Petition for Writ of Certiorari — Bryant v. Military Department, Mississippi

Supreme Court brief2010

Ask Donna

What actually matters in this document.

Text

Supreme Court. US.

FILE

TO -81 JUL 12 2010

In THOFFICE OF THE CLERK

Supreme Court of the Anited States

JOE H. BRYANT, JR.,

Petitioner,

VS.

MILITARY DEPARTMENT OF THE STATE OF

MISSISSIPPI; FRANKLIN E. CHALK; FREDERICK D.

FEINSTEIN; ROY A. GRAHAM; BILLY JOE GRISSETT;

DONALD E. JONES; LANGFORD L. KNIGHT; F.

GREGORY MALTA; WILLIAM F. PARTEN; ROBERT E.

PIERCE; ROGER E. SHIRLEY; CHARLES F. SPEED;

AARON K. WILSON; THOMAS TEMPLE;

JOHN DOES 1-20; and LESLIE WILKES,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Cireuit

-¢

PETITION FOR WRIT OF CERTIORARI

WAYNE E. FERRELL, JR., ESQ.

Counsel of Record for the Petitioner

405 Tombigbee Street

Jackson, Mississippi 39205

(601) 969-4700

wiferrell@airlawonline.com

PAUL A. KOERBER, ESQ.

Associate Counsel for the Petitioner

405 Tombigbee Street

Jackson, Mississippi 39205

(601) 969-4700

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the District Court and the Fifth

Circuit improperly applied this Court’s rulings in

Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731,

103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983); Professional

Real Estate Investors, Inc. v. Columbia Pictures, 508

U.S. 49, 113 S. Ct. 1920, 123 L. Ed. 2d 611 (1993); and

BE & K Construction Co. v. NLRB, 536 U.S. 516, 122

S. Ct. 2390, 153 L. Ed. 2d 499 (2002), regarding the

Petitioner’s First Amendment right of Freedom of

Speech, such that these courts’ decisions are

countervailing to decisions of other Circuits of the

Courts of Appeal, thus creating a split among these

appellate courts, and calling upon this Court to

answer the question left undecided by BE & K,

Appendix 26-27.

2. Whether the District Court and Fifth Circuit

erred in dismissing claims against the Military

Department of the State of Mississippi, through its

arm of the Mississippi Air National Guard (herein-

after referred to as “MANG”), due to a misapplication

of the Feres doctrine; and

3. Whether the District Court and Fifth Circuit

erred in dismissing claims against the remaining

individual Respondents for repeated and concerted

acts of violence, reprisal, intimidation, and retaliation

against the Petitioner.

CERTIFICATE OF INTERESTED PARTIES

In accordance with Rule 14.1(b) of the Supreme

Court Rules, Petitioner, Joe H. Bryant, Jr., would

respectfully submit that the following parties have or

may have a material and substantial interest in the

outcome of this action before this Court:

1. Joe H. Bryant, Jr., Petitioner

2. Military Department of the

State of Mississippi, Respondent

Franklin E. Chalk, Respondent

Frederick D. Feinstein, Respondent

wm OS

5. Roy A. Graham, Respondent

6. Billy Joe Grissett, Respondent

7. Donald E. Jones, Respondent

8. Langford L. Knight, Respondent

9. EF Gregory Malta, Respondent

10. William F. Parten, Respondent

11. Robert E. Pierce, Respondent

12. Roger E. Shirley, Respondent

13. Charles F. Speed, Respondent

14. Aaron K. Wilson, Respondent

15. Thomas Temple, Respondent

16. Leslie Wilkes, Respondent

TABLE OF CONTENTS

Page

PUREED FOO vivian cns th cccxbisscanet inicio ceecaaa I

Certificate of Interested Parties..............000000..022. i]

TES OE SOE io i ddinskcctada isn eee 3 (CO

Teste CE PRM NGO occa vince sevconctacinuctdabiancaee Vv

PERG Bt caicinisniresa ean cosecnacsvecatinreisseths ie eee

Jurisdictional Statement ..............cscccsccecssscccresees: 1

Constitutional and Statutory Provisions In-

UE nck cowaka edsaatenasdoanspesceatciasvcncieee enon ce ear 1

RANE ie i os ven sxasacncnsenst cascwnucsdesceeburncc sens 2

Summary Of the AFGuUMENe ...........scccccsccsscccvccccsess 12

Reasons for Granting the Petition....................... i3

CARRS os ss wn Soden ccs eins eles ea eae 26

Appendix

Kifth Circuit Court of Appeals Decision, dated

FOr 17. Bra Gs. caccicerertacPaaesrsnssaenc App. 1

Memorandum Opinion and Order of the United

States District Court of the Southern District

of Mississippi, dated June 16, 2008 .............. App. 30

Memorandum Opinion and Order of the United

States District Court of the Mississippi,

Cates Fly 17, BOG sj xsiscesiatcscssenes paces App. 47

Corrected Memorandum Opinion and Order of

the United States District Court of the

Southern District of Mississippi, dated

Amouat Di, TOD sisisisctcctscseseeccass esas App. 74

TABLE OF CONTENTS — Continued

Page

Order of the Fifth Circuit Court of Appeals,

denying Petition for Rehearing, dated April

BU I 0s oie g nanny cacnpuaceecsveceausiausieuscnseepseneieivans App. 90

First Amendment to the United States Con-

NN os ta scesyanscacs ea cileiavcswssacnsonscerntoveveetaaras App. 92

Military Whistleblower Protection Act,

BO Es Beir, CUIONE BEF on csnnccsscesscvessesvssesnasonenns App. 93

OE Ee As I BS erin vied akteisenscdvccesesscagsnsune App. 103

OF Ts eA CE BNI ovo cca eviisvssscnsuvevecnsniiesdncss App. 103

EZ U B.C. BOCCIOM TGS «0 6cccccssccsscrerescsessecevcsceses App. 105

TABLE OF AUTHORITIES

CASES

Bul Johnson’s Restaurants v. NLRB, 461 U.S.

731, 103 8S. Ct. 2161, 76 L. Ed. 2d 277 (1983)... passim

BE & K Construction Co. v. NLRB, 536 U.S.

516, 122 S.Ct. 2390, 153 L.Ed.2d 499

a icinlen eres svabspiusauscenisesessexsisanesniasvuneeaaco’ passim

Can-Am Plumbing v. NLRB, 321 F.3d 145 (D.C.

I, Reatne- STORE AO Oe ER 22, 24, 25, 26

Carpenter v. Wichita Falls Independent School

District, 44 F.3d 362 (Sth Cir, 1995)............cccccesee. 12

Chappel v. Wallace, 462 U.S. 296, 103 S. Ct.

Be, FO has BG, Sk OE CLG) ince csntesassnectsncsscseoscers 14

Chalk v. Bertholf, 980 So. 2d 290 (Miss. App.

NINES caucade 4 cddas vavasnensadsttcadecciecraievouseneaniabiacaivesceinl 6

Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684

FEET E eet eg eee NB Roh cE MES Heol RPO 13

F stelle v. Gamble, 429 U.S. 97 (1976)........0.00c cee 16

Harrison v. Garrison, 525 U.S. 121, 119 S. Ct.

NN ics vcugscoumn Ven cssioek oambentn fen RCC eats 17

Hassenfratz v. Garner, 911 F. Supp. 235 (S.D.

NN IED oss sc caseic ocogiciocstimedsnceniacanatiaedeckint auaibiactas: 15

Hooks v. Morrison Milling Co., 38 F.3d 776 (5th

Se MINE iat casa wioeaetpausanespnuancesicaucesencs mes eumnese twist 12

Kearney v. Foley & Lardner, 590 F.3d 638 (9th

2 —__,_ NDR OR DUD UE en UVR OR Cena uO nner ee UE MRE S. 22, 25, 26

Meister v. Texas Adjutant General’s Depart-

mont, TSS F.06 S32 (Sth Cir. ZOOO) «2... ccccccvecssceccsces, 15

TABLE OF AUTHORITIES — Continued

Page

Mindes v. Seaman, 453 F.3d 197 (5th Cir. 1971)....... 15

Molski v. Evergreen Dynasty Corp., 521 F.3d

sss cccxuveycnseneubsessadsaaeasincdervenses 25

NLRB v. Gissel Packing Co., 395 U.S. 575, 89

ea iss caskunieusdacsiaiuenciesvecvesees 25

NLRB v. Nash-Finch Co., 404 U.S. 138, 92

Ee hts ME, BO DEO CADE EL) sccccssesssescccvsccasonnesens 24

NLRB v. USPS, 526 F.3d 729 (11th Cir.

ARES a TSP Es On 22, 25, 26

O’Connor v. Donaldson, 422 U.S. 563 (1975) ............ 16

Pickering v. Board of Education, 391 U.S. 563,

Oe cos ccvpesvasansapannescaavesenéeyaccess 5,13

Professional Real Estate Investors, Inc. v.

Columbia Pictures, 508 U.S. 49, 113 S. Ct.

Re, BEE Mes Hs A RE CLOUD vicvcescesscsncevesvsssscnssess 20

Robinson v. City of Pittsburgh, 120 F.3d 1286

occ e cigs du bv cea rabndetosdiucnskeasdskserssiue 15

Schneck v. Pro-Choice Network, 519 U.S. 357,

TE ID Bao cic cca unecdcsdncaviavicaeasdesensienns 5,13

United States v. Stanley, 483 U.S. 669, 107

S. Ct. 3054, 97 L. Ed. 2d 550 (1987)....................... 15

CONSTITUTION

I MN Bosc. cs vadnrsceescecavessnevennsneneveces passim

ee I TE | sccaneutuweaenectaseseeascasent’s 13

Vil

TABLE OF AUTHORITIES — Continued

Page

STATUTES

Military Whistleblower Protection Act, 10 U.S.C.

I ao cay catia nace hcebusaves dvds ucuherduadabenouastebioageun passim

ee ee Ooo, ccaxigs sacsaveasitveiessieraiesnsuaaens 13

ee cn aunaenndeperaneaisuaimeninea 1

mE PEE wha daca pad vada taadanbansaddoaenaee usaeaseays 3

ORE CO IEE 4c ss 6 og us bakgbg ak ysdedenensadeucianeabepenemiels 18

SE EE seek cksesainvicdsaviesaiosniaxerncen 2, 13, 14, 16

as ID Wekecienecacosscsieatsaneassxdcsquenssnnvomenanh passim

Oe Be, 0 I ossskata sancisnkvisataccuspradevens 2,13, 14, 21, 24

Mississippi Code of Military Justice, Sections

33-13-1, et seg. and Section 33-9-19 of the

Mississippi Code of 1972, Annotated................c000008+ 6

Mississippi Code Annotated Section 11-55-1,

OF Ge acteers anaes ee eran ELGAR akdia saan doraciaiaeeede

OPINIONS BELOW

The Fifth Circuit Court of Appeals published

its opinion at Bryant v. Military Department of

Mississippi, 597 F.3d 678 (5th Cir. 2010). The United

States District Court of the Southern District of

Mississippi published three opinions which are at

issue in this Petition: Bryant v. Military Department

of Mississippi, 381 F. Supp. 2d 586 (S.D. Miss. 2005);

Bryant v. Military Department of Mississippi, 519

F. Supp. 2d 622 (S.D. Miss. 2007); and Bryant uv.

Military Department of Mississippi, 569 F. Supp. 2d

680 (S.D. Miss. 2008).

JURISDICTIONAL STATEMENT

The Fifth Circuit entered its initial decision on

February 17, 2010, and it entered its order denying

Petitioner’s Motion for Rehearing on April 12, 2010.

This Court has jurisdiction to review the decision

of the Fifth Circuit on a Writ of Certiorari, in

accordance with 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Due to the length of the provisions involved, this

Petitioner provides the followirg citations, with the

texts of such provisions contained in the Appendix,

in accordance with Rule 14.1(f) of the Supreme Court

Rules:

Military Whistleblower Protection Act, 10

U.S.C. § 1034

First Amendment to the United States

Constitution

42 U.S.C. § 1983

42 U.S.C. § 1985

42 U.S.C. § 1986

STATEMENT OF THE CASE

Specifically, the controversy in this action

concerns relief sought pursuant to the Military

Whistleblower Protection Act, 10 U.S.C. § 1034, the

First Amendment to the United States Constitution,

and 42 U.S.C. §§ 1983, 1985 and 1986. Due to the

decision of the Fifth Circuit Court of Appeals, a split

now exists among the Circuit Courts of Appeals,

which should be remedied by this Honorable Court.

Based upon the following arguments and legal

precedent of this Court, the Petitioner would

respectfully move this Court to reverse the appealed

decisions of the United States District Court for the

Southern District of Mississippi and the United

States Court of Appeals for the Fifth Circuit, as set

forth in those rulings.

On August 26, 2005, the District Court entered

its Corrected Memorandum Opinion and Order,

which dismissed all claims against Respondent

“Military Department of the State of Mississippi, by

and through the Mississippi Air National Guard,”

(the “Guard”), dismissed certain claims against some

of the other Appellees, and denied the Guard’s Fed. R.

Civ. P. 11, 28 U.S.C. § 1927 and Mississippi Code

Annotated Section 11-55-1, ef seg. motion. Bryant v.

Military Department of Mississippi, 381 F. Supp. 2d

586 (S.D. Miss. 2005)

On July 17, 2007, the District Court entered its

Memorandum Opinion and Order and its (corrected)

Memorandum Opinion and Order, which granted

Partial Summary Judgment as to certain claims

against the then-remaining Respondents. Bryant v.

Military Department of Mississippi, 519 F. Supp. 2d

622 (S.D. Miss. 2007).

On June 17, 2008, the District Court then

entered its Memorandum Opinion and Order, which

granted Summary Judgment as to the last remaining

claims against the vast majority of the Respondents.

Bryant v. Military Department of Mississippi, 569

F. Supp. 2d 680 (S.D. Miss. 2008). That Order, when

read in combination with the District Court’s prior

Order, left only certain claims pending against

Respondents Malta and Pierce, but none against any

other Respondents.

Appeal to the Fifth Circuic resulted in that

Court’s affirming of those decisions. Bryant. v.

Military Department of Mississippi, 597 F.3d 678 (5th

Cir. 2010).

FACTS

Joe H. Bryant, Jr., has faithfully served the

United States Air Force and is a combat hero, having

put his life on the line for this nation in its conflict in

Bosnia. He is, in fact, the only party in this civil

action who has done so. Yet, where he saw

malfeasance and corruption, he reported it, as is his

duty, and for having performed his duty, he and his

family have now suffered the reprisals of violence,

threats, intimidation, vandalism, and character

assassination, as even admitted by some of the

Respondents.

Imperatively, this Court must note that while the

history of this case has its genesis in the military, the

facts developed below establish that the wrongful

conduct of the Respondents carried over into extra

military wrongs. Thus, the indulgence of the Court is

requested in reviewing this vital recitation of

established facts.

At the heart of this case is Mr. Bryant’

affirmative duty, as an officer in the United States Air

Force and in his concurrent status with the

Mississippi Air National Guard (MANG), to report

misconduct of other members of the military to his

superiors, regarding such misconduct at the 186th

Refueling Wing of Key Field in Meridian, Mississippi

lurther, Lo nol report even a rea onable ul pie ion of}

misconduct ts itself misconduct. Bryant did his duty

Likewise at the heart of thi case hes the

observation of this United States Supreme Court that

a public employee, such as Bryant, does not

relinquish his Kirst Amendment meht as he would

enjoy as any citizen to peak on matter ol publi

interest in connection with the operation of the

Mississipp) Air National Guard's Key Field, at

Meridian. Pickering v. Board of Education, 391 U.S

563, 568, 88 5. Ct. 1731 (1968). As a private citizen

Bryant's rights of free speech on matters of publi

concern “are classic forms of speech that he at the

heart of the First Amendment.” Schneck v. Pro-Choice

Network, 519 U.S. 357. 377. 117 S.Ct. 855 (1997)

(Chief Justice Rehnquist writing for the Court

Hence, it is Bryant’s performance of his duty a

an officer and his exercise of his First Amendment

rights to speak against the misconduct he and other

witnessed that ha wrought the fury of the

te pondent >to retahate. What they did and how they

did it are discussed below. Yet, the undeniable answer

to the question of why they have attacked Bryant so

is borne by the substantiated facts that. not one. but

fwo investigations substantiated allegations of such

misconduct against the Respondents in the per

formance of their requisite duties as members of the

Mississippi Air National Guard. When his superior

did not first act on his reports, he brought public light

Lo the issues and the investigations that verified such

wrongdoing, all of which were considered in violation

of the Mississippi Code of Military Justice, Sections

33-13-1, et seq., of the Mississippi Code of 1972,

Annotated, as amended, as well as federal statutes,

rules and regulations of the United States, the

National Guard Bureau, and the Department of

Defense.

Rather than receive a just commendation, Bryant

has been attacked, sued, and threatened. Even the

investigators for the Inspector General of the Air

Force have cautioned Bryant that his life and the

welfare of his family are in danger. Such danger

existed despite provisions regarding protected

communication, in accordance with 10 U.S.C. § 1034.

Thus, at a time in our nation’s history when pre-

paredness and defense of our land was so vital,

Bryant was left to fight for himself and his family

against those he had exposed.

The Respondents clothe themselves: as members

of the state militia. Bryant is considered a threat to

them, their military careers, their self-righteous

honor, and even to Key Field itself. Thus, though they

act in an extra-military manner, they nevertheless

act under the color of state authority in perpetrating

their retaliation against Bryant. Admittedly, they

have conspired to “shut him up” with the formation of

an “association” they call the “Concerned Guardsmen

of Mississippi,” so that a frivolous defamation lawsuit

could be filed against Bryant; a lawsuit that has since

been dismissed. Chalk v. Bertholf, 980 So. 2d 290

(Miss. App. 2007). They boldly admit that their

purpose is to stop Bryant from talking anymore.

In addition to the defamation lawsuit, the

Respondents, acting in concert, filed multiple

objectively baseless lawsuits against Bryant, all of

which have been dismissed.

Yet, more than baseless lawsuits have been

visited upon Joe Bryant; he has been assaulted and

threatened physically. Gun shots have barraged his

home. He has been harassed by multiple telephone

calls to his home. His airplane has been sabotaged.

