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Leroy Pope
UNITED STATES DISTRICT COURT ' CENTRAL DISTRI(:T OF CALIFORNIA. , CASE NUMBER
PLAINTIFF~),
V.
State of California, California Army National Guard, And Does I Through i0, I ne lu si re, D~FENDANT($), TO:
SUMMONS Amended Complaint
THE ABOVE-NAMED DEFENDANT(S):
YOU ARE HEREBY SUMMONED and reqfi"i~ed to file with this cou~ and serve upon plaihtiff's attorney Leroy pope 1886 Denwall Drive Carson; CA 90746 whose address is: ~.
An answer to the [] COMPLAINT, [~
@, 2"~, .etc.)
AMENDED cOMPLAINT,
[] COUNTERCLAIM, [] CROSS-CLAIM which is herewith served upon you within Go days after
service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will b~ taken against you for the relief demanded in the complaint. " CLERK, U. S. DIS'r~ ., .... 2t l-',J;,~ii TERRY BA~:ER" --" "- J Deputy Clerk ¯ (SEAL OF TIIE COURT~
CV-1A (01/01)
SUMMONS
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LEROY POPE 1886 DENWAL DRIVE CARSON, CA 90746 (310) 635-2253 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
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LEROY POPE, Plaintiff,
) Case No. : CV 01-04163) FIRST AMENDED COMPLAINT FOR: i. BREACH OF CONTRACT 2. FAILURE TO INVESTIGATE 3. FAILURE TO RESPOND TO REBUTTAL AND DENIAL OF RIGHT TO CONFRONT ACCUSER
vs.
STATE OF CALIFORNIA, CALIFORNIA ARMY NATIONAL GUARD, AND DOES 1 THROUGH I0, INCLUSIVE, Defendants.
(s)
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4. STATUTE OF LIMITATIONS VIOLATION ¯ 5. VIOLATION OF 42 U.S.C. SECTIONS 2000-e, ET SEQ.; DISCRIMINATION 6.VIOLATION OF 42 U.S.C. AMENDMENT 14 SECTION I, DUE PROCESS 7. VIOLATION OF 42 U.S.C. SECTION 1983 & 1985 8. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
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)
PLAINTIFF LEROY POPE, HEREBY ALLEGES AS FOLLOWS: JURISDICTION AND VENUE
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i.
THIS IS A CIVIL ACTION ARISING UNDER 42 U.S.C..AMENDMENT 14
AND 42 U.S.C. SECTION 2000e, ET SEQ., THIS COURT HAS FEDERAL
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~JRiSDICTION OVER THIS ACTION. THIS COURT HAS PENDENT JVRISDICTION OVER ANY STATE LAW CLAIMS ASSERTED KEREIN. 2. VENUE IS PROPER IN THIS DISTRICT UNDER 28 U.S.C. SECTIOI~ 1391, IN THAT TH~ CLAIMS AROSE IN THIS. DISTRICT ~ DEFENDAN~ (S) TRANSACTS GOVERNMENTAL BUSINESS IN THIS DISTRICT DIRECTLY OF THROUGH ITS AGENTS.
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SUMIKARY OF THIS DISPUTE i. PLAINTIFF SERGEANT .FIRST CL/~S RECRUITER LEROY POPE, FOR THE CALIFORNIA ARMY NATIONAL GUARD, HEREINAFTER REFERRER TO AS '~C .A.N. G. " WAS RELEW%NT TO THIS COMPLAINT.
ACCUSATIONS WEP~ BROUGHT AC~AINST SAID PLAINTIFF i) AN INAPPROPRIATE RELATIONSHIP WITH A FEMALE ~%?PLICA~T WH( WAS DENIED ENLISTMENT INTO THE MILITA/~Y, AND 2) ABUSE O]
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A GOVERNMENT VEHICLE. THE C.A.N.G. VIOLATED THEIR OWN FEDERALLY CHARTERED REGULAT-IONS, AND DENIED THE SAID PLAINTIFF FAIR AND EQUAL RIGHTS TO BE TRIED UNDER THE LAW. THE C.A.N.G. DENIED SAID PLAINTIFF iq FAIR AND PROPE~ PRE-TRIAL HEJhKING, AS WELL AS A TRIAL ITSELF. THE C.A.N.G. FAILED TO FOLLOW PROCEDURE AND DENIED SAIE PLAINTIFF FAIR AND EQUAL TREATMENT UNDER THE LAW. THE C.A.N.G. NEVER INVESTIGATED i%.LLEGATIONS AGAINST PLAINTIFF A!qD HAD NO SUPPORTING EVIDENCE. THEN WITHOUT DUE PROCES~
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OF LAW AND IN A DISCRIMINATING AND CONSPIRATORIAL 2. FASHION, THE C.A.N.G. INVOLUNTARILY SEPARATED SAI E PLAINTIFF FROM THE MILITARY. THEREFORE, THIS ACTION IS
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3.
BROUGHT FORTH AGAINST THE DEFENDANT CAUSES OF ACTIONS CITED HEREIN. THE PARTIES
(S) C.A.N.G.
FOR
THE
3. PLAINTIFF SERGEANT FIRST CLASS RECRUITER LEROY POPE, IS A CITIZEN OF THE UNITED STATES, AND THE STATE OF CI%_LIFORNIA, AND MAINTAINS HIS PRINCIPAL PLACE OF KESIDENCE IN CARSON, CALIFORNIA AT 1886 DENWALL DRIVE, .C~R: SON, CA 90746. DEFENDANT (S), THE C.A.N.G., IS A MILIT/d~Y AGENCY OF THE
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STATE OF CALIFORNIA, ANDAN EXTENSION OF THE "UI~ITED STATES MILITARY AND SUBJECT TO FEDERALIZATION IN NATIONAL WARTIME EVENTS, WITH ITS PRINCIPAL PLACE OF OPERATION RASED IN SACRAMENTO, CALIFORNIA, AT 9800 GOETHE ROAD, 95826-9101 AND THE STATE OF CALIFORNIA. 5. PLAINTIFF DOES NOT KNOW THE CURRENT CAPACITIES OR EXACT DUT%
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S'TATION NO~ THE NAMES AND FULL C~ACITIES OF- DEFENDANTS SUEI HEREUNDER AS DOES 1 THOUGH I0, INCLUSIIrE, THEREFORE, PLAINTIF~ SUES EACH OF THEM BY FICTITIOUS NAMES. PLAINTIFF WILL SEEK ISSO~ TO AMEND THIS COMPLAINT TO ALLEGE THE DOE DEFENDANTS' TRUE NAME~ AND CAPACITIES WHEN THEY ARE ASCERTAINED. PLAINTIFF IS INFORME! AND BELIEVES, AND ON THAT BASIS ALLEGES, THAT EACH DOE DEFENDAN~ IS RESPONSIBLE IN SOME M3%NNER FOR THE ACTS AND LIA!BILITIES ALLEGED HEREIN AND /uO.E THE DEFENDANTS AND EACH OF THEM.
