Serrano Medina v. U.S., 82-1702

• Decision Date: 13 June 1983
• Docket Number: No. 82-1702,82-1702
• Citation: 709 F.2d 104
• Parties: Andres SERRANO MEDINA, Plaintiff, Appellant, v. UNITED STATES of America, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 104

709 F.2d 104

Andres SERRANO MEDINA, Plaintiff, Appellant, v. UNITED STATES of America, et al., Defendants, Appellees.

No. 82-1702.

United States Court of Appeals First Circuit.

Argued Feb. 8, 1983.

Decided May 10, 1983.

As Amended on Denial of Rehearing

June 13, 1983.

Robert J. Walser, San Juan, Puerto Rico, for plaintiff, appellant.

Alex H. Adkins, Trial Atty., Dept. of the Navy, Washington, D.C., with whom Daniel Lopez Romo, U.S. Atty., and Osvaldo Carlo Linares, Asst. U.S. Atty., San Juan, Puerto Rico, were on brief, for defendants, appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Appellant Andres Serrano Medina ("Serrano") is a taxi driver and former cook for the Antilles Consolidated School System at the United States Naval Station, Roosevelt Roads, Puerto Rico. Because of the revocation of his permit to enter the Naval Station, he lost his job as a cook and his right to operate his taxi on the base. He brought this suit against the base commander, the United States, and the school system seeking reinstatement, back pay, reissue of his identification cards, and relief from the debarment order. The district court granted summary judgment for the defendants.

On January 8, 1978, Serrano was driving a United States marine onto the base in his taxi. His brother, Jose Serrano Medina, was also in the car. Acting on a tip, Naval security agents stopped them. They found three small bags of marijuana on the marine, and several more under the taxi where Jose had apparently thrown them. A search of Serrano and, on his written consent, the car turned up nothing. The agents asked for Serrano's Navy identification card; when he produced it, they noticed a second card in his wallet, which he also handed them. One card was for the cook's job, the other for the taxi job. Although they had been issued only three days apart, one was a reissue of a two-year old card. On one, Serrano was pictured with a beard, while on the other he was cleanshaven; the height and weight figures given on the two cards were slightly inconsistent; and on one his name was given as Andres Serrano, on the other as Andres Serrano Medina. The agents confiscated the identification cards, which were destroyed five days later, and turned Serrano and his brother over to the Puerto Rico police.

A week later, Serrano and his attorney met briefly with the executive officer of the Naval Station, ¹ Ward Serig, in an effort to obtain return of the cards, without which Serrano could not enter the base. Serig refused to discuss the matter until the criminal action was resolved. On March 30, while the Puerto Rico criminal charges were still pending, he issued a letter permanently barring Serrano from the base. ² The complaint alleges that the debarment "is the direct cause that Serrano lost his job as a cook in the school and his business as a taxi driver."

Criminal charges arising out of the January incident were brought in Puerto Rico court. In April, the Navy also brought charges against Serrano in federal district court when statements by high school students on the base implicated him in further drug transactions. In May, after several continuances, the Puerto Rico action was dismissed. The United States Attorney later requested dismissal of the federal charges, which was granted in July.

On November 7, and again on November 27, Serrano's attorney requested in writing the return of the identification cards; this was refused by a letter from the commanding officer dated December 1, 1978. The letter acknowledged that Serrano had "been absolved of any guilt in the [criminal] charges," but asserted that he "remained guilty" of fraud against the government in possessing inconsistent identification cards. It reiterated that he was barred from the station and would be prosecuted as a trespasser if he were observed thereon. A week later Serrano's attorney sent a letter requesting a meeting with the commanding officer; this was refused. Finally, on December 15, Serrano and his attorney went to the base in an effort to speak with the commanding officer. They were denied admission. This suit followed in January 1979.

I.

Several of appellant's arguments may be quickly rejected. First, Serrano claims he should have been allowed to amend his complaint. The district court did allow the complaint to be amended once, in October 1979. More than two years after the original complaint had been filed, in March 1981, Serrano moved to amend again by adding a number of new defendants in support of a conspiracy theory. The motion was denied. 541 F.Supp. 719 (D.P.R.1982). Serrano now appeals from that ruling, describing it as a denial of due process.