His wife’s and son’s vehicles have been vandalized.

Scandalous and false letters have been written to his

private employer, FedEx, to the Federal Aviation

Administration (FAA) and to the Transportation

Safety Administration (TSA), all in efforts to destroy

his career and rob him of his family’s livelihood. And,

there is more.

In short, Joe Bryant did the right thing in

exposing the wrongs he witnessed, and it is the right

thing that he should have his day in Court.

PUBLIC SPEECH

Despite the findings of malfeasance and

corruption by the Inspector General of the Air Force

with the command at Key Field, no real change

occurred in the leadership of the 186th. Indeed, some

of those same officers that are Respondents herein

were left to rule the unit.

In May of 2003, Bryant brought these concerns to

then Mississippi Governor Ronnie Musgrove. Bryant

had already been interviewed by certain newspapers

about the investigation of the 186th unit. He had

been asked to appear on a radio station in Meridian,

and Bryant advised the Governor of this request. On

May 24, 2003, Bryant, along with the Inspector

General’s investigator, Colonel David Berholf,

appeared on the radio show. None of the Respondents

were mentioned by name, and none of the allegations

of malfeasance and other military law violations were

attributed to any particular Respondent. Yet, Bryant

made his speech on this issue of public concern about

the operations of the 186th at Key Field.

Incensed, the “Concerned Guardsmen _ of

Mississippi” met again, and they determined to draft

a lawsuit against Bryant for the stated purpose of

getting him to “shut up.” Indeed, in depositions, none

of them can point to any specific damage they have

suffered, as a result of Bryant being on the radio

program; yet, it is solely based on this radio show

that their lawsuit was based.

As in previous months, Bryant was continuously

interviewed by The Meridian Star and the Clarion-

Ledger, which are prominent newspapers in Meridian

and Jackson, Mississippi, respectively. Some of the

Respondents sued these newspapers, but their cases

were dismissed. Further, one Respondent sued the

United States Air Force, and that case was also

dismissed. Yet, the pertinence to this action is the

extent to which all of these Respondents are willing

to go, in order to punish one, such as Bryant, for

having held them accountable in his public speech.

His statements in the media are disconcerting to

them all, but no viable defamation claim exists for

them, and as such, they are left to repeatedly file

lawsuits against Bryant. Since Bryant would not

“shut up,” they have turned to other avenues of

retaliation to either obtain his silence or damage him

for such speech.

MORE BASELESS LAWSUITS

It is not just the focal spurious defamation case

the Respondents filed against Mr. Bryant, multiple

lawsuits have been filed against him solely in an

effort to “shut him up.” Those suits include, but are

not limited to, the following:

(a) Malta v. Riverstates Publishing, et al.;

in the United States District Court for the

Southern District of Mississippi; Civil Action

No. 4:06CV1ILTSL;

(b) Malta v. Bryant, et al., in the Circuit

Court of Lauderdale County, Mississippi,

Case No. 04CV262B;:

District Court for the Southern District of

Mississippi; Civil Action No. 4:06CV6TSL;

(d) Wilson v. CNH Investments, et al., in

the United States District Court for the

Southern District of Mississippi; Civil Action

No. 4:06CV12TSL;

(e) Chalk v. Bryant, in the United States

District Court for the Southern District of

Mississippi; Civil Action No. 4:06CV13TSL;

(f) Wilkes v. Bryant, in the Circuit Court of

Lauderdale County, Mississippi, Case No. 05

CV 067;

(g) Chalk, et al. v. Bryant, in the Circuit

Court of Lauderdale County, Mississippi,

Case No. 03CV094CR; and

(h) Temple v. Bryant, in the Circuit Court of

Lauderdale County, Mississippi, Case No. 04-

CV-273B.

Mr. Bryant filed Motions to Stay the State Court

Proceedings and to Consolidate all of the cases for, at

least, discovery purposes in the case sub judice. After

initially granting the Motions, due principally to the

Respondents’ failure to respond, the District Court

reversed itself and denied the Motions. Thus,

although he has brought this one suit against the

Respondents for the claims and causes of action set

forth herein, Mr. Bryant has endured defending

against at least eight (8) different lawsuits, which are

all meritless. All of them have been dismissed with

prejudice.

CONTINUOUS RETALIATORY CONDUCT

Indeed, one Respondent asserted that Petitioner

Bryant was mentally deranged. He went so far as to

send a letter to the FAA challenging Bryant’s mental

status for flight. As a result, a six-month investi-

gation ensued, from which Bryant was eventually

cleared.

Even more outrageous is the fact that in May of

2005, during the pendency of his lawsuit, Bryant’s

truck was broken into, while parked at a Holiday Inn

in Memphis, where he was staying prior to his work

flying for FedEx. Taken were his laptop computer and

his files on this case. The entire break-in was caught

on the security cameras of the hotel. Amazingly,

during Bryant’s deposition on January 11, 2005, in

one of the ill-fated lawsuits against the United States

Air Force, documents from Bryant’s stolen computer

were presented by opposing counsel. Those docu-

ments have now likewise been submitted by the

Respondents in this case. Thus, Bryant brought a

spoliation motion before the District Court to make

an evidentiary inquiry into the stolen documents

being presented and that a negative inference be

presented to the jury. Erroneously, the District Court

denied the motion, although finding a reasonable

basis for Bryant’s argument that the Respondents

perpetrated the break-in.

Ultimately, neither the District Court nor the

Fifth Circuit considered these actions as violations of

the Petitioner’s constitutional rights and privileges.

In making such a finding, the Fifth Circuit, in

particular, has created a split among the Courts

of Appeals concerning this Court’s jurisprudence

regarding such rights and privileges.

SUMMARY OF THE ARGUMENT

Standard of Review

Inasmuch as the District Court granted four

separate dispositive motions, this Court may review

such decisions under a de novo standard. Hooks v.

Morrison Milling Co., 38 F.3d 776, 780 (5th Cir.

1994); Carpenter v. Wichita Falls Independent School

District, 44 F.3d 362, 365 (5th Cir. 1995). As noted

above, Bryant has sought relief for violations of his

rights protected by the First Amendment through

various statutory and common law avenues. Each of

those violations have been noted above, and the

supporting law below establishes that he is entitled to

relief.

The District Court and the Fifth Circuit denied

Mr. Bryant this guaranteed relief. After four bites at

the proverbial apple, the Respondents have avoided

liability, thus far. Use of their “association” as the

“Concerned Guardsmen” to repeatedly file multiple,

patently frivolous lawsuits and engage in acts of

violence against Bryant for the solely admitted

purpose of “shutting him up” renders’ these

Respondents liable. Misapplication of law mandates

reversal of the Courts’ decisions, so as to resolve

existing divisiveness among the Courts of Appeals.

REASONS FOR GRANTING THE PETITION

FIRST AMENDMENT

Joe Bryant’s communication with his military

superiors and his speech to media outlets on matters

of public concern are protected under the First

Amendment to the United States Constitution, as

applied through the Fourteenth Amendment. These

expressions therefore are in the nature of a public

employee communicating in a military setting about

misconduct, which is protected under the Military

Whistleblower Protection Act, 10 U.S.C. § 34, and in

the nature of a private citizen speaking on matters of

public concern. See also 5 U.S.C. § 2302, et seq. Both

settings are subject to protection under the First

Amendment. Pickering v. Board of Education, 391

U.S. 563, 568, 88 S. Ct. 1731 (1968), and Schneck v.

Pro-Choice Network, 519 U.S. 357, 377, 117 S. Ct. 855

(1997), respectively. See also, Connick v. Myers, 461

U.S. 138, 140, 103 S. Ct. 1684 (1983).

Application of these fundamental principals is

made through the Fourteenth Amendment, and

through the Post Civil War Acts of 42 U.S.C. §§ 1983,

1985 and 1986.

42 U.S.C. $$ 1983, 1985 and 1986

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State ... subjects or causes to be

subjected, any citizen of the United States

... to deprivation of any rights ... secured

by the Constitution and laws, shall be liable

to the party injured in an action at law....

[Emphasis added. ]

42 U.S.C. § 1983.

The only contrary argument offered by the

Respondents, on whether they are liable, is simply

that they have not acted “under color of state law.”

Yet, the facts and circumstances set forth above show

that they have continuously justified their actions

based on their status as military officers and

members of the Mississippi Air National Guard’s

186th Refueling Wing. They clothe themselves in

their uniforms to evade liability under the Feres

doctrine, but the analysis does not stop there, when,

as here, the Respondents use their positions in the

State militia and as the State militia to cause harm

to Bryant in his personal and private citizen capacity.

In Chappel v. Wallace, 462 U.S. 296, 103 S. Ct.

2362, 76 L. Ed. 2d 586 (1983), this Court recognized

this distinction. While the decision in Chappel barred

a national guardsman from bringing such claims

under the Feres doctrine, the case never touched upon

conduct perpetrated by the individual defendants or

the use of the national guard unit by such individual

defendants, as shown in this case, after Bryant had

already been removed from the MANG and after he

had even retired from military service. Here, the

replete and specific factual allegations of the

violence, threats and intimidation perpetrated by

the individual and state perpetrators establish

violations of Bryant’s protected rights and privileges.

As further recognized by the Third Circuit, the

defendants’ personal involvement in the alleged

wrongs suffices for liability purposes. Robinson uv.

City of Pittsburgh, 120 F.3d 1286, 1294 (3rd Cir. 1997)

(further recognizing that actual knowledge and

acquiescence is equated with personal direction).

The Fifth Circuit has previously wrestled. with

this same distinction in Meister v. Texas Adjutant

General’s Department, 233 F.3d 332, 340 (5th Cir.

2000), where they disagreed with the District Court’s

application of United States v. Stanley, 483 U.S. 669,

682-83, 107 S. Ct. 3054, 3063-64, 97 L. Ed. 2d 550

(1987); Mindes v. Seaman, 453 F.3d 197 (5th Cir.

1971), and in the District Court’s decision in

Hassenfratz v. Garner, 911 F. Supp. 235 (S.D. Miss.

1995). The bottom-line analysis, though, is whether

the actions of the military officers and their resultant

harm to the plaintiff had anything to do with

“internal military decisions.” Clearly, that is not the

case here. The Respondents’ reprisals against Bryant

were for their own _ personal benefit. MANQG’s

reprisals were for its own survival, due to the

pervasive corruption then existing at Key Field. As

noted above, the individual Repondents used the very

arm of MANG to wage war against Bryant for

reporting and then making public the widespread

corruption.

Clothed in their actions of acting “under color

of any ... custom or usage of any State,” the

Respondents fall within the purview of the very

conduct outlawed by 42 U.S.C. § 1983. This Court

has recognized such hability where the actions of

physicians, tangentially in government service, cause

harm to their patients based on their own personal

conduct and non-governmental physician-patient

status, such that they acted “under color of state law.”

See O’Connor v. Donaldson, 422 U.S. 563 (1975) and

Estelle v. Gamble, 429 U.S. 97 (1976).

These “Concerned Guardsmen of Mississippi”

espouse the essence of the conduct prohibited by the

statute. In one Respondent’s deposition, he pro-

claimed their actions as “protecting themselves” and

their unit [MANG], by engaging in the actions

against Bryant. Another Respondent likewise stated

that the purpose of the “Concerned Guardsmen of

Mississippi” was to bring pressure on Bryant to halt

the media attention and “shut him up.”

42 U.S.C. § 1985

The actions and conduct of the Respondents

constitute the purposeful prevention or hindering of

Joe Bryant and the authorities of the State of

Mississippi, the United States, or any other proper

and appropriate constituted authority or agency, from

the equal protection of the laws of the United States

of America. As a result thereof, they conspired to

deprive or injure Bryant, in his person or property, by

acts to deter, prevent, intimidate or threaten him,

from discharging his duties as an officer in the

MANG and the USAF, such that they conspired to

and did violate the terms and provisions of 42 U.S.C.

§ 1985. These Respondents thus conspired for the

purpose of impeding, hindering, obstructing, or

defeating, in any manner, Bryant from engaging the

due course of justice in the State of Mississippi and in

the United States of America, with the intent to deny

the equal protection of the laws, by use of such

conspiracy to deter, force, intimidate or threaten Joe

Bryant from freely, fully and truthfully discharging

his duties, all in violation of 42 U.S.C. § 1985.

Their only argument in response to this charge is

that Bryant is not a member of a protected class

under 42 U.S.C. § 1985. Again, they miss the issue

raised. This claim under Section 1985 is not based on

discriminatory animus, though hostile animus

certainly exists against Bryant. Instead, Bryant’s

claim is based upon the Respondents’ concerted

activities to prevent Bryant from discharging his

duties.

This cause of action is specifically recognized by

this Court in Harrison v. Garrison, 525 U.S. 121, 125,

119 S. Ct. 489, 492 (1998), in which the defendants in

that case conspired to retaliate against a witness in

federal court proceedings. The Court, applying 42

U.S.C. § 1985(2), found that the plaintiff had a cause

of action for the retaliation and intimidation visited

upon the Petitioner.

Here, the same is true. This federal statute is

designed to protect just such a person as Joe Bryant

from the threats, harm, intimidation, harassment

and reprisals directed at him. No class status is

needed for such a claim under 42 U.S.C. § 1985(2).

Moreover, the conspiracy is readily admitted in

the formation and participation in their “Concerned

Guardsmen of Mississippi,” which was strictly formed

for the purposes of attacking Joe Bryant.

42 U.S.C. § 1986

Finally, the Respondents violated 42 U.S.C

§ 1986, inasmuch as they failed or refused to prevent

the commission of the aforesaid acts of violence,

threats, intimidation, coercion, and harm, through

the conspiracy.

This federal protective statute simply follows

from Section 1985 for actions in failing to prevent

such wrongs against Bryant from occurring. Based on

this activity of conspiracy, through their “Concerned

Guardsmen” organization, they are each separately

hable under this Act for the harm and statutory

damages assessed under the statute. Bryant is

therefore entitled to the relief afforded him under 42

U.S.C. § 1988.

Bryant’s claims are poignantly based upon

Constitutional, statutory and regulatory law. He has

copiously invoked his rights and privileges under the

First Amendment to the United States Constitution

Coupled with this constitutional protection are

statutory, regulatory and public policy contained in

the Military Whistleblower Protection Act, 10 U.S.C

§ 34. Make no mistake, the point of Petitioner’s

claims under 10 U.S.C. § 1034 tis not for a private

cause of action under that statute; rather, Bryant

contends his right to proceed with constitutional

claims under the First Amendment and that his

speech to the Inspector General is indeed “protected

communication” under the military’s own statutory

and regulatory guidelines

There is no military function, expertise or

discretion involved in the willful acts of retribution

and violence against Mr. Bryant. For example, no

analysis of military function, expertise or discretion is

involved with respect to the actions of the Respondent

who wrote to the FAA in a conspicuous effort to have

Petitioner’s private pilot's license revoked. No

military function, expertise, or diseretion is involved

in providing the FAA’ with falsified medical

information concerning Mr. Bryant, in a specific effort

to cause Bryant to lose his civilian job with FedEx

——_— @ ——___——_-

ERROR OF THE COURTS BELOW

At the heart of this case is the application of

opinions of this Court in Bill Johnson’s Restaurants v

NLRB, 461 U.S. 731, 103 5. Ct. 2161, 76 L. Kd. 2d

277 (1983); Professtonal Real Estate Investors, Inc. v.

Columbia Pictures, 508 U.S. 49, 113 S. Ct. 1920, 123

L. Ed. 2d 611 (1993); and BE & K Construction Co. v.

NLRB, 536 U.S. 516, 122 S. Ct. 2390, 153 L. Ed. 2d

499 (2002). Bryant would respectfully submit that the

courts below incorrectly applied and interpreted these

opinions to the case sub judice, in the following

respects:

(A) Bill Johnson’s does not apply to suits,

such as those filed with an objective that is illegal

under federal law;

(B) this Bill Johnson’s exception was not

affected by BE & K;

are considered “illegal speech” and are thus _ not

protected under the First Amendment;

(D) BE & K and no other federal case

considering these aspects address a situation, such as

the one at hand, in which there are some nine (9)

cases filed strictly for retaliatory purposes;

(E) BE & K and no other federal decision

concern the formation of an organization or asso-

ciation (such as the “Concerned Guardsmen of

Mississippi”), which was established strictly for the

purpose of bringing multiple lawsuits against Mr.

Bryant, in order to “shut him up”;

(F) the Respondents admittedly suffered no

damages for which they sought relief in their cases,

such that even if successful on the merits of liability,

no recovery could be made by even the most

reasonable of complainants;

(G) the Respondents admittedly brought

the lawsuits, not to recover money or to enjoin

perceived unlawful conduct, but rather to only

admittedly harass Bryant, such that clearly no

reasonable complainant could believe that the cases

were objectively well based;

(H) in four of the above referenced cases,

Respondents simply filed the lawsuits, compelled

Bryant to answer and file appropriate motions, never

conducted discovery, and either had the cases

dismissed for failure to prosecute or belatedly

dismissed them voluntarily, such that even by their

own standard the cases were not objectively based in

fact or in law; and

(I) the burden of showing that the

Respondents’ multiple lawsuits were “objectively

baseless” was incorrectly placed on Bryant.

The Respondents have not submitted any feasible

challenge to Bryant's claims of his own protected

speech under the First Amendment. Yet, their conduct

of repeatedly bringing objectively baseless lawsuits is

unlawful, and thus “illegal speech,” is not protected

by the First Amendment. Such specific federal

prohibition against retaliation is grounded in the

Military Whistleblower Protection Act, 10 U.S.C.

§ 1034. Further, additional specific federal prohibition

is set forth under 42 U.S.C. §§ 1985 and 1986.

Nowhere has this Court ruled that defendants avoid

these statutes by filing lawsuits against a person

reporting on corruption and malfeasance at a military

base.

This Court should therefore reverse the Fifth

Circuit’s ruling and allow Bryant’s claims to proceed

to trial against all of the adverse parties. Prior to this

case, there existed no decisions from the Fifth Circuit

involving interpretation of BE & K. Its decision

therefore creates a split among the appellate courts

for the District of Columbia,’ the Ninth Circuit’ and

the Eleventh Circuit,’ which are drastically different.

