Bryant v. Mississippi Military Dept.

• Decision Date: 17 July 2007
• Docket Number: Civil Action No. 3:05CV179TSL-JCS.
• Citation: 519 F.Supp.2d 622
• Parties: Joe H. BRYANT, Jr., Plaintiff v. MISSISSIPPI MILITARY DEPARTMENT, et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

519 F.Supp.2d 622

Joe H. BRYANT, Jr., Plaintiff v. MISSISSIPPI MILITARY DEPARTMENT, et al., Defendants.

Civil Action No. 3:05CV179TSL-JCS.

United States District Court, S.D. Mississippi, Jackson Division.

July 17, 2007.

Paul A. Koerber, Jackson, MS, Wayne E. Ferrell, Jr., Jackson, MS, for Plaintiff.

Emerson Barney Robinson, III, Butler, Snow, O'Mara, Stevens & Cannada, PLLC, Jackson, MS, for Military Department of the State of Mississippi.

J. Stewart Parrish, Malta & Parrish, PLLP, Meridian, MS, Michael Farrell Young Williams P.A., Jackson, MS, for Franklin E. Chalk, Frederick D. Feinstein, Roy A. Graham, Billy Joe Grassett, 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, and Leslie Wilkes.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

With the exception of defendant Greg Malta, the defendants in this cause, Franklin E. Chalk, Frederick D. Feinstein, Roy A. Graham, Billy Joe Gressett, Donald E. Jones, Langford L. Knight, William F. Parten, Robert E. Pierce, Roger E. Shirley, Charles F. Steed, Aaron K. Wilson and Thomas Temple, have moved for summary judgment.¹ Plaintiff Joe H. Bryant, Jr. has responded in opposition to the motion and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that the motion should be granted in part and denied in part, as set forth herein.

Bryant brought this action asserting claims under federal and state law based on allegations that defendants engaged in conduct amounting to threats, intimidation and violence against him in retaliation for his having made allegations of misconduct by members (including defendants) of the 186th Refueling Wing of the Mississippi Air National Guard (MSANG). The facts, as drawn from the record and as set forth in one of the court's previous opinions in this cause, are as follows.² According to his complaint, Bryant began his military service in 1974, and in 1980, was assigned to duty with the MSANG's 186th Tactical Recon Group, which later became the 186th Refueling Wing, located at Key Field in Meridian, Mississippi. Bryant was eventually assigned to MSANG Headquarters, as its Director of Operations. Bryant alleges that between 1990 and 1998, he "began to observe wrongful actions by superiors in the method and manner in which his fellow airmen were being treated." In an effort "to protect and defend his fellow airmen at the 186th, in their jobs, ranks and assignments, as well as to protect the integrity of the 186th," he "took certain actions," including first addressing his allegations and concerns to his superior officers, and ultimately requesting an investigation by the Inspector General of the Department of the Air Force pursuant to 10 U.S.C. § 1034. The Inspector General ultimately undertook two 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 at one point, Bryant, along with the Inspector General's investigator, appeared on a radio talk show and discussed Bryant's allegations and the investigation. Bryant charged that the leadership was corrupt, and vowed to continue working for a change in leadership.

According to Bryant, as a result of his allegations of wrongdoing against senior Guard officials, he was humiliated, intimidated and harassed by various defendants. He claims, for example, that when he first brought his allegations to the attention of then-Brigadier General of the MSANG, Harold Cross, in October 1998, Cross dismissed his complaint. Thereafter, while he was deployed to Bosnia-Herzegovina during January 1999 through July 1999, Cross "sought Plaintiffs voluntary separation from MSANG," directing that plaintiff sign a letter of resignation (which plaintiff refused), and relieved plaintiff of his duties as Director of Operations; when plaintiff returned from Bosnia, he was not reinstated to his former position as Director of Operations but rather was assigned to the position of an officer junior in grade, lieutenant colonel, was directed to assist an officer junior to him; he was ordered to never report to anyone or perform any duties regarding the Wing's flight operations, even though he was a pilot and a colonel; certain of the defendants composed a career-damaging report in an effort to adversely affect his military record; Cross threatened him with loss of his career; he was assigned to a "storeroom" during a mandatory drill weekend and was ridiculed by Weaver and others; he was ordered by defendant Malta to sign dismissal paperwork associated with his dismissal from MSANG; and someone (presumably one of the defendants) forged Bryant's signature to an acknowledgment that he would be separated from MSANG. He alleges, moreover, that several items of his personal property were vandalized, shots were fired around his home, anonymous cards and letters were sent to him and to FedEx, his civilian employer, and two of the defendants actually assaulted him.

