CHUGHTAI v. OBAMA et al

Filing 31

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE JOEL H. SLOMSKY ON 12/23/15. 12/24/15 ENTERED AND COPIES E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DR. GUL M. CHUGHTAI,
Plaintiff,

CIVIL ACTION
NO. 15-0352

v.
BARACK OBAMA, et al.,
Defendants.
OPINION
Slomsky, J.
I.

December 23, 2015

INTRODUCTION
This case concerns the alleged mistreatment of a former Captain of the United States Air

Force. In January 1988, Dr. Gul M. Chughtai (“Plaintiff”) was honorably discharged from the
Air Force. (Doc. No. 8, Ex. R.) After his discharge, Plaintiff repeatedly petitioned the Air Force
Board for the Correction of Military Records (the “AFBCMR”) to void his discharge and amend
his records. The AFBCMR denied these requests. (Id., Ex. A.)
On January 20, 2015, Plaintiff filed the instant action pro se, seeking compensatory relief,
correction of his military records, and other injunctive relief for alleged tort and constitutional
violations. (Doc. No. 1.) He filed an Amended Complaint on March 11, 2015. (Doc. No. 8.)
The Amended Complaint names eleven Defendants: President Barack Obama; Secretary of the
Air Force Deborah Lee James; Martin Valles; Alexander Daley; Ronald Walker; Richard
Niemtzow; John Burr; David Hunter; Kenneth Vanek, “Chairman AF Board of Correction of
Military Records;” and “Chief, Material Licensing Branch, Div of Fuel Cycle and material

1

Safety.” 1

(Id.) On May 1, 2015, Defendant Hunter filed a Motion to Dismiss Plaintiff’s

Amended Complaint. 2 (Doc. No. 10.) On May 27, 2015, Defendants Obama, James, Valles,
Daley, Walker, Niemtzow, Burr, Hunter, and Vanek (collectively, the “Federal Defendants”), 3
filed a Motion to Dismiss. (Doc. No. 15.)

For reasons that follow, the Court will grant both

Motions to Dismiss.
II.

BACKGROUND
The following facts are pertinent to Defendants’ Motions to Dismiss and, as alleged in the

Amended Complaint and in Plaintiff’s filings, are viewed in the light most favorable to Plaintiff. 4
Dr. Gul M. Chughtai (“Plaintiff”) lives in Pennsylvania and is over seventy years old.
(Doc. No. 8 ¶ 3.) Around 1980, 5 Plaintiff was selected to serve as a Captain in the United States
Air Force. (Id. ¶ 3, Ex. B.) In or about 1983, Plaintiff served as Chief of Medical Physics at the
1

As discussed in greater detail below, the Federal Employees Liability Reform and Tort
Compensation Act of 1988, 28 U.S.C. § 2679 (2010), requires that the United States be
substituted as the lone defendant in Counts I, II, III, and V. Therefore, the United States will
also be considered a Defendant in this case even though it was not named as one in the
Amended Complaint.

2

This Motion to Dismiss was filed by Defendant Hunter before the United States Attorney’s
Office entered its appearance on behalf of all Defendants in their official capacities. (Doc.
No. 10; Doc. No. 11; Doc. No. 30 at 3.)

3

The Federal Defendants and the United States of America are represented by the United States
Attorney’s Office. (Doc. No. 15 at 1.)

4

The Court will consider all facts alleged in the Amended Complaint and Plaintiff’s Oppositions
to Defendants’ Motions to Dismiss the Amended Complaint. Because Plaintiff is a pro se
litigant, he is entitled to deference in his filings and is held “to less stringent standards than
formal pleadings by lawyers.” United States v. Bradley, 505 F. App’x 220, 221 n.1 (3d Cir.
2012) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).

5

Though the factual account in the Amended Complaint is detailed, few dates are provided. As
such, some dates are estimates based on exhibits attached to the Amended Complaint.
Additionally, Plaintiff uses acronyms. The Responses of Defendants give the full description
of the acronyms.

2

Malcolm Grow Medical Center (“MGMC”) on Andrews Air Force Base in Maryland. (Id. ¶ 4,
Ex. C.)

