Schlanger v. U.S., 76-1930
| Decision Date | 11 September 1978 |
| Docket Number | No. 76-1930,76-1930 |
| Citation | 586 F.2d 667 |
| Parties | Herbert Phillip SCHLANGER, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Herbert Phillip Schlanger, in pro. per. (argued), of Hansell, Post, Dorsey & Brandon, Atlanta, Ga., for plaintiff-appellant.
John F. Flynn, Asst. U. S. Atty. (argued), Phoenix, Ariz., for defendants-appellees.
On Appeal from the United States District Court For the District of Arizona.
Before KILKENNY, Senior Circuit Judge, TRASK, Circuit Judge, and HAUK, District Judge. *
I. BACKGROUND
This is an appeal from an order of the District Court for the District of Arizona, Hon. Carl A. Muecke, dismissing plaintiff-appellant Schlanger's complaint on the grounds of Res judicata and failure to state a claim upon which relief could be granted.
II. STATEMENT OF FACTS
In December 1962, Herbert Schlanger enlisted in the United States Air Force (USAF) for a period of 4 years and began his service. In 1965, Schlanger applied for entrance into the Airman's Education and Commissioning Program (AECP), a USAF program providing undergraduate education and officer training leading to an officer's commission. After the USAF accepted Schlanger into the AECP, it arranged his admission into and assigned him for AECP participation at Arizona State University (ASU). As part of the program, Schlanger received a discharge on December 8, 1966 and reenlisted, on December 9, 1966, for a period of 6 years.
In January 1966, Schlanger enrolled in his courses at ASU under the auspices of the Air Force Institute of Technology (AFIT), projected, with his AFIT advisers, a graduation date of June 1968, and began his studies. During the fall of 1967, Schlanger became ill and received several grades of "incomplete" and had to revise his projected graduation date to August 1968.
In early 1968, Schlanger became actively involved in an organization known as the Arizona State University Civil Rights Board. This group focused its efforts primarily, at that time, on correcting perceived racial discrimination in housing in that area and received considerable local publicity regarding its efforts during March of 1968.
On April 2, 1968, an AFIT liaison officer at ASU summoned Schlanger to appear before him at a "counselling" session. While USAF contends that the conference related to Schlanger's absences from his classes and failure to remove his incompletes, Schlanger contends that the officer denounced Schlanger's civil rights activities, told him such activities were inappropriate for an officer trainee, and informed him he was "getting in with bad groups."
On June 17, 1968, by letter, Schlanger was notified of his removal from AECP for demonstrating a "lack of officer potential." Schlanger sought clarification of this removal and eventually was informed that his absences from classes were the key factor in demonstrating his lack of officer potential. USAF officers denied Schlanger's subsequent requests to see the Report of Inquiry which had been prepared on the matter and also denied his requests for a hearing.
Soon thereafter, USAF reassigned Schlanger to a post in Georgia and later sent him to a post in Iceland. Schlanger's requests for a discharge or reinstatement in AECP were denied at all levels of USAF authority. Eventually, USAF permitted Schlanger to return to ASU to complete his undergraduate studies at his own expense. He did so in 1969 and then began litigation seeking his discharge. After various legal proceedings, the USAF, in February 1972, discharged Schlanger, about 6 months before the expiration of his scheduled term of service and about 1 week before a scheduled oral argument before the Court of Appeals for the District of Columbia Circuit.
Schlanger, who has represented himself throughout his various actions, attended law school after his discharge and is now a member of the Arizona bar. He continues to argue his own case here.
III. SUMMARY OF PRIOR LITIGATION
On August 27, 1969, Schlanger filed a petition for a writ of habeas corpus in the District Court for the District of Arizona seeking his discharge from USAF. The District Court denied the petition and this Court remanded the case. The District Court again denied the petition and this Court then affirmed the dismissal. The Supreme Court granted certiorari, 400 U.S. 865, 91 S.Ct. 110, 27 L.Ed.2d 103 (1970), and affirmed, Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971). In an opinion written by Justice Douglas, the Court found that the District Court in Arizona lacked jurisdiction over the defendants the Secretary of the Air Force, the Commander of the USAF base in Georgia, and the Commander of the USAF ROTC program at ASU because the Secretary of the USAF and the base commander were not residents of Arizona and not amenable to process there and because the ROTC Commander was not in the chain of command above Schlanger. 401 U.S. at 488-90, 91 S.Ct. 995. The Court expressly reserved the question of whether habeas corpus would be an appropriate remedy if, as Schlanger claimed, the USAF had breached his contract of reenlistment. Id. at 492, 91 S.Ct. 995.