SPLIT OF THE CIRCUITS

Misapplication of BE & K

At the heart of the Fifth Circuit’s decision is the

misapplication of Bill Johnson’s, in upholding the

vacillating decisions of the District Court, which

made the following inittal objective finding

regarding one of the multiple lawsuits filed against

Bryant:

Defendants’ argument ... would have this

court assume that defendants’ slander suit

against Bryant was meritorious, or at least

' Can-Am Plumbing v. NLRB, 321 F.3d 145 (D.C. Cir. 2003).

* Kearney v. Foley & Lardner, 590 F.3d 638 (9th Cir. 2009).

* NLRB v. USPS, 526 F.3d 729 (11th Cir. 2008).

that they had a reasonable basis for

bringing the action. Yet, they merely

declare that they “understandably were

upset that Bryant made slanderous and

disparaging statements about them,” and

argue that they could reasonably have

thought they had a viable cause of action

notwithstanding that Bryant did not identify

them by name.... However, a_ party

cannot succeed on a claim for slander

merely because he was upset....

[Emphasis added. |

The District Court then went on to more thoroughly

make just such a ruling based on the “objective

baseless” standard, as is set forth in BE & K,

although the District Court merely failed to cite the

decision." Most important and manifestly in error in

the District Court’s subsequent decision is the failure

to consider the fact that no speech made in a

lawsuit is protected, when the suit is filed in

violation of federal law. The Fifth Circuit

erroneously upheld this misapplication.

In Bill Johnson’s, this Court conspicuously

indicated that that case did not involve either (a) a

case in which the claims are preempted by federal

law or (b) a case that has an objective that is

* As further argued herein, the District Court’s June 17,

2008 decision incorrectly placed the burden of showing that the

Respondents’ multiple cases were “objectively baseless” on Mr.

Bryant; whereas, in the District Court’s July 17, 2007 decision,

the burden was correctly placed on the Respondents.

illegal under federal law. 461 U.S. at 737 n. 5, 103

S. Ct. at 2167 n. 5. See also NLRB v. Nash-Finch Co.,

404 U.S. 188, 144, 92 S. Ct. 373, 377, L. Ed. 2d 328

(1971). The Respondents admit that they filed all of

the lawsuits (not just the slander suit) in retaliation

against Bryant and in order to “shut him up.” Such

an admission violates the following federal law:

1. Military Whistleblower Protection Act,

10 U.S.C. § 1034.

the First Amendment of the United

States Constitution.

3. 42U.8.C. § 1985.

4. 42U.5.C. § 1986.

In essence, according to Bill Johnson's, if the

objective of the lawsuits is to violate federal law,

then it is not protected. The manifest error of the

decision of the courts below is that they did not

consider the plain exemption expressed by this Court

in Bill Johnson’s and the plain fact that nothing in

its decision in BE & K changes or otherwise affects

this expressed exemption stated in Brll Johnson’s.

This distinction was precisely noted by the Court

of Appeals for the District of Columbia in Can-Am

Plumbing v. NLRB, 321 F.3d 145, 151 (D.C. Cir.

2003).° Just as lawsuits that are preempted by the

National Labor Relations Act are not controlled by

Bill Johnson’s, so too are lawsuits that are filed with

the objective of violating federal law. Indeed, in

both Bill Johnson’s and in Can-Am Plumbing, it was

conceded that such lawsuits fell under the expressed

exception and thus outside the protection of the First

Amendment. See Can-Am, 321 F.3d at 151. BE & K

affected none of this exception.

Other reported cases from federal courts of

appeals involving the interpretation of BE & K are

NLRB v. USPS, 526 F.3d 729 (11th Cir. 2008) and

Kearney v. Foley & Lardner, 590 F.3d 638 (9th Cir.

2009).° In USPS, no lawsuit was even filed. Instead,

suit was merely threatened; yet, the Eleventh Circuit

found such retaliatory conduct to be in violation of

federal Jaw. The court called such conduct “illegal

speech.” Such speech is therefore not protected by the

First Amendment. USPS, 526 F.3d 736, citing NLRB

v. Gissel Packing Co., 395 U.S. 575, 618, 89 S. Ct.

1918, 1942 (1969). In Kearney, the Ninth Circuit

found that discovery and spoliation violations by a

school district and its counsel in an eminent domain

* Nowhere in the District Court’s decision of June 17, 2008,

is this decision by the District of Columbia Circuit even

addressed.

* The only other decision by a federal court of appeals citing

BE & Kis Molski v. Evergreen Dynasty Corp., 521 F.3d 1215 (9th

Cir. 2008); however, the citation is in the court’s dissent, and the

case strictly concerned pre-filing orders or injunctions, regarding

multiple filings of frivolous lawsuits by a party.

proceeding did not shield them from lability in a

subsequent lawsuit by the landowner, as_ being

protected speech, and it found the “sham” exception

applicable.

_ Additionally, a close reading of Bill Johnson’s, BE

& K, Can-Am, Kearney and USPS indicates that the

burden of showing that the lawsuits were not

“objectively baseless” fell on defendant. In instances

when the employers are in a_ similar litigation

position as the Respondents, they had the burden of

such proof, not Mr. Bryant. Thus, this burden was

erroneously placed on Bryant. Hence, manifest error

exists.

The decisions in Can-Am, Kearney and USPS

directly conflict with the decision made by the

District Court and the Fifth Circuit. This Court

should either vacate the decision and reverse for

further proceedings not inconsistent with the above

law.

CONCLUSION

Based on the above and foregoing law and

application of such law to the underlying facts,

reversal of the District Court’s and Fifth Circuit’s

decisions is mandated, so that a split among the

Courts of Appeals be resolved. To not allow such

remedial proceedings grants permission to persons

and agencies falsely cloaking themselves in military

garb to wage a “counter offensive” against an honor-

bound soldier who simply reported corruption and

brought public scrutiny to those who refused to abide

the law. Mr. Bryant is entitled to his day in court.

RESPECTFULLY SUBMITTED, this the 12th

day of July, 2010.

WAYNE E.. FERRELL, JR., ESQ.

Counsel of Record for the Petitioner

405 Tombigbee Street

Jackson, Mississippi 39205

(601) 969-4700

wferrell@airlawonline.com

PAUL A. KOERBER, ESQ.

Associate Counsel for the Petitioner

405 Tombigbee Street

Jackson, Mississippi 39205

(601) 969-4700

App. 1

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

No. 09-60182

JOE H. BRYANT, JR.,

Plaintiff-Appellant-Cross-Appellee

MILITARY DEPARTMENT OF THE STATE OF

MISSISSIPPI,

Defendant-Appellee-Cross-Appellant

FRANKLIN E. CHALK; FREDERICK D.

FEINSTEIN; ROY A. GRAHAM; BILLY JOE

GRESSETT; DONALD E. JONES; LANGFORD L.

KNIGHT; F. GREGORY MALTA; WILLIAM F.

PARTEN; ROBERT E. PIERCE; ROGER E.

SHIRLEY; CHARLES F. STEED; AARON K.

WILSON; THOMAS TEMPLE; JOHN DOES 1-20;

LESLIE WILKES,

Defendants-Appellees.

Appeals from the United States District Court

for the Southern District of Mississippi.

(Filed Feb. 17, 2010)

App. 2

Before JONES, Chief Judge, and GARZA and

STEWART, Circuit Judges. EMILIO M. GARZA,

Circuit Judge:

Col. (Ret.) Joe H. Bryant (“Bryant”), a former

member of the Mississippi Air National Guard’s

(“MSANG”) 186th Refueling Wing, sued MSANG and

individual MSANG officials (“Individual Appellees”),

asserting claims under: (1) the Military Whistle-

blower Protection Act, 10 U.S.C. § 1034; (2) the

Mississippi Whistleblower Protection Act, Miss. CODE

ANN. §§ 25-9-171-77; (3) 42 U.S.C. § 1983; (4) 42

U.S.C. § 1985; and (5) 42 U.S.C. § 1986. Bryant later

amended his complaint to add various state law

claims against individual MSANG officials: Through

three separate orders the district court disposed of all

claims against MSANG and the Individual Appellees

in their official capacities and all of the federal law

claims against the Individual Appellees in their

individual capacities.'. Bryant appeals these rulings.

MSANG cross-appeals, alleging that the district court

erred in denying MSANG’s motion for sanctions. We

affirm the district court’s dismissal of Bryant’s claims

and, as to MSANG’s cross-appeal, affirm the district

court’s denial of sanctions.

' Bryant’s claims against individual Appellee F. Gregory

Malta in his individual capacity are still pending because Malta

did not move for summary judgment. Bryant’s state law claims

against individual Appellee Robert E. Pierce also remain

pending.

App. 3

Over an eight-year period during his MSANG

service, Bryant allegedly observed various acts of

misconduct by MSANG officials. Bryant reported the

alleged misconduct to superior officers and ultimately

filed a complaint with the Inspector General of the

Department of the Air Force. The Inspector General

undertook two separate investigations, in which a

number of Bryant’s allegations of wrongdoing were

substantiated. Bryant’s charges and the ensuing

investigation were the subject of regular media cover-

age in local newspapers and a talk radio show.

According to Bryant, MSANG and the Individual!

Appellees responded to Bryant’s “whistleblowing”

with a litany of retaliatory acts. These acts allegedly

included employment-related actions such as

attempts to force Bryant’s resignation, career-dam-

aging reports, and assignment to a position under a

junior officer. Bryant also claims that MSANG offi-

cials committed acts of vandalism and violence, such

as breaking into Bryant’s vehicle, stealing his laptop,

firing gun shots in and around his home, cutting the

gasoline line to his wife’s vehicle, harassing him with

anonymous phone calls, and physically assaulting

him. Several of the Individual Appellees also filed

civil lawsuits against Bryant, which he contends were

retaliatory and lacked merit. Based on these alle-

gations Bryant asserted federal and state law claims

against MSANG and the Individual Appellees.

App. 4

In August 2005, the district court granted a

motion to dismiss all claims against MSANG and the

Individual Appellees in their official capacities. The

district court dismissed all claims against MSANG

because the Military Whistleblower Protection Act, 10

U.S.C. § 1034 does not create a cause of action, and

insofar as MSANG is a state agency, all other claims

are barred by the Eleventh Amendment. Additionally,

the district court held that all employment-related

claims against MSANG and the Individual Appellees

in their official capacities are barred under Feres v.

United States, 340 U.S. 135, (1950). In July 2007, the

district court granted summary judgment in favor of

the Individual Appellees in their individual capacities

as to Bryant’s Military Whistleblower Protection Act,

Mississippi Whistleblower Protection Act, §§ 1983,

1985(2) and (3), and assault and battery claims. The

court also disposed of some, but not all, of Bryant's

claims under §§ 1985(1) and 1986. Finally, in July

2008, the district court granted summary judgment

in favor of the Individual Appellees in their individual

capacities as to Bryant’s remaining §§ 1985(1) and

1986 claims. The district court entered a Rule 54(b)

certification of final judgment as to those claims

denied and parties dismissed by the orders of August

26, 2005, July 17, 2007, and July 17, 2008. Bryant

thereafter brought the instant appeal in which he

contends that the district court erroneously applied

the Feres doctrine to dismiss the claims against

MSANG and the Individual Appellees in their official

capacities, incorrectly granted summary judgment in

the July 2007 order, and misapplied First Amendment

App. 5

law in determining that Bryant's § 1985(1) and

§ 1986 claims predicated on allegedly retaliatory

litigation were barred.

IT.

This court reviews Rule 12(b)(1), 12(b)(6), and

12(c) dispositions de novo.” See, e.g., Walch v.

Adjutant Gen.’s Dep't of Tex., 533 F.3d 289, 293 (5th

Cir. 2008); Doe v. MySpace, Inc., 528 F.3d 413, 418

(5th Cir. 2008). This court also reviews de novo a

grant of Rule 56 summary judgment. The court

affirms summary judgment if the record reveals no

genuine issue of material fact and the movant is

entitled to judgment as a matter of law. Croft v.

Governor of Texas, 562 ¥.3d 735, 742 (5th Cir. 2009).

When conducting its review, the court will evaluate

the evidence in the light most favorable to the non-

movant. Breaux v. Halliburton Energy Servs., 562

F.3d 358, 364 (5th Cir. 2009).

“ MSANG styled its motion to dismiss, in which the

Individual Appellees joined, as a “Rule 12(b\1), 12(b\6), 12(c),

and Eleventh Amendment Motion to Dismiss and for Judgment

on the Pleadings.” The district court did not specify under which

procedural mechanism(s) it was dismissing the claims, and

Bryant did not specify which procedural grant(s) of dismissal he

appeals, but regardless, the standard of review is the same

App 6

Bryant asserts that the district court erred in

dismissing his claims against MSANG under the

Keres doctrine. His brief, however, substantively

discusses the Feres issue only in relation to his van

dalism and violence claims against the Individual

Appellees. The district court clearly held that eres

was not a ground for disposing of the vandalism

claims and only applied Feres to Bryant’s claims of

employment-related retaliation against MSANG and

the Individual Appellees. Bryant v. Military Dep't of

State of Miss., 381 F. Supp. 2d 586, 594 (S.D. Miss

2005) (“Bryant 7”). Accordingly, the limited Feres dis-

cussion in Bryant's brief centers around the wrong

claims and the wrong parties. Dryant’s failure to

adequately brief the Keres issue is a waiver of these

claims. United States v. Martinez, 263 F.3d 436, 438

(5th Cir. 2001). Bryant did not preserve the issue

merely by mentioning it in the “Statement of Issues.”

See, e.g., Justiss Ou Co. vo. Kerr McGee Ref. Corp., 75

3d 1057, 1067 (5th Cir. 1996) (declining to address

the merits of an issue raised only in the Statement of

Issues and not argued in the body of the brief)

Accordingly, we decline to address the propriety of the

district court’s dismissal under eres.

Moreover, the decision below stands on indepen

dent grounds. The district court ruled that all of

Bryant's claims against MSANG are barred by the

Eleventh Amendment and that the §§& 1983, 1985, and

1986 claims are barred because MSANG is not a

“person” under those statutes. Bryant failed to argue

App. 7

that either of those determinations was incorrect. His

failure to do so is fatal to his appeal of MSANQ’s

dismissal from this litigation. See, eg., Berry v.

Jefferson Parish, 326 F. App’x. 748, 750 (5th Cir.2009)

(unpublished) (“An unbriefed argument is an unpre-

served argument.”); see also FED. R. App. P.

28(a)(9)(A).

Bryant next contends that the district court

erroneously granted partial summary judgment in its

July 2007 order. See Bryant v. Miss. Military Dep't,

519 F. Supp. 2d 622, 626 (S.D. Miss. 2007) (“Bryant

IT”). Bryant’s appeal addresses only the district

court’s grant of summary judgment on his §§ 1983,

1985(1) and (2), and 1986 claims, and the state law

assault and battery claims.’ The district court ruled

* The district court’s order, referring to its previous

dismissal of Bryant’s Military Whistleblower Protection Act

claims, reiterated that the statute does not authorize a private

cause of action. Bryant IJ, 519 F. Supp. 2d at 626. The district

court granted summary judgment on Bryant’s claim under the

Mississippi Whistleblower Protection Act because Bryant offered

no response to the Individual Appellees’ arguments that the Act

applies only to actions by a state “agency,” not coworkers; covers

only acts that impact employment; and does not apply for

actions after an employee is no longer employed. Jd. at 626-27.

Bryant raises no issue on appeal with respect to these rulings.

* Bryant spends some three pages of his brief discussing his

claims of intentional and negligent infliction of mental distress,

defamatory/false light liability and intentional interference with

employment. It is unclear whether Bryant believes that these

(Continued on following page)

App. 8

that Bryant could not succeed on any § 1983 First

Amendment claim because he failed to show that the

Individual Appellees acted “under color of state law.”

With respect to Bryant’s §§ 1985 and 1986 claims, the

district court ruled that any claims under §§ 1985(2)

and (3) fail because Bryant could not demonstrate

that the Individual Appellees were motived by “racial

or some other type of invidious, class-based dis-

tinction.” Jd. at 628 (citations omitted). The district

court further found that Bryant failed to create a

genuine issue of material fact with respect to his

§ 1985(1) claim based on allegations of vandalism and

violence. Finally, the district court dismissed Bryant’s

assault and battery claims as barred by the statute of

limitations.

A claim for violation of First Amendment rights

must be brought pursuant to 42 U.S.C. § 1983. To

state a claim under § 1983, a plaintiff must allege

facts showing that a person, acting under color of

state law, deprived the plaintiff of a right, privilege or

immunity secured by the United States Constitution

claims were dismissed. In any event, we need not address these

claims because the district court has retained jurisdiction over

them. See Bryant II, 519 F. Supp. 2d at 633-34 (noting that each

of these claims is based on allegations regarding defendant

Pierce’s activities and concluding that issues of material fact

precluded summary judgment as to the tort claims against

Pierce).

App. 9

or the laws of the United States. Ellison v. De La

Rosa, 685 F.2d 959, 960 (5th Cir. 1982). A person acts

“under color of state law” if he engages in the

“(mlisuse of power, possessed by virtue of state law

and made possible only because the wrongdoer is

clothed with the authority of state law... .” Townsend

v. Moya, 291 F.3d 859, 861 (5th Cir. 2002) (quoting

United States v. Causey, 185 F.3d 407, 415 (5th Cir.

1999)). However, a state officer does not act “under

color of state law” if he “pursues personal objectives

without using or misusing the power granted to him

by the state to achieve the personal aim.” Jd. (quoting

Harris v. Rhodes, 94 F.3d 196, 197 (5th Cir.1997)).