While serving as Chief of Medical Physics, Plaintiff became aware that two other

doctors were treating cancer patients using nuclear radiation without proper medical licenses. 6
(Id. ¶ 7.a.) Plaintiff instructed the doctors to stop but they refused to do so. He then reported the
violations to the United States Nuclear Regulatory Commission. (Id. ¶ 8.) Defendant Niemtzo
also treated cancer patients with an experimental drug not approved by the Federal Drug
Administration, and these patients “died silently.” (Id. ¶¶ 9, 11.)
Following the filing of an Incident Report based on Plaintiff’s observations, Defendant
Walker, Chief of Nuclear Medicine at MGMC, and Defendant Vanek, Physicist at Willford Hall
Medical Center, “ganged up” on Plaintiff and “became revengeful.” (Id. ¶ 10.) After he filed the
Incident Report, Plaintiff also received negative Officer Evaluation Reports (“OERs”). 7
According to Plaintiff, Defendant Daley destroyed the records of a Radiation Safety Committee
meeting at which Plaintiff complained of ongoing violations. (Id. ¶ 17.) Defendant Daley also
transferred Plaintiff to the Biological Engineering section of the MGMC and changed Plaintiff’s
title to “Computer Coor [sic] Radiotherapy.” (Id. ¶¶ 18, 20.) Furthermore, Defendant Daley
appointed Defendant Niemtzo, the doctor Plaintiff had previously reported, as Plaintiff’s
supervisor. (Id. ¶ 20.)
Plaintiff was thereafter transferred to “OEHL, Brooks AFB, TX, directly under
[Defendant Burr] who was hostile to [Plaintiff].” (Id. ¶ 21.) He continued to receive poor

6

One of these doctors, Dr. Richard C. Niemtzo, is a named Defendant. The other, Major Vinode
Sachdeva, is not named.

7

Prior to reporting Defendant Niemtzo, Plaintiff received “outstanding” reports. After reporting
him, Plaintiff received poor evaluations from Defendant Colonel Alexander F. Daley. (Doc.
No. 8 at ¶ 16.)

3

Officer Evaluation Reports, which he alleges were intended to prevent him from being
promoted. 8 (Id. ¶ 22.) Defendant Hunter then became Plaintiff’s supervisor and “was directed
by John Burr and Ken Vanek to mistreat [Plaintiff] and not to cooperate or assign any project.”
(Id. ¶ 23.)
In 1988, Plaintiff was honorably discharged from the Air Force. (Id. ¶ 23; Doc. No. 15-2
at 2.) Plaintiff submitted eight appeals to President Obama between March 2009 and November
2014. He received no response. (Id. ¶ 26.) Additionally, Plaintiff submitted three appeals to
then-Secretary of the Air Force Michael W. Wynne between May 2008 and March 2009, to
which he received no response. 9 (Id. ¶ 27.)
Major General Thomas P. Ball, who Plaintiff alleges “actively took part to destroy [his]
professional career and . . . became part of the crime and tried to conceal the crime of licensing
violations,” wrote a recommendation letter for Plaintiff after Plaintiff was “exonerated.”10

8

Plaintiff cites to one negative OER written by Defendant Burr and Defendant Hunter on
November 20, 1987, and another written by Defendant Burr and Defendant Hunter on
December 15, 1987. (Id. ¶¶ 24-25.)

9

Plaintiff states, “Defendant Secretary USAF, Michal W. Wayne [sic] was then the Secretary of
USAF who was sent several appeals. . . . No Response was ever received.” (Id. ¶ 27.) Mr.
Wynne is not named as a defendant in the caption of the Amended Complaint. Therefore, the
Court will not consider him a defendant. Additionally, the Amended Complaint does not
specify the reasons for Plaintiff’s appeals to President Obama and Mr. Wynne. Based on a
2014 Letter from Colonel Matthew Yetishefsky, discussed below, the Court assumes that the
appeals to President Obama and Mr. Wynne were requests for correction of Plaintiff’s military
records. (See id., Ex. A.)

10

It is not clear from the Amended Complaint or other filings how Plaintiff was “exonerated.”
The letter of Major Ball is attached to the Amended Complaint, but it is illegible. The Court
presumes that the referenced “exoneration” is the AFBCMR’s voiding and removal of one
OER. (Id., Ex. Q.)

4

However, according to Plaintiff, “it was too late as the damage was already done.” 11 (Id. ¶ 28.)
Plaintiff alleges that Defendant Vanek has called Plaintiff’s recent employers and “bad
mouth[ed]” him. (Id. ¶ 34.)
Based on a 2014 letter from Colonel Matthew Yetishefsky, United States Air Force Chief,
Congressional Inquiry and Travel Division (the “2014 Letter”), it is evident that Plaintiff
repeatedly petitioned the Air Force Board for the Correction of Military Records (the
“AFBCMR”) for correction of his records. (Id. Ex. A.) In 1991, the AFBCMR issued a final
determination on Plaintiff’s request for correction of his records, denying all requests except for
the voiding and removal of one OER.

