Lawrence v. Davis

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-30437
PHILIP LAWRENCE,
Plaintiff-Appellant,
versus
CHARLES DAVIS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(2:03-CV-3118-E)
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Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Philip Lawrence, a Major in the United
States Marine Corps Reserve (“Reserve”), appeals the district
court’s dismissal of his defamation action against Defendant-
Appellee Charles Davis, a Lieutenant Colonel in the Reserve.
Lawrence’s claim for money damages implicates testimony that Davis
provided to a military Board of Inquiry (“BOI”). The action was
filed in state court in Louisiana, then removed to federal court
under 28 U.S.C. §§ 1442 and 1442a. Recent submissions show that,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
although the BOI’s recommendation has been acted on since this
appeal was filed and briefed, at least two potential additional
steps remain before the military administrative remedies in this
matter are completely exhausted and the decision of the ultimate
military authority is final, executory, and subject to no further
appeals.
I.
In light of the action that was pending in the military forum
at the time, the district court dismissed Lawrence’s action without
prejudice under the abstention doctrine of Younger v. Harris, 401
U.S. 37, 43-44 (1971). See Schlesinger v. Councilman, 420 U.S.
738, 754, 761 (1975) (Younger precluded injunction against military
proceeding). Younger does not apply to actions such as Lawrence’s,
however, in which only monetary damages are sought. Alexander v.
Ieyoub, 62 F.3d 709, 713 (5th Cir. 1995). Moreover, even if
Younger had been applicable, a stay rather than a dismissal would
have been proper because the military forum cannot award Lawrence
the money damages that he seeks in the action now pending in
federal court. See Deakins v. Monaghan, 484 U.S. 193, 202 (1988);
Ballard v. Wilson, 856 F.2d 1568, 1571-72 (5th Cir. 1988).
Dismissal was thus improper.
II.
As Davis argues on appeal, the district court could have
abstained pursuant to Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 817 (1976). In Colorado River, the
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Supreme Court recognized that a federal court’s decision to decline
to exercise its jurisdiction can “rest on considerations of ‘[w]ise
judicial administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation.’” Id.
(citation omitted); see also Moses H. Cone Mem’l Hosp. v. Mercury
Const. Corp., 460 U.S. 1, 14, 15 (1983); Allen v. Louisiana State
Bd. of Dentistry, 835 F.2d 100, 105 (5th Cir. 1988). We therefore
vacate the district court’s judgment of dismissal and remand the
case to that court with instructions to stay the proceedings until
the ultimate decision of the Secretary of the Navy (“the
Secretary”), based on recommendations of the BOI, is final,
executory, and no longer appealable.
Factors supporting our decision to order a stay include: (1)
The BOI’s deliberations began and proceeded before the instant
action was filed, albeit additional administrative steps
potentially remain to be taken there, see Colorado River, 424 U.S.
at 817; (2) the Secretary’s final, executory decision might obviate
federal court action, or the results in federal court might be
inconsistent with those in the military proceedings, see id.;
Schlesinger, 420 U.S. at 756-57; (3) the timing of the filing of
the defamation action —— a mere five days after Davis testified ——
and Lawrence’s evident hostility toward Davis support an inference
that Lawrence filed the defamation action against Davis with a
vexatious purpose, see Allen, 835 F.2d at 105; (4) traditional
exhaustion principles favor exhaustion of military remedies prior
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to proceeding with court action, see Schlesinger, 420 U.S. at 756-
57; Von Hoffburg v. Alexander, 615 F.2d 633, 641 (5th Cir. 1980);
(5) under Louisiana law, a defamation claim based on occurrences
during litigation, such as witness testimony, “does not arise until
the termination of the particular action,” Young v. City of New
Orleans, 751 F.2d 794, 801 (5th Cir. 1985); and (6) a stay is
permissible under Colorado River. See Allen, 835 F.2d at 103, 105.
III.
For the foregoing reasons, the district court’s judgment of
dismissal is VACATED and this case is REMANDED with directions to
STAY the proceedings in that court pending final resolution of all
military proceedings.
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