Luckett v. Bure, Docket No. 01-6178.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBright
Citation290 F.3d 493
PartiesHugo B. LUCKETT, Plaintiff-Appellant, v. Paul BURE, Mr., Local President 2739 AFGE, Defendant, Lynne E. Derie, LTC, Chief, Support Division, United States Army Reserve Command (USARC), William Collin Jr., Gen., CG, 77th Regional Support Command, Tom Kane Jr., Mr., 77th RSC, PMO, Terry W. Hunter, LTC, Group Deputy Commander, Michael Scotto, LTC, 695th CSB, Commander, Robert F. Weigand, Maj., 695th CSB, XO, Anthony Shepherd, CPT, Commander, 140th QM CO, Dylan Seitz, CPT, 77th RSC Military Justice, Walter Noller, CSM, 695th CSB, Command Sgt Major, Joseph Matthews, SFC, 140th QM CO, Maint NCOIC, Terry Gibbons, Ms., 77th RSC, CPO Representative, Defendants-Appellees.
Docket NumberDocket No. 01-6178.
Decision Date17 May 2002
290 F.3d 493
Hugo B. LUCKETT, Plaintiff-Appellant,
v.
Paul BURE, Mr., Local President 2739 AFGE, Defendant,
Lynne E. Derie, LTC, Chief, Support Division, United States Army Reserve Command (USARC), William Collin Jr., Gen., CG, 77th Regional Support Command, Tom Kane Jr., Mr., 77th RSC, PMO, Terry W. Hunter, LTC, Group Deputy Commander, Michael Scotto, LTC, 695th CSB, Commander,

Page 494

Robert F. Weigand, Maj., 695th CSB, XO, Anthony Shepherd, CPT, Commander, 140th QM CO, Dylan Seitz, CPT, 77th RSC Military Justice, Walter Noller, CSM, 695th CSB, Command Sgt Major, Joseph Matthews, SFC, 140th QM CO, Maint NCOIC, Terry Gibbons, Ms., 77th RSC, CPO Representative, Defendants-Appellees.
Docket No. 01-6178.
United States Court of Appeals, Second Circuit.
Argued March 25, 2002.
Decided May 17, 2002.

Page 495

Hugo B. Luckett, pro se, Bronx, NY, for Appellant.

Sarah Normand, Assistant United States Attorney, Southern District of New York, New York City (Mary Jo White, United States Attorney, Nicole L. Gueron and Jeffrey Oestericher, Assistant United States Attorneys, Southern District of New York, New York City, of counsel), for Appellees.

Before OAKES, SACK, and BRIGHT*, Circuit Judges.

BRIGHT, Circuit Judge.


Hugo Luckett served as both a sergeant and a civilian employee in the United States Army Reserves ("USAR"). The defendants are personnel of the USAR. Luckett filed a complaint against the defendants, alleging numerous incidents of wrongdoing: racial discrimination, duress, harassment, conspiracy, forgery, slander, defamation of character, malice, stress, mental and physical abuse, sabotage, retaliation, and perjury. The defendants moved to dismiss the action for lack of subject matter jurisdiction pursuant to

Page 496

Federal Rule of Civil Procedure 12(b)(1). The district court granted the defendants' motion. Luckett appealed. Although our reasoning differs from that of the district court, we affirm the dismissal of Luckett's claims.

BACKGROUND

Luckett served as a USAR sergeant with the 140th Quartermaster Company at Fort Totten, New York. Luckett also had civilian employment with the Company as a technician. Under Army regulations, as a condition of employment, civilian military technicians are required to maintain continuing membership in the USAR unit in which they are employed. Failure to meet this military obligation constitutes failure to meet a condition of the civilian employment. Luckett signed a statement acknowledging this military obligation when he was appointed a civilian military technician in 1989.

In September 1999, Luckett's Deputy Commander, Lieutenant Colonel Terry W. Hunter, initiated proceedings to separate Luckett from the USAR for "misconduct and failure to make progress on the [Army's] weight control program." In an undated memorandum to Luckett, Hunter stated that he was recommending Luckett receive an "Other than Honorable Discharge." The memo listed the grounds for the recommendation as several incidents of severe disrespect and insubordination, refusal to take the Army Physical Fitness Test when ordered to do so, and consumption of alcohol prior to a drill.

The next month, an independent Board of Inquiry (BOI) held a separation hearing. The BOI did not find that the Army proved that Luckett was insubordinate, but did find that he had not kept his weight within the Army's standards and had not passed a physical fitness test since October 1997. Nevertheless, the BOI recommended that Luckett be retained in the USAR.

