32 Fed. Cl. 530 | Fed. Cl. | 1995
OPINION
This matter is before the court on defendant’s motion to dismiss or, in the alternative, for summary judgment and plaintiffs cross-motion for summary judgment.
Plaintiff, Mr. James A. Lee, a commissioned officer in the United States Air Force Reserve (“USAFR” or “Air Force”), was honorably discharged based on substandard performance of duty. Mr. Lee contends that his discharge was unlawful and seeks back pay and reinstatement. Defendant argues that this court cannot hear this claim because this issue is nonjusticiable since the military has discretion in deciding whether to discharge a reserve officer.
Oral argument was held after the issues were fully briefed. For the reasons that follow, the court grants defendant’s motion.
Background
Plaintiff was commissioned as a second lieutenant in the USAFR on May 12, 1989, after completing a four-year Air Force Reserve Officer Training Corps (ROTC) program at the University of Arizona. On November 5, 1989, plaintiff reported, as ordered, to the 868th Student Squadron Davis Monthan Air Force Base (Davis AFB), Arizona, to attend a twelve-week Ground Launch Cruise Missile (GLCM) initial qualification training course. After completion of this course plaintiff was to be certified as a launch control officer for the GLCM system, an intermediate range nuclear missile system.
To ensure the reliability of those persons working with nuclear weapons, the Air Force has implemented a program, the Personnel Reliability Program (PRP), to screen members assigned to nuclear duty. Air Force Regulation (AFR) 35-99. The stated purpose of the PRP is designed “to make sure that each person who performs duties with nuclear weapons or weapons systems, or critical components, meets the highest standards of individual reliability.” AFR 35-99, If 1-1.
Under the PRP, a launch control officer is a “critical” position. AFR 35-99, II3-5. All members in training for a critical position must be certified under the PRP. PRP certification includes assignment to PRP duties, a background investigation, a security clearance and a physical examination. After the security clearance is obtained, a designated certifying official interviews the member and either grants certification or initiates decerti-fication procedures. AFR 35-99, 114-3, Fig. 4 — 2.
As part of the PRP, individuals are required to monitor their own reliability and report anything which might adversely impact their performance.
Following Capt. Owen’s suggestion, plaintiff spoke with Capt. Tommy L. James, Chief Operations Academics Training, about his moral concerns on December 7,1989. Plain
On December 8, 1989, plaintiff then spoke with his commander, Maj. Ray A. Glenboski, regarding his moral reservations about launching nuclear weapons, and stated that he did not know whether he could execute an order to launch a nuclear weapon. Maj. Glenboski informed plaintiff that “his- primary job in the Air Force is as a launch control officer and if he can’t perform this duty he faces a possible AFR 36-2 discharge.” AR
After his disenrollment, plaintiff was assigned to non-nuclear duty at Davis AFB where he performed various clerical duties and was told to consider other positions within the Air Force. Mr. Lee was again reminded that he might be discharged. On December 20, 1989, plaintiff was assigned to the 836th Air Division Public Affairs. During his time in public affairs, plaintiff consistently received positive feedback from his superiors including a letter of appreciation for work relating to a base closing.
On April 4, 1990, Mr. Lee’s wing commander, Col. Robert D. Livingston, recommended to the 836th Air Division Commander, Brig. Gen. Thomas R. Griffith, that a discharge action be initiated against Mr. Lee under AFR 36-2,1Í1Í 2-3(a) and 2-3(c), due to “substandard duty performance.” In support of his recommendation, Col. Livingston cited the occasions on which plaintiff discussed his inability to perform the duties of a launch crew member. On April 11, 1990, plaintiff received notification from Gen. Griffith of discharge proceedings initiated against him. Gen. Griffith advised plaintiff that the worst type of discharge he could receive was an honorable discharge, and that AFR 36-2, particularly U114-10 and 4-13, respectively outlined his rights and explained the actions the commander could take upon receipt of a reply from plaintiff.
Gen. Griffith forwarded his recommendation to Gen. Paul E. Stein, Commander of the Tactical Air Command (TAC). On April 22, 1990, plaintiff, through counsel, sent a letter to TAC headquarters addressing the dismissal action. In the letter, plaintiff argued that an action under AFR 36-2 was prohibited because his disclosure of his moral concerns was required by AFR 35-99 and could not constitute substandard performance of duty. Plaintiff also included a request for reassignment and retraining and a copy of this court’s decision in Tilley v. United States, 19 Cl.Ct. 33 (1989).
On April 23, 1990, plaintiff personally responded to the dismissal action. In his response, plaintiff expressed a great desire to serve his country and stressed how hard he had worked to attain his current position in the military. Plaintiff also stated that he and the other trainees were ordered by their instructors to express any moral reservations they were having against the use of nuclear weapons, and were told that such feelings were normal and that they would not be subject to punitive action for revealing such reservations.