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BACKGROUND OF THIS ACTION
2
6. ON NOVEMBER 4, 1999, MASTER SERGEANT STEW~%B!~, SUPERVISOR FOR RECRUITING DISTRICT LYNWOOD CA ASKED ME ABOUT ALLEGATIONS THAT MS. PH~LLMORE MADE ON NOVEMBER 4, 1999. THE PLAINTIFF TOLD HIM THAT THE ALLEGATIONS AGAINST HIM WERE FALSE AND MISLEADING. T~E PLAINTIFF TOLD MASTER SERGEANT STEWi~/~D THAT MS. PHILI~IORE HA!9 BEEN RELEASED FROM UCLA MENTAL WARD DUE TO. MENTAL DEPRESSION. PLAINTIFF EXPLAINED THAT MS PHILLMORE WAS MEDICJU3 REJECTED ON AI~RIL 9, 1997, AND HER STATUS WAS KEJECTED/N6N-A~PPLICANT, WILL REMAIN UNTIL LA M~PS DETERMINES HER BEING A QU~IFY A2PLICANT ACCORDING TO REGULATIONS. SHE LATER ACCEPTED A BETTER JOB OFFER WITH THE LONG BEACH SCHOOL DISTRICT JUNE 1997, BEFORE HER SUBMITTING AN APPLICATION BEFORE SIGNING UP FOR THE MILITARY. THERE IS AN EMPLOYMENT VERIFICATION LETTER ON FILE SHOWING HER WORKING iN 1997. THE PLAINTIFF ALSO TOLD MASTER SERGEANT STEWARD THAT HE AND MS. PHILLMORE WERE IN A RELATIONSHIP FOR THE PAST TWO ~S ~%NI) RELATIONSHIP ENDED BECAUSE OF MS. PHILLMORE'S HISTORY WITH MENTAL ILLNESS, SEXUAL MOLESTATION AND CRIMINAL ACTIVITY. MASTER SERGEANT STEWARD
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2O ALLEGED THAT THE PLAINTIFF WAS LYING WITHOUT ANY CONCLUSIVE
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FINDINGS, AND USED HIS OWN DESCRIPTION AND DEFINITION OF THE WORD APPLIC2~NT. MASTER SERGEANT STEWARD COUNSELED PLAINTIFF CONCERNING THE ALLEGATIONS NONETHELESS, AND SAID THAT THERE WOULD BE A FOL'LOW-UP I~STIGATION.
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7.
DURING THE NEXT COUPLE OF MONTHS, THE PLAINTIFF SUFFEREE
THROUGH VERY DIFFICULT TINES EMOTIONALLY, BECAUSE OF THE CONSTANT HARASSMENT BY MASTER SERGEANT STEWARD. THE PIR%_INTIF~
WAS RECEIVING PHONE CALLS FROM FELLOW RECRUITERS STATING THAT MASTER SERGEANT STEWARD WAS SPREADING NEGATIVE /~ND INCORRECT INFORMATION ABOUT HIM. 8. ON JANUARY i0, 2000, PLAINTIFF MET WITH RECRUITING OFFICER
CAPTAIN GIBBS AI~D MASTER SERGEANT STEWARD. CAPTAIN GIBBS SAiD THE RECRUITING COMMAND GAVE HER CONTROL OVER THIS SITUATION THAT SHE WANTED PLAINTIFF TO REMAIN IN HER COMMAND. CAPTAIE
GIBBS SAID THAT PLAINTIFF'S 10 YEARS OF EXPERIENCE IN RECRUITIN~ HAD EARNED HIM TOP RECRUITER RECOGNITION FOR HIS ASSIGNED AREA HER DECISION WOULD BE A LETTEK OF REPRIM/aND AND THERE WOULD BH AN INVESTIGATION. PLAINTIFF WAS INSTRUCTED TO FAX A LETTER T¢ CAPTAIN GIBBS ABOUT HIS RELATIONSHIP WITH MS. PHILLMORE. 9. ON MARCH 24, 2000, CASPT~.IN GIBBS INFORMED THE PLAINTIFF
THAT THE RECRUITING COMN/aND WIaNTED HIM DISCHAIqGED FROM ACTIVE DUTY. CAPTAIN GIBBS AND MASTER SERGEANT STEWARD DID NOT KNOW ANY REGUIJ%TIONS THAT PLAINTIFF HAD VIOLATED, BUT THEY SAID THE PLAINTIFF WAS GUILTY OF THE ALLEGATIONS. CAPTAIN GIBBS SAIE
LIEUTENANT COLONEL SMITH WOULD INFORM THE PLAINTIFF ON WHAT REGULATION (S) WERE VIOLATED. SERGEANT SMITH IS A CAUCASIA~ SOLDIER.
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ON APRIL 2, 2000, THE PLAINTIFF MET WITH LIEUTENANT COLONEl
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SMITH FOR FIVE MINUTES AND HE INFORMED PLAINTIFF OF THA~
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PLAINTIFF WAS BEING DISCHARGED FROM ACTIVE DUTY. COLONEL SMITH TOLD PLAINTIFF THAT PLAXNTIFF WAS ENTITLED TO BE REPRESENTED B~ LEGAL CO~SEL. '
ii. ON APRIL 6, 2000, WITH THE ASS!STI~INCE OF JUDGE /dDVOCATE GENERAL OFFICER, MAJOR THOMPSON, A REBUTTi%.L WAS PREPARED AAU SUBMITTED ON APRIL 14, 2000". THE PLAINTIFF TOLD MAJOR THOMPSO~ HE HAS WITNESSES AND EVIDENCE TO DISPUTE THE In_LLEGATIONS. THE
OFFICER TOLD PIJLINTIFF THAT THE ALLEGATIONS AGAINST HIM ARE NO~ FOUND IN NATIONAL GUARD REGUI2~T ION 600-5, FOR IIVVOLUNTARY SEPA!~ATION. HE FURTHER STATED THAT UNLESS RECRUITING COMMANE HAS ITS OWN REGULATION, THE PLAINTIFF W/~S INNOCENT. HE /~LS(
STATED THAT THE ALLEGATIONS ARE NOT SUFFICIENT CAUSE T( DISCHARGE ONE FROM ACTIV~ DUTY BECAUSE THE FACTS SHOWED THAT THE PLAINTIFF BECAME INVOLVED WITH REJECTED/NON-APPLiCANT PHILLMORE WHEN SHE NO LONGER DESIRED AN INTEREST IN THE C.A.N.G. ~ FURTHER STATED THAT THE STAFF JAG OFFICE IS RESPONSIBLE FOB IN-v-ESTIGATING EVERYTHING THAT PLAINTIFF ALLEGES PERTAINING TC HIS REBUTTAL. 12. ON OR ABOUT APRIL 14, 2000, MAJOR THOMPSON SAID THAT HE WOULD BE TALKING TO JAG MAJOR DANA ON APRIL 17, 2000, WHO I REPRESENTING THE COMMAND /iND INFORMED HIM THAT THESE A-LLEGATION~ WERE NOT FOUND IN I%_RMX REGULATIONS. MAJOR THOMPSON NEVER SPOI<3 WITH JAG MAJOR DANA. MAJOR THOMPSON FAILED TO REPRESEN[
PLAINTIFF AND NE~'JER TRIED TO BRING ANY PARTIES TOGETHER TO
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RESOLVE THE CHARGES AGAINST PLAINTIFF.
