Bryant v. Military Dep't Of The

• Decision Date: 17 February 2010
• Docket Number: No. 09-60182.,09-60182.
• Citation: 597 F.3d 678
• Parties: Joe H. BRYANT, Jr., PlaintiffAppellant-Cross-Appellee, v. MILITARY DEPARTMENT of the State OF MISSISSIPPI, Defendant-Appellee-Cross-Appellant,
• Court: U.S. Court of Appeals — Fifth Circuit

597 F.3d 678

Joe H. BRYANT, Jr., PlaintiffAppellant-Cross-Appellee, v. MILITARY DEPARTMENT of the State OF MISSISSIPPI, Defendant-Appellee-Cross-Appellant,

No. 09-60182.

United States Court of Appeals, Fifth Circuit.

Feb. 17, 2010.

Franklin E. Chalk; Frederick D. Feinstein; Roy A. Graham; Billy Joe Gressett; Donald E. Jones; Langford L. Knight; F. Gregory Malta; William F. Parten; Robert E. Pierce Roger E. Shirley; Charles F. Steed Aaron K. Wilson; Thomas Temple John Does 1-20; Leslie Wilkes, Defendants-Appellees.

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Paul Anderson Koerber, Jackson, MS Wayne E. Ferrell, Jr., Law Office of Wayne E. Ferrell, Jr., Jackson, MS, for Bryant.

Lieutenant Colonel Emerson Barney Robinson III, Deputy Joint Staff Judge Advocate, Joint Force Headquarters, Mississippi National Guard, Jackson, MS, for Military Dept. of Mississippi.

Jay Max Kilpatrick, Lindsay Green Watts, Young Williams, P.A., Jackson, MS, for Chalk, Feinstein, Graham, Gressett, Jones, Knight, Malta, Parten, Pierce, Shirley, Steed, Wilson, Temple, John Does 120, Wilkes.

Appeals from the United States District Court for the Southern District of Mississippi.

Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Col. (Ret.) Joe H. Bryant ("Bryant"), a former member of the Mississippi Air National Guard's ("MSANG") 186th Refueling Wing, sued MSANG and individual MSANG officials ("Individual Appellees") asserting claims under: (1) the Military Whistleblower Protection Act, 10 U.S.C. § 1034; (2) the Mississippi Whistleblower Protection Act, Miss.Code Ann. §§ 25-9171-77; (3) 42 U.S.C. § 1983; (4) 42 U.S.C. § 1985; and (5) 42 U.S.C. § 1986. Bryant later amended his complaint to add various state law claims against individual MSANG officials. Through three separate orders the district court disposed of all claims against MSANG and the Individual Appellees in their official capacities and all of the federal law claims against the Individual Appellees in their individual capacities.¹ Bryant appeals these rulings. MSANG cross-appeals, alleging that the district court erred in denying MSANG's motion for sanctions. We affirm the district court's dismissal of Bryant's claims and, as to MSANG's cross-appeal, affirm the district court's denial of sanctions.

I

Over an eight-year period during his MSANG service, Bryant allegedly observed various acts of misconduct by MSANG officials. Bryant reported the alleged misconduct to superior officers and ultimately filed a complaint with the Inspector General of the Department of the Air Force. The Inspector General undertook two separate investigations, in which a number of Bryant's allegations of wrongdoing were substantiated. Bryant's charges and the ensuing investigation were the subject of regular media coverage in local newspapers and a talk radio show.

According to Bryant, MSANG and the Individual Appellees responded to Bryant's "whistleblowing" with a litany of retaliatory acts. These acts allegedly included employment-related actions such as attempts to force Bryant's resignation, career-damaging reports, and assignment to a position under a junior officer. Bryant also claims that MSANG officials committed acts of vandalism and violence, such as breaking into Bryant's vehicle, stealing his laptop, firing gun shots in and around his home, cutting the gasoline line to his wife's vehicle, harassing him with anonymous phone calls, and physically assaulting him. Several of the Individual Appellees also filed civil lawsuits against Bryant, which he contends were retaliatory and lacked merit. Based on these allegations Bryant asserted federal and state law claims against MSANG and the Individual Appellees.

