                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            DEC 4 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ERIN PACHECO STACKS,

                Plaintiff-Appellant,

    v.                                                   No. 97-1030
                                                     (D.C. No. 96-Z-1150)
    UNITED STATES AIR FORCE;                               (D. Colo.)
    UNITED STATES DEPARTMENT
    OF DEFENSE; and DR. SHIELA
    WIDNALL, Secretary of the Air
    Force,

                Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before KELLY, McKAY, and BRISCOE, Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Erin Pacheco Stacks appeals from the district court’s order

granting defendants’ motion for summary judgment. 1 We affirm.

      Ms. Stacks sought declaratory, injunctive, and mandamus relief in district

court. She asked the court to declare that defendants had misused the command

directed mental health examination provided by the Boxer Amendment, Pub. L.

No. 102-484 Div. A, Title V, § 546(a)-(j), 106 Stat. 2315, 2416-19 (1992)(10

U.S.C. § 1074 (notes)). She contended that defendants had not implemented a

Department of Defense directive regarding procedures to be used in ordering such

an examination and, therefore, she was denied her rights under the amendment.

Ms. Stacks also sought an injunction and mandamus directing the Secretary of the

Air Force to reverse retaliatory action taken against her and to correct her military

records to reflect that she was eligible for reenlistment.

      The district court granted defendants’ motion for summary judgment on the

ground that Ms. Stacks had not alleged a constitutional violation which warranted

federal court interference with the military’s actions. The court also held that

Ms. Stacks’ performance evaluation was a discretionary act not reviewable by

federal civilian courts.


1
      Ms. Stacks argues that the district court’s ruling was actually a Fed. R. Civ.
P. 12(b)(1) dismissal. The court announced to the parties that it would treat
defendants’ motion to dismiss or, in the alternative, for summary judgment, as a
motion for summary judgment. We accept the district court’s statement and
consider this an appeal from a summary judgment ruling.

                                         -2-
      On appeal, Ms. Stacks argues that the district court erred in denying her

motion filed pursuant to Fed. R. Civ. P. 56(f) to delay a ruling on defendants’

summary judgment motion pending further discovery. She also asserts the

district court had jurisdiction over her claims because her constitutional rights

were violated, defendants failed to comply with their regulations, and she was not

required to exhaust her administrative remedies.

      While the district court did not specifically rule on Ms. Stacks’ Rule 56(f)

motion, it effectively denied it when it granted defendants’ motion for summary

judgment. We review the district court’s denial of a Rule 56(f) motion for abuse

of discretion. See International Surplus Lines Ins. Co. v. Wyoming Coal Ref.

Sys. Inc., 52 F.3d 901, 904 (10th Cir. 1995).

      Rule 56(f) allows the nonmovant to seek deferral of a ruling on a motion

for summary judgment pending discovery of facts essential to opposing the

motion. See Committee for the First Amend. v. Campbell, 962 F.2d 1517,

1521-22 (10th Cir. 1992). To warrant such a deferral, the nonmovant must

provide an affidavit identifying the facts not available and what steps have been

taken to obtain those facts. See id. at 1522. “Rule 56(f) may not be invoked by

the mere assertion that discovery is incomplete or that specific facts necessary to

oppose summary judgment are unavailable . . . .” Pasternak v. Lear Petroleum

Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986).


                                         -3-
      Ms. Stacks’ motion did not meet the requirements of Rule 56(f). She did

not submit an affidavit. She merely stated in her response to defendants’ motion

for summary judgment that she was requesting a stay “to have the opportunity to

take discovery.” Appellant’s App. at 289. Further, she did not set forth the

specific facts she needed to discover nor did she explain how such facts would

have been useful to oppose defendants’ motion. See Jensen v. Redevelopment

Agency of Sandy City, 998 F.2d 1550, 1554-55 (10th Cir. 1993). The district

court did not abuse its discretion in denying this motion.

      We review the grant of summary judgment de novo, using the same

standard applied by the district court. See Universal Money Ctrs., Inc. v.

American Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994). Summary

judgment is appropriate “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). We may affirm the district

court’s decision on any basis which finds legal support in the record, even

grounds not relied on by the district court. See United States v. Sandoval,

29 F.3d 537, 542 n.6 (10th Cir. 1994).

      Ms. Stacks alleged a civilian employee sexually harassed her in violation of

her constitutional rights, and defendants failed to comply with applicable statutes,


                                          -4-
rules and regulations. To the extent exhaustion of intra-military remedies was

required, Ms. Stacks asserted that any further administrative attempts to vindicate

her rights would be futile. Ms. Stacks further alleged defendants retaliated

against her when she complained of that harassment by ordering her to undergo

a mental health evaluation.

