Layne WILSON, Plaintiff, v. Deborah Lee JAMES, Secretary of the Air Force, et al., Defendants.
Civil No. 13-cv-01351 (APM)
United States District Court, District of Columbia.
Signed October 13, 2015
V. CONCLUSION
On the basis of the foregoing findings of fact and reasons, Defendant will be held without bond pursuant to the October 2, 2015 Order of Detention.
Marina Utgoff Braswell, Jane M. Lyons, U.S. Attorney‘s Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
AMIT P. MEHTA, District Judge
I. INTRODUCTION
On December 2, 2012, Plaintiff Layne Wilson, an enlisted member of the Utah Air National Guard, sent an email, using his military email account, to an official at the United States Military Academy at West Point objecting to a same-sex wedding held at the military academy‘s chapel. Plaintiff‘s Commanding Officer, Defendant Lt. Colonel Kevin Tobias, learned about the email and disciplined Plaintiff for it—first, rescinding his six-year reenlistment contract and offering in its place a one-year contract that Plaintiff later signed; and second, issuing Plaintiff a Letter of Reprimand. After Plaintiff challenged these disciplinary actions, Lt. Colonel To-
Believing that the various forms of discipline imposed violated his constitutionally and statutorily protected rights, Plaintiff brought this suit asserting a bevy of claims under the Religious Freedom Restoration Act, the First and Fifth Amendments, the Administrative Procedure Act, and the Privacy Act. Defendants Secretary of the Air Force Deborah Lee James, Lt. General Stanley E. Clarke, Brigadier General Jefferson Burton, and Lt. Colonel Tobias2 counter, generally, that their actions were lawful, reasonable, and appropriate responses to a series of insubordinate acts.
The manner in which Plaintiff has pled and argued his claims has presented serious challenges to the court. Throughout his Complaint and in subsequent briefing, Plaintiff indiscriminately connects various theories of liability—predicated on the Constitution, statutes, and military regulations—with the different disciplinary actions taken against him, creating a thicket of allegations and claims that are often difficult to discern. In his Complaint, for example, Plaintiff does not clearly identify claims; nor does he concisely link his claims to the specific disciplinary actions he challenges. His briefs are similarly abstruse. They treat each form of imposed discipline as an opportunity to raise multifarious arguments challenging the action‘s validity. The court has done its best to untangle Plaintiff‘s inartful pleadings and briefs.
Before the court are Defendants’ Motion to Dismiss and for Summary Judgment and Plaintiff‘s Motion for Summary Judgment. After considering the parties’ arguments and the evidence presented, the court grants Defendants’ Motion to Dismiss and for Summary Judgment in its entirety and denies Plaintiff‘s Motion for Summary Judgment in its entirety.
II. BACKGROUND
A. The Email to West Point and Resulting Discipline
At all times relevant to this action, Plaintiff was a member of The Church of Jesus Christ of Latter-day Saints (“LDS“), Wilson Aff., ECF No. 17-3, ¶ 3, and an enlisted member of the Utah Air National Guard (“UTANG“), Defs.’ Statement of Material Facts, ECF No. 14, ¶¶ 1-2 [hereinafter Defs.’ SOF]; Pl.‘s Counter Statement of Facts, ECF No. 17-2, ¶¶ 1-2 [hereinafter Pl.‘s Counter SOF].
On November 3, 2012, Plaintiff signed a six-year reenlistment contract with both the UTANG and the Federal Air Force Reserve. Administrative R., ECF No. 7-
One month later, on December 2, 2012, Plaintiff sent an email, using his military account, to Major Jeffery Higgins, whom he believed to be a chaplain at the United States Military Academy at West Point (the “Email“). See Pl.‘s Counter SOF ¶ 4. The Email‘s subject line was: “Homosexuality weddings at military institutions.” AR at 48. It read as follows:
Gentlemen:
I just read an article that a homosexual wedding was performed at the Cadet Chapel at West Point. I need to let you [know], that this is wrong on so many levels. If they wanted to get married in a hotel, that is one thing. Our base chapels are a place of worship and this [is] a mockery to God and our military core values. I have proudly served for 27 years and this is a slap in the face to us who have put our lives on the line for this country. I hope sir that you will take appropriate action so this does not happen again.
