US ex rel. Karr v. Castle, Civ. A. No. 88-466 MMS.

CourtUnited States District Courts. 3th Circuit. United States District Court (Delaware)
Citation746 F. Supp. 1231
Docket NumberCiv. A. No. 88-466 MMS.
PartiesUNITED STATES of America, ex rel. Captain Jon T. KARR, Plaintiff, v. The Honorable Michael N. CASTLE, Governor of Delaware; Brigadier General Oscar E. Trivits, the Assistant Adjutant General for Army; Colonel Anthony J. Quattro, Chief of Staff for Army; Lieutenant Colonel Norman V. Cochran, Deputy Director of Personnel for Army, ex officio and in personam, their successors and assigns; Major General Arthur Episcopo, The Adjutant General of Delaware, ex officio; Major General Joseph M. Lank, in personam; The Department of Military Affairs, and The State of Delaware, Defendants.
Decision Date31 August 1990

COPYRIGHT MATERIAL OMITTED

John S. Malik, Wilmington, Del., John D. McLaughlin, Jr., Goshen, Ky., for plaintiff.

John J. Polk, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for defendants.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

This action stems from the involuntary separation of Jon T. Karr (hereinafter "Karr"), a former Captain with the Delaware Army National Guard ("DEARNG"), from a three year tour in the Active Guard/Reserve ("AGR") as Recruiting and Induction Officer, Delaware Army National Guard, based on substandard performance and dereliction of duty. In this action, plaintiff alleges that he was unlawfully discharged in an abuse of discretion by the Adjutant General1 in retaliation for plaintiff's protection of a subordinate from racial discrimination and plaintiff's failure to illegally obtain incriminating statements from another subordinate. Plaintiff challenges the procedural and substantive regularity of the separation under the provisions of the fourteenth amendment and 42 U.S.C. §§ 1983, 1985 and 1986, as well as certain of the administrative decisions of DEARNG under the False Claims Act, 31 U.S.C. § 3729. Plaintiff seeks declaratory and injunctive relief and damages for defamation, malfeasance and misfeasance of public office, retaliatory discharge and intentional infliction of mental distress.2 Plaintiff further seeks legal relief to recover from the United States those monies misappropriated by defendants. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361.

This matter is presently before the court on defendants' motion for summary judgment and plaintiff's motion for partial-summary judgment. Defendants moved for summary judgment contending that: (a) plaintiff cannot establish a discriminatory animus and, therefore, cannot establish a substantive due process violation, (b) plaintiff received sufficient process prior to termination and (c) plaintiff's claims for damages and back pay are barred by both the eleventh amendment and the immunities of military service. Plaintiff moved for partial summary judgment contending that he was denied the fundamental elements of procedural due process and that the evidence of misconduct by Karr's supervisors poisoned the integrity of the fact-finding and decision making process thereby denying plaintiff substantive due process. Plaintiff contends that he is entitled to reinstatement, back pay and damages and that the individual officer defendants, except Governor Castle, are not entitled to intramilitary or official immunity and may be pursued for damages, including those for misappropriation under section 3729. Finally, plaintiff contends that the eleventh amendment does not bar Karr's claim against the State of Delaware.

The issues presented in these motions for summary judgment are (1) whether plaintiff was afforded the requisite procedural due process, (2) whether that process was tainted, and (3) what damages, if any, plaintiff is entitled to pursue.

I. STATEMENT OF FACTS

On July 22, 1987, Colonel Norman Cochran ("Cochran") and Colonel Duane Austin ("Austin") issued an Officer Evaluation Report ("OER") on Karr's performance during the time period between June 16, 1986 and June 15, 1987. That report indicated that Karr's work habits were acceptable and particularly noted that he always exceeded requirements and should be promoted ahead of his contemporaries. Dkt. 47, Plaintiff's Appendix at A-60 (hereinafter "A-___"). However, under the grading system of the OER, plaintiff received a "2" on written communication skills and exercise of sound judgment, id., which means plaintiff's conduct in these two areas was criticized. It was also noted on the OER that "during the latter half of this rating period he has made no exerted effort to correct those faults (communication skills and exercise of judgment) that have caused him difficulty."

On September 15, 1987, Cochran told Karr that he could voluntarily request separation from active duty, be involuntarily separated or be non-judicially punished under Article 15, U.C.M.J., and that those options had already been approved by the command group of former Adjutant General Joseph Lank ("Lank"), Chief of Staff Anthony Trivits ("Trivits"), and former Assistant Adjutant General Oscar Quattro ("Quattro"). (A-38; A-10).

