Nicholas Malfitano Jun. 1, 2016, 6:36am


PHILADELPHIA -- A federal appellate court believes, just as a trial court did, that a York man was not prevented from correcting his military service records, denied access to a U.S. Navy building and improperly denied disability benefits, among other claims.

Judges Michael A. Chagares, Cheryl Ann Krause and Morton I. Greenberg of the U.S. Court of Appeals for the Third Circuit ruled against appellant Rory M. Walsh and in favor of the defendants: Brian J. George and W. Dean Pfeiffer (Board for the Correction of Naval Records); Lt. Col. 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, The Office of the Secretary of the Navy and The United States of America.

“Walsh filed a complaint alleging… the 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,” the Third Circuit explained.

In its decision, the federal appellate court was quick to label Walsh’s legal challenges as “without merit” and his default motion as “premature.”

“While Walsh stated that Jones was served on Aug. 13, his own exhibits reflect that a process server posted the documents to the front door of Jones’s purported residence on Aug. 18. Thus, Walsh’s Sept. 4 motion for a default judgment was filed before the earliest possible deadline for Jones to respond -- September 8th.

“The District Court’s stay of discovery to allow the appellees time to respond to the complaint did not constitute an abuse of discretion. Because discovery had been stayed, the District Court did not err in denying Walsh’s motion for summary judgment,” the Third Circuit said.

“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 culpable conduct,” the court added.

Also, on Walsh’s charge that 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 was improper, the Third Circuit detected no abuse of discretion.

“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,” the Third Circuit wrote.

The appellate court added Walsh failed to meet his respective burdens of proof in alleging claims under both the Privacy Act and 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. It was not an abuse of discretion to deny Walsh leave to amend to add this claim,” the Third Circuit wrote.

“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.”

The defendants are represented by Kate L. Mershimer of the U.S. Attorney’s Office, in Harrisburg.

U.S. Court of Appeals for the Third Circuit case 15-1618

U.S. District Court for the Middle District of Pennsylvania case 1:14-cv-01503

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com.

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