(Id. Ex. A, Ex. Q.)

Plaintiff filed requests for

reconsideration with the AFBCMR once in 1993, three times in 2008, once in 2009, and twice in
2011. Each time, the AFBCMR staff reviewed his requests and, “after a careful consideration of
his requests, it was determined his requests did not meet the criteria for reconsideration.” (Id.
Ex. A.) The 2014 Letter stated:
Absent judicial action, the Air Force considers Dr. Chughtai’s AFBCMR decision
final. Any future correspondence from him on this issue will be filed without
action. However, pursuant to 5 U.S.C. Section 701, et. Seq. and 28 U.S.C.
Section 1491, Congress authorizes applicants to pursue final AFBCMR decisions
through he [sic] U.S. Court of Claims or appropriate U.S. District Court. Those
Federal Courts have the authority to set aside AFBCMR decisions if they find
them to be arbitrary or capricious.
(Id.)
As noted above, on March 11, 2015, Plaintiff filed the Amended Complaint. (Doc. No.
8.) He named the eleven Defendants identified previously. (Id.) In the Amended Complaint,
Plaintiff alleges claims in five Counts: Counts I, II, III, and V are intentional tort claims. Count

11

Plaintiff refers to Major Ball as a defendant. However, Major Ball is not named in the caption
of the Amended Complaint. Therefore, the Court will not consider him a defendant in this
case.
5

IV appears to allege employment discrimination under Title VII of the Civil Rights Act of 1964,
as well as violations of his constitutional rights. 12
In Count I, Plaintiff alleges “mental agony” against Defendants Daley, Vanek, Walker,
and Burr. (Id. ¶¶ 35-39.) Based on the allegations made here, the Court interprets this claim as
one of intentional infliction of emotional distress. Count II alleges assault. Plaintiff asserts that
Defendants Daley, Walker, Vanek, Burr, and Hunter assaulted Plaintiff by yelling at him. (Id. ¶¶
40-41.) In Count III, Plaintiff alleges tortious interference with contracts by “Defendants at
MGMC.” The only Defendant he specifically mentions in this Count is Defendant Vanek. (Id.
¶¶ 42-44.) The final tort claim is set forth in Count V. Claims of defamation and slander are
alleged in this Count. (Id. ¶¶ 47-50.) Plaintiff asserts that Defendants Vanek, Walker, Daley,
Burr, and Hunter “made maliciously false statements, calling Press, bad mouthing about my
educational qualification, experience and training . . .” (Id. ¶ 48.)
Count IV is a claim of “violation of [Plaintiff’s] human rights.” Plaintiff asserts that he
is a “victim of retaliation, racial discrimination, harassment and intimidation” by Defendants
Daley, Walker, Vanek, Burr, and Hunter. He states that the five Defendants “engaged in blatant
act [sic] of terrorism to harass me due to my religious creed, color and national origin.” (Id. ¶
46.) These Defendants allegedly forced Plaintiff to leave the Air Force by “destroying [his]
OERs and making false and malicious statements.” (Id.)
12

Title VII provides in pertinent part: “[i]t shall be an unlawful employment practice for an
employer . . . to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
In Count IV, Plaintiff also alleges violations of his “constitutional and human rights.” He does
not, however, specify which constitutional rights were violated. (Doc. No. 8 ¶ 46; Doc. No.
10 at 17.)

6

Plaintiff requests that the Court grant him the following relief: (1) render Plaintiff’s
negative Officer Evaluation Reports void; (2) set aside Plaintiff’s “non selection to the grade of
Major”; (3) correct Plaintiff’s records to show that he was selected for promotion in 1986; (4)
promote Plaintiff to a higher rank; (5) declare Plaintiff’s 1988 discharge from the Air Force void
and retroactively restore him to “active duty Commissioned status with higher rank”; (6)
reimburse the cost of this action; (7) award general damages; (8) award punitive damages; and
(9) afford Plaintiff any “further relief as may be deemed appropriate and/or necessary to accord
him full and complete relief.” (Doc. No. 8 at 10-11.)
As noted, Motions to Dismiss are pending. On July 16, 2015, the Court held a hearing on
the Motions to Dismiss. (Doc. No. 25.) On July 27, 2015, Plaintiff filed a “Memorandum of
Additional Evidences [sic]”. (Doc. No. 27.) The Federal Defendants filed a Response in
Opposition to the Memorandum on July 30, 2015, and Defendant Hunter filed a Response in
Opposition to the Memorandum on August 10, 2015. (Doc. Nos. 28, 29.)