On May 23,1990, Gen. Stein recommended plaintiff be honorably discharged and put forth the reasons in a “Statement of Reasons.”
On June 25,1990, the Air Force Personnel Board recommended that plaintiff “be honorably discharged from his appointment as a Reserve officer pursuant to Air Force Regulation 36-12, paragraph 3-14____” AR 6. On July 16,1990, plaintiffs appointment as a Reserve officer was terminated and plaintiff was honorably discharged on July 30, 1990, for substandard performance of duty.
On July 12, 1993, plaintiff commenced the present action contending that he was discharged in violation of Air Force regulations and the United States Constitution. Plaintiff seeks reinstatement, back pay, allowances and correction of his military records. Defendant then moved that the court dismiss plaintiffs complaint under RCFC 12(b)(4) for failure to state a claim upon which relief can be granted or, alternatively, to grant it summary judgment. Plaintiff opposed defendant’s motion to dismiss and cross-moved for summary judgment.
Contentions of the Parties
Plaintiff contends that his discharge from the Air Force violated existing regulations. According to plaintiff, his dismissal for substandard performance of duty was based on his statements that he had moral reservations concerning the -use of nuclear weapons. Plaintiff argues he was required to make these statements under AFR 35-99, 111-10, and they cannot, therefore, constitute substandard performance of duty. Furthermore, plaintiff argues that this same regulation at 11115-l(b) and 5-7(a)(l) prohibit the Air Force from dismissing him based on these disclosures. In addition, says plaintiff, this regulation provides for reassignment and retraining, and he could have ably served in any non-nuclear capacity.
Plaintiff also argues that his discharge violated his rights under the First and Fifth Amendments of the United States Constitution. Plaintiff contends that his discharge is stigmatizing in that his discharge form accuses him of substandard performance of duty, and because of the stigmatizing nature of the action, he was entitled under the Fifth Amendment to a hearing before he was discharged. Finally, plaintiff contends that his discharge based on speech alone — Ms expression of moral reservations concerning his use of nuclear weapons — violated Ms rights under the First Amendment.
Defendant counters that the Air Force could properly determine that plaintiff’s expressed moral reservations constitute substandard performance of duty under AFR 36-2. According to defendant, the court should defer to an agency’s interpretation of its own regulations, and that under the Air Force’s interpretation AFR 35-99 does not proMbit it from dismissing those who express their inability to launch nuclear weapons due to moral reservations. Moreover, defendant contends that the question of whether plaintiff’s conduct constitutes substandard conduct is a nonjusticiable issue committed to the
As to plaintiffs constitutional claims, defendant asserts that plaintiff has no constitutionally protected liberty interest implicated by his separation which might be reviewable by this court and that the First Amendment does not protect plaintiffs expression of moral reservations about his own use of nuclear weapons. Alternatively, defendant argues that plaintiff waived any consideration of his Due Process and First Amendment claims by failing to raise them during the administrative process.
DISCUSSION
Under the rules of this court, when considering a motion to dismiss for failure to state a claim upon which relief can be granted, the factual allegations in the complaint are taken as true and all reasonable inferences are drawn in favor of the plaintiff. RCFC 12(b)(4); Papasan v. Allain, 478 U.S. 265,283,106 S.Ct. 2932, 2943, 92 L.Ed.2d 209 (1986); Marshall v. United States, 21 Cl.Ct. 497, 499 (1990). The standard for dismissal mandates that the court may not dismiss a complaint “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), quoted in Kinne v. United States, 21 Cl.Ct. 104, 107 (1990).
Summary judgment is appropriate when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. RCFC 56(c). Only disputes over material facts, facts that affect the outcome of the suit, preclude an entry of judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
1. Justiciability.
The court’s jurisdiction over plaintiffs claim that the Air Force violated existing regulations is not in issue. Jurisdiction is based on plaintiffs claim that he was removed from the Reserves through an illegal action of the military. Mr. Lee was an Air Force Reserve Officer on active duty and under 37 U.S.C. § 204(a)(1) (1988), he was entitled to pay and allowances until legally removed. See United States v. Testan, 424 U.S. 392, 407, 96 S.Ct. 948, 957-58, 47 L.Ed.2d 114 (1976); see also Sawyer v. United States, 930 F.2d 1577,1580 (Fed.Cir.1991). Plaintiffs claim that he was unlawfully removed from a status for which a statute mandated payment of money by the government has long been held to be within this court’s jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1). See Voge v. United States, 844 F.2d 776, 779 (Fed.Cir.1988); Sargisson v. United States, 913 F.2d 918, 920 (Fed.Cir.1990); Sawyer, 930 F.2d at 1577.
