FILED

United States Court of Appeals

Tenth Circuit

September 3, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWARD C. HERLIK,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee .

No. 08-1126

(D.C. No. 07-CV-00658-WDM-KMT)

(D. Colo.)

ORDER AND JUDGMENT

*

Before O’BRIEN , EBEL, and GORSUCH , Circuit Judges.

Lieutenant Colonel Edward C. Herlik, a United States Air Force Reserve

Officer, filed a pro se complaint in the District Court of Colorado alleging that a

superior military officer in his chain of command, Brigadier General Elaine L.

Knight, committed libel by issuing him a reprimand letter. Brig. Gen. Knight

removed the case to federal court pursuant to 28 U.S.C. § 2679(d)(2), and

This order and judgment is not binding precedent except under the

*

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.
thereafter successfully moved to substitute the United States as the defendant

pursuant to 28 U.S.C. § 2679(b)(1).

1

The district court construed Lt. Col. Herlik’s claim as arising under the

Federal Tort Claims Act (“FTCA”), which provides the exclusive remedy for a

tort action against a federal government employee acting within the scope of his

or her employment. See 28 U.S.C. §§ 1346(b), 2679(b)(1). Having so construed

his complaint, in a thorough and thoughtful thirteen page opinion, the district

court proceeded to dismiss Lt. Col. Herlik’s claims on three grounds: (1) Lt. Col.

Herlik’s challenge to military disciplinary proceedings is barred by Feres v.

United States, 340 U.S. 135 (1950); (2) Lt. Col. Herlik failed to exhaust

administrative remedies available to him as required by the FTCA; and (3) the

FTCA expressly excludes cases “arising out of ... libel [or] slander” from its

waiver of sovereign immunity, 28 U.S.C. § 2680(h).

This section provides that a suit against the United States is the exclusive

1

remedy for claims resulting from “negligent or wrongful act[s] or omission[s] of

any employee of the Government while acting within the scope of his office or

employment.” 28 U.S.C. § 2679(b)(1). Lt. Col. Herlik vigorously denies that

Brig. Gen. Knight was acting within the scope of her employment when issuing

the reprimand letter. The district court noted this objection but deemed it not

properly before the court insofar as Lt. Col. Herlik did not timely object to the

magistrate judge’s finding on this issue. We discern no error in the district

court’s refusal to consider the objection, and only further note that there appears

to be a firm basis for the magistrate’s finding.

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Affording Lt. Col. Herlik’s pro se filings the degree of leeway they are due,

Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), and after

carefully reviewing the record and the parties’ various filings on appeal, we

discern no error in the district court’s decision. Therefore, for substantially the

same reasons set forth in the district court’s opinion, we affirm.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge

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