In August 2005, the district court granted a motion to dismiss all claims against MSANG and the Individual Appellees in their official capacities. The district court dismissed all claims against MSANG because the Military Whistleblower Protection Act, 10 U.S.C. § 1034 does not create a cause of action, and insofar as MSANG is a state agency, all other claims are barred by the Eleventh Amendment. Additionally, the district court held that all employment-related claims against MSANG and the Individual Appellees in their official capacities are barred under Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In July 2007, the district court granted summary judgment in favor of the Individual Appellees in their individual capacities as to Bryant's Military Whistleblower Protection Act, Mississippi Whistleblower Protection Act, §§ 1983, 1985(2) and (3), and assault and battery claims. The court also disposed of some, but not all, of Bryant's claims under §§ 1985(1) and 1986. Finally, in July 2008, the district court granted summary judgment in favor of the Individual Appellees in their individual capacities as to Bryant's remaining §§ 1985(1) and 1986 claims. The district court entered a Rule 54(b) certification of final judgment as to those claims denied and parties dismissed by the orders of August 26, 2005, July 17, 2007, and July 17, 2008. Bryant thereafter brought the instant appeal in which he contends that the district court erroneously applied the Feres doctrine to dismiss the claims against MSANG and the Individual Appellees in their official capacities, incorrectly granted summary judgment in the July 2007 order, and misapplied First Amendment law in determining that Bryant's § 1985(1) and § 1986 claims predicated on allegedly retaliatory litigation were barred.

II

This court reviews Rule 12(b)(1), 12(b)(6), and 12(c) dispositions de novo.²See, e.g., Walch v. Adjutant Gen.'s Dep't of Tex., 533 F.3d 289, 293 (5th Cir.2008); Doe v. MySpa.ce, Inc., 528 F.3d 413, 418 (5th Cir.2008). This court also reviews de novo a grant of Rule 56 summary judgment. The court affirms summary judgment if the record reveals no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Croft v. Governor of Texas, 562 F.3d 735, 742 (5th Cir.2009). When conducting its review, the court will evaluate the evidence in the light most favorable to the non-movant. Breaux v. Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir.2009).

III

Bryant asserts that the district court erred in dismissing his claims against MSANG under the Feres doctrine. His brief, however, substantively discusses the Feres issue only in relation to his vandalism and violence claims against the Individual Appellees. The district court clearly held that Feres was not a ground for disposing of the vandalism claims and only applied Feres to Bryant's claims of employment-related retaliation against MSANG and the Individual Appellees. Bryant v. Military Dep't of State of Miss., 381 F.Supp.2d 586, 594 (S.D.Miss.2005) ("Bryant I"). Accordingly, the limited Feres discussion in Bryant's brief centers around the wrong claims and the wrong parties. Bryant's failure to adequatelybrief the Feres issue is a waiver of these claims. United States v. Martinez, 263 F.3d 436, 438 (5th Cir.2001). Bryant did not preserve the issue merely by mentioning it in the "Statement of Issues." See, e.g., Justiss Oil Co. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir.1996) (declining to address the merits of an issue raised only in the Statement of Issues and not argued in the body of the brief). Accordingly, we decline to address the propriety of the district court's dismissal under Feres.

Moreover, the decision below stands on independent grounds. The district court ruled that all of Bryant's claims against MSANG are barred by the Eleventh Amendment and that the §§ 1983, 1985, and 1986 claims are barred because MSANG is not a "person" under those statutes. Bryant failed to argue that either of those determinations was incorrect. His failure to do so is fatal to his appeal of MSANG's dismissal from this litigation. See, e.g., Berry v. Jefferson Parish, 326 FedAppx. 748, 750 (5th Cir.2009) (unpublished) ("An unbriefed argument is an unpreserved argument."); see also Fed. R.App. P. 28(a)(9)(A).

IV

Bryant next contends that the district court erroneously granted partial sum mary judgment in its July 2007 order. See Bryant v. Miss. Military Dep't, 519 F.Supp.2d 622, 626 (S.D.Miss.2007) ("Bryant II")³ Bryant's appeal addresses only the district court's grant of summary judgment on his §§ 1983, 1985(1) and (2) and 1986 claims, and the state law assault and battery claims.⁴ The district court ruled that Bryant could not succeed on any § 1983 First Amendment claim because he failed to show that the Individual Appellees acted "under color of state law." With respect to Bryant's §§ 1985 and 1986 claims, the district court ruled that any claims under §§ 1985(2) and (3) fail because Bryant could not demonstrate that the Individual Appellees were motived by "racial or some other type of invidious, class-based distinction." Id. at 628 (citations omitted). The district court further found that Bryant failed to create a genuine issue of material fact with respect to his § 1985(1) claim based on allegations of vandalism and violence. Finally, the district court dismissed Bryant's assault and battery claims as barred by the statute of limitations.

A

A claim for violation of First Amendment rights must be brought pursu-ant to 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege facts showing that a person, acting under color of state law, deprived the plaintiff of a right, privilege or immunity secured by the United States Constitution or the laws of the United States. Ellison v. De La Rosa 685 F.2d 959, 960 (5th Cir.1982). A person acts "under color of state law" if he engages in the "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law...." Townsend v. Moya, 291 F.3d 859, 861 (5th Cir.2002) (quoting United States v. Causey, 185 F.3d 407,...