NUTTER v. NEW JERSEY DEPARTMENT OF MILITARY AND VETERANS AFFAIRS et al
Filing
20
OPINION. Signed by Judge Claire C. Cecchi on 7/30/18. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT L. NUTTER,
Civil Action No.: 17-1341 (CCC-MF)
Plaintiff,
v.
OPINION
NEW
JERSEY
DEPARTMENT
OF
MILITARY AFFAIRS AND VETERANS
AFFAIRS; NEW JERSEY NATIONAL
GUARD AND/OR NATIONAL GUARD,
Defendants.
CECCHI, District Judge.
I.
INTRODUCTION
This matter comes before the Court on the motion of the New Jersey Army National Guard
and the National Guard of the United States (collectively, the “National Guard Defendants”) to
dismiss the Complaint (ECF No. 1-Ex. A (“Compl.”)) of Robert L. Nutter (“Plaintiff’). (ECF No.
7-1 (“Mot.”)). The Court has considered the submissions made in support of and in opposition to
the instant motion. (ECF Nos. 17 (“Opp’n”), 19 (“Reply”)). The Court decides this matter without
oral argument pursuant to Rule 78(b) of the Federal Rules of Civil Procedure. For the reasons set
forth below, Defendants’ motion is GRANTED.
II.
BACKGROUND
Plaintiff was previously a member of the New Jersey National Guard (“NJNG”), serving
as a military technician with the rank of Sergeant First Class in a “dual status” role. (Compl. ¶J 13). Plaintiff states that during his tenure at the NJNG, he observed numerous incidents of “stealing
and/or misappropriation of property by other members of the National Guard,” as well as “sexual
1
harassment and/or religious discrimination against other members.”
(Id.
¶J
8-9).
Plaintiff
additionally states that he “observed and reported safety violations and and/or hazardous work
conditions/environment and/or hostile work environment (including retaliation).” (Id.
¶
10).
Plaintiff maintains that he thereafter “cooperated with an investigation” regarding these alleged
observations. (Id.
¶ 11).
Plaintiff avers that, upon learning of his cooperation, the National Guard
Defendants “retaliated against [him],” created a hostile work environment and “wrongfully
interfered with.
.
.
[his] employment and/or job responsibilities.” (Id.
¶J 12-15).’
contends that this retaliation caused him to “suffer stress [and] anxiety.” (Id.
Plaintiff further
¶ 1 3)2
On August 12, 2016, Plaintiff filed suit in the Superior Court of the State of New Jersey,
Sussex County, alleging violations of Title VII of the Civil Rights Act, as well as New Jersey’s
Conscientious Employee Protection Act, and seeking monetary damages. (See generally Id.). The
New Jersey Department of Military and Veterans Affairs3 properly removed the case to this Court
The Court notes that the National Guard Defendants’ Motion to Dismiss paints a far different
picture of the instant dispute’s factual basis. Namely, the National Guard Defendants maintain
that a female member of the National Guard, referred to as Sergeant K.B., “filed a military equal
employment opportunity (“EEO”) complaint against Plaintiff accusing him of sexually harassing
her on multiple occasions, as well as reprisal.” (Mot. at 4). following an internal military
investigation, Lieutenant Colonel Edward Dowgin “proposed terminating Plaintiffs employment
for insubordination, sexual harassment, and conduct unbecoming of a National Guard
technician[.]” (Id.). Colonel David Majury accordingly “issued a decision removing Plaintiff
from federal service,” and informed Plaintiff “that he had a right to appeal his removal to the
Adjutant General for the NJ National Guard within 20 calendar days.” (Id. at 5). Plaintiff allegedly
failed to exercise this right, which resulted in his removal becoming “effective [on] December 9,
2015.” (Id.). In his Opposition, Plaintiff states that he “disputes the alleged basis for the
termination and believes this was done in retaliation.” (Opp’n at 3).
2
The Court also notes that Plaintiffs Opposition includes new, more detailed factual allegations
concerning the alleged reasons for his termination. (See Opp’n at 2-3). The Court declines to
consider these allegations, however, under the long-standing rule “that [Plaintiffs] complaint
may not be amended by the briefs in opposition to a motion to dismiss.” Corn. ofPa. ex rel.