Bryant first argued that his lawsuit addressed

actions taken by the Individual Appellees as “indi-

viduals, who just so happen to also be in the military

but who act for no military purpose or reasons;

rather, they act for their own hatred against the

plaintiff.” Bryant IJ, 519 F.Supp.2d at 628. Bryant

further argued that the Individual Appellees’ “actions

occurled] off base, have no justifiable military pur-

pose, [and] are perpetrated solely for personal

reasons.” Jd. Recognizing that these allegations would

doom his § 1983 claims, Bryant then contended that

the Individual Appellees acted under color of state

law because they “clothe[d] themselves as members of

the state militia” and attempted to silence Bryant for

their own personal benefit, namely to protect their

military careers. Jd. But the district court concluded

that Bryant’s allegations, inter alia, assault, vandal-

ism, harassing phone calls, trying to get Bryant fired

App. 10

from his civilian job, and firing gun shots near

Bryant’s home, even if undertaken to protect the

Individual Appellees’ military positions, “were not

made possible by defendants’ military positions and

did not occur in the course of defendants’ performing

any of their military duties.” Jd.

Bryant has failed to point to specific facts

showing there is a genuine issue whether the Individ-

ual Appellees acted under color of state law.’ He

makes only a conclusory assertion that these indi-

viduals wanted to protect their military careers. A

motive to protect one’s career is a personal moti-

vation, not specific to individuals possessing state

authority, and without more, namely, an act under

color state law in the performance of actual or pre-

tended duties or done with a pretense of official

authority, is not sufficient. See, e.g., Delcambre v.

Delcambre, 635 F.2d 407, 408 (5th Cir. 1981) (finding

dismissal of a § 1983 claim proper where an alter-

cation arose of out of a personal family and political

dispute and the police officer did not use or threaten

to use any state authority during the altercation); see

also Revene v. Charles County Comm'rs, 882 F.2d 870

(4th Cir. 1989) (“[T]he nature of the act is con-

trolling.”); Manning v. Jones, 696 F. Supp. 1231, 1235

(S.D. Ind. 1988) (finding that not all acts of state

* Indeed, as detailed above, Bryant’s brief undercuts his

own position by emphasizing that the Individual Appellees acted

for their own “personal benefit” and characterizing their actions

as an “extra-military matter.” Appellant's Br. at 11, 35.

App. 11

officials are under color of state law where motivation

is personal and actor did not invoke or use any official

authority). It does not follow from a desire to protect

their military careers that any of these individuals’

actions were achieved through the use or misuse of

power granted by the state. Indeed, the allegations

taken in the light most favorable to Bryant implicate

no exercise of state power whatsoever. No reasonable

jury could render a verdict in Bryant’s favor based on

allegations of motive alone, and accordingly, the

district court properly granted summary judgment on

Bryant’s § 1983 claims. See Reese v. Anderson, 926

F.2d 494, 499 (5th Cir. 1991).

Bryant alleges that the Individual Appellees

violated $$ 1985(1) and (2) and § 1986 by forming an

association known as the “Concerned Guardsmen of

Mississippi” to carry out acts of vandalism and vio-

lence and by filing retaliatory civil lawsuits against

Bryant. The district court found that a § 1985(2)

claim would not lie because the “equal protection”

language of that section requires a showing that the

conspiracy was motivated by class-based discrimi-

natory animus and whistleblowers are not a protected

class. See Bryant II, 519 F. Supp. 2d at 629. With

respect to the § 1985(1) claims, Bryant’s pleadings

alleged specific instances of vandalism and violence,

but the district court found that summary judgment

nonetheless was warranted because Bryant failed to

rebut the Individual Appellees’ evidence that other

App. 12

members of the community had a “strong motive to

dislike” Bryant and therefore could have perpetrated

the acts of vandalism and violence. Jd. at 631.

Section 1985(1) prohibits conspiracies “to pre-

vent, by force, intimidation, or threat” a federal offi-

cer from discharging his duties or to injure him

because of his lawful discharge of his duties. 42

U.S.C. § 1985(1) (2009). Section 1985(2)° prohibits

conspiracies to deny any citizen equal protection of

the laws or to injure a citizen for his efforts to ensure

the rights of others to equal protection. 42 U.S.C.

§ 1985(2) (2009). Section 1986 penalizes those with

knowledge of and the power to prevent § 1985 con-

spiracies who fail to do so. 42 U.S.C. § 1986 (2009).

On appeal, Bryant contends that the Individual

Appellees’ actions were intended to prevent him from

discharging his duties as an MSANG officer and to

impede him from “engaging the due course of justice

... with the intent to deny ... the equal protection of

the laws.” Bryant argues, without citation to any

authority, that “[n]o class status is need[ed] for such a

claim under 42 U.S.C. § 1985(2).” We disagree. The

“language requiring intent to deprive of equal pro-

tection, or equal privileges and immunities, means

that there must be some racial, or ... class-based,

witnesses from attending court or testifying, punish witnesses

who have so attended or testified, or injure jurors. The district

court found this subsection inapplicable to Bryant’s claims, and

Bryant does not appeal that finding.

App. 13

invidiously discriminatory animus behind the con-

spirator’s action.” See Griffin v. Breckenridge, 403

U.S. 88, 102, (1971) (emphasis added) (referring to

§ 1985(3)). This Circuit has held that the class-based

animus requirement of § 1985(3) applies equally to

causes of action under the second clause of § 1985(2)

such as Bryant’s claims here. Daigle v. Gulf State

Utils. Co., 794 F.2d 974, 979 (5th Cir. 1986) (noting

the parallel language in §§ 1985(2) and 1985(3) pro-

hibiting certain conduct with an intent to deny “equal

protection. of the laws”). Moreover, we have previously

rejected the argument that “whistleblowers” are a

protected class for purposes of § 1985 claims. See

Garrie v. James L. Gray, Inc., 912 F.2d 808, 813 n.13

(5th Cir. 1990). Because Bryant’s status as a whistle-

blower does not entitle him to protection under

§ 1985(2), the district court correctly dismissed the

claim.

Bryant also appeals the district court’s grant of

summary judgment on his § 1985(1) claims pred-

icated on vandalism and violence. A cause of action

under § 1985(1) requires no allegation of racial or

class-based discriminatory animus. See Kush v.

Rutledge, 460 U.S. 719, 726, (1963). Accordingly,

Bryant’s “failure to identify any such animus is no

impediment.” Bryant I, 519 F. Supp. 2d at 629.

Nonetheless, the district court properly conciuded

that Bryant’s claim is barred because he failed to

create a genuine issue of materiai fact whether the

Individual Appellees committed the alleged acts.

Bryant presented evidence that soinmeone committed

App. 14

acts of violence, vandalism and harassment. For

instance, someone sent an anonymous greeting card

to his home congratulating Bryant on having an

illegitimate child. Someone also apparently mailed

letters to Bryant’s employer, FedEx, alleging among

other things that Bryant smuggled machine guns on

a FedEx plane. While Bryant succeeded in presenting

evidence of violence, threats and intimidation, he pre-

sented no direct evidence that any of the Individual

Appellees perpetrated these acts. Instead Bryant

pointed to circumstantial evidence that his whistle-

blowing activities were motive for MSANG officials to

commit retaliatory acts. But the Individual Appellees

responded with evidence that other members of the

community were angered by Bryant’s activities and

thus shared a similar motive. “Once the moving party

has shown ‘that there is an absence of evidence to

support the non-moving party’s cause,’ the non-

movant must come forward with ‘specific facts’

showing a genuine factual issues for trial.” Oliver v.

Scott, 276 F.3d 736, 744 (5th Cir. 2002). To survive

summary judgment, Bryant was required to point to

specific facts that would create a triable question

whether the Individual Appellees, rather than séme-

one else, committed the retaliatory acts. Bryant failed

to do so. His only response to Individual Appellees’

evidence of others’ motive was that he believed that

the Individual Appellees’ motive was_ stronger.

Bryant’s belief is not evidence that creates a triable

fact issue; therefore, summary judgment was proper.

App. 15

Bryant also appeals the district court’s dismissal

of his assault and battery claims against Individual

Appellees, Thomas Temple and Leslie Wilkes. The

alleged assault occurred, at the latest, on September

12, 2003.’ Bryant did not file his suit until March 17,

2005. The district court found these claims time

barred by Mississippi’s one-year statute of limita-

tions. Bryant tries to avoid the statute of limitations

by arguing that the assault and battery were part of a

pattern of ongoing and continuing threats, harass-

ment, and intimidation. The Individual Appellees

respond that assault and battery are not among the

types of torts that can be classified as “continuing”

and therefore are not exempted from the statute of

limitations as “continuing torts.”

The statute of limitations for assault actions

under Mississippi law is one year. See Miss. CODE

ANN. § 15-1-35 (2009) (“All actions for ... assault and

battery ... shall be commenced within one (1) year

next after the cause of such action accrued, and not

after.”). Under Mississippi law, the statute of limi-

tations is tolled by the continuing tort doctrine where

there is a repeated injury. See McCorkle v. McCorkle,

811 So. 2d 258, 264 (4 12) (Miss. Ct. App. 2001). “This

" The record inconsistently reflects the date of the alleged

assault and battery alternately as September 3, 2003 or

September 12, 2003. Regardless of which date is correct, the

statute of limitations would have run by the time Bryant filed

suit on this tort claim.

App. 16

principle applies, however, in situations where a

defendant commits repeated acts of wrongful conduct,

not where harm reverberates from a single, one-time

act or omission.” Smith v. Sneed, 638 So. 2d 1252,

1255 (Miss. 1994). A “continuing tort” is “one inflicted

over a period of time, it involves a wrongful conduct

that is repeated until desisted, and each day creates a

separate cause of action.” Jd. at 1256.

Bryant’s continuing tort theory fails. First, we

find unavailing the argument that the allegations

comprising Bryant’s § 1985 claims can be combined

with the single incident of assault and battery to con-

stitute a “continuing tort.” For one thing, a con-

tinuing tort is “a wrongful conduct that is repeated

until desisted,” not an amalgam of various wrongs.

Id. (emphasis added). Second, while the district court

opines that “the assault and battery is not itself a

continuing tort,” we need not decide whether under

Mississippi law assault and battery may ever

constitute a continuing tort.” An allegation of a single

incident is plainly insufficient to meet the require-

ment that the wrongful conduct be repeated and that

* The district court cites no authority that an assault and

battery may not be a continuing tort and we have found no such

authority under Mississippi law. However, some courts hold that

assault and battery may be a continuing tort where, for

instance, multiple incidents of assault and battery are per-

petrated as in cases of abusive relationships. See, e.g., Cusseaux

v. Pickett, 652 A.2d 789, 794 (N.J. 1994) (finding that each

incident of battery and assault is not a separate, but a

continuing tort where part of a pattern of abuse and violence).

App. 17

the harm not “reverberate from one wrongful act of

omission.” Jd. at 1255. The continuing tort doctrine

does not apply and Bryant’s assault and battery claim

is barred.

Finally, Bryant appeals the district court’s grant

of summary judgment in defendants’ favor on his

§ 1985(1) claim based on allegations of retaliatory liti-

gation. The allegedly “retaliatory litigation” includes

a slander suit, two malicious prosecution suits, and

an invasion of privacy suit filed by various Individual

Appellees against Bryant. In their first motion for

summary judgment, the Individual Appellees had

argued that the allegedly retaliatory suits could not

form the basis of a §1985(1) claim. Citing Bill

Johnson’s Restaurants v. NLRB, 461 U.S. 731, (1983),

they contended that summary judgment was proper

because “the filing of a meritorious suit is not an

actionable act of retaliation.” They maintained that

because their suits had a reasonable basis in fact and

law they could not be held liable for retaliation. In its

July 2007 order the district court denied the motion,

explaining that it could not simply assume a

reasonable basis for bringing the allegedly retaliatory

lawsuits. Bryant IT, 519 F. Supp. 2d at 632. But in its

June 2008 order the district court reconsidered the

issue and reached the opposite conclusion after apply-

ing BE & K Constr. Co. v. NLRB, 536 U.S. 516,

(2002). The district court found that Bryant’s

§ 1985(1) claim for retaliatory litigation was barred

App. 18

by the Individual Appellees’ First Amendment right of

access to the courts. It reasoned that Bill Johnson’s

required the defendants to show that their lawsuits

were meritorious, which they failed to do, while BE &

K required that Bryant show that defendants’ law-

suits were “objectively baseless.” Applying BE & K,

the district court granted summary judgment, con-

cluding that Bryant did not show that the litigation

was “objectively baseless.” Bryant v. Miss. Military

Dep't, 569 F. Supp. 2d 680, 682 (S.D. Miss. 2008)

(“Bryant ITT”).

The First Amendment of the federal Constitution

guarantees the right of access to the courts to petition

for redress of grievances. Cul. Motor Transp. Co. v.

Trucking Unlimited, 404 U.S. 508, 510, (1972). We

have found no case addressing the intersection of the

right to petition with § 1985(1)’s prohibition on con-

spiracies to interfere with a federal officer’s discharge

of his duties. Because the contours of First Amend-

ment petitioning jurisprudence have been largely

fleshed out in the antitrust and labor context, we turn

to these cases. The Noerr-Pennington doctrine holds

that the right to petition the government for redress

is generally immune from antitrust liability unless

the petitioning activity is a “sham.” See United Mine

Workers v. Pennington, 381 U.S. 657, (1965); #. RR.

Presidents Conference v. Noerr Motor Freight, Inc.,

365 U.S. 127, 144, (1961). “Baseless litigation is not

immunized by the First Amendment right to peti-

tion.” Bill Johnson’s, 461 U.S. at 743. But deter-

mining what litigation is “sham” or “baseless”

App. 19

requires the drawing of a “difficult line” to separate

objectively reasonable claims from a “pattern of base-

less, repetitive claims ... which leads the factfinder

to conclude that the administrative and judicial pro

cesses have been abused.” Cal. Motor Transp., 404

U.S. at 513. In Professional Real Estate Investors, Inc.

v. Columbia Pictures Industries, the Supreme Court

held that “an objectively reasonable effort to litigate

cannot be sham regardless of subjective intent.” 50%

U.S. 49, 57, (1993). The Supreme Court enunciated a

two-part test for sham litigation: (1) “the lawsuit

must be objectively baseless in the sense that no

reasonable litigant could realistically expect success

on the merits,” and (2) “only if the challenged liti-

gation is objectively meritless may a court examine

the litigant’s subjective motivation” to determine

“whether the baseless lawsuit conceals ‘an attempt to

interfere directly with the business relationships of a

competitor, through the ‘use [of] the governmental

process as opposed to the outcome.’” Id. at 60-6]

(emphasis in original) (citations omitted). The

plaintiff bears the burden to disprove the challenged

lawsuit’s legal viability before subjective intent can be

considered. Jd. This test looks at objective merit at

the outset, not whether the claim ultimately

prevailed. /d. at 61 n.5.

The Supreme Court has drawn the contours of

the First Amendment petition right somewhat dif-

ferently in the labor law context. In Bill Johnson’s,

the case on which the district court’s July 2007 denial

of summary judgment was based, the NLRB enjoined

App 20

an employer from suing picketing employees for

defamation on the ground that the employer’s suit

constituted a retahatory and unfair labor practice in

violation of the National Labor Relations Act. Bill

Johnson’s, 461 U.S. at 733-35. Bill Johnson’s deve

loped two tests for merit, depending on the stage of

the litigation at which the merit of the case is

assessed. As to whether the NLRB could enjoin an

ongoing suit, the Court adopted the test for summary

judgment, 2.e. whether the lawsuit’ presents “a

genuine issue of material fact.” If so, as in the case of

Bill Johnson’s suit against the picketing employees,

then the suit could not be enjoined. Jd. at 744-45 &

n.J1. In dicta, the Court spelled out) a second test to

be applied once the underlying litigation is com

pleted

if the employer’s case ultimately proves

meritorious and he has judgment against the

employees, the employer should prevail

because the filing of a meritorious law suit,

even for a retaliatory motive, is not an unfair

labor practice. If judgment goes against the

employer ... or if his suit is withdrawn or ts

otherwise shown to be without merit, the

employer has had its day in court, the

interest of the state in providing a forum for

its citizens has been vindicated, and the

Board may then proceed to adjudicate the

unfair labor practice case. The employer's

the Board

would be warranted in taking that fact into

suit having proved unmeritorious

account in determining whether the suit had

been filed in retaliation

App. 21

Id. at 747. In a departure from the Professional Real

Estate Investor’s “objectively baseless” test, Bull

Johnson’s equated “meritorious” suits with winning

and “unmeritorious” with suits that did not prevail.

See id. Thus, two different standards defining the

contours of First Amendment protection for peti-

tioning activity exist: under Professional Real Estate

Investors the litigation must be found “objectively

baseless” before subjective intent is considered, while

under Bill Johnson’s, a reviewing court must simply

look to whether the litigant won or lost the suit to

determine whether it was “meritorious.”

The Supreme Court’s grant of certiorari in BE &

K poised the Court to clarify whether the “objectively

baseless” or win-lose test should be the standard for

determining what petitioning activity is and is not

protected by the First Amendment. The Court was to

determine whether the NLRB under Bill Johnson’s

win-lose test could penalize employers who, for a

retaliatory purpose, filed but lost objectively reason-

able suits. See BE & K Constr. Co., 536 U.S. 516. But

the Supreme Court did not ultimately answer that

question. Rather, it issued a narrow holding that the

NLRB incorrectly interpreted the NLRA in order to

punish suits as “retaliatory” even though they may

have been filed for a legitimate purpose. Jd. at 536.

The Court issued this narrow holding rather than

address the constitutional question because it deter-

mined that the petitioning activity at issue was the

“class of reasonably based but unsuccessful lawsuits.”

See id. at 531. Because the suits were “reasonably

App. 22

based,” the Court could limit its consideration to the

extent to which the NLRB could penalize such suits

under the NLRA which prohibits “interfering,

restraining, or coercing” employees in the exercise of

rights guaranteed in [the NLRA]. 7d. at 536. Here,

there is no pending cause of action under the NLRA.

Thus, BE & K does not answer the question of which

test, Professional Real Estate Investors or Bill

Johnson’s, should be applied in the first instance. Nor

does BE & K decide whether a litigant may be liable

for bringing an “unsuccessful but reasonably based

suit[ ] that would not have been filed but for a motive

to impose the costs of the litigation process, regard-

less of the outcome, in retaliation for ... protected

activity.” Jd. at 537.

Accordingly, we find the narrow holding of BE &

K inapposite to the issues raised in this case. Rather,

the standard to be applied to the allegedly retaliatory

litigation is the Professional Real Estate Investors

test, requiring a finding that the petitioning activity

is “objectively baseless,” before subjective intent is

considered.” This test, rather than Bill Johnson’s, has

been extended outside the area of antitrust to other

contexts and we find it appropriate here.