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TH!S OFFICER MISLED TH~
PLAINTIFF INTO THINKING THAT COUNSEL WOULD REPRESENT HIM, 13. ON APRIL 26, 2000, THE PLAINTIF.F MET WITH LIEUTENANT COLONEL SMITH TO RESPOND WITH HIS REBUTTAL. TH!S OFFICER TOLE
THE PLAINTIFF THAT HALF OF HIS COMMAND BELIEVED THE REBUTTAL TC BE TRUTHFUL BUT HE DID NOT BELIEVE THE PLAINTIFF. THE "PLAINTIFF RELATED TO THIS OFFICER THAT HE HAD NOT BEEN FOUND GUILTY O~ /uNYTHING REGARDING THE ALLEGATIONS AGAINST HIM. IN CONCLUSION COLONEL SMITH ACTED BEYOND HIS AUTHORITY BY PUNISHING T~ PLAINTIFF EOR AN OFFENSE THAT HAD ALlY PAST THE STATUTE OF LIMITATIONS. Note: ARMY REGULATION 27-10 STATED NO PERSON CAN BE PUNISHED FOR A NON-JUDICIAL OFFENSE THAT OCCURS MORE THAN TW, YEARS OF THE EVENT. THIS OFFICER SHOWED PREJUDICE BY PUNISHINI
THE PLAINTIFF FOR AN ALLEGED OFFENSES IN APRIL 1997, WHICH H~ FAILED TO INVESTIGATE AND ACTED ABOVE THE LAW. 14. ON MAY 2, 2000, A LETTER WAS FORWAPdDED TO THE RECRUITINCCOMPLAND STATING THAT THE PLAINTIFF WAS NOT GOING TO VOLUNTARILY RESIGN FROM ACTIVE DUTY BECAUSE THE C.A.N.G. HAD NOT SHOWN FAIRNESS AND PROCEDURE S. 15. ON JUNE 5, 2000, MAJOR GENERAL PAUL MONROE, STATING THAT FROM ACTIVE THE COMMAND HAD NOT FOLLOWED ARMY REGULATION '. JR. HE DUTY TH~ WA~ O~
22 ADVOCATE GENERAL, SIGNED A LETTER 23 24 25
INVOLUNTARILY SEPARATING THE PLAINTIFF AUGUST 31, 2000.
GENERAL MONROE FAILED TO PROTECT
THE BASI.
RIGHTS OF THE PLAINTIFF.
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HE ALLOWED HIS COMM_AND TO ILLEGALLY SEPARATE THE PLAINTIFF FROF. ACTIVE DuTY WITHOUT FOLLOWING ARMY REGULATION 27-10 PROCEDURES. 16. ON JUNE 26, 2000, PLAINTIFF SENT A CERTIFIED LETTER TO THE tDVOCATE GENERAL" S OFFICE. THE LETTER EXPLAINED HOW THE
PLAINTIFF'S RIGHTS WERE VIOLATED, AND THE FAILURE OF THE CKAI~ OF COMMAND TO WORK FROM THE BOTTOM UP. PLAINTIFF INFORMED THE
ADVOCATE GENERAL' S OFFICE THAT HE HAD NOT BEEN GIVEN TH~ OPPORTUNITY TO BE REPRESENTED BY COT~SEL. THE PLAINTIFF /LLSC
.REPORTED SEVERAL INCIDENTS OF DISCRIMINATION WITHIN THE COMM/uND.
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MAJOR GENERAL MONROE F!iILED TO RESPOND TO THE LETTER. 17. COLONEL WILLIAM F. WEIR WAS !LSSIGNED AS STATE STAFF JUDGE
ADVOCATE GENERAL OFFICER FOR THE CALIFORNIA ARMY NATIONAL GUARD THIS OFFICER WAS RESPONSIBLE FOR THE BASIC SOLDIER RIGHTS. COLONEL WEIR VIOLATED ARMY REGULATIONS BY FAILING TO CONDUCT A~ INVESTIGATION AND DENIED PLAINTIFF DUE PROCESS. 18. ON JULY 25, 2000, THE PLAINTIFF CONTACTED THE STATE SENATOR BOWEN' S OFFICER /LND ASKED FOR ASSISTANCE IN CONTACTING THE C.A.N.G. IN REGARDS TO THE NON RESPONSIVE~SS OF GENEB!tL MONROE TO THE PLAINTIFF'S LETTER DATED JUNE 26, 2000. OF SERGE/LNT FIRST FOR CLASS SENATOR POPE, MARI SELA ACTING ON BEHALF CARABALLO, OFFICE ASKED FIELZ THE O~
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REPRESENTATIVE
DEBRA BOWEN' S PLAINTIFF DENIED
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NATIONAL GUARD WHY WAS THE AUGUST !0, DISTRICT, 2000, SENATOR
DUE PROCESS. TWENTY-EIGHI FROM
DEBRA BOWEN' S OFFICE, RECEIVED A
CALIFORNIA LEGISLATURE,
LETTER
THE
C.A.N.G. STATING THAT THEY DID NOTHING WRONG.
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THE C .A.N.G. NEVER RESPONDED TO THE LACK OF DUE PROCE~ 2 ALLEGATION. EXHAUSTED. SENATOR REP. 5 6 7 8 9 I0 ii 12 13 14 15 16 17 !8 19 20 21 22 23 24 25 DIDN" T ~OFFER HEARING. 19. ON JUNE 18, 2000, THE PLAINTIFF FILED A COMPLAINT AT THAT POINT, ALL MILITARY CHANNELS HAD IN 7U)DITION, COLONEL WEIR 7~LSO TOLD THE THAT HE DIDN'T KIqOW WHY THE RECRUT-TING SERGEANT POPE, THE PLAINTIFF, AN ARTICLE
THE C.A.N.G. WITH THE EQUAL EM]?LOYMENT OPPORTUNITIES COMMISSION. DURING THIS TIME SERGEANT, TORRY RABB WAS A NATIONAL RECRUITER ASSIGNED TO MASTER SERGEANT STEWIh~LD'S DISTRICT. RECRUITER TOLD PLThINTIFF THAT MASTER SERGEANT STEWARD DID REPORT ONE OF HIS CAUCASIAN RECRUITER THAT HAD A PREVIOUS PLAINT FILED AGAINST HIM FOR ALLEGEDLY HAVING SEXUAL RELATION: WITH ONE OF HIS RECRUITS. THE PLAINTIFF ASKED SERGEANT RABB HOW HE ENEW THIS INFORMATION TO BE TRUTHFUL. SERGFJhNT
RESPONDED BY SAYING THAT THE RECRUITER HAD TOLD HIM. PLAINTIFF ASKED SERGEANT RABB WHY HE WAS SHARING THI~ INFORMATION. SERGEANT RABB REPLIED BY SAYING, "WHAT
SERGEA!~T STEWARD AND THE RECRUITING COMMAND HAD DONE TO YOU WRONGFUL." IT WOULD ~PEAR THAT THE ACTIONS OF PLASTER SER( STEWARD WE~ DISCRIMINATING IN NATURE AGAINST THE PLAINTIFF SERGEANT STEWARD IS A CAUCASIAN SOLDIER WHO WITHHELD THI~ INFORMATION FROM THE RECRUITING COMMAND TO PROTECT THI: CAUCASIAN RECRUITER. IN 7LDDITION, ON M.ARCH. 24, 2000, FIRST CLASS JULIE SMITH AND THE PLAINTIFF MET WITH COL~
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SMITH.
