Oyler v. National Guard Ass'n of U.S.

• Decision Date: 10 September 1984
• Docket Number: No. 83-1529,83-1529
• Citation: 743 F.2d 545
• Parties: William E. OYLER, Plaintiff-Appellant, v. NATIONAL GUARD ASSOCIATION OF the UNITED STATES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 545

743 F.2d 545

39 Fed.R.Serv.2d 1372

William E. OYLER, Plaintiff-Appellant, v. NATIONAL GUARD ASSOCIATION OF the UNITED STATES, et al Defendants-Appellees.

No. 83-1529.

United States Court of Appeals Seventh Circuit.

Argued Feb. 9, 1984.

Decided Sept. 10, 1984.

Larry T. Frantz, Peoria, Ill., for plaintiff-appellant.

William R. Kohlhase, Davis & Morgan, Michael J. O'Leary, Asst. U.S. Atty., Peoria, Ill., Fredric D. Tannenbaum, Asst. Atty. Gen., Civil Appeals Div., Chicago, Ill., for defendants-appellees.

Before PELL and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

COFFEY, Circuit Judge.

On March 2, 1977, the plaintiff, William E. Oyler, filed suit against the Insurance The plaintiff filed a motion for reconsideration of the summary judgment on February 8, 1983, which was denied on February 17, 1983. The plaintiff then filed a motion to alter or amend the judgment on February 28, 1983, which was also denied by the district court on March 15, 1983. On March 18, 1983, a notice of appeal was filed with this court. The district court's grant of summary judgment as to defendants Cole, Hamilton and Sandell is affirmed.

Company of North America in the Circuit Court of Peoria County, Illinois, alleging that certain disability insurance benefits had been wrongly withheld. On April 5, 1979, Oyler amended his complaint, adding defendants Cole, Hamilton and Sandell, along with the National Guard Association of the United States and the National Guard Association of the United States Insurance Trust, alleging that all of the defendants had conspired to defraud him of insurance benefits. As defendants Cole and Hamilton were federal employees, on March 4, 1980, the case was removed to the United States District Court for the Central District of Illinois. On February 2, 1982, the defendants Cole and Hamilton filed a motion for summary judgment on the basis of official immunity, running of the statute of limitations, and laches. The defendant Sandell filed a similar motion on February 5, 1982. The district court granted both summary judgment motions and dismissed the complaints against the defendants Cole, Hamilton and Sandell, ruling that all three were immune from suit.

On March 4, 1980, plaintiff attempted service upon the National Guard Association of the United States Insurance Trust ("Trust") by personally serving Major General Francis S. Greenlief as a registered agent of the Trust. On March 5, 1980, the plaintiff attempted to serve the National Guard Association of the United States ("Association") and/or the Trust by personally delivering a summons and complaint to the Secretary of a Lavern Weber, an agent for the Association. On March 24, 1980, the defendants Association and Trust filed an uncontested motion to dismiss. The district court granted the defendants' motion to dismiss on September 5, 1980.

To gain proper jurisdiction over the defendants Trust and Association, the plaintiff subsequently attempted to serve agents of the Trust and/or Association. Accordingly, on October 3, 1980 and on May 26, 1981, the plaintiff served defendants Edward R. Fry, Richard A. Miller, William J. McCadden, Francis S. Greenlief, Francis J. Higgins and Leo C. Goodrich by certified mail. On July 13, 1981, all of these defendants filed a motion to dismiss arguing that service by certified mail was not proper. The district court granted the motion to dismiss on July 28, 1981, insofar as service of process was quashed for such defendants. We affirm the district court's dismissal of the action as to the defendants Trust and Association.

The appellant essentially raises three main issues on appeal:

I.

Were the defendants Trust and Association properly served making the district court's dismissal of the action as to those defendants inappropriate? ¹

II.

Did the district court properly grant summary judgment to the defendants Cole and Hamilton on the basis of immunity? ²

III.

Did the district court properly grant summary judgment to the defendant Sandell on the basis of immunity?

For the reasons herein stated, we affirm the district court's dismissal of the action as to the defendants Trust and Association as well as the district court's grant of summary judgment to defendants Cole, Hamilton and Sandell.