Based on these allegations, Bryant has asserted federal claims for violations of the Military Whistleblower Protection Act, 10 U.S.C. § 1034, under 42 U.S.C. §§ 1983 for violation of his First Amendment rights, and under §§ 1985 and 1986. He has also advanced state law claims for violation of the Mississippi Whistleblower Protection Statute, Miss.Code Ann. § 25-9-171, et seq., intentional and/or negligent infliction of emotional distress, intentional interference with contract and defamatory/false light liability. Plaintiff demands as relief compensatory and punitive damages, any penalties available under Mississippi Code Annotated § 25-9-171, et seq., prejudgment and post-judgment interest and attorney's fees. In their motion, defendants seek summary judgment on each of plaintiff's claims.

This court previously held that allegations by Bryant against defendants concerning employment-related actions taken by any of the defendants against him are subject to the Feres bar. See Bryant v. Military Dept. of State of Mississippi, 381 F.Supp.2d 586 (S.D.Miss.2005). However, inasmuch as the individual defendants had filed no dispositive motion at the time of that opinion, there remained an open question as to whether plaintiffs claims against defendants based on allegations that the individual defendants perpetrated threats and acts of vandalism and violence, and other acts of attempted interference with his civilian employment with FedEx on their own, for their own personal reasons and with no arguable military purpose, were covered by Feres or otherwise stated a cognizable claim. Defendants argue in their present motion that the only allegation by Bryant against any of the defendants for acts against him in their military capacities is his charge that defendants Chalk, Knight and Temple gave "assistance and input" to a career-damaging report composed by General Cross. Defendants submit that since this alleged act was done within the course and scope of these defendants' military duties, any claim based on this act is barred by Feres.³ For his part, plaintiff does not dispute that defendants' conduct toward him while he remained in the Guard and prior to his retirement from military service are barred by the Feres doctrine, but he argues that Feres does not preclude his claims based on allegations of violence, threats and intimidation perpetrated by defendants against him after he had already been removed from the Guard and retired from military service. Indeed, the remaining claims against defendants for actions taken against him are not barred by Feres, and defendants do not claim they are; defendants argue, though, that the remaining claims are subject to dismissal for other reasons.

Bryant has alleged that defendants' actions violated the Military Whistleblower Act, 10 U.S.C. § 1034. This court has previously ruled that plaintiff has no viable claim under that Act for the reason that the statute does not authorize a private cause of action. See Bryant, 381 F.Supp.2d 586 (S.D.Miss.2005). Notwithstanding the court's opinion, Bryant argues at one point in his response to defendants' motion that defendants' actions taken in reprisal for his having communicated wrongful conduct to the Inspector General violate 10 U.S.C. § 1034(b)(1) and (2), which is the Military Whistleblower Protection Act.⁴ That Act does not provide a private cause of action, and thus plaintiff has not stated a cognizable claim against defendants under the Act.

Plaintiff has also alleged a claim for violation of the Mississippi Whistleblower Protection Act, Miss.Code Ann. § 25-9-173 et seq.⁵ Defendants submit that plaintiff cannot prevail on this claim for each of three reasons. First, the Act proscribes reprisal or retaliation by a state "agency," not by one's co-workers, and provides a remedy only against the agency and the individual members of its governing board or authority, or where there is no governing board or authority, the agency's executive director;⁶ the Act covers only retaliation or reprisal that adversely affects an employee's compensation or employment status;⁷ and the Act affords no protection for actions taken against an employee after he is no longer employed. Defendants argument on these points appear meritorious, and Bryant has not contended otherwise in response to defendants' motion. Accordingly, summary judgment will be granted on this claim.

Plaintiff charges additionally that defendants' retaliatory actions violated his rights under the First Amendment. In their motion, defendants do not challenge Bryant's assertion that his communications to his military superiors and/or to media outlets concerning allegations of improprieties at the 186th constituted protected speech under the First Amendment. They argue, though, not only does Fe...