Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

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orders, necessary to organize, discipline, and govern the National Guard." These regulations include Army Regulation 600-8-2, which specifically applies to the Army National Guard. II. Plaintiff's Claims Challenge Nonreviewable Military Personnel Decisions. The type of military determination underlying this case is not reviewable. Federal courts are

6 extremely reluctant to interfere with the military's exercise of discretion in interna! military matters 7 and have afforded great deference to military personne! decisions. See~ e._~., Goldman v. 8 9 Weinberger, 475 U.S. 503 (1986); Orloffv. Willoughb¥~ 345 U.S. 83 (1953). In addition to the concept of separation of powers, this deference is grounded in the fear that the review would

10 interfere with the military's ability to maintain order and discipline. The federal courts "are 11 ill-equipped to determine the impact upon discipline that any particular intrusion upon military

12 authority might have." Chappell v. Wallace, 463 U.S. 296, 305 (1983). Therefore, the Constitution 13 entrusts regulation and control of the military to the legislative and executive branches of the

14 Government. 15 16 1.7 A. Standard of Review

The United States Court of Appeals for the Fifth Circuit, in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), formulated the test for determining judicial reviewability of military decisions that

18 is most often used by other federal courts. The Mindes test is followed by the Ninth Circuit. Se____~e 19 Christoffersen v. Washington State National Guard, 855 F.2d 1288 (9th Cir. 1988); Sandidge v. 2O 21 22 Washington, 813 F.2d 1025 (gth Cir. 1987); Wallace v. ChappelL 661 F.2d 729 (9th Cir. 1981)~ rev'd on other ~ounds, 462 U.S. 296 (1983). The Mindes test involves a two-step threshold analysis. First, a court should not review

23 internal military affairs inthe absence of(a) an allegation of the deprivation of a constitutional right 24 or an allegation that the military has acted in violation of applicable statutes or its own regulations, 25 and (b) exhaustion of available intra service correction measures. Mindes, 453 F.2d at 201. Only26 after plaintiff has satisfied these two conditions of the first step may a court proceed to the second 27 step. The second step requires the court to. balance four factors to determine whether, as a policy 28 matter, review should be granted. The four factors are:

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1 2 3 4 5 6 7 8 9 10 !1 Id. at 201-202.

(1) thenature and strength of plaintiffs challenge to a miIitary decision... ; (2) the potential injury to the plaintiff if review is refused... ; (3) the type and degree of anticipated interference with the functioning of the military if review is granted... [and] (4) the extent to which military expertise or discretion is involved.

B.

PlaintiffCannot Mdet the Threshold Reviewabilitv Requirements under Mindes v. Seaman

As a threshold matter, a plaintiff challenging a military personnel decision must first exhaust

!2 administrative remedies before seeking relief in the courts. Mindes, 453 F.2d at 197. Courts may 13 interfere with the exhaustion of an administrative process only where the facts clearly establish that

14 fundamental rights of a party are being harmed in a way that cannot be adequately redressed by 15 al!owing the administrative process to be compl~ted. McGee v. United States, 402 U.S. 479 (1971); 16 McKart v. United States, 395 U.S. 185, t 94-95 !"1969). 17 Uniformed members of the military have statutory remedies to correct racial discrimination

18 in the military. See 10 U.S.C. ~ 1552; Chappell v. Wallace, 462 U.S. 296, 303-05, 103 S.Ct. 2362, 19 2367-68, 76 L.Ed.2d 586 (1983) (noting applicability of § 1552 to claims of racial discrimination by 20 enlisted men and remanding for consideration of a claim of discrimination under 42 U.S.C. 21 22 23 § 1985(3)). In addition, the military itself provides members with several remedies. The military Equal Opportunity program provides a forum for complainants who feel that they l~ave been the victim of discrimination. Service members may file complaints pursuant to Article 138 of the

24 Uniform Code of Military Justice, 10 U.S.C. §938, or register a grievance with either the Inspector 25 General or individual members of Congress. Army Board for the Correction of Military Records

26 ("ABCMR') "may correct any military record.., when.., necessary to correct an error or remove 27 an injustice." 10 U.S.C. §1552. 28 /// © 6