FACTS

As indicated in the previous summary of the procedural history, the facts of this case are somewhat convoluted. On September 15, 1973, the plaintiff re-enlisted in the Illinois Air National Guard only to be honorably discharged one year and three months later on December 15, 1974. On that same day, the plaintiff enlisted in the Illinois Army National Guard and was appointed to the position of administrative supply technician, a federal National Guard technician working for the Illinois Army National Guard.

While serving in the Army National Guard the plaintiff's commanding officer was the defendant Ernest Sandell, a captain in the Illinois National Guard. It was part of Captain Sandell's duties to supervise the plaintiff in his work as an administrative supply technician. Captain Sandell's supervisor, defendant John F. Hamilton, a colonel in the Illinois National Guard and a federal National Guard technician, was likewise involved in supervising Oyler's activities. Defendant Jackie Cole, a colonel in the Illinois Army National Guard, a federal National Guard technician, was the technician personnel officer for the Illinois Army and Air National Guard having had the responsibility of administering personnel matters involving technician personnel such as the plaintiff. Because of their positions as federal National Guard technicians, both defendants Cole and Hamilton were federal employees under 32 U.S.C. Sec. 709.

Defendants Sandell and Hamilton became dissatisfied with the plaintiff's work as an administrative supply technician shortly after his (Oyler's) appointment to that position. In April of 1975, during a counseling session with the plaintiff regarding his job performance, Oyler suggested that his resignation from his administrative supply technician position would be best for all concerned, and at that time he (Oyler) requested that the resignation papers be prepared.

On May 4, 1975, while the plaintiff was in the hospital, the defendants Sandell and Hamilton brought the resignation papers to him for his signature. The plaintiff signed the resignation papers, but requested that defendants Hamilton and Sandell withhold the processing of his resignation papers until he was discharged from the hospital. Although the plaintiff failed to advise either defendant Sandell or Hamilton when he was released from the hospital, he did call the technician personnel office to arrange for sick leave during his convalescence. At that time Oyler spoke with the defendant Cole wherein he confirmed his intention to resign from his position as a technician, but to remain in the Illinois National Guard.

Defendant Cole originally rejected the plaintiff's resignation when it was received in the technician personnel office on May 27, 1975, because it was not in plaintiff's handwriting, was not dated, and did not specify the effective date of or reason for resignation. The plaintiff thereupon submitted another resignation form which was received by the personnel office on June 3, 1975. On this form, the plaintiff stated in his own handwriting that his reason for resignation was "to seek other full time employment." The resignation was accomplished on June 3, 1975 with an effective date of May 30, 1975. The plaintiff was advised of his right to apply for a refund of his retirement contributions on June 3, 1975, and was informed that his pay deduction authorization for disability and other insurance coverages were canceled effective May 31, 1975. Furthermore, he was advised of the requirements necessary to convert and continue his insurance programs.

Almost a year later, during the month of April, 1976, the National Guard became aware that the plaintiff was seeking disability compensation. At that time, the plaintiff called the technician personnel office and requested information concerning Civil Service Disability Retirement and also requested and received the address of the National Guard Association Trust. The appropriate information and forms for applying for civil service disability retirement were mailed to him.

Sometime after April of 1976 but prior to June 9, 1976, the plaintiff filed a claim for disability benefits with the Insurance Company of North America. When the technician personnel office received the claim forms for processing on June 9, 1976, they were forwarded to the plaintiff for completion. The personnel office received Oyler's completed forms on June 29, 1976 and forwarded them to the Insurance Trust on July 24, 1976.

After having been unsuccessful in his efforts to recover disability benefits from the Insurance Trust, on March 2, 1977, the plaintiff filed suit against the Insurance Company of North America in the Circuit Court of Peoria County, Illinois. In his complaint, the plaintiff alleged that the Insurance Company of North America was improperly refusing to pay out the proceeds of the policy. ³ Note that the defendants Cole, Hamilton, or Sandell were not named in the original complaint, nor did that complaint allege any conspiracy.

On April 5, 1979, the plaintiff amended his complaint to allege a conspiracy among all of the defendants (including the defendants Trust, Association, Cole, Hamilton and Sandell) to defraud him of his benefits under the terms of his insurance policy with the Insurance Company of North America. In the amended complaint, the plaintiff alleged that the defendants Cole, Hamilton and Sandell procured the plaintiff's resignation of his administrative supply technician position by means of coercion, duress and pressure while the plaintiff was hospitalized and under medication; prevented the plaintiff's discharge from the National Guard knowing...