For reasons that

follow, the Court will grant both Motions to Dismiss. 13
III.

STANDARD OF REVIEW
Defendants have moved to dismiss the Amended Complaint pursuant to Federal Rules of

Civil Procedure 12(b)(1) & (6). “When a motion to dismiss is based on lack of subject matter
jurisdiction pursuant to Rule 12(b)(1), as well as other Rule 12(b) defenses, the Court should

13

For purposes of this Opinion, the Court has considered the following: the Amended Complaint
(Doc. No. 8); the Motion to Dismiss of Defendant David Hunter (Doc. No. 10); the Motion to
Dismiss of the Federal Defendants (Doc. No. 15); the Response in Opposition to Defendant
Hunter’s Motion to Dismiss (Doc. No. 17), the Response in Opposition to the Motion to
Dismiss of the Federal Defendants (Doc. No. 18); the Reply of Defendant Hunter (Doc. No.
20); the “Memorandum of Additional Evidences [sic]” of Plaintiff (Doc. No. 27); the
Response in Opposition of the Federal Defendants (Doc. No. 28); the Response in Opposition
of Defendant Hunter (Doc. No. 29); and the arguments of Plaintiff and defense counsel made
at the hearing held on the Motions on July 15, 2015 (Doc. No. 30).
7

consider the Rule 12(b)(1) challenge first because, if it must dismiss the complaint for lack of
subject matter jurisdiction, the accompanying defenses become moot and need not be
addressed.” Wyeth and Cordis Corp. v. Abbot Labs., No. 8-230, 2008 WL 203685, at *2 (D.N.J.
May 8, 2008); see also Tagayun v. Stolzenberg, 239 F. App’x. 708, 710 (3d Cir. 2007) (“An
actual determination must be made whether subject matter jurisdiction exists before a court may
turn to the merits of the case.”); McCurdy v. Esmonde, 2003 WL 223412, at *4 (E.D. Pa. Jan.
30, 2003) (“Without jurisdiction the court cannot proceed at all in any cause.”) (citing Steel Co.
v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)).
Federal Rule of Civil Procedure 12(b)(1) states:
(b) How to Present Defenses.
Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following
defenses by motion:
(1) lack of subject-matter jurisdiction . . .
Fed. R. Civ. P. 12(b)(1). “Challenges to subject matter jurisdiction under Rule 12(b)(1) may be
either facial or factual.” Smith v. Rebstock, Civ. No. 10-01515, 2011 WL 1235142, at *1 (E.D.
Pa. 2011) (citing Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009)).
Facial attacks—like the one presented in this case—challenge the sufficiency of the pleadings,
and the court must accept the complaint's allegations as true. 14 Id. “Plaintiffs, as the parties
invoking the federal courts' jurisdiction, bear the burden of establishing their standing.”
Common Cause of Pennsylvania, 558 F.3d at 257.

14

Defendants argue for dismissal pursuant to both Rule 12(b)(1) and Rule 12(b)(6). (Doc. No.
10 at 16; Doc. No. 15-2 at 8-13.) Additionally, Defendant Hunter argues for dismissal
pursuant to Rules 12(b)(2) & (3). (Doc. No. 10 at 16.) Because the Court will dismiss this
case pursuant to Rule 12(b)(1) for reasons discussed below, it need not consider the arguments
for dismissal pursuant to Rules 12(b)(2), (3), & (6).
8

IV.

ANALYSIS
A.

Counts I, II, III, and V Fail to State Claims against Defendants under Rule
12(b)(1)

In Count I, Plaintiff alleges “mental agony” against Defendants Daley, Vanek, Walker,
and Burr. (Doc. No. 8 ¶¶ 35-39.) Plaintiff states:
Defendants [sic] Alex Daley intends to cause and did cause a harmful contact with
Plaintiff by yelling, shouting and locking my office disgracefully, transferred me
to Bio engineering Department, changing my professional title and down grading
my OER and criminally destroying all the record of Radiation safety Minutes
of meeting. . . . As a direct and proximate result of all defendants, Plaintiff
suffered extreme mental anguish and physical pain. These injuries have caused
Plaintiff to suffer general damages in an amount to be determined by proof at trial
by a jury. . . . Defendants at MGMC acts were done knowly, [sic] willfully and
with malicious intent, and Plaintiff is entitled to punitive damages in an amount
determined by proof at trial before a jury.
(Id. (emphasis in original).) Because “mental agony” is not a state or federal claim for relief, the
Court will construe Count I as a state law claim of intentional infliction of emotional distress.
Count II alleges assault. Plaintiff asserts that Defendants Daley, Walker, Vanek, Burr, and
Hunter—“jointly as a gang of five”—assaulted Plaintiff by shouting and yelling at Plaintiff and
“almost making threats.” (Id. ¶¶ 40-41.) Plaintiff avers that this behavior has caused him
psychological and mental damage. (Id.)
In Count III, Plaintiff alleges tortious interference with contracts by “Defendants at
MGMC.” (Id. ¶¶ 42-44.) Count V sets forth claims of defamation and slander. (Id. ¶¶ 47-50.)
Plaintiff specifically alleges that Defendants Vanek, Walker, Daley, Burr, and Hunter “made
maliciously false statements, calling Press, bad mouthing about my educational qualification,
experience and training . . .” (Id. ¶ 48.)
As noted, Counts I, II, III, and V are all state law tort claims. The Court will first analyze
these Counts as to President Obama, and then as to the remaining Defendants.