Id.
At the time he received the Email, Major Higgins was serving as the Executive Assistant to the Commandant of Cadets at West Point. Pl.‘s Counter SOF ¶ 4. Brigadier General Ted Martin, West Point‘s Commandant of Cadets, received the Email and forwarded it to Brigadier General David Fountain, Utah‘s Assistant Adjutant General for Air and the highest-ranking officer in the UTANG, along with the following message:
I am writing to send you a message I received from one of your Airmen, TSGT L.E. Wilson, who apparently doesn‘t like the idea of two gay individuals getting married at an on-post facility (in this case, the Cadet Chapel at West Point). I am not sure why he wrote me—maybe he thinks I care about his opinion (which I don‘t), or that I am responsible for the policy (which I am not), or that I control the facility (which I don‘t), but in any event I believe he may have some problems with the lifting of “don‘t ask, don‘t tell” and thought that you or his immediate commander might want to further investigate. If I did control all of the above, he should know that I still don‘t care about his opinions, and that I am flabbergasted that he would think it is OK to question any of my orders or policies. I will just hit the delete key on his message and go about my business.
The funny thing about email is that anyone can hit the send key and totally bypass the chain of command. It is bad enough when a civilian does it, but doubly disappointing when someone in the
military does it. I guess it is just a sign of the times. I am sure you are busy and have about as much time for this kind of nonsense as I do—which is “zero“!
AR at 47-48. Brigadier General Fountain forwarded General Martin‘s email to Brigadier General Kenneth Gammon, who in turn forwarded the email to Tobias. Id. at 47.
Three days after Plaintiff sent the Email, on December 5, 2012, UTANG officials decided to rescind Plaintiff‘s six-year reenlistment contract and offer in its place a one-year reenlistment contract. Id. at 42; Defs.’ SOF ¶ 8. On December 12, 2012, Tobias met with Plaintiff to discuss the status of his reenlistment contract, the Email, and related matters. Tobias’ notes reflect that, at the meeting, he and Plaintiff discussed a June 2011 “Don‘t Ask Don‘t Tell Training,” about which Plaintiff “comment[ed] ... how strongly he disagreed with it at that time and how he feels the same way today.” AR at 43. Tobias’ notes reflect that they also discussed: (1) Plaintiff‘s “[p]ossible loss of a stripe” and that “at a minimum he‘ll be getting a [Letter of Reprimand]“; (2) Plaintiff‘s retirement, which Tobias “encouraged” him to begin in March or April 2013, “thus allowing him to retire with a clean slate“; Plaintiff, however, stated that he “[w]ants to stay in for at least three more years,” at least in part because “TriCare is critical to his wife‘s cancer” treatment; and (3) termination of Plaintiff‘s UTANG email account and internet access, which Tobias told Plaintiff should occur immediately, but Tobias decided to “hold for now” because Plaintiff would need his account to make “retirement requests.” Id. Tobias noted that Plaintiff “seemed very adamant that what he did was not wrong [and that] he felt that his rights were being taken from him.” Id. In response, Tobias explained that “we as military members must live under tighter rules/guidelines to have a strong force” and told Plaintiff that “he was basically ordered to not have that opinion in uniform and that he basically disobeyed this order.” Id. Tobias told Plaintiff that if he “feels so strongly about it maybe it‘s a good time for him to move on.” Id.
