Hiles v. Army Review Bd. Agency, Case No. 1:12-cv-673

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtLitkovitz, M.J.
PartiesMARSHALL G. HILES, Plaintiff, v. ARMY REVIEW BOARD AGENCY, et al., Defendants.
Decision Date13 August 2015
Docket NumberCase No. 1:12-cv-673

MARSHALL G. HILES, Plaintiff,
v.
ARMY REVIEW BOARD AGENCY, et al., Defendants.

Case No. 1:12-cv-673

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

August 13, 2015


Black, J.
Litkovitz, M.J.

ORDER AND REPORT AND RECOMMENDATION

Plaintiff Marshall G. Hiles, proceeding pro se, brings this action individually and purportedly on behalf of the estate and heirs of his father, Charles D. Hiles, deceased (hereafter "Hiles"), against a number of federal agencies and departments. Plaintiff names as defendants the Army Review Board Agency (ARBA), the United States Army (Army), the Department of Defense (DOD), and the United States Department of Veterans Affairs (VA). (Doc. 6). This matter is before the Court on the following motions: (1) defendants' motion for summary judgment and renewed motion to dismiss Count II of the complaint (Doc. 97), plaintiff's opposing memorandum and notice of filing of exhibits in opposition to the motion for summary judgment (Docs. 98, 100), and defendants' reply memorandum (Doc. 102); (2) plaintiff's motion for recusal (Doc. 99), defendants' opposing memorandum (Doc. 102), and plaintiff's reply in support of the motion (Doc. 103); and (3) plaintiff's motion to vacate in part the Court's Order dismissing Counts III through VI of the complaint issued on September 16, 2014 (Doc. 101), defendants' response in opposition (Doc. 102), and plaintiff's reply in support of the motion (Doc. 103).

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I. Introduction

This lawsuit arises out of injuries Hiles sustained in World War II during the 1944 Battle of Peleliu and subsequent efforts by Hiles and plaintiff to obtain what they believed to be fair disability ratings and just compensation for those injuries. The lawsuit also involves plaintiff's related efforts to correct military records generated during Hiles's military service to accurately reflect the cause and extent of Hiles's injuries. (Doc. 6). Plaintiff has continued these efforts beyond Hiles's death in 2007.

Plaintiff presented six claims for relief in the complaint. Only two claims are relevant for purposes of this Report and Recommendation.1 In support of his first claim for relief, plaintiff alleges that the Army falsely reported in records documenting the results of Hiles's discharge exam conducted on January 6, 1946, that "everything was normal," including Hiles's mental status. (Doc. 6 at PAGE ID #425, 439). Plaintiff alleges that as a result of the Army's fraudulent conduct, Hiles never received from the VA the proper health care he required and the financial benefits to which he was entitled. (Id.) Plaintiff seeks a Court Order directing the ARBA to correct Hiles's military records to reflect the full extent of the injuries Hiles suffered at the Battle of Peleliu in 1944.

Plaintiff's second claim for relief alleges Hiles was denied the correct disability rating based on repeated acts of misconduct by the VA. Plaintiff seeks retroactive disability benefits from 1948, when Hiles initially applied for benefits, to 2006, when the unit responsible for handling plaintiff's expedited appeal rated Hiles as having a 100% service-connected disability. Plaintiff also challenges the VA's subsequent reduction of the disability rating from 100% to 70%. (Doc. 6 at PAGE ID # 440).

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On March 25, 2013, the undersigned issued a Report and Recommendation on defendants' motion to dismiss the complaint for lack of jurisdiction over the subject matter of the complaint (Doc. 15). (Doc. 38). The undersigned recommended that the complaint be dismissed for want of subject matter jurisdiction and ordered the dismissal of a number of plaintiff's motions, including a motion to admit evidence, a motion for oral argument, and a motion to stay. (Id.). Judge Herman Weber issued an Order dated September 16, 2014, adopting the Report and Recommendation as modified. (Doc. 67). Judge Weber found that Count I was not properly dismissed because the District Court has subject matter jurisdiction to review the decisions of the Army Board for Correction of Military Records (ABCMR). (Id.). Judge Weber adopted the undersigned's recommendation as to the second through sixth claims for relief and dismissed those claims with prejudice. (Id.). On December 10, 2014, Judge Weber granted in part plaintiff's motion for reconsideration of the September 2014 Order as to the second claim for relief in light of the Sixth Circuit's decision in Anestis v. U.S., 749 F.3d 520 (6th Cir. 2014). (Doc. 80). On that same date, Judge Weber transferred the case to the Clerk for reassignment, and the case was reassigned to Judge Timothy Black for all further proceedings. (Doc. 81).