The Army's Staff Judge Advocate ("SJA") subsequently conducted a legal review and recommended that Luckett be transferred from the USAR 140th Quartermaster Company to the Individual Ready Reserve ("IRR"). The SJA based his determination on Army regulations that authorize the involuntary transfer of a reservist to the IRR based on failure to maintain body fat standards. On January 10, 2000, Luckett was reassigned to the IRR. As a result of this military reassignment, Luckett no longer met a condition of his civilian employment. He was discharged from his position as a civilian military technician.

Luckett's pro se complaint is somewhat unclear, but it appears to assert tort and discrimination claims in connection with his transfer to the IRR, his discharge from civilian employment, and his alleged mistreatment by the defendants during the months before his discharge. On July 28, 2000, defendants moved to dismiss the complaint for lack of subject matter jurisdiction. On April 3, 2001, the district court issued an opinion granting this motion and dismissed the complaint.

STANDARD OF REVIEW

The district court granted the defendants' motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure. On appeal from this judgment, we review the district court's factual findings for clear error and its legal conclusions de novo. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Id. In resolving the question of jurisdiction,

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the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. See id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996)).

DISCUSSION

We affirm the district court's dismissal of Luckett's claims of sabotage, forgery, and perjury, which are crimes and therefore do not give rise to civil causes of action. We also affirm the district court's dismissal of Luckett's tort claims under the Federal Tort Claims Act ("FTCA"). The district court did not err in dismissing these claims as barred by the FTCA, 28 U.S.C. § 2680(h), and the Feres doctrine. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The Feres doctrine immunizes the government1 from liability for injuries to members of the armed services where the injuries arise in the course of activity incident to service. Id. at 146, 71 S.Ct. 153. The Feres doctrine applies to members of the military reserves. See Wake v. United States, 89 F.3d 53, 59 (2d Cir.1996). The torts Luckett alleges all occurred on army property and most of the...

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    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 18 Mayo 2017
    ...quotation marks, alterations, and citation omitted), a burden which it must satisfy by a preponderance of the evidence, Luckett v. Bure, 290 F.3d 493, 496–97 (2d Cir. 2002). Courts must "accept as true all material factual allegations in the complaint .... [but] jurisdiction must be shown a......
  • Grayton v. Ercole, Docket No. 10–1419.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 15 Agosto 2012
    ...his right to be present when, as in this case, he was “fully aware of the ... [proceeding] but did not object to it nor ask to attend.” 290 F.3d at 493. We declined to hold as a matter of law ... that not knowing that one could attend is the same thing as believing that one could not attend......
  • Wetherill v. Geren, No. 09-3334.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 11 Agosto 2010
    ...Hupp, 144 F.3d at 1148, or whether the conduct was “integrally related to the military's unique structure,” Luckett v. Bure, 290 F.3d 493, 499 (2d Cir.2002), or whether the position at issue is “irreducibly military in nature,” Fisher v. Peters, 249 F.3d 433, 441 (6th Cir.2001), is only to ......
  • Aron v. Becker, 3:13-CV-0883
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • 22 Septiembre 2014
    ...asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002); see also Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). B. Rule 12(b)(6) In reviewing the sufficiency of a complaint......
  • Request a trial to view additional results
326 cases
  • Cohen v. Facebook, Inc., 16-CV-4453 (NGG) (LB) 16-CV-5158 (NGG) (LB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 18 Mayo 2017
    ...quotation marks, alterations, and citation omitted), a burden which it must satisfy by a preponderance of the evidence, Luckett v. Bure, 290 F.3d 493, 496–97 (2d Cir. 2002). Courts must "accept as true all material factual allegations in the complaint .... [but] jurisdiction must be shown a......
  • Grayton v. Ercole, Docket No. 10–1419.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 15 Agosto 2012
    ...his right to be present when, as in this case, he was “fully aware of the ... [proceeding] but did not object to it nor ask to attend.” 290 F.3d at 493. We declined to hold as a matter of law ... that not knowing that one could attend is the same thing as believing that one could not attend......
  • Wetherill v. Geren, No. 09-3334.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 11 Agosto 2010
    ...Hupp, 144 F.3d at 1148, or whether the conduct was “integrally related to the military's unique structure,” Luckett v. Bure, 290 F.3d 493, 499 (2d Cir.2002), or whether the position at issue is “irreducibly military in nature,” Fisher v. Peters, 249 F.3d 433, 441 (6th Cir.2001), is only to ......
  • Aron v. Becker, 3:13-CV-0883
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • 22 Septiembre 2014
    ...asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002); see also Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). B. Rule 12(b)(6) In reviewing the sufficiency of a complaint......
  • Request a trial to view additional results

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