Zimmerman v. PepsiCo, Inc., 836 f.2d 173, 181 (3d Cir. 1988) (citation omitted).
Plaintiffs claims against the New Jersey Department of Military and Veterans Affairs were
dismissed on May 16, 2017 without prejudice pursuant to a joint stipulation. (ECF No. 16).
2
on february 27, 2017, with the National Guard Defendants’ consent. (ECF No. 1). On March 24,
2017, the National Guard Defendants thereafter filed a Motion to Dismiss or, in the alternative, for
Partial Summary Judgement, primarily contending that Plaintiffs claims are barred under the
Feres doctrine and/or fail to state a viable legal claim. (See generally Mot.). Plaintiff filed his
Opposition on May 22, 2017, with the National Guard Defendants filing a Reply on May 30, 2017.
III.
LEGAL STANDARD
Courts must grant a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) if
the court determines that it lacks subject-matter jurisdiction over a claim. In re Schering Plough
Corp. Intron/Temodar Consumer Class Action, 67$ f.3d 235, 243 (3d Cir. 2012). “Generally,
where a defendant moves to dismiss under Rule 12(b)(1) for lack of subject-mailer jurisdiction,
the plaintiff bears the burden of proving by a preponderance of the evidence that the Court has
subject matterjurisdiction.” The Connelly Firm, P.C. v. US. Dep ‘t ofthe Treasury, No. 15-2695,
2016 WL 1559299, at *2 (D.N.J. Apr. 18, 2016) (citing Gould Elecs. Inc. v. United States, 220
F.3d 169, 178 (3d Cir. 2000)).
The first step in evaluating a 12(b)(1) motion is determining whether the 12(b)(1) motion
presents a facial attack or a factual attack. Constitution Party ofPa. v. Aichele, 757 f.3d 347, 3575$ (3d Cir. 2014). for facial attacks, “the court must consider the allegations of the complaint as
true.” Mortensen v. First Fed. Say. &LoanAss’n, 549 F.2d 884, 891 (3d Cir. 1977). for factual
attacks, however “the trial court is free to weigh the evidence and satisfy itself as to the existence
of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations
[and] the plaintiff will have the burden of proof that jurisdiction does in fact exist.”4 Id.
“Here, the National Guard Defendants present a factual challenge to the Court’s subject matter
jurisdiction.” (Mot. at 7).
3
IV.
DISCUSSION
The National Guard Defendants contend that Plaintiffs claims are barred by the Feres
doctrine, and that the Court consequently lacks subject matter jurisdiction over Plaintiffs claims.
The Feres doctrine, or the doctrine of intra-military immunity, arises from the Supreme Court’s
original holding in Feres v. United States, 340 U.S. 135 (1950) “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.” Id. at 146. The Court later observed that its decision
was predicated upon the”{t]he peculiar and special relationship of the soldier to his superiors, the
effects of the maintenance of such suits on discipline, and the extreme results that might obtain if
suits under the Tort Claims Act were allowed for negligent orders given or negligent acts
committed in the course of military duty.” United States v. Brown, 348 U.S. 110, 112 (1954). In
Chappell v. Wallace, 462 U.S. 296 (1983), the Court further expanded the Feres doctrine’s reach
in holding “that enlisted military personnel may not maintain a suit to recover damages from a
superior officer for alleged constitutional violations.” Id. at 305. Indeed,
[w]ithout exception, in other post-feres cases, the Court has adhered to the
compelling necessity of maintaining military discipline as the basis for expanding
the intra-military immunity doctrine to encompass a variety of claims, against an
assortment of defendants, brought by a range of servicemen, for injuries arising out
of, or in the course of activity incident to, military service.
Matreale v. N.J Dep ‘t ofMilitary & Veterans Affairs, 487 F.3d 150, 153 (3d Cir. 2007); see also
Chappell, 462 U.S. at 300 (“Civilian courts must, at the very least, hesitate long before entertaining
a suit which asks the court to tamper with the established relationship between enlisted military
personnel and their superior officers.”). Accordingly, the Third Circuit, along with “every court
of appeals considering the issue[,] has held that the feres doctrine bars uniformed military
personnel from bringing discrimination claims under Title VII and other discrimination statutes.”