The issue in this case, rather, is whether the court has power to review the Air Force’s decision to release Mr. Lee. In other words, the question is whether the subject matter of this suit is appropriate for judicial review such that this court may hear the suit. See Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 699-700, 7 L.Ed.2d 663 (1962). Defendant asserts that the Air Force’s decision to release Mr. Lee is beyond the competency of the court; it is a nonjusticiable issue since the decision of who may serve in the military should be the military’s alone.
Justiciability relates to whether a federal court may hear and decide a case; it involves prudential and constitutional concerns such that in some instances policy or deference to other branches of the government dictates against judicial review. Erwin Chemerinsky, Federal Jurisdiction at 38 (1989). For instance, a nonjusticiable political question may arise as a result of the separation of powers. Baker, 369 U.S. at 210, 82 S.Ct. at 706. There are certain areas committed to other branches of the government into which the courts should not intrude. Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942,1950, 20 L.Ed.2d 947 (1968). Under Article II of the United States Constitution, the President is established as the Commander in Chief of the Armed Forces; thus, with regard to the power of the Executive branch in the military arena, the courts have recognized the need to give the decisions of the military a great deal of deference. As a result, the courts have been “reluctant to
The Supreme Court in Baker v. Carr articulated factors to consider when determining whether an issue is a nonjusticiable political question. These factors include:
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
[2] a lack of judicially discoverable and manageable standards for resolving it; or
[3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudieial discretion; or
[4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
[5] an unusual need for unquestioning adherence to a political decision already made; or
[6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
369 U.S. at 217, 82 S.Ct. at 710. “Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence.” Id.
The United States Court of Appeals for the Federal Circuit has adopted the test for justiciability set forth by the U.S. Court of Appeals for the District of Columbia in Greene v. McElroy, 254 F.2d 944 (D.C.Cir. 1958), rev’d on other grounds, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), namely, for judicial review to be appropriate, there must be “tests and standards” the court can administer to determine whether the military’s actions were correct. Voge, 844 F.2d at 780; Sargisson, 913 F.2d at 922; see also Murphy v. United States, 993 F.2d 871, 873 (Fed.Cir.1993), cert, denied, — U.S. -, 114 S.Ct. 1402, 128 L.Ed.2d 75 (1994). Although Greene was decided prior to Baker v. Carr, this test is not inconsistent with one of the factors set forth in Baker, that an issue is nonjusticiable if there are no judicially discoverable and manageable standards for resolving it. Moreover, this-court is bound to follow the test set forth by the Federal Circuit.
Under 10 U.S.C. § 681(a) (1988), the Secretary of the Air Force has discretion to release Reserve members at will.
Determining whether the Air Force followed the correct procedures in discharging plaintiff is clearly within the competency of the court. Murphy, 993 F.2d at 873. Regulations dictating that certain procedures be used inherently contain “tests and standards” by which this court may measure the military’s action. Id.
A court may appropriately decide whether the military followed procedures because by their nature the procedures limit the military’s discretion. The court is not called upon to exercise any discretion reserved for the military, it merely deter*539 mines whether the procedures were followed by applying the facts to the statutory or regulatory standard.
Id. Mr. Lee asserts no procedural violations
Plaintiff points to AFR 35-99 as providing regulatory strictures the court can apply. Plaintiff asserts, and defendant does not dispute, that plaintiff was required to reveal his moral reservations regarding nuclear weapons in order to comply with AFR 35-99, It 1-10.
Defendant contends that the Air Force’s actions were not illegal. Defendant argues
Provisions of AFR 35-99 support defendant’s contention that the Air Force has left itself with the discretion to discharge Mr. Lee. For instance, 115-l(b), relied on by the plaintiff to show that the Air Force’s discharge was illegal, also states that denial of certification is not a bar to otherwise appropriate administrative procedures.
Plaintiff agrees that in some instances, the cause for decertification, i.e., drug use, may also warrant separation. In addition, plaintiff states that if a member “frolicked all night and failed his tests” that might constitute substandard performance of duty which could warrant both decertification and separation. R. at 39. Yet, plaintiff argues that while a member may be decertified for having moral reservations regarding his ability to launch nuclear weapons, that member may not also be separated for that reason. However, AFR 35-99 does not provide any standards for the court to apply to determine what activity justifies only decertification as opposed to decertification and separation. The court cannot substitute its judgment in this instance.
More significantly, 1Í 5 — 7(a)(4) states “[mjembers permanently decertified because of substandard conduct ... should be considered for separation under appropriate governing directives.” AFR 35-99. Here the Air Force explicitly has ascribed to itself the discretion to release members due to substandard conduct. Plaintiff responds that his revelation of moral compunction in compliance with 111-10 of AFR 35-99 cannot constitute substandard conduct. Plaintiff, however, has failed to point to any statutory or regulatory provision which provides the court with tests and standards to determine exactly what conduct constitutes substandard performance of duty. Substandard performance of duty is described in AFR 36-2, Chapter 2 and consists of such things as “[failure to show acceptable qualities of leadership required of an officer of his or her grade,” 112-3(a), “[flailure to properly discharge duties equal to his or her grade and experience, H2-3(c), and “inability to perform duties.” 112 — 3(i). However, no language in this regulation provides sufficient tests and standards that would allow the court to measure what constitutes substandard performance of duty.