SERGEANT SMITH WAS IN TROUBLE FOR ALLEGED FP~AUDULEN~
ENLISTMENT. SHE ALLEGEDLY FALSIFIED A PARENT' S SIGNATirRE TO GE~ A RECRUIT ENLISTED INTO TKE NATIONAL GUARD. THE RECRUIT' S MOTHER FOUND OUT TH~ NEXT DAY AND CALLED THE RECRUITING COMMAND TO FOLLOW UP WITH A COMPLAINT. COLONEL SMITH TOLD THIS RECRUITER THAT HER ACTIONS AND CONDUCT WERE NOT IhIA2PROPRIATE AND SAID THAT SHE WOULD NOT BE DISCHARGED FROF. ACTIVE DUTY. THIS ALLEGED ACTION BY THE RECRUITER WAS A FELONY. COLONEL SMITH SAID HE WOULD GIVE THE RECRUITER A SUPERVISION ARTICLE 15. 20. ON AUGUST 31, 2000, PLAINTIFF WAS DENIED MEDICAL TREATMEN~ FOR AN INJURY THAT WAS SUSTAINED IN GSA AUTOMOBILE ACCIDENT I~ THE LINE OF DUTY ON DECEMB. ER 3, 1993 AND OCTOBER 3, 1999. THE COMMAND KNEW THAT THE PLAINTIFF WAS SUFFERING FROM NERVE DAM_AGE
15 AND ~ BULGED DISK. -THE COMMAND KNEW THAT DOCTORS HAD PROPOSED 16 17 18 SURGERY TO REPAIR THE PLAINTIFF' S NERVE DAMAGE. DR. RICHAR~
ALLEN, MAJOR, US AIR FORCE, INFORI~ED THE PLAINTIFF IN JUNE 200C THAT A COMMANDER DOES NOT HAVE THE AUTHORITY TO DISCHARGE ~.
19 PERSON THAT IS" UNDER MEDICAL AUTHORITY. 20 21 22 23 24 25 21. IN A LETTER FROM THE E.E.O.d., DATED FEBRUARY 9, 2001, IT
ADVISED THE PLAINTIFF THAT IT WOULD NOT BE /USLE TO COMPLETE IT~ INVESTIGATION OF THE PLAINTIFF' S ALLEGATIONS WITHIN TH~ STATUTORY S~X MONTH PERIOD, AND THAT IT WAS STEPPING ASIDE TC iqLLOW THE PLAINTIFF TO FILE A COMPLAINT AC4tINST THE C.A.N.G. P~SUANT TO "42 U. S. C. 2000e et seq., FOR EMPLOYMEN~
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DISCRIMiNAT'ION BASED ON COLOR,
CREED,
ETC.. A!qD VIOLATION
PLAINTIFF'S CIVIL RIGHTS UNDER THIS CODE. 22. ALL OF THE ABOVE ACTS BEGAN WITH THE A-LLE6~ATIO~S ;0F A PRII REJECTED/NON-APPLICANT WITH WHOM THE PLA~NTiFF NO LONGER A RELATIONSHIP. THE ~%LLEC~TIONS IN TURN SPARKED
OF THE C.A.N.G. AND ITS OFFICERS FOR OTHER REASONS CITED IN THIS ACTION. PLAINTIFF WAS INVOLUNTARILY
FROM ACTI~/E DUTY AND MILITARY SERVICE WITHOUT DUE PROCESS, IN CONSPIRATORIItL ~ DISCRIMII~-ATING MANNER. THIS SET OF
IS THEREFORE BROUGHT AGAINST THE DEFENDANTS FOR THE CAUSES ACTION AS CITED. 23. THE PLAINTIFF REQUESTED TO HAVE A BOARD HEARING, RESPONSE DENIED, PRETRIAL RESPONSE : DENIED, RIGHTS TO CONFRONT ACI
14 RESPONSE: DENIED, REQUEST TO HAVE WITNESS TO TESTIFY ON BEHAL~ 15 16 17 OF PLAINTIFF REGARDING CHARGES OF FALSE ALLEGATIONS RESPONSE DENIED. 24. ALL CHARGES BROUGHT AGAINST HIM BY THE A2dqY NATIONAL GLIARD
18 ENLISTED PERSONNEL, EVEN IN THE MILITARY I%_RE ENTITLED TO BASIC 19 RIGHTS AND DEFENSES BEFORE THEY CAN BE PUNISHED FOR AA~Y ALLEGEE 2o ACTS. FAILURE TO ACT ACCORDING TQ MILITA/~Y REGULATION PURSUANT 21 TO PROSECUTION WILL RESULT IN CI-IARGED BEING DROPPED AGAINST 22 ACUUSED PARTY OR A SIGNIFICANT MODIFICATION IN THE SEVERITY 23 PUNISHMENT THE ACCUSED FAVOR. IN INVOLUNTA!~ILY SEP/d~ATING SAIE 24 PLAINTIFF FROM SAID THE ARMY NATIONAL GUARD RECRUITER PROGRAI~. 25
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WITHOUT COMMITTED THESE VIOLATIONS OF THE PLAINTIFF RIGHTS AS FOLLOWS :
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a. FAILURE TO FULLY AND COMPLETELY GIVE NOTIFICATION EXP~TION OF RIGHTS INVOLVING: i. COMMANDER'S INTENT TO INITIATE PROCEEDINGS; li. THE FACT THAT THE IMPOSING COMMANDER INTENDS TO USE SUMMARIZED PROCEEDINGS /aND THE MAXIMUm. PUNISHMENTS IMPOSABLE UNDER PROCEEDINGS; iii. THE RIGHTS TO REMAIN ~SILENT; iv. OFFENSES THAT THE SOLDIER ALLEGEDLY HAS COMMITTED AND THE ARTICLES OF THE UCMJ (UNI.FOKMED CODE OF MILITARY JUSTICE) VIOLATED; v. THE RIGHT TO DEMAND TRIAL; vi. THE RIGHT TO CONFRONT WITNESSES, EX/AMINE THE EVIDENCE, AND SUBMIT MATTERS IN DEFENSE,
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EXTENUATION, AND /OR MITIGATION; vii. THE RIGHT TO APPEAL b. FAILURE TO ADVISE RE DECISION PERIOD i. OPPORTUNITY TO ACCEPT THE ARTICLE IN (MILITARY JUSTICE CHARGES) ii. OPPORTUNITY TO REQUEST A REASONABLE TIME, NORMALLY 24 HOUKS, TO DECIDE WHETHER TO DEMAND
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TRIAL BY COURT-MARTIAL AND TO GATHER MATTERS IN DEFENSE, EXTENUATION, AND/OR MITIGATION; c. FAILURE TO GIVE A JUST AND COMPLETE HEARING.