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Courts following Mindes require persons, such as plaintiff, who challenge adverse National Guard personnel actions, to resort first to this administrative remedy. See e._g~., Williarg.. s v. Wilson~ 762 F.2d 357 (4th Cir. 1985) (claim challenging National Guard member's separation dismissed

4 under Mindes as nonreviewable due to failure to exhaust); Navas v. Gonzalez Vales, 752 F.2d 765 5 6 7 8 9 10 ~11 (lst Cir. 1985) (failure by National Guard member to resort first to ABCMR required dismissal under Mindes). See also Holdinessy. Stroud, 808 F.2d 417 (5th cir. 1987) (requiring former Guard member to resort to ABCMR rather than bring action under 42 U.S.C. § § 1983, 1985). Plaintifffails to Satisfy the Mindes threshold requirements and this Court should decline to review this case. C. The Mindes Factors Weigh Against Judicial Review.

Even if the plaintiff successfully satisfied the threshold prerequisites for review, application of the four factors of the Mindes test still weighs heavily against review. Using the Mindes factors,

12 the Ninth Circuit has found that forraer National Guard members' challenges to their involuntary 13 release were norlreviewable. See e._~., Christoffersen v. Washington State Air National Guard, 8.55~

14 F.2d 1437 (9ih Cir. !988), cert. denied: 490 U.S. 1098 (1.9.89) (nonretention of former officers and 15 civilian technicians); Sehra v.. NeviJle, 80I F.2d 1135 (9th Cir. 1986); see also Holdiness v. Stroud, 16 808 F.2d 417 (5~h Cir. 1987) (constitutional and other challenges to involuntary discharge from 17 Guard and resulting loss of employment as civilian technician held as non-justiciable because I8 remedy sought would be too disruptive to the military); Navas v. Gonzalez Vales~ 752 F.2d 765 (1 19 Cir. 1985) (nonretention of Guard officer). As discussed below, weighing the Mindes factors 20 shows that ifPlaintiffhad met the Mindes_ threshold and exhausted his administrative remedies, his 21 22 23 claims would still be nonreviewable. 1. The Nature and Strength of Plaintiff's Claim

"A tenuous claim of any sort must be weighted in favor of declining review .... "

24 Penagaricano v. Llenza, 747 F.2d at 61 (quoting Mindes). 25 Plaintiff makes a vague and general assertion that the defendants violated various Army

26 Regulations, the Due Process Clause and section 2b00e, et seq. The underlying aIlegations for all 27 the claims are that plaintiffwas involuntarily separated from military service based, at least in part, 28 on his relationship)with a recruit. Plaintiff admits that he had a relationship with this-woman [FAC 7

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4:15-19.] and that the woman had been an applicant to the CNG [FAC 4:9-11]. Plaintiff acknowledges that after he w.as informed of the decision to separate plaintifffrom service by Lt. Col. Smith [FAC ¶ ! 0], plaintiff, with the assistance of counsel, prepared and submitted a rebutta!. [FAC

In essence, plaintiff's current claims are based on the fact that his rebuttal was not deemed

6 adequate to change the CNG's decision. He is seeking to have this court substitute its judgment for 7 8 9 that of the CNG. More importantly, however, the Ninth Circuit has specifically held that a service member of a State National Guard may not maintain an action under Section 1983 against State or Federal

10 National Guard officials. Bowen v. Oisted, 125 K3d 8{)0 (gth Cir. 1997). Therefore, the strength 11 12 13 1.4 of plaintiffs claims is indeed weak. 2. The Potential Injury to Plaintiff if Review Is Denied

Plaintiff's potential injury is thus primarily an economic one. Further, he can still apply to the Army Board for Correction of Military Records under t 0 U.S.C. ~ 1552. If proper grounds for

15 relief are presented, the ABCMR can provide relief as appropriate. Plaintiff also has the option of 16 pursuing his claim with the California Board for Correction of Military Records (CMVC 474). 17 Therefore, plaintiff can b~ made whole by properly availing himself of the administrative remedies 18 available within the military. Consequently, the second Mindes factor also weighs against judiciaI 19 review. See Christoffersen v. Washin~on State Air National Guard, 855 F.2d at 1444. 20 21 22 3. The Type and Degree of Anticipated Interference With Military Fun ction As a number of courts have recognized, judicial review of a military decision whether to

