Moore v. Schlesinger, Civ. A. No. C-5152.

• Citation: 384 F. Supp. 163
• Decision Date: 29 October 1974
• Docket Number: Civ. A. No. C-5152.
• Parties: Captain Lewis T. MOORE, XXX-XX-XXXXFR Plaintiff, v. James R. SCHLESINGER, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — District of Colorado

384 F. Supp. 163

Captain Lewis T. MOORE, XXX-XX-XXXXFR Plaintiff, v. James R. SCHLESINGER, Secretary of Defense, et al., Defendants.

Civ. A. No. C-5152.

United States District Court, D. Colorado.

October 29, 1974.

William F. Reynard of Reynard, Dorwart & Booms, P. C., Denver, Colo., for plaintiff.

James L. Treece, U. S. Atty., Denver, Colo., and Bruce E. Clark, Captain, USAF, Office of The Judge Advocate General, Washington, D. C., for defendants.

MEMORANDUM AND ORDER

MATSCH, District Judge.

The following is a statement of uncontroverted facts from a pre-trial order entered herein on March 15, 1974:

"The Plaintiff is a Captain in the United States Air Force and is presently assigned at Offutt Air Force Base, Nebraska. Plaintiff has been a commissioned officer in the regular Air Force since 1966. In 1970 he was assigned for a tour to the faculty of the Air Force Academy in the Department of Geography. Of the ten Officer Effectiveness Reports accomplished on plaintiff since his initial duty assignment in 1966, five have rated him as `exceptionally fine' and five as `outstanding.' In February 1973, Plaintiff wrote various members of Congress. On March 13, 1973, Plaintiff was advised by the defendant Taylor that the administration of the Academy was aware of the letters to Congress but that no adverse action would be taken as a result of them. The Plaintiff was removed from his position as an instructor on 23 March 1973 by Colonel Robert G. Taylor and Lt. Colonel Harry W. Emrick. On 27 March 1973 defendant Taylor ordered Plaintiff to see the Staff Psychiatrist at the Air Force Academy. On 29 March 1973, defendant Taylor ordered the Plaintiff not to have contact with the cadets. On 10 April 1973 the plaintiff was ordered by the defendant Emrick not to perform duties as a timer in Academy track meets. The Plaintiff initiated a complaint under Article 138, Uniform Code of Military Justice, requesting redress of grievances relating to matters here in controversy. In June, 1973, the request for redress was denied by the Plaintiff's commander, the defendant Taylor, and later by the officer exercising general court-martial jurisdiction over Taylor, the defendant Lt. General A. P. Clark. The action was subsequently reviewed and approved by the authorized designee of the Secretary of the Air Force."

The judge presiding at that pre-trial conference granted the defendants an opportunity to file a motion for a summary judgment "directed to the jurisdictional aspects of the case" and within the time set by that order the defendants did file such a motion seeking a summary judgment for defendants for a lack of jurisdiction. That motion is now before the Court and it is to be considered as a motion to dismiss for a lack of jurisdiction over the subject matter of the plaintiff's claims for relief.

By this complaint, the plaintiff requests relief by way of a declaratory judgment that his removal from a teaching assignment at the United States Air Force Academy and reassignment to Offutt Air Force Base were wrongful and were violative of his constitutional rights; that he is entitled to money damages; that he is entitled to injunctive relief by mandamus and he has petitioned for a writ of habeas corpus. Additionally he seeks judicial review of the denial of relief on his complaint under Article 138, Uniform Code of Military Justice.

The essential allegations are that the administrative actions taken by the defendants, who are or were officers superior to the plaintiff in the chain of command, were in retaliation for the plaintiff's exercise of First Amendment rights and constituted an intimidation and a conspiracy to restrict and limit those rights.

The plaintiff urges jurisdiction of his claim for damages in 28 U.S. C. § 1331. While defendants contend that there can be no showing of damages exceeding $10,000.00, it is assumed that the jurisdictional amount is present in this case. The theory of damage liability is not a general tort theory but an alleged violation of 42 U.S.C. § 1985(1), which provides, in pertinent part:

"(1) If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof . . ."

the party injured or aggrieved may have an action for the recovery of damages occasioned thereby. The statute does not appear applicable by its own terms. Moreover, it has regularly been held that federal officers acting under color of federal law are immune from suit under this statute....