Bryant contends that the district court incorrectly

placed the burden to show the suits were objectively

* Although the district court cited to BE & K Construction,

which we find inapplicable, it actually applied the “objectively

baseless” standard of Professional Real Estate Investors.

App. 23

baseless on him. The burden to show that a suit is

objectively baseless is on the plaintiff who seeks to

show that the suit is not deserving of First Amend-

ment protection. See Prof’! Real Estate Investors, 508

U.S. at 60-61. Here, the Individual Appellees moved

for summary judgment, and thus were required to

offer evidence that the lawsuits they filed were not

“objectively baseless,” that is, not a lawsuit in which

“no reasonable litigant could realistically expect suc-

cess on the merits.” Jd. at 49. Once they made that

showing, the burden was properly on Bryant as the

non-moving party to offer evidence showing a genuine

issue of material fact as to whether the lawsuits were

“objectively baseless.” As discussed below, the district

court correctly found that Bryant did not meet this

burden.

One of the Individual Appellee’s lawsuits alleged

slander, intentional infliction of emotional distress,

and falsehoods/trade libel based on comments that

Bryant made in a radio talk show and various news-

paper and other publications about the leadership of

the MSANG unit. To show that the lawsuit was not

“objectively baseless,” the Individual Appellees

pointed to evidence that Bryant had engaged in a

media campaign in which he leaked to the media a

copy of an Inspector General’s report substantiating

some of Bryant’s allegations against various MSANG

officials, commented in a series of newspaper stories

about his allegations, and appeared on a radio talk

show in which he said that the MSANG leadership

was “corrupt,” “had blood on their hands,” and “ran

App. 24

the unit like the mafia.” Bryant contended that the

lawsuit was “objectively baseless” because he had not

named names on the radio talk show. But this is

insufficient.

Under Mississippi law, slander requires proof of:

(1) a false statement that has the capacity to injure

the plaintiff’s reputation; (2) an unprivileged publi-

cation, i.e., communication to a third party; (3) negli-

gence or greater fault on the part of the publisher;

and (4) either actionability irrespective of special

harm or existence of special harm caused by publi-

cation. Speed v. Scott, 787 So. 2d 626, 631 (¥{ 21)

(Miss. 2001). In responding to the Individual Appel-

lees’ first summary judgment motion, Bryant claimed

that his statements were absolutely true and the

district court declined to grant summary judgment

because defendants offered no evidence that they

were false. It appears that to the extent the slander

lawsuit was based on statements about any of the

allegations that were substantiated in the Inspector

General’s report, there could be no reasonable expec-

tation of proving falsity. But comments to the effect

that the leadership was “corrupt,” “had blood on their

hands,” and “ran the unit like the mafia” are sub-

jective, and the question of falsity is a closer one such

that a reasonable litigant might realistically expect to

prove falsity. Moreover, even though Bryant had not

named names, there was ample public information as

a result of the leaked Inspector General’s report and

other media stories such that Bryant’s comments

App. 25

about the “leadership” could be understood to refer to

the individuals who filed suit against him.

Individual Appellees also argued that two separ-

ate malicious prosecution suits filed against Bryant

were not “objectively baseless.” Bryant filed criminal

assault claims against Individual Appellees Temple

and Wilkes that were dismissed after Bryant’s pre-

sentation of evidence. Temple and Wilkes then each

filed malicious prosecution suits against Bryant.

Bryant failed to offer any evidence that these suits

were objectively baseless at their inception, nor can

we say that they were on the record before us. Under

Mississippi law, a malicious prosecution claim

requires that the plaintiff prove: (1) the institution of

civil or criminal proceedings by the defendant; (2) ter-

mination of the proceedings in the plaintiff’s favor;

(3) malice in instituting the proceedings; (4) want of

probable cause; and (5) damages. See Trilogy

Comme’ns, Inc. v. Times Fiber Comme’ns, Inc., 47 F.

Supp. 2d 774, 778 (S.D. Miss. 1998); see also Moon v.

Condere Corp., 690 So. 2d 1191, 1194 (Miss. 1997). A

reasonable litigant could expect to be able to show

“want of probable cause” based on the court’s dis-

missal of Bryant’s assault claims without considering

anything other than Bryant’s evidence and argument.

Similarly, a reasonable litigant might expect to suc-

ceed in showing “malice” by pointing to Bryant’s

media campaign against the MSANG leadership and

well-documented comments that he was “after” them.

The same is true of the various invasion of

privacy lawsuits that some Individual Appellees filed

App. 26

against Bryant based on Bryant’s leak of the

Inspector General’s confidential report to local news-

papers. Mississippi recognizes a right of action for

invasion of privacy based on public disclosure of

private facts. See Young v. Jackson, 572 So. 2d 378,

381-82 (Miss. 1990). The Inspector General’s report

was confidential and protected by the Privacy Act;

Bryant was told not to disclose its contents. But

Bryant gave a copy of the report to two newspapers

that then publicized the information. A reasonable

litigant could realistically expect to prevail on these

facts. Moreover, Bryant again failed to offer any evi-

dence that these suits were objectively baseless, other

than to argue that they were not prosecuted or were

dismissed. But this argument puts the cart before the

horse. The Supreme Court has made clear that we

are to test the objective merit at the outset, not

whether the claim ultimately prevailed. Prof’! Real

Estate Investors, 508 U.S. at 61 n.5. Because we

cannot say that any of these lawsuits were objectively

baseless when initiated, we will not consider the

defendants’ subjective intent in filing the lawsuits.

See id. at 60-61.

Nonetheless, Bryant vehemently argues that we

must consider evidence that the sole purpose in filing

these lawsuits was to silence his complaints of wrong-

doing and misdeeds committed by the MSANG off-

cials. While we have determined that these lawsuits,

all of which were unsuccessful, were not objectively

baseless, the Supreme Court has left open the ques-

tion whether an “unsuccessful but reasonably based

App. 27

suit ... that would not have been filed but for a

motive to impose the costs of the litigation process,

regardless of the outcome” might not be protected by

the First Amendment. BE & K, 536 U.S. at 537. At

this juncture, such petitioning activity is protected

under Professional Real Estate Investors and BE & K.

We cannot say whether the Supreme Court will, at

some future point, determine otherwise. We have pre-

viously declined to create a “retaliatory intent” excep-

tion and we reaffirm that view today. See Bayou Fleet,

Inc. v. Alexander, 234 F.3d 852, 862 (5th Cir. 2000)

(declining to create an exception to First Amendment

protection for petitioning activity that is not objec-

tively baseless, but undertaken with a “retaliatory

intent”).

Finally, Bryant contends that we should find the

Individual Appellees’ various lawsuits outside the

bounds of First Amendment protection because they

are “illegal” in that they violate the proscription

against retaliation found in the Military Whistle-

blower Act and 42 U.S.C. §§ 1985(1) and 1986. Bryant

also argues that the “objectively baseless” standard

ought to be applied in some different, and presumably

favorable way in this case because multiple lawsuits

were filed against him. But Bryant made neither of

these arguments before the district court and because

he failed to do so, we will not consider them now. See

Pluet v. Frasier, 355 F.3d 381, 384-85 (5th Cir. 2004).

Because Bryant did not carry his burden to show that

the allegedly retaliatory litigation was objectively

App. 28

baseless at the outset, without consideration of sub-

jective intent, we affirm the district court’s grant of

summary judgment as to Bryant’s § 1985(1) retalia-

tory litigation claims.

MSANG cross-appeals the district court’s denial

of its motion for sanctions under Rule 11, 28 U.S.C.

§ 1927 and the Mississippi Litigation Accountability

Act, Miss. CODE ANN. § 11-55-1 et seg. The district

court denied the motion for sanctions in a footnote,

stating that it was “not persuaded that Bryant’s com-

plaint against MSANG was frivolous.” Bryant J, 381

F. Supp. 2d at 594 n.12.

This court reviews a district court’s denial of

sanctions for abuse of discretion. Test Masters Educ.

Servs., Inc. v. Singh, 428 F.3d 559, 582 (5th Cir.

2005). We usually require at least a brief statement of

reasons in order to conduct a meaningful review. See,

e.g., Copeland v. Wasserstein, Perella & Co., 278 F.3d

472, 484 (5th Cir. 2002); Schwarz v. Folloder, 767 F.2d

125, 133-34 (5th Cir. 1985). Although the district

court did not articulate any specific reasons for its

decision, we nonetheless find no abuse of discretion.

Sanctions under 28 U.S.C. § 1927 are punitive in

nature and require “clear and convincing evidence,

that every facet of the litigation was patently merit-

less” and “evidence of bad faith, improper motive, or

reckless disregard of the duty owed to the court”

Procter & Gamble Co. v. Amway Corp., 280 F.3d 519,

App. 29

525-26 (5th Cir. 2002) (emphasis in original). Such

sanctions may only be awarded if a party “multiplies

the proceedings ... unreasonably and vexatiously,” a

standard that focuses on the conduct of the litigation

and not on the merits. See Religious Tech. Ctr. v.

Liebreich, 98 F. App’x. 979, 983 (5th Cir. 2004)

(unpublished). In our review of the record, we see

nothing to suggest — let alone clear and convincing

evidence — that sanctions would be appropriate under

this standard. And, while Rule 11 has a lower

standard of culpability than § 1927, “an abuse of

discretion only occurs where no reasonable person

could take the view adopted by the trial court.”

Bergquist v. FyBX Corp., 108 F. App’x. 903, 904 (5th

Cir. 2004) (unpublished) (affirming denial of Rule 11

sanctions on the view that there was no “improper

purpose” underlying the complaint). This case,

despite Bryant’s losing, is not totally meritless and

we see no evidence of an improper purpose.

Accordingly, we affirm the district court’s denial

of sanctions.

VII

For the foregoing reasons, we AFFIRM the district

court’s dismissal of all claims against MSANG and the

Individual Appellees in their official capacities and its

two separate grants of summary judgment in the

Individual Appellees’ favor. On cross-appeal, we

AFFIRM the district court’s sanctions decision.

App. 30

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

JOE H. BRYANT PLAINTIFF

VS. CIVIL ACTION NO.

3:05CV179TSL-JCS

MISSISSIPPI MILITARY

DEPARTMENT, ET AL. DEFENDANTS

MEMORANDUM OPINION AND ORDER

With leave of court, defendants have filed and

there is now pending before the court for considera-

tion a second motion for summary judgment filed by

defendants Franklin E. Chalk, Frederick D. Fein-

stein, Roy A. Graham, Billy Joe Gressett, Donald E.

Jones, Langford L. Knight, William F. Parten, Robert

E. Pierce, Roger E. Shirley, Charles F. Steed, Aaron

K. Wilson and Thomas Temple. Plaintiff Joe H.

Bryant has responded to the motion and the court,

having considered the memoranda of authorities sub-

mitted by the parties, along with other pertinent

authorities, concludes that the motion should be

granted.

Plaintiff filed this action alleging claims under

federal and state law based on allegations that defen-

dants engaged in conduct amounting to threats, in-

timidation and violence against him in retaliation

for his having made allegations of misconduct by

App. 31

members (including defendants) of the 186th Refuel-

ing Wing of the Mississippi Air National Guard.’

Previously in this cause, all defendants (other than

Greg Malta) moved collectively for summary judg-

ment on all plaintiff’s claims, including his claim or

claims based on allegations that defendants retali-

ated against him for his whistleblowing activities by,

among other things, initiating frivolous litigation

against him. At the time of that motion, defendants

were under the impression that this claim related

solely to a June 3, 2003 slander suit they had filed

against Bryant in state court based on comments he

had made during a radio talk show.’ They argued that

’ Plaintiff had undertaken to assert these claims under the

Military Whistleblower Act, the Mississippi Whistleblower Act,

42 U.S.C. § 1983, or 42 U.S.C. § 1985, and 42 U.S.C. § 1986. This

court held in its opinion on defendants’ prior summary judgment

motion that as a matter of law, plaintiff's retaliation claim was

only cognizable, and then only if factually sustainable, under

§ 1986 and § 1985(1), which prohibits conspiracies to interfere

with a federal officer in the performance of his duties or to injure

him on account of his lawful discharge of the duties of his office.

The remaining claims were dismissed. See Bryant v. Mississippi

Military Dept., et al., No. 3:}05CV179TSL-JCS (S.D. Miss. July

17, 2007).

* In fact, plaintiff has since clarified that his claim is based

not just on “the focal spurious defamation case the Defendants,

and all of them filed against the Plaintiff,” but on “multiple

lawsuits” defendants have filed against him “solely in an effort

to ‘shut him up.” These include the following: Pierce v. Bryant,

No. 4:06CV6TSL (S.D. Miss.); Malta v. Riverstates Pub. et al;

No. 4:06CV11TSL (S.D. Miss.); Wilson v. CNH Investments, No.

4:06CV12 TSL (S.D. Miss.); Chalk v. Bryant, No. 4:06VC13TSL

(S.D. Miss.); Wilkes v. Bryant, Case No. O05CVO67 (Cir. Ct.

Lauderdale Cty., MS); Temple v. Bryant, Case No. 04CV273B

(Continued on following page)

App. 32

under the reasoning of Bill Johnson’s Restaurants v.

NLRB, 461 U.S. 731, 103 S. Ct. 2161, 76 L. Ed. 2d

277 (1983), a case decided in the context of what they

contended was “the analogous situation under the

National Labor Relations Act, 29 U.S.C. § 141, e¢ segq.,

which has a retaliation provision,” they could not be

held liable for retaliation if they had a reasonable

factual basis for the suit. Citing Bill Johnson’s

Restaurants, defendants claimed they were entitled to

summary judgment because, even assuming they had

a retaliatory motive for filing that slander lawsuits)

against Bryant, “the filing of a meritorious suit is not

an actionable act of retaliation.”” They maintained

(Cir. Ct. Lauderdale Cty, MS); and Malta v. Bryant, Case No.

04CV262B (Cir. Ct. Lauderdale Cty., MS). Although not previ-

ously addressed in connection with this claim, these additional

lawsuits are considered herein.

* The slander suit was based on comments by Bryant dur-

ing a May 2003 radio talk show, in which he stated the follow

ing:

There are some disgusting officers ... in leadership

positions. There’s about 10 to 12 more people that

need to be admonished. [T]here’s more [than] 60 or

100 charges against ... 10 to 15 people [yet to come}

... [T)he entire leadership structure is corrupt. I’m

after the chief NCOs and the lieutenant colonels and

above that have got blood on their hands in this ac

tion. All I want is leadership change. I’m not going to

stop until we’ve had a leadership change .. . I’m going

to be relentless ... General Lipscomb and General

Cross ... [are] examples of failed leadership. We have

allowed a mafia-type system to grow in the leadership

Following these comments, defendants, other than Wilkes and

Temple, filed suit in state court for slander based on Bryant's

(Continued on following page)

App. 33

that since they had “a reasonable basis (in fact and in

law) to file the (slander) suit,” they could not be held

liable for retaliation. This court denied defendants’

motion for summary judgment, explaining it could

not simply assume that defendants had a reasonable

basis for bringing the action. See Bryant v. Miss

Military Dept., Civil Action No. 3:05CV1I79TSL — JCS,

at 20 (S.D. Miss. July 17, 2007).’

Defendants have now filed a second motion for

summary judgment, arguing that the applicable

analysis is not that which is set forth in Bell

Johnson’s Restaurants v. NLRB, which would require

statements. In their complaint, defendants did not identify his

specific comments, but merely recited:

Statements made and published by the Defendants as

described herein above slander the good name and

reputation of each of the Plaintiffs, expressly or impli-

edly, causing injury to the said Plaintiffs for which

each should be permitted to recover

The Circuit Court found the allegations insufficiently specific,

and gave defendants an opportunity to amend to include more

specificity as to which statements they alleged to be slanderous,

information as to how the statements were slanderous and to

whom the statements were directed. However, when they failed

to timely amend their complaint, the court dismissed the case;

the Mississippi Court of Appeals affirmed that decision. See

Chalk v. Bertholf, 980 So. 2d 290, 293 (Miss. Ct. App. 2007)

* Contrary to plaintiffs claimed understanding, this court

did not “determine[ ] that there was objectively no reasonable

basis for the unsuccessful, baseless and retaliatory motivated

slander suit these Defendants filed ayvainst the Plaintiff.” The

court held only that it could not assume there was a reasonable

basis for the suit.

defendants to show that their lawsuits were meri

Lorious, but rather, that enunciated in Bl & K Con

struction Co. v. NLRB, 536 U.S. 516, 122 S. Ct. 2390.

153 L. Ed. 2d 499 (2002), under which the plaintiff, to

succeed on his claim, would have to show that defen

dants’ lawsuits apuinst him were not “objectively

baseless.” Having further considered the issue, the

court 1s of the opinion that the “objectively baseless’

standard is applicable; the court is further of the

opinion that plaintiff has not shown (nor for that

matter undertaken to show) that defendants’ lawsuits

were objectively baseless. Therefore, the court will

vacate its earher opinion on the issue and enter sum

mary judgment for defendants

Plaintiff has claimed in this action that defen

dants’ slander lawsuit, and a number of other law

suils filed ayvuinst him by individual defendants,

were filed in retaliation for his whistleblowing activi

ties. Defendants’ motion is grounded on the principle

that the First Amendment protects an individual’

right of access to the courts. The right to petition the

government contained in the first Amendment pro

tects the right of plaintiffs to file certain suits. See Bie

& K Constr. Co. v. NLRB, 536 U.S. 516, 525, 122

5. Ct. 2390, 2396, 153 L. Ed. 2d 499 (2002); Cal

Motor Trans. Co. v. Trucking Unlimited, 404 U.S. 508,

910-11, 92 S. Ct. 609, 30 L. Ed. 2d 642 (1972). De

fendants recognize that this right is not absolute, and

See “pra noe zZ

App. 35

that the Supreme Court has held in labor and anti-

trust contexts that “sham” suits can lead to civil

liability if those suits “were both objectively baseless

and subjectively motivated by an unlawful purpose.”

