                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-23-2005

Marin v. Dept of Defense
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1139




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Recommended Citation
"Marin v. Dept of Defense" (2005). 2005 Decisions. Paper 662.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/662


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DPS-251                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 05-1139
                                ________________

                                MELVIN M. MARIN,
                                       Appellant

                                          v.

               DEPARTMENT OF DEFENSE AND ITS SECRETARY;
          DEPARTMENT OF THE ARMY; ARMY & AIR FORCE EXCHANGE
                    SERVICE AND ITS ADMINISTRATOR;
                       UNITED STATES OF AMERICA;
               DEFENSE FINANCE AND ACCOUNTING SERVICE;
                   THOMAS FINLEY; DANIEL LIMBAUGH;
                   ROBERT A. MAST; CRAIG LIVINGSTONE
                  ____________________________________

                  On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                             (D.C. Civ. No. 99-cv-01048)
                  District Judge: Honorable Maurice B. Cohill, Jr.
                  _______________________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   May 26, 2005

                Before: ROTH, BARRY and SMITH, Circuit Judges

                              (Filed: August 23, 2005)


                            _______________________

                                    OPINION
                            _______________________

PER CURIAM.
       Melvin Marin, a soldier in the United States Army Reserve, filed this action in the

United States District Court for the Western District of Pennsylvania alleging violations

of the Privacy Act, 5 U.S.C. § 552a(d)-(g); the Military Whistleblowers Protection Act,

10 U.S.C. § 1034; the Corrections Board Statute, 10 U.S.C. § 1552; the Soldiers and

Sailors’ Civil Relief Act, 50 App. U.S.C. § 581; Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); and claims of negligence, defamation,

and infliction of emotional distress. Marin averred that the defendants deliberately

altered and destroyed his military records, and revoked his security clearance based upon

inaccurate and incomplete information.1

       The District Court observed that in 1995, Marin filed an action in the United States

District Court for the District of Columbia, in which he named all of the same defendants

and raised virtually identical claims and issues as the present action. See Marin v. Dep’t

of Def., D.C. Civ. No. 95-cv-02175 (PLF) (D.D.C.). The only claim from the 1995 action

that the District Court did not adjudicate on the merits was the one seeking injunctive

relief pursuant to the Privacy Act; that claim was dismissed without prejudice. Here, the

District Court rejected Marin’s arguments that the 1995 judgment was not final or that he

did not have a full and fair opportunity to litigate his claims. Thus, the District Court

dismissed Marin’s previously litigated claims based upon the doctrine of res judicata.



       1
        Because the background and specific allegations in Marin’s Second Amended
Complaint are fully and accurately set forth by the District Court, we do not repeat that
information here. See December 14, 2004 D. Ct. Op. at 1-10.

                                              2
The District Court also dismissed Marin’s claims that could have been raised in the 1995

lawsuit. As to the Privacy Act claims for injunctive relief, the District Court found that

although the claims may have been properly exhausted, Marin was given all of the

records to which he is entitled. The court also rejected Marin’s conclusory allegations

that he was denied access to relevant records or that he was entitled to additional

discovery. Accordingly, the District Court dismissed those claims seeking injunctive

relief for failure to state a claim upon which relief can be granted. After Marin failed to

properly effect service upon defendants Limbaugh, Mast, Finley, and Livingstone, the

District Court ordered him to do so. See Fed. R. Civ. P. 4(m). When Marin did not

comply with the order, the District Court dismissed the claims as to those defendants for

failure to prosecute. See Fed. R. Civ. P. 41(b).

       Marin timely filed this appeal. We have appellate jurisdiction pursuant to 28

U.S.C. § 1291. Marin has been granted leave to proceed in forma pauperis on appeal.

When an appellant proceeds in forma pauperis, this Court must dismiss the appeal if it is

“frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i). A frivolous appeal has no arguable basis in

law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). After a careful review of the

record, we will dismiss this appeal as frivolous.2

       The District Court’s lengthy opinion is well-reasoned, thorough, and correct on the

preclusive effect of Marin’s prior lawsuit. As it properly determined, to the extent Marin


       2
        In reaching this disposition, we have fully considered, but reject, the arguments
presented in Marin’s Response in Opposition to § 1915(e) dismissal.

                                              3
seeks to re-litigate claims relating to his 1995 lawsuit regarding the release of information

pertaining to his military service and the correction of military records, this action is

barred under the doctrine of res judicata. See Burlington N. R.R. Co. v. Hyundai Merch.

Marine Co., 63 F.3d 1227, 1231-32 (3d Cir. 1995). To the extent Marin seeks to raise

additional claims involving the same underlying events that could have been raised in his

previous action, those claims are also barred. See CoreStates Bank, N.A. v. Huls

America, Inc., 176 F.3d 187, 194 (3d Cir. 1999). The District Court properly dismissed

Marin’s Privacy Act claims for injunctive relief, as the record reflects that he has been

given all of the records to which he is entitled. Marin’s contention that the defendants

improperly altered and destroyed his military records, or “refused discovery,” see Resp. in

Opp. at 2, is not supported by the record.

       In conclusion, because Marin’s appeal of the dismissal of his claims lacks arguable

merit in fact or law, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