9

1.

The President of the United States Is Entitled to Absolute Immunity

Counts I, II, III, and V must be dismissed against President Obama because he has
absolute immunity from suit. It is well settled that the President of the United States is entitled
to absolute immunity from suits for civil damages based on official acts. See Forrester v. White,
484 U.S. 219, 225 (1988); Nixon v. Fitzgerald, 457 U.S. 731, 749-755 (1982). Furthermore,
Plaintiff’s sole reference to President Obama appears in the fact section of his Amended
Complaint, and concerns the President’s failure to respond to Plaintiff’s appeals. 15 Because
President Obama is cloaked with absolute immunity from suit, he will be dismissed as a
defendant.
2.

The Federal Defendants Are Immune from Suit under the Westfall
Act, and the United States of America Cannot Be Sued under the
Feres Doctrine

The Federal Defendants have set forth several reasons for dismissal of Counts I, II, III,
and V. (Doc. No. 15.) Initially, they argue that the United States must be substituted as the lone
defendant in Counts I, II, III, and V pursuant to the Federal Employees Liability Reform and Tort
Compensation Act of 1988, 28 U.S.C. § 2679 (2010) (the “Westfall Act”). (Doc. No. 15-2 at 6.)
The Westfall Act “accords federal employees absolute immunity from common-law tort claims
arising out of acts they undertake in the course of their official duties.” Osborn v. Haley, 549
U.S. 225, 229 (2007); 28 U.S.C. § 2679(b)(1). Upon presentation of certification by the Attorney
General—or a United States Attorney serving on her behalf—that a federal employee sued for a
common law tort was acting within the scope of his employment, “the employee is dismissed

15

Plaintiff states: “Defendant Barack Obama is the President of USA and Commander in Chief
of US Armed Forces. After exhausting all other avenues, Plaintiff submitted eight (8) appeals
to Hon. President Obama . . . for seeking justice. Plaintiff never received a single response.”
(Doc. No. 8 ¶ 26.)

10

from the action, and the United States is substituted as defendant in place of the employee. The
litigation is thereafter governed by the Federal Tort Claims Act.” Id. at 230. 16
Certification by the United States Attorney General or United States Attorney “is prima
facie evidence that the employee's challenged conduct occurred within the scope of employment,
but it is not conclusive.”

Melo v. Hafer, 13 F.3d 736, 742 (3d Cir. 1994) (quoting Schrob v.

Catterson, 967 F.2d 929, 936 (3d Cir. 1992)). “If the matter is disputed, the burden then shifts to
the plaintiff, who must come forward with specific facts rebutting the certification.” Schrob, 967
F.2d at 935; see also Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 422 (1995) (“Ordinarily,
scope-of-employment certifications occasion no contest.”).

Therefore, Defendants argue,

Plaintiff’s intentional tort claims against the United States must proceed under the FTCA.
Here, the United States Attorney for the Eastern District of Pennsylvania certified that
Defendants were federal employees within the meaning of the FTCA, and that they were acting
within the scope of their federal employment at all relevant times. (Doc. No. 15, Ex. C.)
Plaintiff has not presented any evidence to rebut the certification of the United States Attorney,
nor has he called into question its validity. In his response to the Federal Defendants’ Motion to
Dismiss, he does not refute the certification. Therefore, based on the certification by the United
States Attorney, the Court will dismiss the individual Federal Defendants with respect to Counts
I, II, III, and V, and substitute the United States as the only defendant.

16

The Federal Torts Claims Act (“FTCA”) establishes a limited waiver of the federal
government's immunity from private suit. See 28 U.S.C. § 1346(b). Under the FTCA, the
federal government may be sued in a district court for “personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the place where
the act or omission occurred.” 28 U.S.C. § 1346.