Schlanger then filed a habeas corpus action in the Middle District of Georgia, where he was then officially stationed, on July 9, 1970. The District Court there in Georgia dismissed the petition for Schlanger's failure to exhaust his intraservice administrative remedies and the Court of Appeals for the Fifth Circuit dismissed Schlanger's appeal.
On April 28, 1971, Schlanger filed a petition for a writ of habeas corpus in the District Court for the District of Columbia. In the petition, Schlanger complained that his removal from the AECP violated due process; was arbitrary, capricious, and unreasonable; violated USAF regulations; was without factual basis; violated his first amendment rights; and breached his reenlistment contract. The petition named the Secretary of the Air Force, its Chief of Staff, and four other USAF officers as respondents. The petition also sought, in the alternative to habeas corpus relief, a writ of mandamus, a declaratory judgment of the parties' rights and duties under the contract of reenlistment, and relief for breach of contract.
The District Court in the District of Columbia issued an order to the respondents, ordering them to show cause why the petition should not be granted. The respondents answered the order to show cause by arguing that the reenlistment contract did not obligate the USAF to place Schlanger in any particular duty assignment; that Schlanger's instructors had reported his absences from scheduled classes; that Schlanger's failure to attend all scheduled classes was, under applicable regulations, a proper ground for removal from the AECP; and that the investigation and removal procedures followed the relevant USAF regulations. On July 8, 1971, the District Court dismissed the petition and, after the District Court Judge also denied a motion for reconsideration, Schlanger then appealed.
On February 24, 1972, the Court of Appeals for the District of Columbia Circuit, in a per curiam memorandum, dismissed the appeal as moot in light of the fact that the USAF had discharged Schlanger. The discharge occurred about 1 week before a scheduled oral argument before that Court of Appeals and about 6 months prior to the expiration of Schlanger's 6-year term of service. Schlanger petitioned the Supreme Court for a writ of certiorari, which that Court denied on October 19, 1972. Schlanger v. Seamans, 409 U.S. 860, 93 S.Ct. 147, 34 L.Ed.2d 107 (1972).
Schlanger then, on July 18, 1973, filed the complaint which is the subject of this appeal. In this complaint, filed in the District of Arizona, Schlanger makes six claims for relief: (1) his removal from the AECP violated various of his constitutional rights; (2) the defendants induced a breach of his reenlistment contract; (3) the defendants breached his reenlistment contract; (4) the defendants unlawfully detained, arrested, and restrained him in Arizona; (5) the defendants unlawfully detained, arrested, and restrained him in Georgia; and (6) the defendants unlawfully detained, arrested, and restrained him in Iceland. The complaint names the United States, the Secretary of the Air Force, the Chief of Staff, and various officers of the USAF and AFIT as defendants. Schlanger's complaint asserts several bases of jurisdiction, including the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202; the Administrative Procedure Act, 5 U.S.C. § 701 Et seq.; the mandamus statute, 28 U.S.C. § 1361; the Civil Rights Act, 28 U.S.C. § 1343; the Federal Tort Claims Act, 28 U.S.C. § 1346; existence of a federal question, 28 U.S.C. § 1331; and 28 U.S.C. § 1357. In his prayer for relief, Schlanger seeks a declaratory judgment that his removal from AECP was unlawful for various reasons and that the removal from AECP breached his reenlistment contract; expungement of the reference to the removal from his USAF records; $300,000 damages for breach of contract; and $1,000 per each day of alleged unlawful detention.
On November 5, 1973, the District Court, Hon. Carl A. Muecke presiding, dismissed the complaint as Res judicata. On January 5, 1975, however, this Court, in a brief, two-paragraph per curiam memorandum "remanded" the case to the District Court. In its memorandum, the Court "suggested" that the parties brief the District Court on the basis of its jurisdiction and also suggested that the parties present a full record of the District of Columbia proceedings to the District Court.
On remand, the defendants did present a copy of the proceedings in the District of Columbia, including the government's response to the order to show cause, to the District...
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