4
Willis v. Roche, 256 F. App’x 534, 536 (3d Cir. 2007). The Third Circuit has additionally clarified
that “the Feres doctrine bar[s] employment discrimination claims by a member of the New Jersey
Army National Guard under the New Jersey Law Against Discrimination.” Id. (citing Matreale,
487 F.3d at 150).
This analysis is somewhat more complicated where plaintiffs are “not on active military
duty, but instead hold[] a position requiring performance of both military and civilian job duties,”
otherwise known as hybrid or “dual status” employees.5 Willis, 256 F. App’x at 536. The Third
Circuit has, however, endorsed the expansion of the Feres doctrine to encompass “claims by
hybrid employees if their claims arise in whole or in part out of the military aspects of the
claimant’s job.” Id. at 537. “Therefore, exempted from the Feres bar are only those claims that
‘arise purely from the civilian aspects of [a plaintiffs] job,” Tucker v. Wynne, No. 08-4390, 2009
WL 2448520, at *3 (D.N.J. Aug. 10, 2009), and the relevant inquiry is “whether [Plaintiffis]
discrimination claims arise “purely from [his]
.
.
.
civilian position.” Willis, 256 F. App’x at 537;
see also Tucker, 2009 WL 2448520, at *3 (“[A] plaintiff must show that his challenge of his
superior officer’s conduct does not infringe upon the military rank relationship.”).
Here, the Court finds that Plaintiffs claims do not arise solely from his civilian role. First,
Plaintiff “was required to maintain active National Guard status in order to retain his position as a
military technician” pursuant to the National Guard Technicians Act. (Mot. at 14; see also 32
U.S.C.
§
709). Second, Plaintiffs role as a military technician primarily involved “performing
maintenance and overhaul of a variety of combat and tactical vehicles and equipment,” (Mot. at
14), which is inherently “tied to the military chain of command.” Tucker, 2009 WL 2448520, at
Neither party disputes that Plaintiff was a “dual status” employee for the purposes of this Motion.
(Compl. ¶ 1; Mot. at 1).
5
*4 Plaintiff additionally undertook these duties at a military facility, Picatinny Arsenal. (Mot. at
14). Third, and of greatest import, is that Plaintiffs Complaint essentially revolves around his
claim that he cooperated with a military investigation and that, as a result, his military superiors
retaliated against him.
(Compi.
¶J
11-16).
“challenging the conduct of a superior officer.
Courts in this district have clearly held that
.
.
infringes upon the military rank relationship,”
thereby invoking the Feres doctrine. Urie v. Roche, 209 F. Supp. 2d 412, 417 (D.N.J. 2002).
Indeed, “[t]o parse the nature of the relationship between Plaintiff and [his superiors], as well as
the other superior officers
.
.
.
[involved in] the alleged discrimination, ‘would itself threaten to
intrude into their military relationship.” DiGiorgio v. New Jersey, No. 08-2444, 2009 WL
1883913, at *4 (D.N.J. June 29, 2009). In addition, “Plaintiff has not sought injunctive relief in
this lawsuit, but has only pleaded damages claims, which the Third Circuit has held may be
properly dismissed in cases brought by National Guard technicians pursuant to 42 U.S.C.
§
1983 “6
Urie, 209 F. Supp. 2d at 417. The Court must accordingly dismiss Plaintiffs claims.
V.
CONCLUSION
In sum, because Plaintiffs claims do not arise solely from his civilian role, but rather are
integrally tied to the military aspect of his employment as a dual status employee, the Court lacks
jurisdiction under the Feres doctrine of intra-military immunity. Plaintiffs claims are therefore
dismissed without prejudice. An appropriate Order accompanies this Opinion.
Date:
—
o
2_O
7
CLAIRE C. CECCHI, U.S.D.J.
6
Plaintiffs bare request for “any further relief this Court deems equitable and just” is insufficiently
detailed to allow the Court to discern any request for specific, concrete injunctive relief in this
matter. (Compl. ¶ 16). If Plaintiff in fact seeks such injunctive relief, Plaintiff must adequately
plead the requested remedy in an amended complaint.
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