The general rule is that the determination of who is fit for military service is committed to the Executive branch. Maier v. Orr, 754 F.2d 973, 982 (Fed.Cir.1985). Absent clear tests and standards, substandard performance of duty is too ill defined in this instance not to be left to the discretion of the military. Thus, the court cannot say that even plaintiffs compelled revelations of his inability to follow a nuclear launch order due to moral reservations does not constitute substandard performance of duty of such a magnitude that the Air Force has surrendered its discretion to not only decertify but to discharge him.
That the Air Force has retained the discretion to release plaintiff is further evidenced by AFR 35-99, Chapter 6 entitled “Screening Students Attending Formal Training Course.” Paragraph 6-2(b)(l) provides “[individuals who fail to maintain PRP standards throughout the training period must be permanently decertified and reclassified or separated as appropriate.” AFR 35-99 (Emphasis added.) Thus, this section of AFR 35-99 also supports the conclusion that it was within the Air Force’s discretion to reclassify or separate Mr. Lee.
The plaintiff relies heavily on this court’s decision in Tilley. In Tilley, the plaintiff, a member of the Air Force, had expressed concerns over the United States’ nuclear weapons policy. He erroneously believed that the policy of the United States permitted an unprovoked preemptive strike. Til-ley, 19 Cl.Ct. at 35. After learning that an unprovoked first strike would be contrary to the United States’ policy, he stated he could follow a launch order. Id. Nonetheless, the Air Force permanently decertified the plaintiff from the PRP because of “unacceptable limitation^] on his service.” Id. In Tilley this court found that the plaintiffs statement could not constitute substandard perforr manee of duty. Id. at 41. While the court could attempt to factually distinguish Tilley from the present case,
In Tilley, the court sought to preserve the integrity of the PRP program. As the court has noted, it recognized that if the military were allowed to dismiss members for revealing moral compunctions as required by the PRP, the program would be undermined and rendered meaningless. Members simply would not reveal moral compunctions and unreliable members would remain in nuclear positions. However, the court is now convinced the PRP regulations are not written in such a way that allows the court to attempt to preserve the program’s integrity. AFR 35-99 contains provisions which when construed in pari materia with other related regulations leave the question of separating those members who reveal moral compunctions to the military. Since the military has retained discretion to make policy in this area, the court cannot overturn even questionable policy decisions.
Moreover, the court believes this decision is compelled by the Federal Circuit’s decision in Murphy. In Murphy, the Federal Circuit stated explicitly that this court cannot exercise any discretion reserved for the military and that the release of Reserve officers is
2. Constitutional Claims.
Defendant asserts that plaintiff has waived his right to assert his constitutional claims because he failed to raise them during the administrative process. However, defendant fails to consider that Mr. Lee was not required to exhaust his administrative remedies before filing suit in this court. Heisig v. United States, 719 F.2d 1153, 1155 (Fed.Cir. 1983). Since this court cannot require plaintiff to proceed through the administrative process, it also cannot impose a requirement that plaintiff first raise constitutional claims during the administrative process. Mr. Lee, in challenging his discharge, could either seek relief in this court or go before the Air Force Board for the Correction of Military Records. Having chosen to come to this court, plaintiff had no forum within which to present his constitutional claims. The court, thus, finds that plaintiff has not waived his right to present his constitutional claims by not first seeking relief from the. Board.
A. First Amendment Claim.
While this court has jurisdiction over a claim for money founded upon the Constitution,
Plaintiff contends that the Air Force discharged him solely because he expressed moral concerns about the use of nuclear weapons and, thereby, violated his First Amendment rights. Determining whether a public employee’s speech is protected by the First Amendment involves a two-step analysis. First, the court must determine whether the speech involves a matter of public, rather than private, concern. Connick v. Myers, 461 U.S. 138,146,103 S.Ct. 1684,1689-90, 75 L.Ed.2d 708 (1983). The second step involves a balancing of interests. The court must determine whether the employee’s First Amendment interests outweigh the interest of the employer in promoting the efficiency of its services. Id. at 150,103 S.Ct. at 1691-92; see also Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731,1734-35, 20 L.Ed.2d 811 (1968). In this case plaintiff fails at both stages of the analysis.
