Fuller v. Secretary of Defense of U.S.
| Decision Date | 18 July 1994 |
| Docket Number | No. 93-2791,93-2791 |
| Citation | 30 F.3d 86 |
| Parties | Don B. FULLER, Appellant, v. The SECRETARY OF DEFENSE OF the UNITED STATES; The Secretary of the Navy; The Commandant of the United States Marine Corps; The Director, Marine Corps Reserve Support Center; The Commanding General, Fourth Marine Division, United States Marine Corps, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Don B. Fuller, Minneapolis, MN, argued, for appellant.
Douglas Ross, Washington, DC, argued (Frank W. Hunger, Francis X. Hermann, Anthony J. Steinmeyer and Douglas Ross of Washington, D.C., and Lt. Karen Gibbs Ernst of Alexandria, VA, on the brief), for appellees.
Before MAGILL, Circuit Judge, FLOYD R. GIBSON and JOHN R. GIBSON, Senior Circuit Judges.
Don B. Fuller appeals from the district court's 1 order dismissing his complaint, denying his motion for leave to amend the complaint, and denying his motion for Rule 11 2 sanctions. We affirm. 3
I. BACKGROUND
Fuller filed suit in district court to obtain review of an administrative decision to separate him from the United States Marine Corps Reserves (the Reserves). Fuller entered the Reserves upon retirement from the United States Marine Corps. A practicing attorney, Fuller eventually rose to the rank of colonel.
In 1990, the Defense Investigative Service (DIS) learned that a state court had issued a restraining order preventing Fuller from harassing his former girlfriend who accused him of stalking her. In the course of its investigation, DIS also discovered that Fuller may have engaged in unprofessional behavior during the court proceedings regarding the stalking incident. Eventually, a Board of Inquiry (the Board) convened to determine whether Fuller should be separated from the Reserves. Two possible bases for separation were considered: misconduct related to the stalking incident and substandard performance of duty as evidenced by Fuller's demonstration of poor leadership qualities. A hearing was held that was attended by Fuller and his military counsel.
After consideration of both parties' evidence and arguments, the Board found that the evidence supported a finding of misconduct and substandard performance. The Board recommended that Fuller be retired from the Reserves at the inferior grade of lieutenant colonel. In February 1992, the Secretary of the Navy approved the recommendation, noting that Fuller lacked sufficient time as a full colonel to retire in that grade.
In March of 1992, this action was commenced by Fuller against the United States Secretary of the Defense, the Secretary of the Navy, the Commandant of the Marine Corps, the Director of the Marine Corps Reserve Center, and the Commanding General of the 4th Marine Division of the United States Marine Corps (collectively, the defendants). Fuller, alleging that the Board hearing did not afford him due process, requested the district court to (1) enjoin the enforcement of and set aside the retirement decision, (2) restore him to his former status, (3) expunge from his military records references to the stalking incident and the DIS investigation, (4) order the defendants to provide him with precise standards of leadership, and (5) order a new hearing.
Pending evaluation for physical or mental disability by a Physical Evaluation Board (PEB), the defendants agreed to refrain from separating Fuller from the Reserves. Ultimately, the PEB found that Fuller was physically qualified for service and thus ineligible for a preferable medical retirement. Fuller moved for an injunction preventing his separation from the Reserves. The district court issued a thirty-day stay, pending its decision on Fuller's motion for injunctive relief. In March 1993, injunctive relief was denied. Fuller retired on April 1, 1993.
After Fuller's retirement, the defendants moved to dismiss the complaint. Fuller, in turn, moved to file an amended complaint and requested the imposition of Rule 11 sanctions against the prosecuting attorney and an attorney from the Judge Advocate General's Corps (JAG). The district court granted the motion to dismiss the complaint and denied Fuller's motions. Fuller timely appealed.
III. DISCUSSION
The district court granted the defendants' motion to dismiss. The district court based its dismissal on (1) Fuller's failure to bring his retirement and expungement claims before the Board of Correction for Military Records (BCMR) and (2) the defendants' immunity from suit because they were sued in their official capacity. Fuller conceded that the original complaint was subject to dismissal for the reasons cited by the district court, and hence he did not oppose the motion to dismiss the complaint. Rather, he filed a motion for leave to amend the complaint. Because Fuller did not oppose the motion to dismiss the complaint, we decline to review this claim. 4
We review the denial of a motion for leave to amend a complaint for an abuse of discretion. Brown v. Wallace, 957 F.2d 564, 565 (8th Cir.1992). Because defendants had already filed their answer to the original complaint at the time the motion was filed, Fuller may only amend the complaint by leave of court. See Fed.R.Civ.P. 15(a). "[L]eave shall be freely given when justice so requires." Id. Leave to amend should be granted absent a good reason for the denial, such as undue delay, bad faith, undue prejudice to the nonmoving party, or futility. Thompson-El v. Jones, 876 F.2d 66, 67 (8th Cir.1989).
Fuller filed a ninety-five-page proposed amended complaint (Amended Complaint). Raising eighteen counts, the Amended Complaint dismissed claims against the Commandant of the Marine Corps, the Director of the Marine Corps Reserve Support Center, and the Commanding General of the 4th Marine Division, and sought to add as defendants, Richard Cheney, H. Lawrence Garrett III, Robert J. Turay, Robert Simpson, Lee R. Sampson, Lee Olson, D.L. Haurilick, Robert Small, Alicia Connolly, and the United States of America.
The Amended Complaint brought Bivens actions against five DIS agents. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971) (). It also brought Bivens actions against Richard Cheney, the former Secretary of Defense, for failing to supervise and train DIS agents, and...
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