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A HEARING MUST CONSIST OF THE FOLLOWING: i. CONSIDERATION OF EVIDENCE, WRITTEN OR ORAL,
AGAINST THE ACCUSED; ii. EX~!~!I~ATION F AVAILABLE EVIDENCE BY THE SOLDIER; 5
6
iii. PRESENTATION BY
THE
SOLDIER
OF
TESTIMONY !N DEFENSE
AVAILABLE WITNESS OR OTHER MATTERS, Extenuations, AND/OR MITIGATION;
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iv. !I~POSITION OF PUNISHMENT OR TERMINATION OF THE PROCEEDINGS; v. EXPLANATION OF RIGHT TO AgPEAL d. RIGHT TO COUNSEL i. INADEQUATE . ALLOWANCE OR ABRIDGED ACTIONS O~ COUNSEL BY RECRUITING COMMAND. ',PECIFICALLY, THE PLAINTIFF CKN .SHOW AND PROVE WITHOUT GREAT E'FFORT THAT RECRUITING COMMAND DELIBERATELY, OR OTHERWISE WITE INEXCUSABLE NEGLIGENCE DID VIOLATE ARM-f REGULATIONS 15-6 et seq.
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17 UNDER MILITARY JUSTICE GUIDELINES AND ESPECIALLY AS SUMMARIZER 18
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IN CHILPTER 3, SECTION III, Pi%I
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notification and imposition) AND 3-18. ARMY REGULATION
15-6 CHAPTER I, SECTION I, 1-5, AND SECTIO~
II, 5-6 CO~SEL A, B (2) et seq. PROOF OF VIOLATIONS OF TH~ FOLLOWING; 42 U.S.C. SECTIONS 2000e, et seq., DISCRIMINATION, VIOLATION OF 42 U.S.C. AMENDMENT 14, SECTION AMENDMENT 6, AND 42 U.S.C. SECTION 1983 & 1985. i, DUE PROCESS,
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FIRST THROUGH THE EIGHT cAusES OF ACTION 25. (AGAINST ALL DEFENDANTS, FOR WRONGFUL INVOLUNTARY SEPARATION FROM ACTIVE DUTY OF CALIFORNIA ARMY NATIONAL GUARD) PLAINTIFF REFERS TO, RE-ALLEGES AND INCORPOIAATES BY REFERENCE ALLEGATIONS IN PARAGRAPHS 1 THRU 24 OF~THIS COMPLAINT AS THOUGH FULLY SET FORTH HEREIN. 26. PLAINTIFF IS INFORMED, BELIEVES AND ALLEGES THAT THE 8 9 I0
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DEFENDANTS AND EACH OF THEM KNEW OR SHOULD HAVE KNOWN THAT BY COMMITTING THE ACTS DESCRIBED HEREIN ABOVE, THAT SUCH ACTS
CONSTITUTE WRONGFLU~ INVOLUNTARY SEPARATION FROM ACTIVE DUTY IN THE CALIFORNIA ARMY NATIONAL GUARD, BASED ON THE FOLLOWING; A) ALL OF THE ACTS DESCRIBED HEREIN'ABOVE.
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(SEE NEXT PAGE)
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WHEREFORE, PI2%INTIFF P~YS FOR JTJDGMENT AS FOLLOWS : ON THE FIRST THROUGH EIGHT CAUSES OF ACTION: 1. FOR COMPENSATORY D!!~LAGES IN THE SUM "OF $1,536,000.00 FROM THE DEFENDANTS ~ EACH OF THEM, OR THE MAXIMI~. AMOUNT ALLOWABLE UNDER CURRENT LAW.
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2.
FOR PUNITIVE DAMAGES FROM THE DEFENDiuNTS AND EACH THEM ACCORDING TO PROOF; AND
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FOR OUT-OF-POCKET EXPENSES, ACCORDING TO PROOF FOR THE COST OF SUIT; AND FOR SUCH OTHER RELIEF AS THE COURT DEEMS JUST ANE PROPER.
4. 5.
LEROY POPE, Plaintiff, IN PRO PER
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VERIFICATION LEROY POPE, THE pLAINTIFF ABOVE-NAMED, BEING SWORN, SAYS A~ FOLLOWS : I HAVRE READ THE FOREGOING COMPLAINT AND KNOW~THE CONTENTS THEREOF, AND THE CONTENTS ARE TRUE OF MY OWN KNOWLEDGE. I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITEE STATES. OF AMERICA, THAT THE FOREGOING IS BOTH TRUE ANE
CORRECT.
Io
11 12 13 14
LEROY POPE, Plaintiff, IN PRO PEK
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of int=r~icv~ with wim,~ atta/~ tevl~ ot police or fo~afi~ ~pa~. I~ a~ ~c pml~a~ iaqu~, Ihe rummier din pmb~ h~s ~mmi~ ~a o~ns~ ~d ~ar a nonju~ci=l ~-
mem~r o~ I~ or her ~mmand add7 b~u=¢ the ~d a~e~dhlg to rhc p~cd=~= pr~ri~ ~ ~ m~r'n ~i~ (In ~euhr. ~== 3AG~ 010O ¯ for N=~ ~a Marine personal; and M/M. A~lcle ]'-A-~ (), for Co~z pe~nncl.) ~-9, Minor ~r~ d¢g~ of =~mi~ity tll~ b hinted in th= ~ 0~ ~ri~ hy summa~ ~-~m~al (SeM~ It dt~= ~ot ~dU~ ml~on~ct afa ~= fl~at If ~cd ~ GCM, muuld ~ pu~ by dl~on~ap~e ev~ ~ a cas~ Palll.~ o~id= ~ c~~od=, Vlol~ lV~ ~ =lie prohl~d by a 8=~1 order or ~aon.
3--t0. Double ptmlshmant pmhlbRad ~oa ~ nfi~on~~ will nb~ ~ m~e ~ ~ of =~ a~tlo~ under A~eIe 15, UCML ~n punisllm~ ~ b~n impo~ =de ~n~ng of~ot gU[1~, ~n~hm~t ~ nut ~ ~p~ ~ffl1¢ same prc~r ~un~=~l ~~ rot ~ oon-~inor offe~%~ p~vi~ly p~ished under t~ p¢ov~on~ of A~d~ 15:
~ Is to be m~d to a ~pwi~ eam)~ ~ara
~1. Cumm~ pro~ddfng¢
is ~tm~t=d t~r should punisher ~ fo~d to ~.appmpfiam(k (a) ~m ~ 1~ 14 ~, [~ Oral ~p~d or ~o~tion. (d) ~ ombln~= of ~e ~ (2) DA Fo~ 2~7-1 ~[~d Rec~ of~oc~;,~ Under iH~ ~mgl= og a ¢ompl~d DA F~ 2~7-I fi~ ~-1. ~ ml~ and limitations ~em~g
=p~licshl=. , ~ Na~fl~zin~ and ~pl~uttan oJ" r~ght¢. mua~ de~s d~at mmma~d pr~din~ ~¢S[@a~ $ll~o~inam o~cer ~ no~mis~ioacd ~= (NCO) ~ollowl~ . ¯ (I) ~ implin~ c~=d~'= ]t~tlt ~ ~cle IS,
~cfloa IV a~ pmvldons ~g~ing d~m~ in
3-11. Restriction On punishment at'tar ezemlse of jurisdiction by oiuillan aut~oritiaCimpte¢ 4 cows the liml~ttons o~ t~njudl,"ral p=ZEshment after =~=a:i~ of,iudglf~on by' tvillm ~al],nrlti~.