      Before we can look at the merits of Ms. Stacks’ claims, we must determine

whether these claims can be brought in a civilian court. Not only is our review

of military matters narrow and restricted, see Clark v. Widnall, 51 F.3d 917, 921

(10th Cir. 1995), but we must also consider whether Ms. Stacks has brought an

adjudicable case to the civilian court, see Lewis v. Continental Bank Corp.,

494 U.S. 472, 477-78 (1990) (Article III of the United States Constitution

requires that federal courts adjudicate only cases and controversies).

      We conclude that Ms. Stacks’ request for declaratory and injunctive relief

cannot be considered by this court and should not have been considered by the

district court. Ms. Stacks was separated from the Air Force over four months

before the district court entered its judgment. She has no current or probable

future connection to the Air Force and her controversy with defendants does not

continue to “touch[ ] the legal relations of parties having adverse legal interests”

in the outcome of the case. DeFunis v. Odegaard, 416 U.S. 312, 317 (1974)

(quotation omitted).


                                          -5-
      A declaratory judgment action is the “proper judicial resolution of a ‘case

or controversy’ rather than an advisory opinion” when the court’s declaration will

settle a “dispute which affects the behavior of the defendant towards the

plaintiff.” Hewitt v. Helms, 482 U.S. 755, 761 (1987). To meet this standard,

a plaintiff must be able to “demonstrate a good chance of being likewise injured

[by the defendant] in the future.” Facio v. Jones, 929 F.2d 541, 544 (10th Cir.

1991). “Past exposure to illegal conduct does not in itself show a present case or

controversy regarding injunctive relief . . . if unaccompanied by any continuing,

present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974).

Rather, a plaintiff must show a “sufficient likelihood” of being injured again in a

similar manner. F.E.R. v. Valdez, 58 F.3d 1530, 1534 (10th Cir. 1995).

      Defendants’ alleged acts were discrete actions which were completed in

the past and any effects were manifested at the time the acts occurred. Because

Ms. Stacks cannot show any continuing adverse effects of defendants’ actions or

any likelihood of being injured again, her claim for declaratory relief is moot.

See Ashcroft v. Mattis, 431 U.S. 171, 172-73 (1977) (claim for declaratory relief

moot when no “present right” is involved and the primary interest is the emotional

satisfaction of a favorable ruling); cf. Arizonans for Official English v. Arizona,

117 S. Ct. 1055, 1069, 1071 (1997) (case seeking declaratory and injunctive relief

mooted when plaintiff resigned from state employment); Cox v. Phelps Dodge


                                         -6-
Corp., 43 F.3d 1345, 1348 (10th Cir. 1994) (legitimate termination of employment

moots plaintiff’s claim for declaratory and injunctive relief regarding conditions

of employment).

      Likewise, Ms. Stacks’ request for an injunction is moot. See Thournir v.

Buchanan, 710 F.2d 1461, 1463 (10th Cir. 1983) (appeal of district court order

denying injunction moot where event sought to be enjoined has occurred).

The acts Ms. Stacks sought to enjoin had already occurred.

      Ms. Stacks sought mandamus to have the federal civilian court direct the

defendants to correct her military records to show she is eligible for reenlistment.

Mandamus is an extraordinary remedy. See Allied Chem. Corp. v. Daiflon, Inc.,

449 U.S. 33, 35 (1980). It “is intended to provide a remedy for a plaintiff only if

he has exhausted all other avenues of relief and only if the defendant owes him

a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984).

Ms. Stacks sought mandamus to effect a change in her performance evaluation,

which as the district court noted, is a discretionary decision over which we have

no jurisdiction. See Acquisto v. United States, 70 F.3d 1010, 1011 (8th Cir.

1995); see also Lundgrin v. Claytor, 619 F.2d 61, 62 (10th Cir. 1980)

(“discretionary military decisions concerning soldiers lawfully in the service are

beyond the review of civilian courts”). Further, Ms. Stacks has no right to the

ultimate relief she seeks, re-enlistment, see Lindenau v. Alexander, 663 F.2d 68,


                                         -7-
72 (10th Cir. 1981) (no individual right to enlist in armed services exists).

Ms. Stacks only recourse was through the processes provided by the military.

      Because Ms. Stacks’ claims for declaratory and injunctive relief are moot

and because she can bring no mandamus action, we “cannot, consistently with the

limitations of Art. III of the Constitution, consider the substantive constitutional

issues tendered by” Ms. Stacks. DeFunis, 416 U.S. at 319-20.

      The judgment of the district court is VACATED as to Ms. Stacks’ claims

for declaratory and injunctive relief and the case is remanded with instructions to

dismiss these claims. See United States v. Chavez-Palacios, 30 F.3d 1290, 1293

(10th Cir. 1994) (case must be dismissed if it becomes moot during any phase of

judicial proceeding, unless recognized exception to mootness doctrine is present,

as any resolution of matters before the court would constitute advisory opinion

and violate Article III). The judgment of the district court is AFFIRMED as to

Ms. Stacks’ request for mandamus.

                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




                                          -8-