23 retain a Guard member on qualitative grounds "would seriously impede the military in the

24 performance of its vital duties." Christoffersen, 855 F.2d at 1444. Accord, Holdiness v. Stroud. 80 25 F.2d 417, ,$23 (Sth Cir. 1987). "Judicial review could also impair the ability of the National Guard 26 to make retention decisions based on subjective, though appropriate, criteria of military efficiency." 27 Christoffersen, 855 F.2d at 1444. Retention decisions go to "the core of overall strategies of 28 preparedness." ~ Thu. s, this Mindes factor weighs very strongly against review. 8

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4.

The Extent to Which the Exercise of Military Expertise or Discretion is I~volved "

Military personnel decisions "require a high degree of military discretion and expertise." Christoffersen, 855 F.2d at 1444. Even though plaintiff alleges general regulatory infirmities, as a practical matter, there is no way that judicial review could be limited to consideration of this aspect of plaintiff's claim. At some point the Court would have to substitute its own judgrnent for that of the Adjutant General when evaluating the decision to involuntarily separate the plaintiff from service. The court would have to intervene and determine who is entitled to receive Federal Recognition and who is suited for service in the ranks of the National Guard. "Courts must give great deference to the professional judgment of military authorities," Goldman v. Weinber~er. 475 U.S. 503, 507 (1986), and this fourth Mindes factor also weighs

12 heavily against review. See Christoffersen, 855 F.2d at 1444-1445. Accord, Penagaricano v. Llenza, 13 14 747 F.2d 55, 63 (1~' Cir. 1984.) ("The decision.., requires the highest degree ofmilitary discretion and expertise. Courts have traditionally deferred to the superior knowledge and experience of

15 professionals in such matters as... retention decisions."). 16 17 18 D. The Feres Doctrine Bars Claims Which are Incident to Military Service. In Feres v. United States, 340 U.S. 135 (1950) the plaintiff sued the United States

19 government for claims brought under the Federal Tort Claims Act. The Supreme Court held that 20 members of the armed services could not sue the government for injuries that "arise out of or are in 21

the course of activity incident to service." Id. at 146. The Supreme Court reasoned that relatio

22 between the government and its military personnel were "distinctly federal in character," exclusively 23 governed by federal law, and that a comprehensive government scheme was available for service24 connected injuries. 25 In Chappell v. Wallace, 462 U.S. 296 (1983.~ five enlisted Navy personnel sued various

26 officers, alleging that they had been discriminated against because of their race, color or previous 27 condition of servitude and thereby deprived of their rights under the Constitution and the laws of the 28 9

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United States.2 They also alleged a conspiracy among the officers to deprive them of their fights in violation of 42 U.S.C. ~ 1985. In Chappell, the Supreme Court expanded the Feres doctrine to extend not only to claims brought under the Federal Tort Claims Act, but to any actions brought by or

against military personnel, provided that the incidents alleged implicated "inherently military" policy. Id. at 304. The Supreme Court held that "the unique disciplinary smacture of the Military Establishment and Congress' activity in the field constitute 'special factors' which dictate that it would be inappropriate to provide enlisted military personnel a Bivens.-type remedy against their superior officers." Id. at 304. The Court reasoned that a comprehensive system of justice regulated military

10 life, taking into account the special patterns that define the military structure. Accordingly, civilian 11 12 13 14 15 16 17 18 19 20 2! 22 23 24 25 26 27 courts could not review this peculiar military system: [J]udges are not given the task of running the Army. The responsibility for setting up channels through which.., grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline. from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as ~he Army must be scrupulous not to interfere in judicial matters. Id. at 301 (citing Orloffv. Willoughby 345 U.S. 83 (!953)). The Supreme Court further reasoned: Congress has exercised its plenary constitutional authority over the military, has enacted statutes regulating military life, and has established a comprehensive internal system of justice to regulate military life, taking into account the special patterns that define the