Whether plaintiffs speech addresses a matter of public concern is determined by the content, form and context in which the statement was made. Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. Plaintiff attempts to argue that because his state
Plaintiff also fails at the second stage of the analysis. In regards to national defense, the military has a compelling need to ensure that all members will carry out all lawful orders. This need outweighs any protection to which Mr. Lee’s speech was entitled. “The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.” Goldman v. Weinberger, 475 U.S. 503, 507,106 S.Ct. 1310, 1313, 89 L.Ed.2d 478 (1986). Thus, even if there was any interference with protected expression in this case, it was merely incidental to the military’s need to ensure discipline in order to carry out its important mission. Accordingly, plaintiffs speech was not protected by the First Amendment, and his claim must fail.
B. Fifth Amendment Due Process.
Plaintiff contends that his liberty interest under the Fifth Amendment was violated by the Air Force’s failure to hold an adversarial hearing prior to publishing a stigmatizing discharge form and that his discharge is, therefore, void. Defendant counters that this court is without jurisdiction to hear such a claim because the remedy for a violation of plaintiffs liberty interest is a name clearing hearing which this court lacks authority to grant.
Upon his discharge, Mr. Lee was provided with two copies of a “certificate of release OR DISCHARGE FROM ACTIVE DUTY,” (DD Form 214), “copy 1” and “copy 4.” In the upper portion of the form in the area where “primary specialty” is to be inserted, both copies 1 and 4 contain the statement “Officer Not Available For Use In Awarded AFSC For Cause.” The bottom of copy 4, but not copy 1, in the section labeled “narrative reason for separation,” additionally contains the statement “Involuntary] Discharge: Substandard Performance of Duty.” Both copies of DD Form 214 identify plaintiff’s character of service as honorable.
Plaintiff originally contended only that copy 4 reciting that he was discharged for substandard performance of duty was stigmatizing. Plaintiff now contends that both copy 1 and copy 4 contain stigmatizing material. According to plaintiff, the information contained on copies 1 and 4 presents a “derogatory connotation to the public at large,” and as a result his liberty interests were violated when this stigmatizing publication took place without an adversarial hearing. To support this position, plaintiff cites to the decisions in Casey v. United States, 8 Cl.Ct. 234 (1985), and Rogers v. United States, 24 Cl.Ct. 676 (1991), aff'd without op., 996 F.2d 317 (Fed.Cir.1993), cert, denied, - U.S. -, 114 S.Ct. 225, 126 L.Ed.2d 180 (1993).
Both Casey and Rogers involved servicemen discharged for drug and alcohol abuse. In both instances the discharge form contained a code which identified the cause of the discharge as drug and alcohol abuse, and in both cases the court found the servicemen’s discharge stigmatizing and ordered
In Keef the Court of Claims considered a former Air Force sergeant’s suit for back pay and reinstatement after being honorably discharged for the convenience of the government based on “unique and unusual circumstances.” The plaintiff in Keef, allegedly involved in homosexual conduct, argued that his constitutional rights were violated by the Air Force’s ex parte proceeding and that the reference to “unique and unusual circumstances” and a designation which precluded reenlistment were stigmatizing. The court in Keef stated “[a]s a general rule, if the regulation pursuant to which a servicemen is honorably discharged does not, by its own terms, require notice and a hearing, they are required only if the discharge, albeit honorable, either casts a stigma on the servicemen or has some derogatory connotation.” Keef, 185 Ct.Cl. at 467. The court continues that it would “not permit the imposition of a stigma “without respect for even the most elementary notions of due process of law____’” Id. at
467-68 (quoting Clackum v. United States, 148 Ct.Cl. 404, 407, 296 F.2d 226, 228 (1960)). The court proceeded to rule for the government finding that the reference “unique and unusual circumstances” was not stigmatizing but rather a “nondescript ‘catchall’ reason for separation,” and that plaintiff had failed to show that the designation which precluded reenlistment was stigmatizing since it was not necessarily a mark of discredit or disgrace. Id. at 468-69; see also Vierrether v. United States, 27 Fed.Cl. 357, 365 (1992), aff'd without op. 6 F.3d 786 (Fed.Cir.1993) (following Keef the court finds a code on a discharge form barring reenlistment not stigmatizing).
Defendant, to support its position that this court lacks jurisdiction over this matter, also cites to a decision by the Court of Claims, Fiorentino v. United States, 221 Ct.Cl. 545, 607 F.2d 963 (1979), cert, denied, 444 U.S. 1083, 100 S.Ct. 1039, 62 L.Ed.2d 768 (1980), decided subsequently to Keef. In Fiorenti-no, the plaintiff, a former HUD attorney, challenged his dismissal from that position. One of the plaintiff’s claims was that he had a liberty interest, by virtue of derogatory material in his file created in connection with his removal for cause, which was violated when he was dismissed without a hearing. The plaintiff sought back pay and reinstatement. The defendant in that case directly' challenged the Court of Claims’ jurisdiction to provide relief for a liberty interest violation. The defendant argued that the only relief the plaintiff was entitled to was a name clearing hearing and that the court could not grant such relief.