On December 13, 2012, Plaintiff signed the one-year reenlistment contract. Id. at 45. Before signing the contract, Plaintiff informed Tobias that his healthcare coverage had ceased when his six-year reenlistment contract was rescinded. Id. at 44. Plaintiff also acknowledged his missteps: “My National Guard military benefits are being taken away over a human error on my part. . . . I didn‘t intend to create this red tape mess for you. Again, I‘m sincerely sorry I created this situation and ask for your forgiveness. I wish[ ] I could undo the past [two] months, but I can‘t.” Id. Plaintiff also asked Tobias to reinstate his six-year contract: “I wish[ ] there was some way for us to come to a compromise on reinstating my [six-]year enlistment.” Id.
On February 10, 2013, Tobias issued Plaintiff a Letter of Reprimand (the “First LOR“), in which he wrote:
On 3 November 2012, I sat down with you to discuss the use of your government provided email system and how some emails that you have sent have violated the base email policy that is agreed to every time you log into your computer. During this meeting I verbally counseled you and made it clear that you are not to send personal emails from your work computer under a [UTANG] signature block. I also stressed during this conversation that if the behavior continued there would be repercussions.... [The Email] was in violation of the rules and regulations
discussed, and [wa]s in direct opposition to the conversation that you and I had on 3 November 2012, just the month prior, during which I mentioned that we as military members must live under tighter rules and guidelines. To have a strong force, when we raise our arm to the square to support and defend the constitution and the leaders appointed over us, while in uniform our opinions and feelings are second to following the laws, regulations and decisions of our elected and military leaders. If you have such a strong aversion to those rules and regulations in uniform, you have the choice to depart our ranks and live as you please, but while in uniform this behavior is not tolerated. This expectation was reviewed, reinforced and you were ordered to stop this behavior, however, you disobeyed this order. You are hereby reprimanded! As a noncommissioned officer, you are expected to maintain a standard or professional and personal behavior that is above reproach. You have failed!
Id. at 8.
Plaintiff was given 30 calendar days to respond to the First LOR, and he did so on March 5, 2013. Plaintiff explained that he had reviewed the Air Force‘s policy that “outlines proper use of government communications” and noted that, “[s]ince 4 November 2012,” he has “refrained from using government email for TriCare to prevent further misunderstandings.” Id. at 10. He added: “I believe that I complied with your verbal orders as I understood them on 4 November 2012.” Id. With regard to the Email, Plaintiff wrote:
The one and only email I sent on 2 December 2012 to head Chaplain—Major Jeffrey Higgins addressed the blasphemous desecration of a military chapel. My email was short, clear, and to the point; having nothing to do with DADT. . . . No one should ever have to check their moral values or religious convictions at the door when they put on the uniform. I must be true [to] myself and to my God above anyone else. My concern now is that I‘m no longer allowed to have an opinion and that I must follow unlawful orders to keep my opinions to myself. I am not asking anyone to agree with my opinion nor am I asking anyone to change the current policy. I only ask for respect of my rights of conscience.
Id. at 11.
Over the next several months, Plaintiff and his lawyers—John B. Wells and Major Ezra T. Glanzer—communicated with Tobias, other Air Force personnel, and members of Congress, regarding Plaintiff‘s situation. Id. at 52-66, 73-79, 85-90. On July 16, 2013, Tobias sent a letter to Plaintiff‘s counsel informing them that he had “determined there were procedural irregularities in the executing and processing of the [one-year] enlistment agreement” and that Plaintiff‘s “six year re-enlistment [contract] executed on 3 November 2012 will be reinstated.” Id. at 111. Tobias also informed Plaintiff‘s counsel that the First LOR would remain in Plaintiff‘s file, stating that Plaintiff “was not reprimanded for his personal opinion“——which “[m]embers of [the UTANG] have the right to express ... subject to [the] Code of Conduct and Air Force Standards“—“but rather for communicating his personal opinion using official government email together with his military unit and organization, rank, position, and military contact information.” Id. at 111-12. Plaintiff‘s six-year contract was reinstated on November 13, 2013. Defs.’ SOF ¶ 10; Pl.‘s Counter SOF ¶ 9.
