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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 893

## Text

Supreme Court. US.
FILE

D

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

il

TABLE OF CONTENTS

Page
PUREED FOO vivian cns th cccxbisscanet inicio ceecaaa I
Certificate of Interested Parties..............000000..022. i]
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Jurisdictional Statement ..............cscccsccecssscccresees: 1

Constitutional and Statutory Provisions In-

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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

1V

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
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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

1

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,

2
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

6

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.

7

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.

e

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.

8

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

9

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;:

(c) Pierce v. Bryant, in the United States
District Court for the Southern District of
Mississippi; Civil Action No. 4:06CV6TSL;

10

(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.

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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.

12

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

13

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.

14

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

15

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

16

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

17

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

1%

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

19

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

20

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;

(C) such lawsuits that violate federal law
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,

21

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

99
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).

23

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.

24

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.

No

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.

25

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.

26

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

27

4

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
v.

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

5.

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).

IV

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

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).

B

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,

© The first clause of § 1985(2) prohibits conspiracies to deter
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

C

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.

Vv

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.

VI

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;

(c) Whether the Defendants formed and/or
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-d

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2220%3A1. Public record. Not legal advice.