3-.12. Slatut~ of i|milatlOhg'Nonjudieial pma~shmmat mw n~ b= Imposed ~ offenms which wc~ ~mmittad morn ~an ~o ycan b~ the dee of im~sld~. C~puz~at of ~l~ ~o y=~ llmi~a~ ~ ~ ~ordan~ with Anl~ 43() =~d {d), UCMJ. The ~Hud Of l~dmzlon~ aocs ~t mn ~pt=~ ~ ~e cust~y ofelvil auth~d=; m, in ~= 1~ or'the '
[3) ~ fi~t m re~in silent,
g~bmi~ ~= in ~f~, cm~ma~on, anger (I) Ac~pt tl~ Ant~l~ '1£ (2) R~Uc~ ~ ~so~bl= ~me, n~ly 24 whc(h~ to domed tr~ by go~-m~Jal and m defet~, ~tea~. ~ ~tlgation. B~= of mm or'the p~stble ~ishm=nt, t~ sddiur h~ no ri~ m onsdt with I~117 ~liEed ~ tl~n~ UnI=S~ ~ ~ldtee d~ ~al by court-menial wi~in ~a d~Oa ~i~, t~ imposing ~m~d~ ¯ ~n~ " n~id=~ion ofevi~ce~ ~ltten or o~. a~qi~ ~ ~ldi~. mina~un of gv~labl¢ evMcn~ bY lh¢ ~ldi=r. , (3) P~=d~ by ~o soldier of t=s~ohy oF ~v~l~le wit.
8ectlon Ig Proe~lur, (p~a 4, Part V, MCM) 3-t3, General
rmmd¢~ with the rc~ponslbilit3, ~f uxt.~'t,~h~tg die eommandor'~ =uthorit7 in an obsolumly ~dr und,iudlei.~us mam~c.r, (~: silo pare Id, Pan V, MCM.) ;~.14, P.rellmltm~/ .I..qqui~, .
~ss~ ot ~ ma~, in dcf=~ ~t¢n~tloa, ~or ~figadon,
, ~ctcminati~n of luilt Ot lane=end= by ~= impu~ omedy. . (5) Tmp~idua of pan~m~ent or ~ination orth= pr~udla~.
m~cr is inveni~d p~mpUy ~ =~tlatdy. T~ ~v=~tiff=~oa ~ll~ld pm~d= ~ omn~nd~ ~tlt S~eicnt in~n~ ~ ~ ~ a~pfiate ~s~ of ~h= in=id~n~ ~= iav~fisatioa sh~d (Z) Whdh= ~ saldler was Invol~L (3) ~= =~r and m~ita~y ~od aF t~ ~d;=. & U~ll~ ~= prclim~nu~ in~igatloa is [afoul and ¢onsis~
(a) ~pl~oa of d~ to ap~L
~e pro~u~ set fo~h in ~b~ph ~32. ~n aol~ w~ ~ given a ~asmm~e time (no.ally no mote d~ $ cak~ar da~) ~thin wh~h m ~hmit ~ appeal (see ~ra ~29), "l~o snldier may, ~ading ~m~sloa m~d ~loa on ~ ap~al~ he ~d ~ ~dcrgo
AR 27-~0 - 20 August 1900
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DEPARTMENTS OF THE ARMY AND THE AIR FORCE
OFFICE OF THE ADJUTANT GENERAL CAUFORNIA NATIONAL GUARD 9800 GOETHE ROAD - P.O. BOX 269101
SACRAMENTO~ CALIFORNIA 95826-9"101
CAAG-SJA
1 August 2001
MEMORANDUM FOR Department of the Army Litigation, Attention: Major Joseph Fetterman, 901 N. Stuart Slxeet, Suite 400, Arlington, Virginia 22203 SUBJECT: Leroy Pope vs. California Army National Guard, et al. 1. The Adjutant General and I were served with an amended complaint today (Copy Enclosed). I assume that the U. S. Attorney is doing nothing in the way of providing representation since I have not heard anything in reply to my memorandum of 18 May 2001. 2. We are currently represented by Ms. Patricia Nevonen of the State Attorney General's Ofiiee (213) 897-9474. She is preparing a motion to dismiss.
Enel as
~" COL, JA, CANG Staff Judge Advocate
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Case 1:06-cv-00446-MCW BILL LOCKYER Attorney General
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State of California DEPARTMENT OF JUSTICE
RONALD REAGAN BUILDING 300 SOUTH SPRING STREET, SUITE 52I 2 LOS ANGELES, CA 90013
Public: 213-897-2000 Telephone: 213-897-9474 Facsimile: 213-897-1071 E-Mai!: [email protected]
August 13,2001
Leroy Pope 1886 Denwal Drive Carson, CA 90746 LEROY POPE v. CALIFORNIA ARMY NATIONAL GUARD Case No..CV 01-04163 RSWL (Ex) Dear Mr. Pope: Enclosed for your information and file is a copy of the Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities in the above matter. As always, if you have any comments or questions, please do not hesitate to call. Sincerely,
Deputy Attorney General For BILL LOCKYER Attorney General
PAN:yw Encl.
/
cc: Col. William Weir/
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BILL LOCKYER, Attorney General of the State of California 2 LAURA LEE GOLD, Supervising Deputy Attorney General 3 PATRICIA A. NEVONEN, (SBN 90290) Deputy Attorney General 4 300 South Spring Street, Fifth Floor Los Angeles, California 90013-1204 5 Telephone: (213) 897-9474
1 6 7 8 9 10 11 !2 13 14 15 16 LEROY POPE,
Attorneys for Defendants State of California and California National Guard, erroneously sued herein as California Army National Guard UNITED STATES DISTRICT COUllT FOR TIlE CENTRAL DISTRICT OF CALIFORNIA
) Date: September 10, 2001 SERGEANT DAVID STEWART and Does 1) Time: 9:00 a.m. 17 through !0, inclusive. ) Room: 21, Fifth Floor
18 19 20 21 22 23 24 25 26 27 28
) Plaintiff, ) ) ) ) CALIFORNIA ARMY NATIONAL ) GUARD, MAJOR GENERAL PAUL ) MONROE, JR., COLONEL WILLIAM F. ) WEIR, COLONEL DAN1-EL SMITH, ) MAJOR THOMPSON, MASTER
go
CASE NO. CV 01-04163 RSWL (Ex)
NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINTS AND AUTHORITIES
[Filed concurrently with Request for Judicial Notice]
Defendants.