On September 23, 1987, Trivits told Karr he was displeased with Karr's numerical mission performance as recruiting officer, had long been aware of Karr's strained situation with Cochran, and had coordinated Cochran's pending request for involuntary removal. That same date Karr told Lank his concerns for Cochran's and Austin's motives, Trivits' lack of impartiality, and Karr's inability to compel testimony on his behalf.

Lank then received Karr's application for convening a court of inquiry pursuant to Article 135, U.C.M.J., 10 U.S.C. § 935 (A-69). On September 28, 1987, Lank issued a written decision to Karr regarding the application for convening a court of inquiry, holding that the U.C.M.J. did not apply to soldiers on active duty under 32 U.S.C. § 502(f), and that the matter would be resolved administratively under the provisions of paragraph 6-5, NGR 600-5. (A-63 and Dkt. 58).

On October 2, 1987, Cochran gave Karr a letter request for Karr's involuntary removal. (A-72). That letter enumerated the basis for the decision to seek involuntary removal for professional dereliction and substandard performance caused by acts of poor judgment. The letter also indicated that the recipient had "10 (ten) calendar days from receipt of this letter to forward rebuttal reasons cited for your removal." Further, the letter indicated that a JAGC officer could be requested to aid in the preparation of a rebuttal letter. (A-72).

On October 12, 1987, Karr gave Cochran his response with 42 enclosures. On October 14, 1987, Cochran informed Karr that he objected to his depiction as a "racist," refusing to forward Karr's response through the chain of command unless all such references were removed. On October 17, 1987, Karr gave a corrected copy of his response, with certain modifications, directly to Trivits, over Cochran's objections. (A-38; A-74).

On December 2, 1987, Cochran reprimanded Karr for his poor exercise of judgment regarding the incident relating to Major Peggy McDermott, Medical Recruiting Officer. (A-82). Cochran had directed Karr to confront McDermott concerning critical comments regarding Trivits' performance of duty that allegedly had resulted in the expulsion of the 116th MASH from Fort Dix, New Jersey, in May 1987. Karr was directed to ascertain the truth or falsity of the allegations, and, if true, to obtain a written statement from McDermott concerning her role in the accusations. Karr failed to obtain the written statement, (A-77; A-78), as a result of giving her Miranda warnings. Further, Karr drove McDermott to Lank's home on November 23, 1987, remaining in the car, while McDermott discussed with Lank her concerns about Trivits.

On December 5, 1987, Karr gave Cochran his response to the reprimand. (A-77). Between December 1 and 8, 1987, Trivits' recommendation to Lank regarding Karr's disposition changed to a "firm recommendation" for termination. (A-32; A-69).3 The impact of the McDermott incident on Karr's ultimate discharge is reflected ambiguously in Lank's deposition, in which he testified:

Q: During that again same time frame, 27 October until 8 December of 1987, did General Trivits' discussions with you regarding the resolution of the Karr problem change at all?
A: I think they did.
Q: In what way did they change?
A: They changed into making a firm recommendation.
Q: And the firm recommendation was what?
A: To eliminate him from the tour.
Q: So can I infer from that that earlier he had counseled the advisability of a less serious —
A: He had put forth the options which I had. I think that probably the last part of that particular package indicated that he leaned toward the elimination or removal from tour.
Q: But you feel that by the end his recommendation was much stronger than it had been earlier on?
A: No question. There were more things to look at at that point.
Q: And what things to look at were those?
A: Well, the McDermott incident.
Q: Anything else?
A: Not that I recall.

On December 8, 1987, Karr again asked Lank to convene a court of inquiry, or absent same, to order his criminal trial by general court-martial for the charge of dereliction of duty. Article 92, U.C.M.J., 10 U.S.C. § 892. (A-85). Lank rejected both requests.

On December 31, 1987, Karr was separated from active military duty, and he reverted to part-time military status under Cochran's supervision. On January 8, 1988, Karr requested transfer from the DEARNG to the United States Army Reserve (USAR), (A-86), which was accomplished on January 15, 1988. (A-87).

On February 1, 1988, Karr wrote Defendant Castle in his capacity as commander-in-chief, and lodged a formal complaint of wrong by his commanding officer in accordance with Article 138, U.C.M.J., 10 U.S.C. § 938 (A-89; A-90). Castle's legal counsel responded that "after reviewing Karr's letter and analyzing the procedures utilized in effectuating your dismissal, ... the Governor must support the decision of Adjutant General Lank in...

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