11

In arguing that Counts I, II, III, and V must be dismissed against them, the Federal
Defendants contend that the Court lacks subject matter jurisdiction over Plaintiff’s claims under
the Feres Doctrine, and that consideration by this Court of Plaintiff’s claims “would inevitably
result in impermissible judicial second-guessing of military decision-making.” (Doc. No. 15-2 at
9; see also Doc. No. 10 at 26.) In Feres v. United States, the Supreme Court of the United States
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.”
340 U.S. 135, 146 (1950).
The Feres Doctrine applies to state law intentional torts. See John v. Sec'y of Army, 484
F. App'x 661, 663 (3d Cir. 2012) (“the rationale for precluding [FTCA] suits [against the federal
government] applies equally to suits brought directly under state law” because “[s]uits founded
on state law have the same potential for undermining military discipline as federal tort claims”);
Jaffee v. United States, 663 F.2d 1226, 1239 (3d Cir. 1981) (holding that the Feres doctrine
extends to bar a federal service member’s state law intentional tort claim against Army
supervisors). “Feres should be interpreted to “bar all suits on behalf of service members against
the Government based upon service-related injuries.” Loughney v. United States, 839 F.2d 186,
188 (3d Cir. 1988) (quoting United States v. Johnson, 481 U.S. 681 (1987)) (emphasis in
original). The Third Circuit has noted that, “[w]hen a court finds that a suit against the Federal
Government is not within the scope of the FTCA due to the Feres doctrine, it must necessarily
conclude that the United States has not waived sovereign immunity with respect to that suit.”

12

Loughney, 839 F.2d at 188 (concluding that the “proper course” in such a case is Rule 12(b)(1)
dismissal). 17
In his response to Defendants’ Motion to Dismiss, Plaintiff claims that “jurisdiction lies
in this Court based on the facts that he is a resident of the U.S. District Court for Eastern District
of Pennsylvania and was such a resident when he was originally recruited in the Air Force and
appointed directly as a Captain with the official title of Chief of Medical Physics and Radiation
Safety Officer.” (Doc. No. 18 at 2.) No other averment is made in opposition to Defendants’
subject matter jurisdiction argument.
Plaintiff bears the burden of proving that this Court has subject matter jurisdiction to hear
his claims. He has not set forth any argument as to why his intentional tort claims against the
federal government are not barred by the Feres Doctrine. Since the Feres Doctrine bars FTCA
suits against the government for injuries to servicemen arising during the course of employment,
the claims against the United States of America must be dismissed. Accordingly, the Court will
dismiss Counts I, II, III, and V for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). 18

17

The Feres Doctrine bars monetary damages in these instances, but does not necessarily bar
injunctive relief. See Jorden v. Nat'l Guard Bureau, 799 F.2d 99, 107-108 (3d Cir. 1986)
(noting that the general rule bars a damages action by military personnel against superior
officers, but not a claim for injunctive relief); see also Urie v. Roche, 209 F. Supp. 2d 412, 417
(D.N.J. 2002). The Court will discuss Plaintiff’s claim for injunctive relief below.

18

Defendants make several more arguments for dismissal. These arguments are made under
Federal Rule of Civil Procedure 12(b)(6). According to Defendants, Plaintiff’s claims also
fail because Plaintiff failed to exhaust administrative remedies under the FTCA, Plaintiff’s
claims are barred by the statutes of limitations governing the FTCA and Title VII, and the
United States enjoys sovereign immunity from suit. (Doc. No. 10 at 29-38; Doc. No. 15 at
10-12.) Additionally, Defendant Hunter argues that the Court lacks personal jurisdiction over
him under Rule 12(b)(2) and that the Eastern District of Pennsylvania is not the proper venue
under Rule 12(b)(3). (Doc. No. 10 at 16.) Because the Court lacks subject matter jurisdiction
over this case pursuant to Rule 12(b)(1), it will not analyze the accompanying defenses.
13

B.