2. The plaintiffs sued for damages pursuant to Bivens v. Six Unknown Federal Narcotics Xgen.;s, 403 U.S. 388 (l 971), which establishes as a general proposition that victims of a :onstitutional violation perpetrated by a federal actor may sue the offender for damages in 28 ~'ederal court, desp~e absence of explicit statutory authorization for such suits.
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military structure. The resulting system provides for the review and remedy of complaints and grievances such as those presented by respondents. Id. at 302. Finally, the Supreme Court. stated: It is clear that the Constitution contemplated that the Legislative Branch has plenary control over rights, duties, and responsibilities inthe framework of the Military Establishment, including regulations,

8 9 10 11

procedures, and remedies related to military discipline; and Congress and the Courts have acted in conformity with the view. Id. at 301. In United States v. Stanley, 48..3 U.S. 6,.69 (1987) the Supreme Court expanded Fores even further. It held that Fores applies not only to claims which potentially impact the officer/subordinate

12 relationship, but to all activities "incident to service." Id. at 681. 13 In United States v. Jotmson, 481 U.S. 6.81 (1987) the Supreme Court reaffirmed and again

14 broadened the Fores doctrine. It held that Fores immunity extended to a Federal Tort Claims Act 15 16 action brought by the widow of a Coast Guard pilot killed during the course of flying activities as a result of the negligence of civilian federal air traffic controllers. The Supreme Court reasoned that

17 it did not want to "'involve the judiciary in sensitive military affairs at the expense of military I8 19 20 21 22 23 24 25 discipline and effectiveness.'" Id. at 690. Thus, "[e]ven if military negligence is not specifically alleged in a tort action, a suit based upon service-related activity necessarily implicates the military judgments and decisions that are inextricably intertwined with the conduct of the military mission." Id. at 691 (emphasis added). E. The Feres Doctrine Has Been Extended to State National Guards. With each successive interpretation of the Fores doctrine, the scope of this immunity has

26 broadened in recognition of Congress' plenary power over the United States military and the reserve 27 components, of which the National Guard is an intrinsic part. Indeed, it is now well-settled that the 28 traditional rule preluding review of military de~isions applies to the National Guard, as well. See,

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1

e.g., Covington v. Anderson, 487 F.2d 660, 664 (9'h Cir. 1973) (as an essential reserve component

2 of the United States military, the National Guard is subject to the traditional rule against review of 3 military decisions); Stauber v. CIine, 837 F.2d 395, 399 (9.t.h Cir. 1988) (,It is beyond question that 4 the Feres doctrine generally applies to claims brought by National Guard members.")~ 5
6 7 8 9 Courts have expanded Feres to preclude claims by National Guardsmen brought under a variety of theories, including those brought under 42 U.S.C. § § 1983 and 1985. See, e.g., Martelon v. Ternple,....747 F.2d 1348, 1349-51 (10t~ Cir. 1984) (National Guardsman's 42 U.S.C. §1983 claim challenging dismissal from the Guard barred pursuant to ~; Mollnow v. Carlton, 716 F.2d 627. (9t~ Cir. 1.983) (court declined to review 42 U.S.C. §1985 claim, following the rationale of

10 Chappell and Feres regarding the peculiar relationship between an enlisted man and his superiors, 11 the effects on discipline by the maintenance of such suits, and Congress' use of its plenary authority !2 over the military to establish a system of review and redress for the military). 13 In Wright v. Park. 5 F.3d 586 (1~t Cir. 1993) a National Guard technician brought a civil

!4 rights action against military officers in the chain of command. Relying on Fere____~s, Chappell and 15 ~, the Court held that no Bivens remedy is available for injuries that arise out of or in the 16 course of activity incident to military service. "We now join several of our sister circuits in 17 accepting this bright-line rule as the definitive statement on the justiciability of civil rights claims 18 in the military context, including the National Guard." Wri_aht, supra, at 590. Moreover, although

19 Wright's suit was brought under the Civil Rights Act rather than as a Bivens action, "...absent a 20 specific statutory provision to the contrary, there is no principled basis for according state actors 21 sued under 42 U.S.C. §1983 a different degree of immunity than would be accorded federal actors

22 sued for an identical abridgement of rights under Bivens." Id. at 591. 23 The Ninth Circuit adopted the ~ position in Bowen v. Oistead, 125.....F.3d g00 (.~t~ Cir.