The undersigned issued an Order dated January 26, 2015, which explained the scope of Judge Weber's Order on the motion to reconsider as follows:

An Order was issued on December 10, 2014, granting in part plaintiff's motion for reconsideration. (Doc. 80). The Court explained that although it had denied plaintiff's motion to amend/motion for summary judgment for lack of subject matter jurisdiction over plaintiff's claims, plaintiff had cited a case in his reply brief filed on November 17, 2014 (Doc. 78), that called the Court's subject matter jurisdiction ruling into question. (Doc. 80 at 6-7, citing Anestis v. U.S., 749 F.3d 520 (6th Cir. 2014)). The Court found that Anestis "advised that in certain circumstances, [district courts] do have subject matter jurisdiction over claims against the Veterans Administration and certain tort claims are not precluded by sovereign immunity." (Id.). The Court decided that the parties should have an opportunity to brief whether "this advice to the United States District Court

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applies to plaintiff's claims in this case," following which the Court would make a determination on the issue. (Id. at 7-8). The Court granted plaintiff's motion to reconsider the Order dismissing plaintiff's second, third, fourth, fifth and sixth claims with prejudice for lack of subject matter jurisdiction (Doc. 67), but only as to the second claim[.] (Doc. 80 at 8).

(Doc. 89 at 2-3). The Court clarified that the procedural posture of the case stood as follows:

• The first claim for relief remained pending before the Court in light of Judge Weber's Order dated September 16, 2014, which modified the undersigned's Report and Recommendation and found there is subject matter jurisdiction over this claim. (Doc. 67).

• The parties were to brief whether the District Court has subject matter jurisdiction over plaintiff's second claim for relief pursuant to the Court's Order of December 10, 2014. (Doc. 80).

(Id. at 4, 6).

Plaintiff subsequently submitted a brief on the jurisdictional issue (Doc. 96), and defendants filed their renewed motion to dismiss Count II on the ground the Court lacks subject matter jurisdiction over the claim. (Doc. 97). Additionally, plaintiff filed a motion to vacate the Court's ruling dismissing Counts III through V of the Complaint for lack of subject matter jurisdiction and a motion for Judge Black and the undersigned Magistrate Judge to recuse themselves from this case. (Docs. 99, 101). The motions are ripe for decision.

II. Motion for recusal (Doc. 99)

A. Standard

Plaintiff has filed a motion for recusal requesting that both Judge Black and Magistrate Judge Litkovitz recuse themselves from this case. In support of his motion, plaintiff relies on 28 U.S.C. §§ 144 and 455, which govern recusals in civil cases. Section 144 provides, in pertinent part:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a

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personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

28 U.S.C. § 144. The statute requires that such affidavit "shall state the facts and the reasons for the belief that bias or prejudice exists. . . ."

Judges and magistrate judges are bound by the recusal standard set forth in 28 U.S.C. § 455(a): "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Ragozzine v. Youngstown State Univ., 783 F.3d 1077, 1079 (6th Cir. 2015) (quoting 28 U.S.C. § 455(a)). Section 455(b) sets forth the following additional circumstances under which a judge shall disqualify himself: (1) the judge "has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"; (2) the judge in private practice served as a lawyer in the matter in controversy, or a lawyer with whom the judge "previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning" the matter; (3) the judge has served in governmental employment and in such capacity "participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy"; (4) the judge knows that he, his spouse or a minor child residing in his household "has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the...

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