Count IV, “Violation of My Human Rights,” Also Fails under Rule 12(b)(1)

In Count IV, Plaintiff alleges a “violation of [his] human rights.” Plaintiff asserts that he
is a “victim of retaliation, racial discrimination, harassment and intimidation” by Defendants
Daley, Walker, Vanek, Burr, and Hunter. According to Plaintiff, the five Defendants “engaged in
blatant act [sic] of terrorism to harass me due to my religious creed, color and national origin.”
(Doc. No. 8 ¶ 46.) Plaintiff also alleges that the five Defendants forced him to leave the Air
Force by “destroying [his] OERs and making false and malicious statements.” (Id.) Although
Plaintiff does not mention Title VII of the Civil Rights Act of 1964, the claim made in Count IV
appears to allege discrimination based on race and religion as well as constructive discharge
under Title VII.
In addition to alleging a Title VII claim, Plaintiff appears to allege constitutional
violations pursuant to 42 U.S.C. § 1983 (“Section 1983”). Plaintiff states, “Certainly it is
violation of my constitutional and human rights and they forced me to leave USAF by destroying
my OERs and making false and malicious statements.” (Doc. No. 8 ¶ 46.) He does not,
however, specify which of his constitutional rights were violated.
Plaintiff’s employment discrimination claim fails under Rule 12(b)(1) because the Feres
Doctrine bars claims brought by military personnel under Title VII. As a preliminary matter, a
federal employee asserting a claim of employment discrimination must name as the defendant
the head of the appropriate agency. See 42 U.S.C. § 2000e-16(c) (“. . . the head of the
department, agency, or unit, as appropriate, shall be the defendant.”); Wadhwa v. Sec'y, Dep't of
Veterans Affairs, 505 F. App'x 209, 213 (3d Cir. 2012) (“the only proper defendant in a federal
employee's Title VII action is the head of the appropriate agency.”). As such, the only proper
Defendant with regard to this claim is Defendant James, the Secretary of the Air Force.

14

Moreover, the Feres Doctrine bars Title VII claims brought by military personnel against
their superiors. See Willis v. Roche, 256 F. App’x. 534, 536 (3d Cir. 2007) (interpreting the
Feres Doctrine to bar Title VII claims, reasoning that “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.”); Tucker v. Wynne, No.
08-4390JAP, 2009 WL 2448520, at *4 (D.N.J. Aug. 10, 2009) (holding that air force mechanic
was barred by Feres from bringing claims under Title VII, and, accordingly, the court lacked
subject matter jurisdiction over his claims under Rule 12(b)(1)); Moore v. Pennsylvania Dep't of
Military & Veterans Affairs, 216 F. Supp. 2d 446, 452 (E.D. Pa. 2002) (holding that Title VII
provides a remedy for civilian employees of military departments but not members of the armed
forces); Urie v. Roche, 209 F. Supp.2d 412, 417 (D.N.J. 2002) (applying the Feres doctrine to
prevent Air National Guard technicians from suing their superiors under Title VII).
The Feres Doctrine also bars suits for damages against federal officers for constitutional
violations. See Chappell v. Wallace, 462 U.S. 296, 305 (1983) (“We hold that enlisted military
personnel may not maintain a suit to recover damages from a superior officer for alleged
constitutional violations.”); John, 484 F. App'x at 663 (finding former Virgin Islands National
Guard member’s constitutional claims barred by the Feres Doctrine); Jorden, 799 F.2d at 100
(holding damages claims under Section 1983 against state military officers are barred by Feres).
At all times relevant to the Amended Complaint, Plaintiff was a uniformed military
employee serving as a Captain in the United States Air Force. Therefore, his employment
discrimination claims are barred by the Feres Doctrine. Likewise, even if Plaintiff stated a
cognizable claim for constitutional violations, that claim would also be barred by the Feres

15

Doctrine. Therefore, Count IV must be dismissed for lack of subject matter jurisdiction pursuant
to Rule 12(b)(1). 19
C.

Plaintiff’s Claims for Injunctive Relief Are Time-Barred

In addition to money damages, Plaintiff requests the following relief:

(1) render

Plaintiff’s negative Officer Evaluation Reports void; (2) set aside Plaintiff’s “non selection to the
grade of Major”; (3) correct Plaintiff’s records to show that he was selected for promotion in
1986; (4) promote Plaintiff to a higher rank; (5) declare Plaintiff’s 1988 discharge from the Air
Force void and retroactively restore him to “active duty Commissioned status with higher rank”;
and (6) afford Plaintiff any “further relief as may be deemed appropriate and/or necessary to
accord him full and complete relief.” (Doc. No. 8 at 10-11.)
In support of his claims for injunctive relief, Plaintiff relies on the Administrative
Procedure Act, 5 U.S.C. § 701, et seq., and the Tucker Act, 28 U.S.C. § 1491. 20 (Doc. No. 30 at

19

Because the Court finds that the Feres Doctrine bars any potential Title VII or constitutional
claim, it need not rule on whether Plaintiff has pled any plausible claim of constitutional or
statutory rights violations.