We find no error in the court's denial of leave to amend. Plaintiff's motion was unduly delayed. He claims that he was not aware of the extent of or participants in the alleged conspiracy until mid-1980. Yet the alleged conspirators were the commander of the base and the agents who stopped Serrano's car. As early as February 1979 they had been summoned as witnesses in the Puerto Rico criminal action. Serrano states that after he discovered the conspiracy he was still obliged to put off any amendment because of "an intolerable personal situation," viz., fear that amendment of the complaint and subsequent discovery would implicate his half-brother and subject him to criminal prosecution. Only once the statute of limitations had run on the criminal offense did Serrano seek leave to amend the complaint. We do not think his desire to hide the criminal behavior of his half-brother provided any proper justification for the further period of delay. See Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15, 19-20 (1st Cir.1979). The district court was entitled to believe that allowance of the eleventh-hour amendment would result in undue prejudice to the defendants, as it added new parties (at least some of whom were no longer even in Puerto Rico), and by raising new and separate claims would require additional research and discovery. We find no abuse of discretion. See Johnston v. Holiday Inns, Inc., 595 F.2d 890, 896 (1st Cir.1979) (denial of leave to amend shall be reversed only for abuse of discretion).

The district court also properly found that it lacked jurisdiction over the claims, all for money damages, against the United States. No contractual claim can be made out under the Tucker Act, 28 U.S.C. Sec. 1346(a)(2), as the United States is not a party to the collective bargaining agreement, the only contract involved, and Serrano was paid out of nonappropriated funds. See generally Standard Oil Co. v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611 (1942); H.R.Rep. No. 933, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Ad.News 3477, 3478-79. Nor can Serrano recover in tort under section 1346(b). Debarment from a military installation falls within the discretionary function exception to the Federal Tort Claims Act. See 28 U.S.C. Sec. 2680(a); Kiiskila v. United States, 466 F.2d 626, 628 (7th Cir.1972).

It is also clear that the district court properly dismissed Serrano's claim under 42 U.S.C. Sec. 1985. The complaint does not mention a conspiracy or state facts from which the existence of a conspiracy might be inferred. See Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971).

II.

This brings us to Serrano's principal allegations: that the debarment involved a denial of due process and was so arbitrary that it cannot stand. The district court found that no liberty or property interest existed to trigger due process protections, and that the debarment was not patently arbitrary. Because these conclusions were necessarily based in part on submissions outside the pleadings, we treat the decision below as a grant of summary judgment. See Fed.R.Civ.P. 12(b), (c); id. 56. We may affirm only if, looking at the record in the light most favorable to appellant, there is no genuine issue of material fact and appellee is entitled to judgment as a matter of law. E.g., Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976).

A. Military Discretion

Our law has accorded significant autonomy to the military with respect to civilian and judicial interference. The military "constitutes a specialized community governed by a separate discipline from that of the civilian." Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). The "overriding demands of discipline and duty" render it "a specialized society separate from civilian society." Parker v. Levy, 417 U.S. 733, 743-44, 94 S.Ct. 2547, 2555-56, 41 L.Ed.2d 439 (1974). See also Department of the Air Force v. Rose, 425 U.S. 352, 367-68, 96 S.Ct. 1592, 1602, 48 L.Ed.2d 11 (1976). Of necessity, the military constitutes "a system that stands apart from and outside of many of the rules that govern civilian life in our country." Greer v. Spock, 424 U.S. 828, 843, 96 S.Ct. 1211, 1220, 47 L.Ed.2d 505 (1976) (Powell, J., concurring).

This status creates particular tensions when the military and civilian realms conjoin. Frequently, it is the civilian that must yield to the military, for "the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale." Brown v. Glines, 444 U.S. 348, 360, 100 S.Ct. 594, 602, 62 L.Ed.2d 540 (1980) (upholding Air Force regulations requiring commanding officer's approval before petitions may be circulated on the base); see also Secretary of the Navy v. Huff, 444 U.S. 453, 100 S.Ct. 606, 62 L.Ed.2d 607 (1980) (upholding equivalent Navy regulations); Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (upholding exclusion of politically oriented speakers from Army base). In particular, the commanding officer of a...