24 1997). "We agree with th~ First Circuit and believe that insofar as the Ferds doctrine extends to the 25 state National Guard units, it shields state military officers from constitutional claims brought under 26 section 1983 to the same extent that it protects federal military personnel from defending against 27 Bivens actions raising the very same claims." Id. at 803, FN2. 28 12

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Bowen was a member of the National Guard (Alaska), who was separated from an Active Guard and Reserve tour of duty, as was plaintiff. Bowen (hallenged his termination by the State Adjutant General on theories of breach of contract, wrongful termination of employment, denial of

4 administrative due process and state constitutional ~ights, denial of equal protection, and RICO 5 6 7 8 9 t0 1I 12 13 violations, among bthers. With respect to B0wen's constitutional and tort claims, the Court stated: We endorse these holdings: Feres applies to the state National Guards and their members due to the integral role they play as part of the nation's defense force and the substantial degree to which the state National Guards are financed, regulated, and controlled by the federal government even when not called into active federal service. Consequently, under Stauber and the clear weight of authority in other circuits, Bowen's constitutional claims and claims sounding in tort are subject to the Feres doctrine. Id. at 805. Applying Feres, the Court held that "the personnel decisions contested by Bowen in fact were made

14 'incident to service'" and were therefore barred. Ibid. The Court concluded: "In sum, the Feres 15 doctrine is applicable 'whene~rer a legal action "would require a civilian court to examine decisions t6 regarding management, discipline, supervision, and control of members of the armed forces of the

17 United States."' (citations omitted.)" Id. at 804. 18 19 F. Plaintiff's Claims Are Barred by the Feres Doctrine. It is unequivocal that the conduct about which Plaintiff complains was incident to his service

20 as a Sergeant First Class in CNG. He alleges that he was involuntarily separated from service with 21 CNG without proper attention to military regulations. His breach of contract claim, though not

22 specific, must bebased on his employment contract with the CNG. 23 The Feres doctrine is applicable to this case. It was inherently within the military's power

24 to make a personnel decision regarding the appropriate disposition of the allegations against 25 Plaintiff, whether they warranted nonjudicial punishment (Article 15), Court Martial or an 26 administrative separation pursuant to Natioi~al Guard Regualtion 600-5, as actually occurred. This 27 case is non-justiciable because it would require this Court to examine CNG's decisions regarding 28 management, discipline, supervision and control of a member of the military. Bowen v. Oistead, 13

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supra, at 804-805. See also Stauberv. Cline, supra, at398 (The Feres doctrine"...occupies a position comparable to a restriction on subject matter jurisdiction [T]he Feres doctrine has come to rest at ....

least in significant part on the view that the judiciary ought not to intrude in military affairs.") Therefore, this case is barred by the Feres doctrine. G. Plaintiff, as a Member of the Military_, Is Not Entitled to Recovery under Title Vii Members ofthe armed forces, including the National Guard, are precluded from bringing

claims under the provisions of Title VII. Hodge v. Dalton 107 R.3d 705 (9t~ Cir. 1997); Gonzalez v. Department of Army, 71.8 F.2d 926 (9~h Cir. 1983). Plaintiff has listed a cause of action for discrimination in violation of 42 U.S.C. ~ 2000e et seq.3 As set forth above, uniformed military personnel have alternative remedies for this type of claim. III. DEFENDANTS ARE IMMUNE FROM LIABILITY PURSUANT TO THE ELEVENTH AMENDMENT Plaintiff has named the State of California and the California National Guard, erroneously sued herein as California Army National Guard, as defendants in this case. The Federal Court is

16 without jurisdiction as to these Defendants. Specifically, the Eleventh Amendment to the United 17 18 19 20 21 22 States Constitution provides as follows: The Judicial power of the United States shall not be construed to extendto any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. In the absence of its consent, a state or any agencies or departments thereof are not only

23 immune from suits brought against it by citizens of another state, but also from suits brought against 24 it by its own citizens, even where suit is based on issues arising under federal law. Penrthurst State 25 School & Hospital v. Haldem~an, 465 U.S. 89 (!984); Actmedia, In~. v. Stroh, 830 F.2d 957~...963 26 27

3. Plaintiff does not identify what protected class he is claiming as the basis for this cause 28 ~f action. Defendants assume he is claiming racial discrimination, based on his amended ~llegations refereri"~ing treatment of caucasian recruiters.
14

