hoffburg, was homosexuality. If, as Mr.
Planner asserts, Watkins sets a futility standard low enough to encompass his claim
in this case, the answer is that this case is pending in the Eleventh Circuit, not the
Ninth. The law in this circuit is established by Von Hoffburg. And in any event,
there is no reason to believe Mr. Planner’s administrative remedies are futile.
B
Second, even aside from the exhaustion issue, there are grounds to doubt a
court’s authority to review the Army’s decision to discharge Mr. Planner. In
Feres v. United States, 340 U.S. 135, 146 (1950), the Supreme Court held that “the
Government is not liable under the Federal Tort Claims Act for injuries to
servicemen where the injuries arise out of or are in the course of activity incident
to service.” The Court later expanded the Feres doctrine to encompass other
claims for damages. See Chappell v. Wallace, 462 U.S. 296, 305 (1983).
More recently, the Eleventh Circuit applied the Feres doctrine to an
employment claim asserted by a member of the Alabama National Guard. See
Speigner v. Alexander, 248 F.3d 1292 (11th Cir. 2001). Holding the claim
nonjusticiable, the court said, “civilian courts have traditionally deferred to the

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superior experience of the military in matters of duty orders, promotions,
demotions, and retentions.” Id. at 1298 (quoting Knutson v. Wisconsin Air Nat’l
Guard, 995 F.2d 765, 771 (7th Cir. 1993)).
The Eleventh Circuit has applied these same principles in a case very close
to Mr. Planner’s. In Koury v. Secretary, Department of Army, 488 F. App’x 355
(11th Cir. 2012), the plaintiff was a dual-status technician, much like Mr. Planner.
The plaintiff challenged employment decisions—two denials of a promotion and a
later reassignment. The district court dismissed the complaint for lack of subject
matter jurisdiction. On appeal, the plaintiff asserted that his claims arose from his
civilian employment, not from his military service. The Eleventh Circuit rejected
the assertion, concluding that judicial interference with a dual-status technician’s
relationship to military operations and objectives “would implicate civilian courts
in conflicts involving military structure and decisions,” 488 F. App’x at 358, thus
violating the Feres doctrine. Koury is nonpublished and thus nonbinding, but it is
a recent Eleventh Circuit decision very nearly on point, and it is, at least,
persuasive.
In sum, the law of the circuit suggests that Mr. Planner’s claims involve
“military operations and objectives” and thus are nonjusticiable.

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C
Finally, even if Mr. Planner’s claims could be said to implicate only the
civilian aspects of his employment, the claims still could not go forward in this
court at this time. Exhaustion of administrative remedies is required even for
federal civilian employees.
A civilian employee’s termination may be reviewed by the Merit Systems
Protection Board. See 5 U.S.C. § 7701(a). The MSPB has addressed claims of
dual-status employees like Mr. Planner. See, e.g., Fitzgerald v. Dep’t of Air Force,
108 M.S.P.R. 620 (2008); Hall v. Office of Pers. Mgmt., 102 M.S.P.R. 682 (2006).
An MSPB decision is subject to judicial review. 5 U.S.C. § 7703(a). But review is
available not in a district court but only in the Federal Circuit, id. § 7703(b)(1)(A),
unless the employee alleges, as at least one ground for relief, discrimination
prohibited by one or more specific civil-rights statutes, including, for example,
Title VII. See, e.g., Kloeckner v. Solis, 133 S. Ct. 596, 600-01 (2012); Ikossi v.
Dep’t of Navy, 516 F.3d 1037, 1040-41 (D.C. Cir. 2008). Mr. Planner makes no
claim of discrimination. And in any event, a federal civilian employee cannot
bypass the MSPB and go directly to court, as Mr. Planner seeks to do here.

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IV
For these reasons, Mr. Planner is not entitled to a preliminary injunction.
Instead, this case must be dismissed for lack of jurisdiction and failure to exhaust
administrative remedies. Accordingly,
IT IS ORDERED:
1.

The motion to dismiss, ECF No. 16, is GRANTED.

2.

The clerk must enter judgment stating, “The complaint is dismissed

without prejudice for lack of jurisdiction and failure to exhaust administrative
remedies.”
3.

The motion for a preliminary injunction, ECF No. 1, as amended,

ECF No. 7, is DENIED. The scheduled hearing on the motion is canceled.
4.

The clerk must close the file.

SO ORDERED on February 21, 2014.
s/Robert L. Hinkle
United States District Judge

Case No. 4:14cv20-RH/CAS