Ward v. Hudnell

Decision Date21 September 1966
Docket NumberNo. 21840.,21840.
Citation366 F.2d 247
PartiesFrank WARD, Appellant, v. Major General W. T. HUDNELL, and Lieutenant Colonel Raymond F. Stone, Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Mario Obledo, Frank Y. Hill, Jr., San Antonio, Tex., for appellant.

William O. Murray, Jr., Asst. U. S. Atty., San Antonio, Tex., for appellees.

Before TUTTLE, Chief Judge, and JONES and WATERMAN,* Circuit Judges.

WATERMAN, Circuit Judge:

Plaintiff-appellant commenced his action against defendants-appellees in the state courts of Texas, alleging substantially the following:

In February 1951, plaintiff was hired as golf professional and golf course manager at the Kelly Air Force Base, San Antonio Air Material area. He was first paid his salary from non-appropriated funds, but in August 1952 he obtained Civil Service status and thereafter he was paid from "appropriated funds." In October 1959, defendant Stone, a Major in the U. S. Air Force, was assigned to Kelly Air Force Base as Chief, Military Recreation Branch, and became plaintiff's supervisor. Plaintiff and Stone disagreed as to how to manage and operate the golf course, but plaintiff survived Stone's supervision, Stone being assigned to other duty in November 1960 and being replaced by a Captain Nye. Defendant Major-General Hudnell from 1959 to the commencement of the plaintiff's action was Commander of the San Antonio Air Material area and was a regular patron and user of the golf course. Hudnell and plaintiff had differences relative to the operation of the course, some of the Commanding Officer's objections being similar to those made by Stone. As a result of these differences between the Civil Service employee and his military superiors plaintiff was released on November 18, 1961, after almost eleven years' service, when a reduction in force order, giving Hudnell discretion to eliminate various positions at Kelly Air Force Base for administrative economy, presented Hudnell with the opportunity to abolish plaintiff's job even though plaintiff's release from employment had not been recommended by plaintiff's then supervisor, Captain Nye, and the usual and customary procedure when action was to be taken to terminate employment was not followed. The abolition of plaintiff's job position has not resulted in any administrative economy, the budget at the golf course exceeds any golf course budget expended when plaintiff was its manager, within a year of plaintiff's release a new professional was hired who is paid from nonappropriated funds, and civil service employees continue to be employed there. After his release plaintiff appealed to the Civil Service Commission which denied him any relief. Therefore, he has exhausted his administrative remedies, despite the fact that investigations of him and his work by the Civil Service Commission and the Army Inspector-General's Office allegedly have uncovered no violation of Civil Service Regulations. On the basis of these allegations of fact plaintiff claims "* * that Plaintiff's position as Civil Service Golf Course Manager was abolished not for economy reasons or for the non-essential aspect of the job in carrying out the United States Air Force mission or the mission of the San Antonio Air Material Area but because of the personal animosity and the malicious and fraudulent acts and actions of" defendants, and he seeks from them recoveries for the loss of his wages and for exemplary damages.

Pursuant to 28 U.S.C. § 1442(a) the state action was removed to the United States District Court for the Western District of Texas by the United States Attorney for that district, and a motion to dismiss was filed, stating inter alia, ...

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    ...417 (5th Cir. 2013), citing Associated Builders, Inc. v. Alabama Power Co. , 505 F.2d 97, 100 (5th Cir. 1974), citing Ward v. Hudnell , 366 F.2d 247 (5th Cir. 1966). See Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend , 163 F.3d 449, (7th Cir. 1998) ("It is a well settled r......
  • Hargrave v. McKinney
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    ...U.S.C.). Moreover, the complaint should be liberally construed and well-pleaded material allegations taken as admitted. Ward v. Hudnell, 5 Cir. 1966, 366 F.2d 247, 249. See generally 2A J. Moore, Moore's Federal Practice ¶ 12.08. Should plaintiffs prove their alleged set of facts, the dispu......
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    ...plaintiff's right to relief based upon those facts.'" Crowe v. Henry, 43 F.3d 198, 203 (5th Cir.1995) (quoting Ward v. Hudnell, 366 F.2d 247, 249 (5th Cir.1966)). "[F]or purposes of the motion to dismiss, (1) the complaint is construed in the light most favorable to the plaintiff, (2) its a......
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    ...plaintiff's right to relief based upon those facts.'" Crowe v. Henry, 43 F.3d 198, 203 (5th Cir.1995)(quoting Ward v. Hudnell, 366 F.2d 247, 249 (5th Cir.1966)). "The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as tru......
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