Filed: May 26, 2016
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-1618 _ RORY M. WALSH, Appellant v. BRIAN J. GEORGE, Board for the Correction of Naval Records; W. DEAN PFEIFFER, Board for the Correction of Naval Records; LTCOL R. P. BUTTRAM, MMMA-3; MR. M. NEWMAN, MMMA-3; JAMES L. JONES, JR.; JAMES F. AMOS, HQ Marine Corps; THE DEPARTMENT OF THE NAVY, Office of the Secretary of the Navy; THE UNITED STATES OF AMERICA _ On Appeal from the United States District Court for the Middle D
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-1618 _ RORY M. WALSH, Appellant v. BRIAN J. GEORGE, Board for the Correction of Naval Records; W. DEAN PFEIFFER, Board for the Correction of Naval Records; LTCOL R. P. BUTTRAM, MMMA-3; MR. M. NEWMAN, MMMA-3; JAMES L. JONES, JR.; JAMES F. AMOS, HQ Marine Corps; THE DEPARTMENT OF THE NAVY, Office of the Secretary of the Navy; THE UNITED STATES OF AMERICA _ On Appeal from the United States District Court for the Middle Di..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1618
___________
RORY M. WALSH,
Appellant
v.
BRIAN J. GEORGE, Board for the Correction of Naval Records;
W. DEAN PFEIFFER, Board for the Correction of Naval Records;
LTCOL R. P. BUTTRAM, MMMA-3; MR. M. NEWMAN, MMMA-3;
JAMES L. JONES, JR.; JAMES F. AMOS, HQ Marine Corps;
THE DEPARTMENT OF THE NAVY, Office of the Secretary of the
Navy; THE UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-14-cv-01503)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 14, 2016
Before: CHAGARES, KRAUSE and GREENBERG, Circuit Judges
(Opinion filed: May 26, 2016)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Rory Walsh appeals the District Court’s orders dismissing his complaint and
denying his motion for reconsideration. For the reasons below, we will affirm the
District Court’s judgment.
Walsh filed a complaint alleging, inter alia, that Appellees wrongfully interfered
with his efforts to correct his military records, denied him access to a Navy complex,
denied him disability benefits, intercepted correspondence between third parties, and
stalked him and his family. The District Court dismissed his complaint for failure to state
a claim and denied Walsh’s motion for reconsideration. Walsh appealed.
In his brief, Walsh seeks to challenge several rulings by the District Court.1 His
challenges are without merit. The District Court’s stay of discovery to allow the
Appellees time to respond to the complaint did not constitute an abuse of discretion. See
In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 365 (3d Cir. 2001) (not an
abuse of discretion to stay discovery while considering motion to dismiss). Because
discovery had been stayed, the District Court did not err in denying Walsh’s motion for
summary judgment.
Nor did the District Court abuse its discretion in granting Appellees an extension
of time to respond to the complaint and denying his request for a default judgment
against Jones. Walsh has not shown any prejudice from the denial of the default, Jones
had a litigable defense, and there is nothing to show that the delay was due to any
1
Walsh briefly mentions the District Court’s analysis of the merits of some of his claims.
The District Court did not err in dismissing Walsh’s claims, and we have nothing to add
to its thorough analysis.
2
culpable conduct. See Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000)
(discussing factors to consider in reviewing refusal to enter default judgment). Moreover,
the default motion was premature. While Walsh stated that Jones was served on August
13, 2014, his own exhibits reflect that a process server posted the documents to the front
door of Jones’s purported residence on August 18th. Thus, Walsh’s September 4th
motion for a default judgment was filed before the earliest possible deadline for Jones to
respond -- September 8th. See Fed. R. Civ. P. 12(a)(1)(A)(i) (responsive pleading due 21
days after service); Fed. R. Civ. P. 12(a)(2)&(3) (responsive pleading from United States
employee due 60 days after service).
Walsh challenges the denial of his request for injunctive relief against Jones.