BE&K Constr. Co., 536 U.S. at 531, 122 S. Ct. at 2399

(citing Bill Johnson’s Rests., Inc., v. NLRB, 461 U.S.

731, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983), and

Prof’! Real Estate Investors, Inc. v. Columbia Pictures

Indus., Inc., 508 U.S. 49, 113 S.Ct. 1920, 123

L. Ed. 2d 611 (1993)). See also Dixon v. International

Broth. of Police Officers, 504 F.3d 73, 86 (1st Cir.

2007). Defendants argue, correctly in the court’s view,

that there is no reason these same principles would

not also apply in the present context, where plaintiff

seeks to hold defendants liable for exercising their

First Amendment right to initiate litigation. See Sosa

v. DIRECTV, Inc., 437 F.3d 923, 931 (9th Cir. 2006)

(“(WJe conclude that the Noerr-Pennington doctrine®

stands for a generic rule of statutory construction,

applicable to any stav.utory interpretation that could

implicate the rights protected by the Petition

Clause.”) (citing White v. Lee, 227 F.3d 1214, 1231

€

The Noerr-Pennington doctrine, which has its omgins in

two U.S. Supreme Court cases, Eastern Ratlroad Presidents

Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct.

523, 5 L. Ed. 2d 464 (1961) and United Mine Workers of America

v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626

(1965), is grounded in the First Amendment right to petition the

government and provides that parties who petition the govern-

ment for governmental action favorable to them cannot be prose-

cuted under the antitrust laws even though their petitions are

motivated by anticompetitive intent.

App. 36

(9th Cir. 2000) (holding, before BE & K, that because

it “is based on and implements the First Amendment

right to petit on,” the Noerr-Pennington doctrine is

not limited to the antitrust context, but “applies

equally in all contexts”); Zemenco, Inc. v. Developers

Diversified Realty Corp., No. Civ. A. 03-175, 2005 WL

2545303, at 9 (W.D. Pa. Oct. 7, 2005) (noting that

prior Third Circuit precedent gave no indication that

“this principle of First Amendment immunity was

not meant to have general applicability. ...”) (citing

Barnes Foundation v. Township of Lower Merion, 242

F.3d 151, 160 (3d Cir. 2001). Defendants further

submit that since plaintiff has not and cannot show

that defendants’ slander lawsuit, or any of the other

cases brought by one or more of them, was “objec-

tively baseless,” then plaintiff cannot prevail on his

claim against them.

To lose the protection afforded by the First

Amendment, “the lawsuit must be objectively base-

less in the sense that no reasonable litigant could

realistically expect success on the merits.” Prof’! Real

Estate Investors, Inc. v. Columbia Pictures Indus.,

Inc., 508 U.S. 49, 59, 113 S.Ct. 1920, 1928, 123

L. Ed. 2d 611 (1993). “If an objective litigant could

conclude that the suit is reasonably calculated to

elicit a favorable outcome,” the suit is immunized and

plaintiff’s retaliation claim cannot succeed. See, id.

See also A Fisherman’s Best, Inc. v. Recreational

Fishing Alliance, 310 F.3d 183, 191 (4th Cr. 2002)

(“The existence of probable cause to institute legal or

administrative action precludes a finding that an

App. 37

antitrust defendant has engaged in sham litigation.

The necessary probable cause requires no more than

a reasonable belief that there is a chance that a claim

may be held valid upon adjudication.”) (citing Prof’/]

Real Estate Investors).

In short, defendants had a right to file their

lawsuits, (even if their motive was retaliatory) and

their suits are protected by the First Amendment,

regardless of whether they were successful on the

merits, unless plaintiff shows that their lawsuits

were objectively baseless. And here, plaintiff has not

shown that any litigation brought against him by

defendants was “objectively baseless.” In his memo-

randa, plaintiff does refer generally to “frivolous

litigation” by defendants, and identifies the slander

suit. in particular as “frivoious” and “meritless.” Yet

the principal focus of his argument and proof has

been on defendants’ subjective intent in bringing the

lawsuits, not on whether they had a basis for bring-

ing them. In fact, so far as the court can determine,

plaintiff’s only substantive argument, as contrasted

with conclusory characterizations, relates to the slan-

der suit, as to which he argues only that “[dJespite

their purportedly being ‘upset,’ none of the Defen-

dants were named on the subject radio program and

none of them stated that they had experienced any

damages proximately caused by the radio program.”

However, that lawsuit cannot fairly be said to have

been “objectively baseless” solely because plaintiff did

not identify any of the defendants by name in the

radio talk show. Defendants could reasonably have

App. 38

taken the position that listeners would have known

plaintiff's comments were directed against them

notwithstanding that he did not use their names.

Moreover, there is obviously no merit to plaintiff's

suggestion that defendants’ suit was “objectively

baseless” because defendants did not allege they had

experienced any damages as a proximate result of

plaintiff’s comments. Plaintiff does not deny that his

statements in the talk show were disparaging of the

“leadership” at the 186th, and he does not dispute

defendants’ assertion that they considered that his

statements slandered them. In short, plaintiff has not

shown that defendants’ slander suit against him was

“objectively baseless.”

Plaintiff has made no effort to show that any

other allegedly “frivolous litigation” brought by the

moving defendants was objectively baseless, and the

evidence before the court shows that it was not.

Among the lawsuits which Bryant claims were retali-

atory are two separate suits for malicious prosecution

brought by defendants Temple and Wilkes stemming

from a confrontation between them and Bryant at the

Moose Lodge. Following the Moose Lodge incident,

Bryant initiated criminal charges for assault and

battery against Wilkes and Temple. Those charges

were ultimately dismissed, following which Wilkes

and Temple sued Bryant for malicious prosecution.

Bryant has not and cannot show that those suits were

objectively baseless.

Bryant has identified four other allegedly retali-

atory lawsuits, brought against him by defendants

App. 39

Malta, Pierce, Chaik and Wilson for invasion of

privacy. The events leading to those lawsuits is not

disputed. Following a second investigation by the Air

Force Inspector General’s (IG) office, Bryant received

from the IG’s office a letter/summary report of its

findings. Although the letter recited that it was

protected by the Privacy Act and that Bryant should

not disclose it but rather should destroy it or return

it, Bryant caused it to be delivered to the Meridian

Star and the Clarion Ledger. The Meridian Star pub-

lished the names of Malta, Wilson, Pierce, Chalk and

others and identified allegations that had been sub-

stantiated against them. Based on Bryant’s alleged

disclosure of the IG’s report to the media, defendants

Pierce, Wison, Chalk and Malta separately sued

Bryant for invasion of privacy. One could not rea-

sonably conclude that these lawsuits were objectively

baseless.

Because plaintiff has offered no evidence to show

that defendants’ lawsuits against him were “objec-

tively baseless,” defendants are entitled to summary

judgment. See A Fisherman’s Best, Inc., 310 F.3d at

192 (affirming dismissal where “|the plaintiff] did not

present sufficient evidence to show that [the defen-

dant’s|] attempt to change the City’s longlining policy

for the Maritime Center was objectively baseless”);

Frosty Bites, Inc. v. Dippin’ Dots, Inc., No. 3-01-CV-

1532-M, 2003 WL 21196247, at 8 (N.D. Tex. 2003)

(granting summary judgment on defendant’s counter-

claim where it failed to bring forth specific evidence

to show that the plaintiff had no reasonable ground

App. 40

for bringing the suit). In the absence of such proof,

the court must conclude that defendants had a right

to bring those suits and can incur no _ liability,

regardless of their subjective motivation in filing the

suits. See Prof’! Real Estate Investors, 508 U.S. at 59,

113 S. Ct. 1920, 1928 (“Only if challenged litigation is

objectively meritless may a court examine the

litigant’s subjective motivation.”).

In addition to defendants’ motion for summary

judgment, the parties have sought clarification from

the court as to the claims that remain pending, as the

parties have different views of this issue. Having

reviewed the record and prior rulings, the court

would state the following.

First, plaintiff has no pending claim for relief

based on his allegation that defendants (or some of

them) orchestrated a break-in of his vehicle in

Memphis. The record reflects that in connection with

defendants’ previous summary judgment motion,

plaintiff moved for an evidentiary hearing regarding

spoliation of evidence and propriety of a negative

inference instruction based on an allegation that

defendants, or persons acting under their direction,

broke into Bryant’s truck in May of 2005 while the

truck was parked at a Holiday Inn in Memphis and

stole his laptop computer and other items pertinent

to this case. Defendants advised they would welcome

a hearing, so they could prove they were not involved

in the break-in. By memorandum opinion and order

dated July 17, 2007, the court granted in part and

denied in part defendants’ motion for summary

App. 41

judgment, and granted plaintiff’s motion for an evi-

dentiary hearing. Thereafter, on July 31, 2007, defen-

dants moved for sanctions against plaintiff’s counsel,

Paul Koerber, alleging that he lacked any factual

basis for representing to the court that defendants

and/or their counsel stole Bryant’s laptop, used stolen

emails or that the emails (admittedly received from

an anonymous source) came from Bryant’s laptop.

In an order entered following the hearing, the

court wrote that it was “simply not persuaded that

Bryant has proven that defendants were responsible

for the break-in of his truck and theft of his laptop

and box of documents.” Bryant v. Mississippi Military

Dept., No. 3:05CV179TSL-JCS, at 7 (S.D. Miss.

March 31, 2008), However, the court further indicated

it was “convinced that Bryant and his counsel both

genuinely believed that defendants were responsible

for the break-in and theft of the items from Bryant’s

truck,” and was not persuaded that they were totally

lacking in some factual basis for this belief. Jd. at 8.

Unfortunately, the court failed to also specifically set

forth its conclusion that defendants were entitled to

summary judgment on this claim because plaintiff

could not prove by a preponderance of the evidence

that defendants were responsible for the alleged

break-in. The court’s conclusion that plaintiff was not

without some factual basis for believing defendants

were involved in the break-in was intended only to

explain the court’s declination to impose sanctions,

and was not intended to suggest that plaintiff had

produced sufficient evidence to create a genuine issue

App. 42

of material fact on this claim. The court would now

clarify its conclusion that the evidence, viewed in the

light most favorable to plaintiff, does not support a

finding from a preponderance of the evidence that

defendants caused the break-in of Bryant’s vehicle.

In his response to defendants’ second summary

judgment motion and in correspondence to the court,

plaintiff states the’. he still has the following “legal

causes of action” against all of the Defendants:

(a) Whether Defendants conspired to retali-

ated against the Plaintiff in violation of 42

U.S.C. Sections 1985 and 1986, inasmuch as

the Defendants violated the Plaintiff’s right

of freedom of speech under the First

Amendment to the United States Constitu-

tion;

(b) Whether Plaintiff’s complaints were

motivating factors in the Defendants’ con-

duct against the Plaintiff;

participated in a civil conspiracy to cause

harm to the Plaintiff and/or to otherwise

violate 42 U.S.C. Sections 1985 and 1986,

inasmuch as the Defendants violated the

Plaintiff’s right of freedom of speech under

the First Amendment to the United States

Constitution;

(d) Whether Defendants engaged in the in-

tentional infliction of mental and emotional

distress upon the Plaintiff;

App. 43

(e) Whether Defendants engaged in the

negligent infliction of mental and emotional!

distress upon the Plaintiff;

(f) Whether the Defendants wrongfully and

intentionally interfered with Plaintiff’s ad-

vantageous and contractual relationship

with his employer FedEx and with his priv-

ilege as a flight pilot and transportation

employee; and

(g) Whether the Defendants wrongfully en-

gaged in defaming the Plaintiff by portraying

him in a false light.

Plaintiff then declares that “[s]ubsumed within these

stated legal theories of recovery,” there remain a

number of “factual claims” against the defendants,

which he proceeds to list for the court.

Among those “factual issues” is plaintiff’s alle-

gation that defendants cut the gasoline line to plain-

tiff’s wife’s vehicle on March 8, 2004. In that part of

its opinion on defendants’ previous motion for sum-

mary judgment in which the court addressed plain-

tiff’s allegations that defendants committed certain

acts of vandalism and malicious mischief, the court

failed to include this alleged misdeed in the list of

acts of vandalism alleged by plaintiff and as a result,

failed through oversight and inadvertence to grant

summary judgment on this claim. Defendants did

move for summary judgment on this claim, and as

with the other acts of vandalism alleged by plaintiff,

he has no proof that any defendant was involved in

App. 44

this alleged incident. Summary judgment wil! there-

fore be granted on this claim, as well.

Plaintiff also seeks clarification of the court’s

ruling, or failure to rule, regarding allegations that

one or more of the defendants pilfered his computer

bag during a lunch break in a court hearing and took

certain items from his computer bag. The court’s prior

opinions may not have clearly disposed of this claim;

however, the court would now make clear its opinion

that the evidence adduced by plaintiff is not sufficient

to warrant a finding, by a preponderance of the

evidence, that the defendants were involved in this

incident.

Likewise, the court would also now make clear

that, with respect to plaintiff’s allegations regarding

a second alleged break-in of his vehicle in Meridian,

plaintiff has not come forward with evidence that

could fairly be regarded as creating a genuine issue of

material fact as to the involvement of any defendant

in the claimed break-in. Accordingly, summary judg-

ment will be granted on this claim.

In light of the rulings herein, and notwith-

standing plaintiff’s contrary view of these matters,

the court has now dismissed all of plaintiff’s claims

against all defendants with the exception of his

claims against defendant Malta for allegedly having

threatened him,’ and his claims against Pierce for

‘ Unlike the other defendants, Malta has not moved for

summary judgment on any claim. However, the court has

(Continued on following page)

App. 45

neghgent and/or intentional infliction of emotional

distress, defamatory/false light liability and inten-

tional interference with his employment with FedEx.”

In conclusion, therefore, in accordance with the

foregoing, defendant’s second motion for summary

judgment is granted, and plaintiff’s claim against

defendants based on alleged retaliatory litigation is

dismissed. Moreover, summary judgment is granted

as to plaintiff’s claims relating to (1) the break-in of

plaintiff’s truck in Memphis; (2) the break-in of

plaintiff’s truck in Meridian; (3) the pilfering and

theft of items from plaintiff’s computer bag; and (4)

alleged vandalism by cutting the gas line to

plaintiff’s wife’s car.

dismissed the claims against alJ the individual defendants,

including Malta, for actions taken in the course of performing

their military duties, under the Feres doctrine. This includes

claims against Malta based on allegations that Malta ridiculed

him and assigned him to a storeroom, and threatened him about

signing some paperwork.

* In its July 17, 2007 opinion addressing defendants’ motion

for summary judgment, the court noted that from its review of

plaintiffs response, it was clear that “each of these claims is

based on his allegation that defendant Pierce sent a letter to the

Federal Aviation Administration in an attempt to obtain revo-

cation of plaintiffs pilot license, to invoke the investigative au-

thority of the Transportation Safety Administration of the

Department of Homeland Security and to obtain plaintiffs ter

mination from his regular employment with FedEx.” The court

denied Pierce’s motion for summary judgment.

App A6

SO ORDERED this 16th day of June, 2008

/s/ 'Tom S. Lee

UNITED STATES

DISTRICT JUDGE

App. 47

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

JOE H. BRYANT, JR. PLAINTIFF

VS. CIVILACTION NO.

3:05CV179TSL-JCS

MISSISSIPPI MILITARY

DEPARTMENT, ET AL. DEFENDANT

MEMORANDUM OPINION AND ORDER

With the exception of defendant Greg Malta, the

defendants in this cause, Franklin FE. Chalk,

Frederick D. Feinstein, Roy A. Graham, Billy Joe

Gressett, Donald E. Jones, Langford L. Knight,

William F. Parten, Robert E. Pierce, Roger E. Shirley,

Charles F. Steed, Aaron K. Wilson and Thomas

Temple, have moved for summary judgment. Plaintiff

Joe H. Bryant, Jr. has responded in opposition to the

motion and the court, having considered’ the

memoranda of authorities, together with attach

ments, submitted by the parties, concludes that the

motion should be granted in part and denied in part,

as set forth herein.

Bryant brought this action asserting claims

unde federal and state law based on allegations that

defer engaged in conduct amounting to threats,

' All of these defendants are represented by the same

counsel, Malta, an attorney, represents himself

App. A

intimidation and violence against him in retaliation

for his having made allegations of misconduct by

members (Gneluding defendants) of the 186th

Kefueling Wing of the Mississippi Air National Guard

(MSANG). The facts, as drawn from the record and us

set forth in one of the court’s previous opinions in this

cause, are as follows.” According to his complaint,

Bryant began his military service in 1974, and in

1980, was assigned to duty with the MSANG’s 186th

Tactical Recon Group, which later became the 186th

Refucling Wing, located at Key Field in) Meridian,

Mississippi. Bryant was eventually assigned — to

MSANG Headquarters, as its Director of Operations.

Bryant alleges that between 1990 and 1998, he

“beyan to observe wrongful actions by superiors in

the method and manner in which his fellow airmen

were being treated.” In an effort “to protect and

defend his fellow airmen at the 186th, in their jobs,

ranks and assignments, as well as to protect the

integrity of the 186th,” he “took certain actions,”

including first addressing his allegations and

concerns to his superior officers, and ultimately

requesting an investigation by the Inspector General

of the Department of the Air Force pursuant to 10

U.S.C. § 1034. The Inspector General ultimately

undertook two investigations, in which a number of

Bryant’s allegations of wrongdoing, were substan

tiated. Bryant’s charges and the ensuing investipation

‘ See Rryant vo Military Dept of State of Mississippi, Civil

Action No. 3 05CV179TSL-JCS (S.D. Miss. Aug. 25, 2005)

were the subject of regular media coverage in local

newspapers, and at one point, Bryant, along with the

Inspector General’s investigator, appeared on a radio

talk show and discussed Bryant’s allegations and the

investigation. Bryant charged that the leadership

was corrupt, and vowed to continue working for a

change in leadership.

According to Bryant, as a result of his allegations

of wrongdoing against senior Guard officials, he was

humiliated, intimidated and harassed by various

defendants. He claims, for example, that when he

first brought his allegations to the attention of then-

Brigadier General of the MSANG, Harold Cross,

in October 1998, Cross dismissed his complaint.