20

The Administrative Procedures Act states, in relevant part:
To the extent necessary to decision and when presented, the reviewing court shall
decide all relevant questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the terms of an agency
action. The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to
be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law . . .

5 U.S.C. § 706. The Tucker Act states, in relevant part:

16

17, 45; Doc. No. 8, Ex. A; Doc. No. 27 at 3.) The Administrative Procedure Act empowers
district courts to set aside an agency action, such as the denial of a request to correct records, if it
finds that the action is “arbitrary and capricious.” 5 U.S.C. § 706. Therefore, the Administrative
Procedure Act could afford Plaintiff an opportunity to have his poor evaluations voided.
Under the Tucker Act, the United States Claims Court and district courts “share original
jurisdiction over non-tort monetary claims against the United States not exceeding $10,000. . . .
[and] [o]riginal jurisdiction over such claims seeking more than $10,000 vests exclusively in the
Claims Court.” Chabal v. Reagan, 822 F.2d 349, 353 (3d Cir. 1987); see also 28 U.S.C. § 1491.
Therefore, the United States waives its sovereign immunity to non-tort claims seeking monetary
relief under the Tucker Act, and this could make it liable for backpay and other non-monetary
damages sought by Plaintiff. Chabal, 822 F.2d at 353.
Furthermore, while the Feres Doctrine bars all suits for damages on behalf of service
members against the Government based upon service-related injuries, “as a general matter,
requests for injunctive relief against the military are reviewable.” Jorden, 799 F.2d at 109.
However, under 28 U.S.C. § 2401, civil actions against the United States are barred “unless the
complaint is filed within six years after the right of action first accrues.”

(a) the district courts shall have original jurisdiction, concurrent with the United
States Court of Federal Claims, of: . . .
(2) Any other civil action or claim against the United States, not exceeding
$10,000 in amount, founded either upon the Constitution, or any Act of
Congress, or any regulation of an executive department, or upon any express
or implied contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort . . .
28 U.S.C. § 1346.

17

The Third Circuit Court of Appeals confronted a limitations issue similar to the one here
in Green v. White, 319 F.3d 560 (2003). In 1981, Green applied to the Board for Correction of
Military Records, requesting that his undesirable discharge be upgraded to an honorable
discharge. Id. at 562. The Board rejected his application. Id. In 1999, he presented new
evidence to the Board and requested reconsideration of his request. Id. The Board again rejected
his application, and Green later sought correction of his military records in a lawsuit against the
Secretary of the Army in district court. Id. at 563. The district court found that the action was
time-barred under 28 U.S.C. § 2401, reasoning that the statute of limitations had started to run in
1982 when the Board first rejected his application. Id.
On appeal to the Third Circuit, the precise issue was whether Green’s claim for
correction of military records accrued when the Army Board first rejected his application, or
when the Board reopened his case and rejected his request for reconsideration on the merits. Id.
The Third Circuit held that the statute of limitations began to run in 1999 when the Board
rejected Green’s request for reconsideration on the merits because Green had presented new
evidence with his request. Id. at 566. Therefore, Green filed the district court complaint within
the statute of limitations period. Id. Significantly, the court also held that “any petition for
rehearing to the ABCMR which does not include ‘new evidence’ or reflect some ‘changed
circumstances’ does not re-start the six-year statute of limitations.” Id.
In the 2014 Letter, which denied repeated requests for reconsideration by Plaintiff,
Colonel Yetishefsky noted that the AFBCMR issued a final determination on Plaintiff’s request
on May 29, 1991. (Doc. No. 8, Ex. A.) Though Plaintiff repeatedly applied for reconsideration,
there is no indication that new evidence was presented on any of those occasions. To the
contrary, the 2014 Letter attached to Plaintiff’s Amended Complaint noted that “no new evidence

18

or information [had been] provided to justify further inquiry.” (Id.) Because there was no
showing of “new evidence” or “changed circumstances” with regard to Plaintiff’s request for
injunctive relief, the six-year statute of limitations began to run on May 29, 1991 when the
AFBCMR issued its final determination. Pursuant to 28 U.S.C. § 2401, Plaintiff had until May
29, 1997 to seek review of the decision of the AFBCMR. Plaintiff filed the instant action on
January 20, 2015, over seventeen years after the statute of limitations period had ended. As such,
his claims for injunctive relief will be denied as untimely.
V.

CONCLUSION
Defendant Hunter’s Motion to Dismiss (Doc. No. 10) and Commonwealth Defendants’

Motion to Dismiss Federal Defendants’ Motion to Dismiss (Doc. No. 15) will be granted. An
appropriate Order follows.

19