The court in Fiorentino agreed with the defendant. There the court, looking at the Constitution, stated “the Constitution requires only that a person with a liberty interest in plaintiffs position be given a chance to clear his name, not reinstatement or back pay which are intrinsically inappropriate.” Fiorentino, 221 Ct.Cl. at 554, 607 F.2d at 969. In support, the court cited to the United States Supreme Court’s decision in Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977), and stated “that in a ‘liberty1 context the purpose of notice and hearing to a discharged employee not having a property interest is to give him an opportunity to clear his name and does not include reinstatement.” Fiorentino, 221 Ct.Cl. at 554, 607 F.2d at 969. Following this reasoning, the Court of Claims held that:
Congress does not at present maintain a statutory consent to suit in this court by a former employee, removable at will, who asserts a “liberty” interest only by reason of derogatory material in his government file created in connection with his removal, and who, as relief for that action, would be entitled only to elimination of that material, not reinstatement or back pay.
221 Ct.Cl. at 556, 607 F.2d at 970.
The Court of Claims in Montalvo v. United States, 231 Ct.Cl. 980, 983, 1982 WL 25825 (1982), confirmed its holding in Fiorentino. In that case, citing Fiorentino, the court said “[a]s to plaintiff’s liberty interest in his employment, allegedly violated because of the stigmatizing nature of the accusations made against him, we have recently held that such
After careful consideration of all precedents related to this issue, the court finds, on balance, that Fiorentino is more persuasive and, therefore, is dispositive on the issue of this court’s jurisdiction. Keef, Casey and Rogers assume jurisdiction over a plaintiffs liberty interest claim but make no mention of Fiorentino and its progeny and this court’s jurisdiction was never directly challenged in those cases. In contrast, the court in Fior-entino, squarely addressed this court’s jurisdiction to hear a claim based on violation of a liberty interest and found it lacking.
The court acknowledges that the court in Keef was concerned that discharged servicemen be afforded constitutional protection. According to the court its “primary concern in these cases is to prevent the Armed Forces from imposing a penalty on a discharged servicemen without affording him some basic constitutional protection----” Keef, 185 Ct.Cl. at 467. The court in Fioren-tino was similarly concerned, as is this court, that discharged employees
[if] the consent to be sued here ever included the back pay claim of one having no property interest in his job, and legally aggrieved solely because of derogatory material in government files generated by his firing, we think that consent is withdrawn by the Privacy Act of 1974, 5 U.S.C. § 552a. It provides an administrative remedy for one so aggrieved, and if he is unsuccessful with that, he can sue in the U.S. District Court, including a suit for correction of his record.
Fiorentino, 221 Ct.Cl. at 555, 607 F.2d at 969. Thus, the court in Fiorentino recognized that whether or not it previously had jurisdiction over a liberty interest claim, it did not now have jurisdiction. This court finds it significant that Keef never actually took the step of awarding back pay and reinstatement for a violation of a liberty interest and that, subsequently, the Court of Claims in Fiorentino specifically determined that it did not have the jurisdiction which would allow it to take that step.
CONCLUSION
For the reasons stated, defendant's motion is granted and plaintiffs complaint is dismissed. The Clerk of the Court is directed to enter judgment accordingly. No costs.
. AFR 35-99 provides:
1-10. Individual's and Supervisor’s Responsibilities. Individuals assigned to PRP duties have the responsibility to monitor their own reliability from a safety standpoint. They should be aware of how certain problems, concerns, and circumstances may reduce their effectiveness — and may even impair their performance — to the point where a safety hazard exists. Individuals must advise supervisors of all factors (including medical or dental care) that could have an adverse impact on their performance and safety. Failure to discharge this responsibility may cast doubt on the individual's reliability and continued performance in PRP duties____
. AR refers to the Administrative Record filed with defendant’s motion.
. According to the Statement of Reasons:
The duty performance of Lieutenant James A. Lee ... has fallen below the standards prescribed for an officer of his grade and experience as evidenced by his failure to show acceptable qualities of leadership required of an officer of his grade, and failure to properly discharge duties equal to his grade and experience. His general poor officership and leadership qualities are evidenced by his efforts to
a. On or about 1 December 1989 he stated to Captain David M. Owen, 868 TMTS Missile Procedures Trainer Instructor, that he was unsure that he could perform duties as a launch crew member.
b. On or about 7 December 1989 he stated to Captain David M. Owen that he was unsure that he could perform duties as a launch crew member.
c. On or about 7 December 1989 he stated to Captain Tommy L. James, 868 TMTS Missile Chief of Operations Academics Training, that he was unsure he could perform duties as a launch crew member.