Thereafter, while he was deployed to Bosnia-

Herzegovina during January 1999 through July 1999,

Cross “sought Plaintiff’s voluntary separation from

MSANG,” directing that plaintiff sign a letter of

resignation (which plaintiff refused), and relieved

plaintiff of his duties as Director of Operations; when

plaintiff returned from Bosnia, he was not reinstated

to his former position as Director of Operations but

rather was assigned to the position of an officer junior

in grade, lieutenant colonel, was directed to assist an

officer junior to him; he was ordered to never report

to anyone or perform any duties regarding the Wing’s

flight operations, even though he was a pilot and a

colonel; certain of the defendants composed a career-

damaging report in an effort to adversely affect his

military record; Cross threatened him with loss of his

career; he was assigned to a “storeroom” during a

App. 50

mandatory drill weekend and was ridiculed by

Weaver and others; he was ordered by defendant

Malta to sign dismissal paperwork associated with

his dismissal from MSANG; and someone (presum-

ably one of the defendants) forged Bryant’s signature

to an acknowledgment that he would be separated

from MSANG. He alleges, moreover, that several

items of his personal property were vandalized, shots

were fired around his home, anonymous cards and

letters were sent to him and to FedEx, his civilian

employer, and two of the defendants actually

assaulted him.

Based on these allegations, Bryant has asserted

federal claims for violations of the Military

Whistleblower Protection Act, 10 U.S.C. § 1034,

under 42 U.S.C. §§$ 1983 for violation of his First

Amendment rights, and under §$§ 1985 and 1986. He

has also advanced state law claims for violation of the

Mississippi Whistleblower Protection Statute, Miss.

Code Ann. § 25-9-171, et seg., intentional and/or

negligent infliction of emotional distress, intentional

interference with contract and defamatory/false light

lability. Plaintiff demands as relief compensatory

and punitive damages, any penalties available under

Mississippi Code Annotated § 25-9-171, et seq,

prejudgment and _ post-judgment interest and

attorneys fees. In their motion, defendants seek

summary judgment on each of plaintiff’s claims.

This court previously held that allegations by

Bryant against defendants concerning employment-

related actions taken by any of the defendants

App. 51

against him are subject to the Feres bar. See Bryant v.

Military Dept. of State of Mississippi, Civil Action No.

3:005CV1I79TSL-JCS (S.D. Miss. Aug. 25, 2005).

However, inasmuch as the individual defendants had

filed no dispositive motion at the time of that opinion,

there remained an open question as to whether

plaintiff’s claims against defendants based on

allegations that the individual defendants perpe-

trated threats and acts of vandalism and violence,

and other acts of attempted interference with his

civilian employment with FedEx on their own, for

their own personal reasons and with no arguable

military purpose, were covered by Feres or otherwise

stated a cognizable claim. Defendants argue in their

present motion that the only allegation by Bryant

against any of the defendants for acts against him in

their military capacities is his charge that defendants

Chalk, Knight and Temple gave “assistance and

input” to a career-damaging report composed by

General Cross. Defendants submit that since this

alleged act was done within the course and scope of

these defendants’ military duties, any claim based on

this act is barred by Feres.* For his part, plaintiff does

ef)

* Defendants argue not only that Bryant's claim based on

this allegation is barred by Feres, but also that he cannot

succeed on any such claim inasmuch as he has no proof that

defendants had written a career-damaging report. In this vein,

Bryant has testified that he heard there was an Officer

Performance Review (OPR) in his file, and claims that defendant

Greg Malta has admitted there was a “bad” OPR in his file; but

plaintiff apparently has never seen this alleged OPR, has not

produced any such OPR, and has testified that it was not in his

(Continued on following page)

App. 52

not dispute that defendants’ conduct toward him

while he remained in the Guard and prior to his

retirement from military service are barred by the

Feres doctrine, but he argues that Feres does not

preclude his claims based on allegations of violence,

threats and intimidation perpetrated by defendants

against him after he had already been removed from

the Guard and retired from military service. Indeed,

the remaining claims against defendants for actions

taken against him are not barred by Feres, and

defendants do not claim they are; defendants argue,

though, that the remaining claims are subject to

dismissal for other reasons.

Bryant has alleged that defendants’ actions

violated the Military Whistleblower Act, 10 U.S.C.

§ 1034. This court has previously ruled that plaintiff

has no viable claim under that Act for the reason that

the statute does not authorize a private cause of

action. See Bryant, Civil Action No. 3:05CV179TSL-

JCS (S.D. Miss. Aug. 25, 2005). Notwithstanding the

court's opinion, Bryant argues at one point in his

response to defendants’ motion that defendants’

actions taken in reprisal for his having communicated

wrongful conduct to the Inspector General violate 10

U.S.C. § 1034(b\(1) and (2), which is the Military

final personnel records. Without evidence that such a report

exists and as to what it contains, plaintiff would be hard pressed

to establish that. any of the defendants contributed in any way to

such a report.

App. 55

Whistleblower Protection Act.’ That Act does not

provide a private cause of action, and thus plaintiff

has not stated a cognizable claim against defendants

under the Act.

Plaintiff has also alleged a claim for violation of

the Mississippi Whistleblower Protection Act, Miss.

Code Ann. § 25-9-173 et seg.’ Defendants submit that

plaintiff cannot prevail on this claim for each of three

reasons. First, the Act proscribes reprisal or retalia-

tion by a state “agency,” not by one’s co-workers, and

provides a remedy only against the agency and the

individual members of its governing board or

authority, or where there is no governing board or

authority, the agency’s executive director:> the Act

“Elsewhere in his response, Bryant states, “Make no

mistake, the point of Plaintiffs claims under 10 U.S.C. Section

1034 is not for a private cause of action under that statute;

rather, Plaintiff contends [he has a] right to proceed with

constitutional claims under the First Amendment and that his

speech to the Inspector General are indeed ‘protected com-

munication’ under the military’s own statutory and regulatory

guidelines.”

* Mississippi Code Annotated § 25-9-173 states:

(1) No agency shall dismiss or otherwise

adversely affect the compensation or employment

status of any public employee because the public

employee testified or provided information to a state

investigative body whether or not the testimony er

information is provided under oath.

* See Miss. Code Ann. § 25-9-175 (“An agency which violates

[this section] shall be liable to the public employee for back pay

and reinstatement. In addition, an employee whose employment

(Continued on following page)

App. 54

covers only retaliation or reprisal that adversely

affects an employee’s compensation or employment

status;’ and the Act affords no protection for actions

taken against an employee after he is no longer

employed. Defendants argument on these points

appear meritorious, and Bryant has not contended

otherwise in response to defendants’ motion.

Accordingly, summary judgment will be granted on

this claim.

Plaintiff charges additionally that defendants’

retaliatory actions violated his rights under the First

Amendment. In their motion, defendants do not

challenge Bryant’s assertion that his communications

to his military superiors and/or to media outlets

concerning allegations of improprieties at the 186th

constituted protected speech under the First

Amendment. They argue, though, not only does Feres

bar plaintiff’s claims for any actions taken by

defendants within their military capacities, but that

plaintiff cannot succeed on his claim under § 1983 as

to all other acts which occurred outside the course

and scope of defendants’ military duties for he cannot

show that defendants acted under color of state law

in committing such acts.

A claim for violation of the First Amendment to

the United States Constitution must be brought

is suspended or terminated or who is subject to adverse

personnel action... is entitled to sue... .”).

" See Miss. Code Ann. §$25-9-173, supra, n.3.

App. 55

pursuant to 42 U.S.C. § 1983, which requires state

action. To state a claim under § 1983, a plaintiff must

allege facts showing a person acting under color of

state law deprived the plaintiff of a right, privilege or

immunity secured by the United States Constitution

or the laws of the United States. See Ellison v. De La

Rosa, 685 F.2d 959, 960 (5th Cir. 1982) (citing Parratt

v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1912-

1913 (1981). The Supreme Court has given the

following general definition of action taken “under

color of state law”: “Misuse of power, possessed by

virtue of state law and made possible only because

the wrong doer is clothed with the authority of state

law, is action taken ‘under color of’ state law.” United

States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031,

1043 (1941); see also Lugar v. Edmondson Oil Co.,

457 U.S. 922, 929, 102 S. Ct. 2750 (1982) (stating that

“tlhe actions of a state officer who exceeds the limit

of his authority constitute state action for purposes of

the Fourteenth Amendment”). “[Nlot every action

undertaken by a person who happens to be a state

actor is attributable to the state.” Harmon v. Grizzel,

2005 WL 1106975, 4-5 (S.D. Ohio 2005) (citation

omitted). “Section 1983 is generally not implicated

unless a state actor’s conduct occurs in the course of

performing an actual or apparent duty of his office, or

unless the conduct is such that the actor could not

have behaved as he did without the authority of his

effice.” Waters v. City of Morristown, Tenn., 242 F.3d

353, 359 (6th Cir. 2001) (citations omitted) (citing

West v. Atkins, 487 U.S. 42, 49-50, 108 S. Ct. 2250

(1988), where the Court stated, “The traditional

App. 56

definition of acting under color of state law requires

that the defendant ... exercised power possessed by

irtue of state law and made possible only because

the wrongdoer is clothed with the authority of state

law.”). In general, “a defendant’s private conduct,

outside the course or scope of his duties and unaided

by any indicia of actual or ostensible state authority,

is not conduct occurring under color of state law.”

Harmon, 2005 WL 1106975, at 5 (citations omitted).

“(E]valuation of whether particular conduct con-

stitutes action taken under the color of state law,

must focus on the actual nature and character of that

action.” Schultz v. Wellman, 717 F.2d 301, 304 (6th

Cir. 1983). Here, the nature and context of defen-

dant’s alleged acts belies any reasonable conclusion

that they acted under color of state law.

As this court noted in its prior opinion, plaintiff

had argued that he brought this suit to address

actions taken by plaintiff

by individuals, who just so happen to also be

in the military but who act for no military

purpose or reason; rather, they act for their

own hatred against the plaintiff. Their

actions occur off base, have no justifiable

military purpose, [and] are _ perpetrated

solely for personal reasons. .

It would seem evident that actions taken by

individuals who “just so happen to be in the military”

but who have acted “off base” solely for their own

personal reasons and with no military purpose or

reason could not reasonably be found to have been

App. 57

taken “under color of state law.” Apparently

recognizing that this characterization of defendants’

actions would doom his § 1983 claim, plaintiff’s

position has shifted somewhat; he now argues that

although defendants acted in an “extra-military

manner,” they nevertheless “act[ed] under color of

state authority in perpetrating their retaliation

against Bryant” because they “clothe[d] themselves as

members of the state militia” and took the challenged

actions against Bryant because they “considered him

a threat to them, their military careers, their self-

righteous honor and even to Key Field itself.”

However, a state actor does not act “under color of

state law” simply because his actions were under-

taken in an attempt to protect his position as a state

official. Moreover, as plaintiff himself has acknowl-

edged, the specific acts of which he complains, e.g.,

assaulting plaintiff, making harassing phone calls to

plaintiff, vandalizing plaintiff’s personal property,

firing gun shots around plaintiff’s home and trying to

get plaintiff fired from his civilian employment with

FedEx, were not made possible by defendants’

military positions and did not occur in the course of

defendants’ performing any of their military duties.

Their alleged conduct was private conduct, “outside

the course or scope of [their] duties and unaided by

any indicia of actual or ostensible state authority.”

Harmon, 2005 WL 1106975, at 5. Plaintiff cannot

succeed on any claim under § 1983.

Defendants have also argued that plaintiff has

not stated a cognizable claim for relief under § 1985,

App. 58

noting that while there is no requirement of state

action under § 1985, a claim under § 1985 “requires

proof of a conspiracy ‘motivated by racial or some

other type of invidious, class-based’ distinction.” Lyles

v. Lemmon, 165 Fed. Appx. 305-306, 1 (5th Cir. 2006)

(citing Holdiness v. Stroud, 808 F.2d 417, 424 (5th

Cir. 1987), and United States v. Armstrong, 951 F.2d

626, 630 (5th Cir. 1992)). See Garrie v. James L. Gray,

Inc., 912 F.2d 808, 813 (5th Cir. 1990) (rejecting

argument that “whistleblowers” are a protected class

for purposes of § 1985 and dismissing claim for

plaintiff’s failure to show “some racial or otherwise

class-based, invidiously discriminatory animus”)

(citing Buschi v. Kirven, 775 F.2d 1240, 1258 (4th Cir.

1985), and Pope v. Bond, 641 F.Supp. 489, 499

(D.D.C. 1986)).

Plaintiff implicitly acknowledges this, but points

out that the requirement of class-based animus

applies only to claims under § 1985(3), and that his

claims are brought under § 1985(1) and (2). Looking

to §1985(2), the first clause of that subsection

prohibits a conspiracy to deter a party or witness ina

federal court from attending or testifying in court,

punishing parties or witnesses for having attended or

testified in federal court or influencing or punishing

federal jurors; this clause has no applicability here.

The second clause of § 1985(2) creates a cause of

action against “two or more persons” who “conspire

for the purpose of impeding, hindering, obstructing,

or defeating, in any manner, the due course of justice

in any State or Territory, with intent to deny to any

App. 59

citizen the equal protection of the laws... .” 42 U.S.C.

§ 1985(2). “Under this clause, like § 1985(3), a

plaintiff must demonstrate that there was ‘some

racial, or perhaps otherwise class-based, invidiously

discriminatory animus behind the _ conspirators’

action.” Dallas v. Holmes, 137 Fed. Appx. 746, 753,

2005 WL 1313801, 6 (6th Cir, 2005) (quoting Kush v.

Rutledge, 460 U.S. 719, 726, 103 S. Ct. 1483 (1983))

(finding no valid claim under § 1985(2) where

plaintiff did not allege membership in a protected

class and discrimination based on such membership).

Plaintiff has no viable claim under § 1985(2),

Section 1985(1) prohibits conspiracies to interfere

with a federal officer in the performance of his duties

or to injure him in his person or property on account

of his lawful discharge of the duties of his office, or

while engaged in the lawful discharge thereof. As this

subsection includes no requirement of class-based

animus, plaintiff’s failure to identify any such

* This court agrees that the Supreme Court’s opinion in

Kush v. Rutledge, 460 U.S. 719, 726, 103 S. Ct. 1483, 1487-88

(1983), “mandates a holding that a cause of action under

§ 1985(1) does not require an allegation of racial or class-based

discriminatory animus.” Wisdom v. Department of Housing and

Urban Development, 713 F.2d 422, 426 (6th Cir. 1983). At issue

in Kush was whether the first part of § 1985(2) included a

requirement of class-based animus. In concluding there was no

such requirement, the Court placed primary emphasis on the

fact that certain parts of § 1985, namely § 1985(1), the first part

of § 1985(2), and the second part of § 1985(3), “contain no

language requiring that the conspirators act with intent to

deprive their victims of the equal protection of the laws,”

(Continued on following page)

App. 60

animus is no impediment to the pursuit of this claim.”

Defendants argue, though, that even assuming for

whereas the second part of § 1985(2) and the first part of

§ 1985(3) “contain[] language requiring that the conspirators’

actions be motivated by an intent to deprive their victims of the

equal protection of the laws.” Kush, 460 U.S. at 725, 103 S. Ct.

at 1487. The Court’s reasoning leaves no room for doubt that

class-based animus is not a requirement of § 1985(1). See Pope v.

Bond, 641 F.Supp. 489, 497 (D.D.C. 1986) (“[T]here is no

requirement under § 1985(1) that plaintiff allege racial or other

class-based, invidiously discriminatory animus.”) (citing Kush);

see also Stern v. United States Gypsum, Inc., 547 F.2d 1329 (7th

Cir.), cert. denied, 434 U.S. 975, 98 S. Ct. 533 (1977) (pre-Kush

case holding that § 1985(1) should not be limited solely to cases

where racial or group animus is present). But see Santistevan v.

Loveridge, 732 F.2d 116 (10th Cir. 1984) (stating that “[a] viable

§ 1985(1) cause of action requires allegations of class-based or

racial discriminatory animus”); Burson v. State of Nev., Dept. of

Human Resources, Welfare Div., 1994 WL 681051, *2 (9th Cir.

1994) (finding conspiracy claims under § 1985(1) were correctly

dismissed where plaintiff “failed to alleve a class-based or racial

discriminatory animus required under § 1985(1) and (3).”)

” Although a few cases have suggested that § 1985(1) is

limited to external disruption of a federal official’s performance

of his job duties and thus exempts federal officials from liability,

the majority view appears to be that the section is not so limited.

The court in Spagnola v. Mathis observed,

In light of the Supreme Court’s mandate in Griffin

and significant case law in the lower federal courts,

we cannot so limit the section. Citing Griffin, the

District Court in Stith v. Barnwell, 447 F. Supp. 970,

973-74 (M.D.N.C. 1978), stated unequivocally that

“§ 1985(1) would apply where defendants who were

acting as federal employees were participating in a

conspiracy otherwise proscribed by the subsection.”

Similarly, in Mollnow v. Carlton, 716 F.2d 627, 631

(9th Cir. 1983), cert. denied, 465 U.S. 1100, 104 S. Ct.

(Continued on following page)

App. 61

the sake of argument that plaintiff has pled a viable

claim under this section, he still has not shown that

defendants engaged in any conduct that would be

cognizable under those provisions.’

For his part, plaintiff submits that it was his

affirmative duty as a member of the Air Force to

bring misconduct to the attention of the appropriate

authority, and that it was on account of his efforts

in this regard that defendants undertook their

retaliatory actions, and even went so far as to form an

1595 (1984), the Ninth Circuit noted that “§ 198&5(1) is

legislation specifically authorizing suit’ by injured

federal officers [ayainst their superiors],” but found

that suit under the section was precluded for military

subordinates. In Windsor v. The Tennessean, 719 F 2d

155 (6th Cir. 1983), the Sixth Circuit held that the

plaintiff stated a cause of action under § 1945(1)

against a group of defendants, one of whom was his

supervisor in the federal government. In Lawrence v

Acree, 665 F.2d 1319 (D.C. Cir. 1981), this circuit

assumed for purposes of deciding an official immunity

claim that a § 1985(1) action would ordinarily lie

ayainst federal! officials, though it did not rule on that

issue. Finally, in Perry v. Golub, 400 F. Supp. 409

(N.D. Ala. 1975), the District Court found that there

was a substantial likelihood that the plaintiff would

prevail on the merits of one of three claims, one of

which was a § 1985(1) claim against his superiors in

the federal government.