)
)
)
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1 2 3
TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES ................................ 3
4 PRELINgNARY STATEMENT .................................................. 3 5 6
7 8 9 I0 11 12 !3 14 I5 16 !7 !8 19 2O 21 22 23 24 25 26 27 28 D. E. F. G. 4. Co II. C. ARGUMENT ................................................................. I. 4
BACKGROUND OF THE NATIONAL GUARD ........................ 4 A. B. The National Guard as the Militia ............................... 4 The National Guard of the United States as a Reserve component of the Armed Forces ............................................... 4
Federal authority over the National Guard ........................ 4
PLAINTIFF'S CLAIMS CHALLENGE NONREVIEWABLE MILITARY PERSONNEL DECISIONS ..........................................5 A. B. Standard of Review .......................................... 5
Plaintiff Cannot Meet the Threshold Reviewability Requirements under Mindes v. Seaman ........................................... 6
The Mindes Factors Weigh Against Judicial Review ................ 7 1. 2. 3. The nature and Strength of Plaintiff's Claim ................. 7 The PotentialInjury to plaintiff if Review is Denied .......... 8 The Type and Degree of Anticipated Interference with Military Function ............................................. The Extent to Which the Exercise of Military Expertise or Discretion is Involved .................................. 9 The Feres Doctrine Bars Claims Which are Incident to Military Service . 9 The Feres Doctrine has been Extended to State National Guards ...... 11 Plaintiff's Claims are Barred by the Feres Doctrine ................ 13 Plaintiff, as a Member of the Military, is not Entitled to Recovery Under Title VII .................................................. 14 8
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I 2 3 4 5 6 7 8 9 10 11 FEDERAL CASES
TABLE OF AUTHORITIES
Actmedia, Inc. v..Stroh, 830 F.2d 957 (9th Cir. 1986.) ............................................... 14,!5 Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) ....................................................... 10, 12
Bowen v. Oisted, 125 F.3d 800 (9thCir. 1997) ..............................................12, 13 8,
Cl~appell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) ...................... 5-6, 9-10, 12 Christoffersen v. Washington State Air National Guard, 855 F.2d 1437 (gth Cir. t988), cert. denied, 490 U.S. 1098 (1989) ...........................................5, 7-9
12 Covmst~,~ v. Anderson, 487 F.2d 660/Oth Cir. 1973) ...................................................12 13 Edelman v. Jordon 1# "~ ~rl.S. 651 (1974) .......................................................... 15 15 Feres v. United States 340 U.S. 135 (1950) ........ . .............................................. 16 Goldman v. Weinberger, 17 475 U.S. 503 (1986) ......................................................... 18 19 20 21 22 23 24 26 9-t4 5, 9
Gonzalez v. Department of Army, 718 F.2d 926 (9th Cir. 1983) ...................................................14 Hodge v. Dalton I07 R.3d 705 (9th Cir. 1997 .................................................. ..14 Holdiness v. Stroud, 808 F.2d 417 (5th Cir. t987) ..................................................7, 8 Jones v. New York State Division of Military and Naval Affairs, 166 F.3d 45 (1999) ........................................................... 15 Martelon v. Temple, 747 F.2d 1348 (ll?th r,z-. x~g4) ................................................. 12 ~-¢aryland v. United States, 38! U.S. 41
27 McGee v. UnitedStates, 402 U.S. 479 (1971) ... 28
iii
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1 2 3 4 5
TABLE OF AUTHORI,T, I.E,,S (Cont'd)
McKart v. United States, 395 U.S.185 (1969) ...........................................................
6
Mindes v. Seaman, 453 F.2d 197 (5th Cir. 197I) .................................................. 6-9
6 Mollnow v. Carlton, 12 716 F.2d 627 (9th Cir. 1983) ................................................... 7 Navas v. Gonzalez Vales, 752 F.2d 765 (lst Cir. 1985) ....................................................7 8 9 10 11 Pena v. Gardner, 976 F. 2d 469 (9th Cir. 1992.) .................................................. 15 Orloffv. Willoughby, 345 U.S. 83 (1953) .......................................................... 5, 10
12 Per~agaricano v. Llenza, 747 F.2d 55 (lst Cir. 1984.) ...................................................7, 9 13 Pennhurst State School & Hospital v. Halderman, 14-I5 14 465 U.S. 89 (1984) ........................................................ 15 16 !7 18 19 20 21 22 23 United States v. Johnson, 481 U.S. 681 (1987) ........................................................... 11 Sebra v. Neville, 801 F.2d 1135 (gth Cir. 1986) ...... .......................................... ' ... 7 Riggle v. State of California, 577 F.2d 579 (gth Cir. 1978) ................................................... 5 1 Sandidge v. Washington, 813 F.2d 1025 (9th Cir. 1987) ...................................................5 Quem v. Jordon, 440 U.S. 332 (1979) .......................................................... 15
Stauber v. Cline, 837 F.2d 395 (9th Cir. 1988) ................................................ 12-t4
24 United States v. Stanley, 11-12 483 U.S. 669 (1987). ...................................................... 25 Wallace v. Chappell, 5 26 661 F.2d 729 (gth Cir. 1981), rev'd on other grounds, 462 U.S. 296 (1983) ................ 27 Williams v. Wilson, 762 F.2d 357 (4th Cir. 1985) .....................................................7 28
iv
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1 2 3 4 5 FEDERAL STATUTES 6 7 8 9 10 11 12 13
TABLE OF AUTHORITIES (Cont'd)
Wright v. Park, 5 F.3d 586 (lst Cir. 1993)
10 U.S.C. §101(4) ................................................................ §1552 ¯ """ ......................... ¯ ................. §261 ............................................................ ¯ §31 l(a) ......................................................... §3~1Co) ........................................................ §312 .................................................................. 32 U.S.C. §101(2) "
...... ......
4 6, U " ..... 4 4 i]i'"14 4 4
§11o
42U.S.C. §1983 ........................................................... 3, I2,15 §1985 ........................................................ 14 §§2000e .....................- ...................................... 15 Army andAir Force. U.S. Const. Art. 1, §8, C1.16 ............................................... ¯ .............. 16 17
6,10,12-13 14-15 4
Army National Guard, 10 U.S.C. §261(a)(I)
"
.4
4
18 Army Reserve, 10 U.S.C. §261(a)(2) ............................................................. 19 U.S.C. 20 § 2000 .................... . ............................................. 3 21 22 23 24 25 26 27 28
V
Uniform Code of Military Justice, 10 U.S.C. §938 ..................................................................