d. On or about 8 December 1989 he stated to Major Ray A. Glenboski, Commander, 868 Student Squadron, that he did not know if he could perform his duties as a launch control officer.
e. On or about 11 December 1989 he stated to Major Ray A. Glenboski, that he had made a decision that he could not work with nuclear weapons.
f. On or about 11 December 1989 he made a written statement that he was voluntarily withdrawing from AFSC 1821 because he could not uphold the mission of Launch Control Officer due to moral compunctions.
g. He was evaluated by Captain Alvin Jones, Clinical Psychologist, Dr. (Maj) Louis A. Barton, Chief Mental Health Services, on 12 December 1989. No mental illness or related problems were detected that may have affected his stated refusal to perform missile launch duties.
AR 13.
. 10 U.S.C. § 681(a) provides: "Except as otherwise provided in this title, the Secretary concerned may at any time release a Reserve under his jurisdiction from active duly."
. The court, sua sponte, raised the question of whether plaintiff could assert the denial of procedural rights under AFR 35-99. It appeared to the court upon a preliminary review of AFR 35-99 that any member assigned to PRP duties or in training for PRP duties is required to be either certified or decertification procedures should be initiated. According to AFR 35-99, 115-1, entitled "Removing a Member From PRP Duty,” at sub-paragraph (c) "members may be removed from PRP duties in one of three ways: by suspension, by temporary decertification, and by permanent decertification.” All three options ultimately lead to decertification.
The procedures for certifying a member are outlined in figure 4-2 of AFR 35-99 which states that the certifying official, "[i]f the individual is not certified or recertified, initiates disposition action according to chapter 5.” (Emphasis added.) Disposition according to Chapter 5 is de-certification.
Finally, under 116-2(a)(l) of Chapter 6, entitled "Screening Students Attending Formal Training Courses,” "[individuals who fail to maintain PRP standards throughout the training period must be permanently decertified and reclassified or separated as appropriate." (Emphasis added.) In this regard, it is interesting to note that defendant admits, "the Air Force could not have permanently removed Mr. Lee from missile training based upon his revelation of his moral compunction without first complying with the procedures in chapter 5 for permanent decertification absent Mr. Lee’s voluntary withdrawal from training.” Def.Resp./Reply Br. at 14.
Mr. Lee, while training for PRP duties, was neither certified nor were any decertification procedures initiated. When questioned at oral argument as to whether Mr. Lee was denied procedural rights under AFR 35-99, because de-certification procedures were never initiated, counsel for both parties responded negatively. Plaintiff’s counsel stated that Mr. Lee was not arguing that he should have been decertified or that any other procedural infirmity occurred in relation to his removal from training. Specifically, plaintiff's counsel stated that she did not see any need for Mr. Lee to be formally decerti-fied because Mr. Lee disqualified himself from missile training. R. at 42-43. The court accepts these statements as a disavowal and waiver of any claims to procedural defects (excepting plaintiff’s Due Process claim). The court’s questions regarding Mr. Lee's procedural rights were clear and plaintiff’s waiver was equally plain. Plaintiff was given the opportunity to assert a claim based on improper procedure and declined. Accordingly, given plaintiff's clear and unequivocal waiver, the court makes no finding as to whether Mr. Lee was required to be decerti-fied.
. See, note 1, supra.
. Paragraph 5-1 (b) states ”[d]enial or revocation of certification under this regulation is not punitive and does not in itself constitute grounds for disciplinary measures or judicial or nonjudicial punishment. However, such a denial or revocation is not a bar to any disciplinary or administrative measures that are otherwise appropriate.” AFR 35-99.
. Paragraph 5-7a(l) states ”[p]unitive action is not to be taken against personnel solely because of their failure to qualify or to remain qualified under this program.” AFR 35-99.
. See, note 6, supra.
. The discharge of an otherwise qualified officer for substandard performance of duly, namely for his expression of moral compunctions, seems unduly harsh and in practical application, could be contradictory to the purpose of the PRP which is to ensure the absolute reliability of all members working with nuclear weapons. But the Air Force’s uniform policy has been, and continues to be, that it will release all members who, once entering the training process, reveal moral reservations regarding nuclear weapons. The Air Force reasons that such training is voluntary and that an officer’s refusal to carry out a lawful order destroys the reliance that the Air Force has in its officer corps to follow all orders without question. While the court appreciates the reasons behind this policy, the practical result is that members likely will not reveal their inability to launch nuclear weapons if they know they will be automatically and summarily discharged. Inherent in this policy, of course, is the risk that an indeterminate number of unreliable members in the nation’s most sensitive security positions, may not disclose their inability to launch nuclear weapons in order to remain in the service. However, this is the Air Force’s policy and, based on binding Federal Circuit precedent, the court has no authority to change it.