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(gth Cir. 1986.) This Eleventh Amendment bar applies to both federal and pendant state claims for damages or other retroactive relief brought against the State or its of~cials in their official capacities. Pen.___.~a v, Gardner, 976 F. 2d 469, 472-474 (9th Cir. 1992.); Edelman v. ~ordon 415 U.S~ 651,667-668

5 19_(_!_~. Furthermore, a suit against a state agency is considered to be a suit against the state, and 6 thus is barred by the Eleventh Amendment. Pennhurst State School & Hospital v. Halderman, supra~ 7 8 9 465 U.S. at 100; Actmedia, Inc. v. Stroh, supra, 830 F.2d at 963. Neither the State of Califomia nor the United States Congress has provided consent or authorization for the State of California or any of its agencies, such as the CNG, to be sued in

!o Federal Court with respect to the claims under 42 U.S.C~ _~1983, 1985 and 2000e, presented by 11 Plaintiff. Consent to be sued under the California Tort Claims Act does not impart the state's t2 consent to be sued in federal court. Riggle v. State of California, 577 F.2d 579,....585 (9th Cir. I978); 13 see also Quern v. 3ordon, 440 U.S. 332, (I979) (Congress did not abrogate the state's sovereign 14 immunity when it enacted 42 U.S.C. § 1983.). 15 The Eleventh Amendment bar has specifically been applied in a case involving the National

16 Guard. In Jones v. New York State Division of Military.and 1%val Affairs, 166 F.3d 45 (1999), a 17 Major in the New York State Army National Guard brought a § 1983 action alleging he was removed 18 from his position with the aviation service without due process. The Court held that the action was 19 barred inasmuch as the New York State Army National Guard was a state agency entitled to 20 Eleventh Amendment immunity, and the Major did not allege that New York had waived, or that 21 22 23 Ill 24 //1 25 Ill Congress had abrogated, the State's sovereign immunity. In light of the above, the Complaint must be dismissed.

26 Ill 27 /l/ 28
!//

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1 2 3 4 5 6 Dated: August 13, 2001 7 8 9 10 11 12 13 14 15 16 .17 18 19 20 21 22 23 24 25 26 27 28 By:

CONCLUSION For the foregoing reasons, Defendants State of California and the California National Guard, erroneously sued herein as California Army National Guard, respectfully request that the Court grant their motion,

Respectfully submitted,
BILL LOCKYER, Attorney General of the State of California LAURA LEE GOLD, Supervising Deputy Attorney General PATRICIA A. NEVONEN Deputy Attorney General

PATRICIA A. NEVONEN Attorneys for Defendants State of California and California National Guard, erroneously sued herein as Califomia Army National Guard

16

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DECLARATION OF SERVICE BY U.S. MAIL Case Name: Leroy Pope v. California Army National No.: CV 01-04163 RSWL (Ex)

I declare: I am employed in the Office of the Attorney General,- which is the office of a member of the California State Bar at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence-for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business.
On August 13~ 2001, I served the attached Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Los Angeles, California 900.13 addressed as follows: Leroy Pope 1886 Denwal Drive Carson, CA 90746

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on August 13, 2001, at, California.

Yvette Wright Declarant

gnature

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ORIGINAL
~ITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES-GENERAL

Priority ___. Send ~ Enter __ Closed JS-5/~ JS-2/JS-3 Scan Only._.._

CASE NO. CV 01-4163-RSWL

DATE: September I0o 2001

TITLE: LEROY POPE v. CALIFORNIA ARMY NATIONAL GUARD. et al. PRESENT: Deputy Clerk ATTORNEYS FOR PLAINTIFFS: Leroy Pope, pro se HONORABLE RONALD S.W. LEW. JUDGE
Roger May

Court Reporter ATTORNEYS FOR DEFENDANTS: Patricia Nevonen

PROCEEDINGS: Defts' State of California and California National Guard's motion to dismiss Counsel present and hearing held. Court rules as follows:

Court GRANTS defendants' motion to dismiss. Counsel for defense to prepare the order.

