United States District Court, D. Oregon
Michael H. Simon, United States District Judge
States Magistrate Judge Jolie A. Russo issued Findings and
Recommendations on four motions in this case on October 1,
2018. ECF 71. She recommended that the motion to dismiss
filed by the United States Air Force, Air Force Secretary
Heather Wilson, President Donald J. Trump, Major General
Michael Stencel, Brig. General James Kriesel, Col. Heidi
Kjos, Lt. Col. Jonathan Vinson, and Brig. General Jeffrey
Silver (collectively, the “Federal Defendants”)
(ECF 57) be granted. Judge Russo also recommended that the
Oregon Department of Military's (“OMD”)
motion for summary judgment (ECF 44) be granted in part.
Finally, Judge Russo recommended that Plaintiff James
Murphy's motion for leave to amend (ECF 68) and motion
for leave to file a sur-reply (ECF 61) be denied and that the
action be dismissed with prejudice.
the Federal Magistrates Act (“Act”), the Court
may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). If a party
timely files an objection to a magistrate judge's
findings and recommendations, “the court shall make a
de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” Id.; Fed.R.Civ.P.
those portions of a magistrate judge's findings and
recommendations to which neither party has objected, the Act
does not prescribe any standard of review. See Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no
indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate's report
to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (holding that the court must review de novo
magistrate judge's findings and recommendations if
objection is made, “but not otherwise”). Although
in the absence of objections no review is required, the Act
“does not preclude further review by the district
judge sua sponte . . . under a de novo or
any other standard.” Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b)
recommend that “[w]hen no timely objection is filed,
” the Court review the magistrate judge's
recommendations for “clear error on the face of the
timely filed an objection to Judge Russo's Findings and
Recommendations. ECF 73. Plaintiff argues that Judge Russo
erred (1) by finding that there was identity of claims among
the claims against Federal Defendants and Plaintiff's
previous slander and defamation claims, (2) by incorrectly
applying the Feres doctrine to bar Plaintiff's
claims against Federal Defendants, and (3) by finding that
Plaintiff's claims against OMD are time-barred. Federal
Defendants (ECF 74) and OMD (ECF 75) both filed responses in
which they supported Judge Russo's analyses on these
points. The Court has reviewed de novo the portions
of the Findings and Recommendations to which Plaintiff has
objected and agrees with Magistrate Judge Russo.
Judge Russo correctly found that claim preclusion bars
Plaintiff's claims against Federal Defendants. Plaintiff
argues that there is no identity of claims to support
preclusion of these claims. He notes that he brought his
previous claim against individuals for slander, defamation,
and malicious prosecution but brings this suit against the
government for due process violations. All claims asserted by
Plaintiff, however, arise from the same transactional nucleus
of facts-Plaintiff's alleged conduct during the November
2011 medical examination. See United States v.
Liquidators of European Fed. Credit Bank, 630 F.3d 1139,
1151 (9th Cir. 2011) (noting that whether claims share the
same transactional nucleus of facts is the most important
criterion in determining identity of claims).
Plaintiff could have asserted the claims against Federal
Defendants in at least one of the previous suits. Plaintiff
alleges that the relevant harm occurred when he was
discharged from the military on August 22, 2016. He filed his
defamation case against Dr. Heidi Kjos in November 2017, more
than a year later. Plaintiff's objection that he brought
the previous cases against individuals and brings this case
against the government also has no merit. As Judge Russo
noted, the United States was the proper defendant in the
previous actions. In fact, the United States substituted
itself as the defendant in all three cases.
Court also agrees with Judge Russo's conclusion that the
Feres doctrine bars Plaintiff's claims against
Federal Defendants. Plaintiff correctly notes that the
Feres doctrine is “not an all-inclusive bar to
suits against intra-military wrongs.” ECF 73 at 14.
Plaintiff's suit, however, arises from his accuser's
allegedly false accusations and the military's subsequent
response. Thus, the Feres doctrine bars
this lawsuit because Plaintiff's allegations
concern “command or personnel decisions by military
personnel.” McGowan v. Scoggins, 890 F.2d 128,
138 (9th Cir. 1989).
Russo also correctly determined that Plaintiff's claims
against OMD are time-barred. Both types of claims that
Plaintiff asserts against OMD must be brought within two
years of the alleged injury. See Or. Rev. Stat.
§ 30.275(9) (two-year statute of limitations for claims
against Oregon state actors); 5 U.S.C. § 552a(g)(5)
(two-year statute of limitations for Privacy Act claims).
Plaintiff's most recent allegation against OMD dates to
February 2016. ECF 1 ¶ 36. Plaintiff filed this case on
August 15, 2018-more than two years later.
the Court agrees that Plaintiff's case should be
dismissed with prejudice because amendment would be futile.
Even if claim preclusion did not apply, the Feres
doctrine would still bar Plaintiff's claims against
Federal Defendants. Nor does Plaintiff's proposed amended
complaint add any allegations against OMD that would bring
Plaintiff's claims within the statute of limitations. ECF
68-1. For those portions of Magistrate Judge Russo's
Findings and Recommendations to which neither party has
objected, this Court follows the recommendation of the
Advisory Committee and reviews those matters for clear error
on the face of the record. No. such error is apparent.
Court ADOPTS Magistrate Judge Russo's
Findings and Recommendations. ECF 71. The Federal
Defendants' motion to dismiss (ECF 57) is
GRANTED. OMD's motion for summary
judgment (ECF 44) is GRANTED IN PART, and
the Court concludes that all claims asserted by Plaintiff
against OMD are time-barred. Plaintiff's motion for leave
to amend (ECF 68) is DENIED. Plaintiff's
motion for leave to file a sur-reply (ECF 61) is
DENIED as moot. This action is
DISMISSED WITH PREJUDICE.