. For example, in Tilley, the court was reviewing a refusal to follow a finding by the Air Force Board for Correction of Military Records (Board) that Mr. Tilley’s conduct could not constitute substandard performance of duty. In addition, the plaintiff in Tilley had been decertified, and, more importantly, had never stated that he could not obey a launch order. In contrast, Mr. Lee did not apply to the Board, so there is no Board finding that Mr. Lee’s performance of duty was not substandard. Further, Mr. Lee was never decertified, and stated that he may not be able to follow a launch order under any circumstances. Additionally, some changes appear to have been made to the regulations between the time of Tilley and this case.
. Jurisdiction is based on the Tucker Act which provides:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1) (1993).
. It is not significant that the plaintiff in Fioren-tino was not a service member as respects this court’s holding in the present case and the Court of Claims’ holding in Keef because in all instances the plaintiffs were government employees.
. The court notes that a recent decision of this court in Holley v. United States, 32 Fed.Cl. 265 (1994), addressed both Keef and Fiorentino. In Holley, the plaintiff was discharged "Under Honorable Conditions," a less than honorable discharge, for "Misconduct Moral Or Professional Dereliction Or In Interest Of National Security.” In that case the court found such discharge stigmatizing and held that the failure to give plaintiff a pre-discharge hearing rendered the discharge invalid. The court ordered reinstatement and back pay.
As in the present action, the defendant in Holley argued that the court lacked jurisdiction under Fiorentino. However, the court in Holley found Fiorentino inapplicable. In Holley the court first distinguishes Fiorentino because it involves a civilian rather than military discharge. 32 Fed.Cl. at 275-76 n. 12. As this court stated above, it does not find this to be a valid distinction. Cf. Shaw v. United States, 226 Ct.Cl. 240, 247, 640 F.2d 1254, 1258 (1981) (finding that the plaintiff's case was not distinguishable from Fior-entino based on his being a veteran). Certainly civilian employees are entitled to no lessor Constitutional protections than are military employees merely by virtue of their being civilians.
The Holley court also appears to rely on precedents which state that a General Discharge Under Honorable Conditions is a stigmatizing event to support its award of reinstatement and back pay. 32 Fed.Cl. at 275-76 n. 12. In Sofranoff v. United States, 165 Ct.Cl. 470, 478, 1964 WL 8547 (1964), the Court of Claims stated that a discharge under honorable conditions was less than an honorable discharge and that the issuance of any type of discharge other than an honorable one "stigmatizes the ex-serviceman.” In the present case, however, plaintiff was honorably discharged and Sofranoff, therefore, is not applicable. Thus, Holley is distinguishable as it also involves a less than honorable discharge.
Finally, the Holley court stated in conclusion that “one could reasonablyfsic] conclude that the
. Plaintiff has cited no cases which state he was entitled to a pre-termination hearing which would enable the court to order back pay and reinstatement. Indeed, the Supreme Court has noted that the instances in which the judiciary has required a pre-termination hearing are extremely rare. Bishop v. Wood, 426 U.S. 341, 349 n. 14, 96 S.Ct. 2074, 2080 n. 14, 48 L.Ed.2d 684 (1976); see also Alberico v. United States, 783 F.2d 1024, 1028 n. 4 (Fed.Cir.1986) (stating that ‘‘[fjailure to provide a hearing before, rather than after, termination of a property interest is not in and of itself violative of due process”). A name clearing hearing is all the Constitution requires, see Codd, 429 U.S. at 624, 97 S.Ct. at 882, and plaintiff has failed to show why a post-termination hearing would not provide him a sufficient "opportunity to clear his name.”
. In any event, plaintiff is not entitled to reinstatement. Mr. Lee’s established release date was November 4, 1993 and he has no right to reinstatement after that date. Austin v. United States, 206 Ct.Cl. 719, 724, cert, denied, 423 U.S. 911, 96 S.Ct. 215, 46 L.Ed.2d 140 (1975); Barth v. United States, 28 Fed.Cl. 512 (1993).
. Even if the court were to find it had jurisdiction over plaintiff’s liberty interest claim, plaintiff has failed to show his liberty interests under the Due Process Clause were violated. In order to satisfy his threshold burden to state a claim for deprivation of a constitutionally protected liberty interest, plaintiff must show that in the course of his discharge, the military, without notice and an opportunity to be heard, prepared a discharge form which was (1) stigmatizing, see, Roth 408 U.S. at 573, 92 S.Ct. at 2707, (2) false, see Codd, 429 U.S. at 628, 97 S.Ct. at 884, and (3) published, see Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976). See also Biagioli, 2 Cl.Ct. at 309 n. 8 (stating that in order to show a due process liberty interest violation, plaintiff must establish that termination report was false, stigmatizing and published).
In this case, plaintiff cannot show that the allegedly stigmatizing information was false.