~
MINUTES FORM II CIV-GEN

ete{I Sent

~ JS -'2 / Js-za ~ CLSD

INITIAL~ OF DEPUTY CLERK kd

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1 BILL LOCKYER, Attorney Genera! of the State of California 2 LAUKA LEE GOLD, Supervising Deputy Attorney General 3 PATRICIA A. NEVONEN, (State Bar No. 90290) Deputy Attorney General 4 300 S. Spring Street Los Angeles, CA 90013-1230 5 Telephone: (213) 897-9474 Attorneys, for Defendants State of California 6 ~d Calif'prnia National Guard

OOPY
Priority ----.

UNITED STATES DISTRICT COURT Enter CENTRAL DISTRICT OF
¯

Closed ~

-,JS-5IJS 6 CALIFORNIA]s.2/JS23

~

Scan Only.._..._

"~-~roy ~ope, 11 Plaintiff, 12 State of California, California Army 14 National Guard, and Does 1 through ] 0, t5 16 17 Defendants. 13

CASE NO. CV 01-04163-RSWL(Ex)

/
[Pro/o6sed] ORDER OF DISMISSAL t Date: September 10, 2001 Time: 9:00 AM Place: Room 21 Judge: Ronald S. W. Lew Date Action Filed: May 7, 2001

This matter came before the court for hearing on September I 0, 2001 in Court Room 21 at

18 9:00 a.m. on Defendants' Motion to: Dismiss. Patricia A. Nevonen, Deputy Attorney General, 19 appeared for defendants State of California and California National Guard. Plaintiff appeared in 20 propria personum. 21 Upon review of the papers filed in support of the motion and after oral argument, the Court

22 orders that plaintiffs complaint is dismissed, with prejudice. 23 24 25 26 27 28
I CENTRAL DISTRICT OF ~.,ALtFOR~_

Dated: September~ 2001 CLERk. U.S. msra, ter t:OuRt ~, J RONALD S. 1~IZ. LEW

i~Y

,

. Dra'urY ----. JS-- 5"I 03 ;- 6

91/

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BILL LOCKYER, Attorney Genera! oft.he State of California LAURA LEE GOLD, Supervising Deputy Attorney General PATRICIA A. NEVONEN, (State Bar No. 90290) Deputy Attorney General 300 S. Spring Street Los Angeles, CA 90013-1230 Telephone: (213) 897-9474 Attorneys, for Defendants State of California ~d Calif'prnia National Guard

COPY
CLILED D~P_~U

Priority Closed

UNITED STATES DISTRICT COURT Enter CENTRAL DISTRICT OF CALIFORNI S-2/Js 3 .___ A~S-5/JS:6 -.-..
Scan Only___.
¯

ct.O 11 12 13

°'~-~roy ~ope,
>.

CASE NO. CV 01-04163-RSWL(Ex) Plaintiff,

/
[Pr?sed] ORDER OF DISMISSAL Date: September 10, 2001 Time: 9:00 AM Place: Room 21 Judge: Ronald S. W. Lew Date Action Filed: May 7, 2001

State of California, California Army 14 National Guard, and Does I through 10, 15 16 17
Defendants.

This matter came before the court for hearing on September I 0, 2001 in Court Room 21 at

18 9:00 a.m. on Defendants' Motion tc Dismiss. Patricia A. Nevonen, Deputy Attorney General, 19 appeared for defendants State of California and California National Guard. Plaintiff appeared in 20 propria personum. 21 Upon review of the papers filed in support of the motion and after oral argument, the Court

22 orders that plaintiff's complaint is dismissed, with prejudice. 23 24 25 26 27 28 Dated: September ~,o7~., 2001

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Case 1:06-cv-00446-MCW

Document 11-5

Filed 12/20/2006

Page 17 of 17

DECLARATION OF SERVICE BY U.S. M~L

Case Name: Leroy Pope v. State of California, California Army National Guard No.: CV 01-04163-RSWL 0gx) I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the ONce of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of th.e Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On September 18, 200I, I served the attached [Proposed] Order of Dismissal" by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Los Angeles, California 90013 addressed as follows: Leroy Pope 1886 Denwal Drive Carson, CA 90746

I declare under penalty of perjury under the laws of the State of Califomia the foregoing is true and correct and that this declaration was executed on September 18, 2001, at, California.

Yvette Wright Declarant

Signature

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