809 F.2d 16, 29 (D.C. Cir. 1986)

Defendant has also alleged a cause of action under 42

U.S.C. § 1986, which imposes liability on those who know of

conspiracies as described in § 1985 and who have the power to

prevent the conspirators from acting but who fail to do so

App. 62

association, calling themselves the “Concerned

Guardsmen of Mississippi,” for the unmitigated

purpose of going after him and both attempting: to

shut him up and to punish him for his” pubhe

comments about the 146th.

In his complaint and throughout discovery,

plaintiff has identified specific acts which he claims

were committed by defendants in retaliation for his

whistleblowing activities. Amony other things,

plaintiff has claimed that someone, probably one or

more of the defendants, cut the tires on his personal

airplane; shot the window of his motor home; fired

shots around his home; scratched his son’s car; made

harassing phone calls to his home; mailed harassing

cards to his home;" and wrote anonymous letters to

his employer FedEx.” In their motion, defendants

“This incident involved a preeting card that was sent to

Bryant's home anonymously conpyratulating: him on having an

legitimate child. Bryant testified that the greeting card was

one he had bought and had put in his computer bay. He believes

that either Wilkes, Temple or Pierce must have stolen the card

out of bis computer bay during a luneh break in court

proceedings in other litivation between some of the defendants

and Bryant, and that the same person or persons must have also

potten on his computer and found documentation relating to his

having ordered a DNA kit for purposes of determining

parentage, and that this person or persons must have then

written the card and mailed it to bis home Plainti? has

admitted that there were others in the courtroom, and that he

was not aware whether any of the defendants remained in the

courtroom for any part of the lunch break

” Anonymous letters were mailed to plaintiffs employer,

Kediex, in which it was alleged that Bryant had killed some

(Continued on following, page)

App. 63

argue that to the extent any of plaintiff’s claims are

based on these incidents, summary judgment is in

order because plaintiff has no evidence to connect any

of the defendants to these acts; rather, he has only

speculated that defendants had some involvement in

these incidents. Defendants point to testimony by

plaintiff in which he admitted he did not know who

committed these acts; they submit that plaintiff’s

“feeling” or speculation that defendants were involved

in these events is unsupported by any actual facts

and is insufficient to withstand summary judgment.

See Ward v. N.L.R.B., 462 F.2d 8, 13 (5th Cir. 1972)

(“Obviously conjecture and_= speculation cannot

substitute for proof.”).

Plaintiff does not need direct evidence to

establish defendants’ involvement in these acts and

could rely on circumstantial evidence to create a

triable issue. Evidently that is his plan, for in

response to defendants’ motion, plaintiff has not

parrots, had sexual relations with a 12-year old girl, had

smuggled machine guns on a FedEx plane and had purloined

pre-employment test to help his friends pass the test and get

hired by FedEx. According to plaintiff, FedEx investigated these

allegations and eventually determined they were false.

Defendants have denied they sent the letters.

In other litigation, plaintiff testified that he felt there had

been retaliation against him by “the same parties under

investigation — the same parties who have sued me,” iLe.,

defendants, and stated, “[|T)Jhere’s unexplained multiple

activities that have occurred by 1 don’t Know who, but none of it

ever occurred before all of the Guard stuff and I personally feel

it’s Guard related.”

App. 64

offered any direct evidence tending to show that any

of the defendants were involved in any of these

incidents.” Rather, he has only argued that

defendants had a motive to engage in such conduct.

However, in support of their motion, defendants

submitted evidence that the negative publicity

generated by Bryant’s charges of corruption had

angered a number of people in the 186th, and in the

Meridian area in general, so that defendants were, as

they put it, “not the only people with a strong motive

to dislike” him. For his part, Bryant does net deny

this; instead, he simply states that he _ believes

defendants had a stronger motive than most to

dislike him. In the court’s opinion, this ts not a

sufficient showing to withstand summary judgment.

Plaintiff has failed to create a genuine issue of

material fact on any of his putative causes of action

based on the referenced allegations.

Plaintiff has essentially ignored defendants’ argument. on

this point altogether, and wholly fails to acknowledge his

burden, in response to defendants’ motion, to come forward with

evidence to substantiate his allegations. Instead, he simply

declares that his complaint “is replete with specific factual

allegations of the violence, threats and intimidation perpetrated

by the individual defendants.” This is not a sufficient response.

See Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (“Once the

moving party has shown ‘that there is an absence of evidence to

support the non-moving party’s cause,’ the non-movant must

come forward with ‘specific facts’ showing a genuine factual

issue for trial.” (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

325, 106 S. Ct. 2548 (1986)).

App. 65

In addition to these allegations, plaintiff has

identified a certain lawsuit brought by defendants

against him for slander as another example of action

taken by defendants in retaliation for plaintiff’s

discharge of his duties and to prevent him from

further discharging his duty to report misconduct to

appropriate authorities. Specifically, Bryant notes

that on June 3, 2003, defendants, with the exception

of Temple and Wilkes, filed a lawsuit against him in

the Circuit Court of Lauderdale County, claiming that

they had been slandered by statements made by

Bryant during a May 24, 2003 radio talk show, in

which he said, among other things:

There are some disgusting officers ... in

leadership positions. There’s about 10 to 12

more people that need to be admonished.

[T]here’s more [than] 60 or 100 charges

against ... 10 to 15 people [yet to come]...

The entire leadership structure is corrupt.

I'm after the chief NCOs and the lheutenant

colonels and above that have got blood on

their hands in this action. All I want is

leadership change. I’m not going to stop until

we've had a leadership change ... I’m

going to be relentless ... General Lipscomb

and General Cross ... [are] examples of

failed leadership. We have allowed a mafia-

type system to grow in the leadership.

According to defendants, the court dismissed the

lawsuit on the basis that Bryant had not specifically

App. 66

named any of the defendants in the radio talk show.”

Defendants argue that as a matter of law, even if they

had a retaliatory motive for filing the lawsuit,

plaintiff still cannot state a claim based on

defendants’ lawsuit against him because “(1) neither

the federal nor the state whistleblower statutes

provides a legal remedy, and (2) even if they did, the

filing of a meritorious suit is not an actionable act of

retaliation.” While the court has already determined

that plaintiff has no actionable claim under either

whistleblower statute, but defendants’ argument on

the first point does not account for plaintiff's claims

under §$§ 1985(1) and 1986.

Defendants’ further argument that the suit

cannot provide the basis for an actionable claim is

drawn from Bill Johnson's Restaurants v. NLRB, in

which the Supreme Court held that in lght of the

First Amendment right of access to the courts, “[t]he

filing and prosecution of a well-founded lawsuit may

not be enjoined as an unfair labor practice, even if it

would not have been commenced but for the

plaintiff’s desire to retaliate against the defendant

for exercising rights protected by the [National Labor

Relations] Act.” 461 U.S. 731, 742-743, 103 S. Ct.

‘* The court’s order of dismissal which is included as an

exhibit does not state a basis for dismissal, but rather recites

that the court had conducted a hearing and at the hearing had

ruled that the claims would be dismissed, and then gave the

plaintiffs (defendants herein) the opportunity to file an amended

complaint within 30 days. When the plaintiffs failed to amend,

an order was entered dismissing the case with prejudice.

App. 67

2161, 2170 (1983). Defendants’ argument in this

regard would have this court assume that defendants’

slander suit against Bryant was meritorious, or at

least that they had a reasonable basis for bringing

the action. Yet they merely declare that they

“understandably were upset that Bryant had made

slanderous and disparaging statements about them,”

and argue that they could reasonably have thought

they had a viable cause of action notwithstanding

that Bryant did not identify them by name in the

radio broadcast. However, a party cannot succeed on

a claim for slander merely because he was upset by

disparaging comments; rather, a meritorious cause of

action for slander requires proof, inter alia, that the

disparaging statements were false. See Speed v. Scott,

787 So. 2d 626, 631 (Miss. 2001) (cause of action for

slander requires proof of “(a) a false statement that

has the capacity to injure the plaintiff's reputation;

(b) an unprivileged publication, i.e., communication to

a third party; (c) negligence or greater fault on part of

publisher; and (d) ‘either actionability of statement

irrespective of special harm or existence of special

harm caused by publication.”’”) (citation omitted).

Bryant has maintained all along, and continues to

maintain that his allegations were absolutely true.

Thus, even if defendants are correct that their motive

in bringing the action against plaintiff ts essentially

irrelevant, this court cannot conclude as a matter of

law that defendants’ claim against Bryant for slander

was meritorious or well-founded. Defendants have

not sustained their burden to demonstrate that

summary judgment is proper as to this allegation.

App. 68

Plaintiff charges in his complaint that he was

“met by armed MSANG airmen when he attempted to

attend a Minority Awareness Council Meeting” on

March 3, 2001. Defendants have presented evidence

that the meeting in question was a dinner that was

open to members of the public who purchased tickets;

that plaintiff did, in fact, attend the dinner in

question; and that while there were armed guards

present for the occasion, they were there to provide

security for a visiting three-star general, who was the

dinner speaker. Defendants maintain and _ have

presented evidence that the guards were not there to

intimidate plaintiff or to attempt to prevent him from

attending the dinner; and plaintiff has pointed to no

evidence to the contrary. Accordingly, any claim based

on the incident is subject to dismissal.

Plaintiff has asserted a claim against defendants

Temple and Wilkes for an assault and battery

allegedly committed by these defendants on Sep-

tember 3, 2003. Defendants seek summary judgment

as to this claim on the basis that the one-year statute

of limitations had run when this suit was filed on

March 17, 2005. See Miss. Code Ann. § 15-1-35 (“All

actions for assault and battery ... shall be

commenced within one (1) year next after the cause of

action accrued, and not after.”). Plaintiff suggests

that because the assault and battery was part of a

pattern of threats, harassment and intimidation

which was of a continuing nature, his claim for

assault and battery is timely. Irrespective of whether

evidence of the alleged assault and battery would be

App. 69

relevant in connection with plaintiff’s remaining

claim for conspiracy under § 1985 and 1986, his cause

of action for assault and battery is plainly untimely;

the assault and battery is not itself a continuing tort.

Accordingly, the claim for assault and battery will be

dismissed.

Bryant has asserted causes of action for inten-

tional and negligent infliction of emotional distress,

defamatory/false light liability and _ intentional

interference with his employment with FedEx. His

response to defendants’ motion makes clear that each

of these claims is based on his allegation that

defendant Pierce sent a letter to the Federal Aviation

Administration in an attempt to obtain revocation of

plaintiff’s pilot license, to invoke the investigative

authority of the Transportation Safety Administra-

tion of the Department of Homeland Security and to

obtain plaintiff's termination from his regular

employment with FedEx. The letter in question was

dated November 11, 2004, and stated:

Mr. Bryant also has a questionable mental

background. During a recent AFOSI (Air

Force Office of Special Investigation) inquiry

an FAA medical examiner, Dr. Edward

Caruth, attested to the suspicion that Mr.

Bryant suffered paranoia, anxiety and

possible schizophrenia.

According to plaintiff, Pierce’s representation that

Dr. Carruth had questioned his fitness for flight was

unfounded, so that when Dr. Carruth learned of the

letter, he demanded a retraction from Pierce.

App. 70

Defendants argue that summary judgment is in

order on plaintiff’s claim for intentional interference

with contract because plaintiff cannot establish that

Pierce had no justifiable cause or lawful reason to

write the letter or that plaintiff suffered damages

resulting from Pierce’s having written the letter. See

Grice v. FedEx Ground Pkg. System, Inc., 925 So. 2d

907, 910 (Miss. Ct. App. 2006) (elements of inten-

tional interference with contract are “(1) intentional

and willful acts, (2) calculated to cause damage to the

plaintiff in his lawful business, (3) done with the

unlawful purpose of causing damage and _ loss,

without right or justifiable cause on the part of the

defendant (which constitutes malice), and (4)

resulting in actual damage or loss”) (citations

omitted).

Defendants submit that in writing the letter,

Pierce was merely reporting a safety concern to the

agency with jurisdiction over the issue, which he had

a right and duty to do, and that under Mississippi

law, the rule against interference with contracts “does

not apply where one interferes with another’s

contract in the legitimate exercise of one’s own right.”

Southwest Drug Co. v. Howard Bros. Pharmacy of

Jackson, Inc., 320 So. 2d 776, 778 (Miss. 1975) See

also Federal Aviation Regulation 13.1 (providing that

“any person who knows of a violation of the Federal

Aviation Act of 1958 ... or any other rule, regulation

or order issued thereunder, should report it to [the]

FAA”). They claim, as well, that “(t]he same right or

duty that Pierce had to write the FAA also merits

App. 71

summary judgment on Bryant's claim for the

intentional and/or negligent infliction of emotioral

distress.”

The facts concerning Pierce’s motivation and

whether he was justified in writing the letter are

obviously in dispute; and in the court’s opinicn,

particularly in light of evidence that Pierce may have

misrepresented or “shaded” the facts in his letter to

the FAA, the issue of whether Pierce had a justifiable

reason for contacting the FAA is best reserved for

trial.

Defendants submit as an alternative basis for

dismissal of Bryant’s intentional interference claim

that he cannot prove an essential element of his

claim, damages, because he did not lose his job or

suffer any loss of income as a result of Pierce’s letter.

See Levens v. Campbell, 733 So. 2d 753, 761 (Miss.

1999) (“An action for tortious interference with

contract ordinarily lies when [the interference]

caus[es] one party not to perform and resulting in

injury to the other contracting party.”). Plaintiff

maintains in response to defendants’ motion that, in

fact, there is evidence that he suffered damages, and

specifically, evidence that he has lost the economic

opportunity for advancement with FedEx, és a result

of Pierce’s letter, which in turn led to the loss of

money in his job. He claims he lost one trip worth

$1,200, but that the greatest impact has been on his

career with FedEx and the lost opportunity for

advancement to wide-body jets, which would increase

his income by approximately $60,000 annually. The

App. 72

parties disagree as to the reason Bryant lost the trip

that would have earned him $1,200, and also as to

the reason he has been unable to advance to wide-

body jets. In the court’s opinion, plaintiff has

presented sufficient evidence to withstand summary

judgment on this claim.

A final charge by plaintiff, and one that is the

subject of a separate motion by plaintiff for an

evidentiary hearing regarding spoliation of evidence

and propriety of a negative inference instruction, is

that defendants, or persons acting under their

direction, broke into Bryant’s truck in May of 2005

while the truck was parked at a Holiday Inn in

Memphis and stole his laptop computer and other

items pertinent to this case. Bryant declares that,

“falmazingly, during Bryant’s deposition on January

11, 2005, in Pierce’s ill-fated lawsuit against the

United States Air Force, documents from Bryant's

stolen computer were presented by Pierce’s counsel,”

and that those same documents “have now likewise

been submitted by the Defendants in support of the

present motion.” Defendants assert this is “another

baseless allegation with no proof,” yet they state they

welcome a heaiing to prove the true facts, which are

that they were not involved in the break-in and that

plaintiff’s counsel was specifically informed by

Bryant and his lawyers over a year ago that the

materials identified by plaintiff came anonymously in

the mail. At plaintiff's request, and defendants’

acquiescence, the court will set a hearing on

plaintiff’s motion and will deny summary judgment

App. 73

to defendants at this juncture as to claims based on

this allegation.

Based on the foregoing, it is ordered that

defendants’ motion is granted in part and denied in

part, as set forth herein.

SO ORDERED this 17th day of July, 2007.

/s/ Tom S. Lee

UNITED STATES

DISTRICT JUDGE

App. 74

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

JACKSON DIVISION

JOE H. BRYANT, JR. PLAINTIFF

V5. CIVIL ACTION NO.

3:05CV179LN

THE MISSISSIPPI AIR NATIONAL

GUARD, FRANKLIN E. CHALK,

FREDERICK D. FEINSTEIN,

ROY A. GRAHAM, BILLY JOE

GRESSETT, DONALD E. JONES,

LANGFORD L. KNIGHT, F. GREGORY

MALTA, WILLIAM F. PARTEN,

ROBERT E. PIERCE, ROGER E. SHIRLEY,

CHARLES F. STEED, AARON K. WILSON

AND THOMAS TEMPLE; AND

JOHN DOES 1-20 DEFENDANTS

CORRECTED

MEMORANDUM OPINION AND ORDER

Defendant Mississippi Air National Guard

(MSANG) has filed in this case a motion to dismiss

pursuant to Rule 12(b)(1), 12(b)(6) and 12(c) and

on the basis of the Eleventh Amendment, and for

judgment on the pleadings, and has filed a separate

motion for dismissal, sanctions and related relief pur-

suant to Rule 11, 28 U.S.C. § 1927 and Mississippi's

Litigation Accountability Act, Miss. Code Ann. § 11-

55-1 et seq. All of the individual defendants have

App. 75

° . . . 1? , j . : .

joined in MSANG’s motion. Plaintiff Joe H. Bryant

has responded in opposition to MSANG’s motions and

the court, having now considered the parties’ memo-

randa of authorities, concludes that MSANG’s motion

is due to be granted, but the motions of the individual

defendants must be denied.

According to the complaint in this cause, Bryant

began his military service in 1974, and in 1980, was

assigned to duty with MSANG’s 186th Tactial Recon

Group, which later became the 186th Refueling wing,

located at Key Field in Meridian, Mississippi. He

eventually was assigned to MSANG Headquarters, as

its Director of Operations. Bryant states that between

1990 and 1998, he “began to observe wrongful actions

by superiors in the method and manner in which his

fellow airmen were being treated.” He alleges that in

' Thomas Temple filed his joinder on April 14th, followed by

Langford L. Knight, F. Gregory Malta, William F. Parten, Roger

E. Shirley, Charles F. Steed, Aaron K. Wilson, Franklin E

Chalk, Frederick D. Feinstein, Roy A. Graham, Billy Joe

Gressett and Donald E. Jones, who filed their joinders on April

15th, and Robert Pierce, who filed a mo

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.