6
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1 2 3 4 5
BiLL LOCKYER, Attorney General of the State of California LAURA LEE GOLD, Supervising Deputy Attorney General PATRICIA A. NEVONEN, (SBN 90290) Deputy Attorney General 300 South Spring Street, Fifth Floor Los Angeles, California 90013-1204 Telephone: (213) 897-9474
6 Attomeys for Defendants State of Califomia and California National Guard, erroneously sued herein as California Army National Guard 7 8 9 10 11 12 13 14 15 !6 17 18 19 20 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 21 PLEASE TAKE NOTICE that on at a.m. in Courtroom of the above-entitled court, located
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CAL~ORNIA
) CASE NO. CV 01-04163 RSWL (Ex) ) Plaintiff, ) NOTICE OF MOTION AND MOTION TO ) DISMISS; MEMORANDLrM OF POINTS ) AND AUTHORITIES ) CALIFORNIA ARMY NATIONAL GUARD,) [Filed concurrently with Request for Judicial MAJOR GENERAL PAUL MONROE, JR., ) Notice] COLONEL WILLIAM F. WEIR, COLONEL ) DANIEL SMITH, MAJOR THOMPSON, ) MASTER SERGEANT DAVID STEWART ) Date: September 10, 2001 and Does 1 through'10, inclusive. ) Time: 9:00 a.m. ) Room: 2I, Fifth Floor Defendants. ) )
LEROY POPE,
22 at 312 N. Spring St., Los Angeles, California, Defendants State of California and California National 23 Guard, erroneously sued herein as California Army National Guard, will move for judgment on the 24 pleadings pursuant to Federal Rule of Civil Procedure rule 12(c). 25 This Motion wil! be made upon the following grounds:
26 The court lacks subject matter jurisdiction because Plaintiff" s allegations are incident to his military 27 service, and are thus non-justiciable, pursuant to the Feres doctrine. Feres v. United States 340 U.S. 28 135 (195.0). 0
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1 2
1.
The State of California and the California National Guard is immune from liability pursuant to the Eleventh Amendment. Plaintiff's claims are barred due to his failure to exhaust his administrative remedies. This Motion will be based on this Notice of Motion and Motion for Judgment on the Pleadings,
3 2. 4 5 6
the Memorandum of Points and Authorities filed in support thereof, on such oral and documentary evidence as shall be introduced at the time of the hearing, and on all papers and pleadings on file
7 herein. 8 9 This Motion is made following the Defendants' written communication to Plaintiffon August 3, 2001, and written communication received by Defendants' counsel on August 9, 2001. The
10 parties were unable to resolve the issues. 11 12 Dated: August 13,200t 13 14 15 !6 17 18 19 20 21 22 23 24 25 26 27 28 ~~x By:,." " ..... PATRICIA A. NEVONEN Attorneys for Defendants State of California and California National Guard, erroneously sued herein as California Army National Guard Respectfully submitted, BILLLOCKYER, Attorney General of the State of California LAURA LEE GOLD, Supervising Deputy Attorney General PATRICIA A. NEVONEN, Deputy Attorney General
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1 2 3 4 5 6 7 8 9
MEMORANDUM OF POINTS AND AUTHORITIES PRELIMINARY STATEMENT In this breach of contract and tort action, Plaintiff, a Sergeant First Class in the California Army National Guard branch of the CalifomiaNational Guard ("CNG"), alleges eight counts based on his involuntary separation from CNG. [See First Amended Complaint ("FAC"), page 14, lines 1-6.] His claims include breach of contract, "failure to investigate," "failure to respond to rebuttal and denia! of right to confront accuser," statute of limitations violation, discrimination in violation ofU.S.C. § 2000-e, et Se~l., due process violations, violation of 42 U.S.C. §§ 1983 and 1985 and intentional infliction of emotional distress. Plaintiff seeks damages for the alleged claims arising
10 from his involuntary separation from the military. 11 12 The Defendants named in the FAC are moving parties State of California and the CNG.~ The gravamen of PlaintifFs FAC is that he was involuntarily separated from military service
13 and that Defendants did not follow military regulations in processing the involuntary separation. 14 Plaintiff, as shown in the FAC, was a recruiter for the CNG. The conduct for which plaintiff was 15 separated from service included improper relations with a female recruit, adultery and improper use
16 of military property. Plaintiffadmits that he had a two year relationship with the woman, but denies 17 she was a recruit at the time of the relationship. He contends that all other allegations were 18 unfounded. 19 PlaintifFs FAC is replete with references to military regulations under which he was allegedly
2O denied his rights. [Uniform Code of Militar~_....Justice (FAC I[24 a iv), opportunity to accept article 21 Article 15 punishment in military justice charges (FAC ¶24 b i), opportunity to request court martial 22 (FAC ¶24 b ii),violation of Army Regulation 15-6 et seq. soldier entitled to preliminary inquiry and 23 commander' s guide for notification and. imposition. (FAC 1124, p. 13 1.14-22.) 24 25 26 27 The State of California was first named as a defendant in the first amended complaint. The original complaint named numerous individual defendants, identified by their military rank. These individuaJ3 were all deleted both from the caption and the section entitled "The 28 Parties" on page 3 of the First Amended Complaint. It is clear from the allegations made in the First Amended Complaint that the wrongful acts
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1 2 3 4 5
about, which Plaintiff complains are incident to his military service.Consequently, his claims are non-justiciable. ARGUMENT I.
BACKGROUND OF THE NATIONAL GUARD A. The National Guard as the Militia
"The National Guard is the modern Militia reserved to the States" by the Militia Clauses. 7 8 9 Maryland v. United States, 381 U.S. 41, 46, vacated and modified on other grounds, 382 L!.S. 159 19(A_9._6~. The militia includes all able-bodied males between the ages of 17 and 45, with some exceptions (see 10 U.S.C. 83t 2), who are, or have declared the intention of becoming, citizens of
10 the United States, as well as female citizens who are commissioned officers of the National Guard. 11 10 U.S.C. 6311 (a). The militia is divided into two classes: the organized militia, which consists of
12 the National Guard and the Naval Militia, and the unorganized militia, which includes al! other
I3 !4 15 16 17 18 members of the militia. 10 U.S.C. §311 (b). Although States are not required to maintain National Guard units, every State has a Nationa! Guard. B. The National Guard of the United States as a Reserve Component of the Armed Forces Congress has exercised its extensive constitutional powers over matters of national defense by establishing the Armed Forces of the United States. 10 U.S.C. §101(4); 32 U.S.C. §101(2). Each
19 of these services has a reserve component. 10 U.S.C. §261. The reserve components of the Army are 20 the Ann,/National Guard, 10 U.S.C...§261(a.)(1), and the Army Reserve, 10 U.S.C. §261(a)(2). 2! All persons enlisted in a State Nationa! Guard unit are simultaneously enlisted in the National
22 Guard of the United States ("NGUS"). Perpich v. Departanent of De.!ense, 110 S. Ct. at 2425; 3~2 23 U.S.C. §301. 24 25 C. Federal Authorit~ over the National Guard
Congress has authority to organize, arm, and discipline the National Guard. In general, the
26 organization and composition of the National Guard is required to be the same as that prescribed for 27 the Army and Air Force. U.S. Const. Art. 1, §8, C!. 16; 32 U.S.C.§104(b). 28 Under 32 UaS.C. § 110, Congress requires the President "to prescribe regulations, and issue 4
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