Walsh alleged that the FBI’s surveillance of his family alerted Jones to their lunch plans
and he drove from Virginia to Pennsylvania to stalk Walsh and his family. When Walsh
and his sons went after lunch to a nearby store to buy a video, Jones allegedly “lunged” at
him twice to try to start an incident and then preceded the family into the store. Walsh
and his sons went into the store, bought their video and left.2 In affidavits, Walsh’s sons
stated only that a man was “waiting, apparently to create an incident.” They stated that
their father told them that the man was Jones. They admitted that they purchased their
2
Walsh does not explain why he and his sons continued to go into the store after Jones
had gone in or why they did not call the police right away if Jones’s alleged presence was
such a serious issue.
3
video without further incident. 3 The District Court did not abuse its discretion in
denying injunctive relief based on these allegations.4 To the extent that Walsh is
requesting that criminal charges be brought against Jones, there is no federal right to
require the government to initiate criminal proceedings. Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973); see also United States v. Berrigan,
482 F.2d 171, 173-74 (3d Cir.
1973) (Government is permitted some selectivity in its enforcement of criminal laws).
Walsh challenges the District Court’s denial of his motion to disqualify opposing
counsel and its allowing Jones to be represented by an Assistant United States Attorney.
There was no abuse of discretion by the District Court: Walsh did not assert any
allegations regarding opposing counsel which would be sufficient to disqualify her.
Moreover, Walsh cannot challenge the AUSA’s representation of Jones. See Falkowski
v. EEOC, 783 F.2d 252, 253-54 (D.C. Cir. 1986) (“Congress empowered the Attorney
General to send a lawyer into court ‘to attend to the interests of the United States’” and
3
The United States District Court for the District of Columbia described Walsh’s stalking
allegations as “simply another frivolous claim based on a bizarre Government conspiracy
theory.” Walsh v. Jones, Civ. No. 13-cv-928 (D.D.C. June 3, 2014). That court also
summarized Walsh’s previous cases and sua sponte ordered Walsh to show cause why an
injunction limiting future filings should not issue. In a September 2015 order, the District
Court noted that after a hearing, the parties agreed to dismiss the case with prejudice,
Walsh waived any appeal, and the request for a filing injunction was denied without
prejudice to reopening if Walsh filed a future action in federal court. Walsh v. Jones,
Civ. No. 13-cv-928 (D.D.C. Sept. 29, 2015).
4
Walsh also argues that he was entitled to injunctive relief because Jones had the FBI
intercept mail meant for the President and the Department of Justice. Walsh did not
make any specific, factual allegations that would entitle him to such relief.
4
there is no statutory or regulatory basis to review the Attorney General’s exercise of
discretion).
Walsh argues that the District Court should have allowed him to amend his
complaint to raise a claim under the Privacy Act after the Appellees submitted documents
from his military file in response to his claims. We review the District Court’s denial of
leave to amend for an abuse of discretion. In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1434 (3d Cir. 1997). As ably explained by the District Court, see Dist Ct.
Memo. at 14-16, Walsh failed to state a claim under the Privacy Act. See 5 U.S.C.
§ 552a(b); 32 C.F.R. § 701.112; 28 C.F.R. § 16.23(a). The District Court did not abuse
its discretion in denying Walsh leave to amend.
Walsh also challenges the District Court’s denial of his motion for reconsideration
in which he sought to bring a claim under the Administrative Procedures Act. As noted
by the District Court, Walsh originally disavowed any such claim and, moreover, did not
allege that the decision of the Board for Correction of Naval Records (BCNR) was
arbitrary or capricious.5 It was not an abuse of discretion to deny Walsh leave to amend
to add this claim.
Walsh complains that the District Court denied his motion to exceed the page limit
for his brief in opposition to Appellees’ motion to dismiss. As a general rule, the manner
5
An attachment to a recent letter submitted by Walsh pursuant to Fed. R. App. P. 28(j)
indicates that a BCNR case would be opened to review his evidence. Because Walsh’s
suit here does not seek direct review of the BCNR’s decision, any reopening by the
BCNR does not affect our appellate jurisdiction.
5
in which a court disposes of cases on its docket is within its discretion. See In re Fine
Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982). Walsh has not explained why he
needed an overlong brief to make his arguments.
For the above reasons, as well as those set forth by the District Court, we will
affirm the District Court’s judgment. Walsh’s motions are denied. Walsh is advised that
repetitive and vexatious litigation may lead to filing restrictions and sanctions. See In re
Oliver, 682 F.2d 443, 445 (3d Cir. 1982).
6