B. The Facebook Post and Resulting Discipline
On July 14, 2013, two days before he would inform Plaintiff that his six-year
On July 16, 2013, upon learning from Tobias that his six-year reenlistment contract would be reinstated but that the First LOR would remain in his file, Plaintiff posted on his Facebook page an article about himself, titled “Military Punishes 27 year Veteran Over Personal Beliefs.” Id. at 22. The following statement, written by Plaintiff, accompanied the article (the “Facebook Post“):
I only want to say one thing to you Kevin Tobias!!! Sir!!! You are way out of line!!! . . . You embarrass me, our country, and our unit!!! I have done nothing but try to support our constitution and our religious freedoms. You are part [of] the problem with this country. I have tried reason with you, use[d] diplomacy with you, but that doesn‘t seem to work. Shame on you sir!!!!
Id. According to Plaintiff, he put up the Facebook Post “inadvertently“—“When I wrote these words I was venting and I did not intend for the matter to be posted“—and “immediately deleted it.” Wilson Aff. ¶ 15.
Evidently, Plaintiff did not take the Facebook Post down fast enough. Another UTANG member read it and sent a screenshot of Plaintiff‘s critical comments to Tobias. AR at 18. On August 3, 2013, Brigadier General Gammon, UTANG‘s Commander, issued Plaintiff a second Letter of Reprimand (the “Second LOR“). Id. at 20. The Second LOR quoted the Facebook Post and stated:
You are hereby reprimanded for failing to give your superior commissioned officer and Commander the dignity and respect due his office. You have embarrassed yourself, your unit and the [UTANG]. Your language was patently disrespectful and your conduct demonstrably prejudicial to good order and discipline. You have failed to exemplify the high professional standards expected of Non-Commissioned Officers in the [UTANG]. This conduct cannot and will not be tolerated.
Id. The same day the Second LOR issued, Plaintiff‘s counsel were informed about the SIF and were provided with the materials that supported its opening, including screenshots of 74 Facebook posts. Id. at 127.
On September 14, 2013, after the instant suit was filed, Plaintiff‘s counsel responded to the Second LOR, asserting numerous procedural and substantive challenges and requesting that it “be withdrawn and destroyed” or “filed locally.” Id. at 25-26. On November 4, 2013, Plaintiff‘s counsel responded to the SIF, arguing that Plaintiff‘s Facebook posts were “innocuous” and addressing each post individually. See Wells Letter, ECF. No. 13-5. Neither
III. DISCUSSION
A. Standards of Review
1. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1)
Defendants have moved under
In analyzing a
2. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
As to other claims, Defendants have moved under
3. Motion for Summary Judgment Under Federal Rule of Civil Procedure 56
A court will grant summary judgment only if a movant shows that
On cross-motions for summary judgment “each side concedes that no material facts are at issue,” although this applies “only for the purposes of [each side‘s] own motion” and does not mean that a “party [has] waive[d] the right to a full trial on the merits.” Sherwood v. Wash. Post, 871 F.2d 1144, 1147 n. 4 (D.C. Cir. 1989) (quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n. 3 (D.C. Cir. 1982), abrogated on other grounds by Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111 (D.C. Cir. 1999)); see also Hodes v. U.S. Dep‘t of Treasury, 967 F.Supp.2d 369, 373 (D.D.C. 2013). The court will “grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” GCI Health Care Ctrs., Inc. v. Thompson, 209 F.Supp.2d 63, 67 (D.D.C. 2002) (citations omitted).
B. Claims Predicated on the Decision to Rescind Plaintiff‘s Six-Year Reenlistment Contract
To begin, Plaintiff asserts that the decision to rescind his six-year reenlistment contract violated the Religious Freedom Restoration Act,
“Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). Even where a case, or a claim within a case, involves a live controversy when filed, the mootness doctrine requires federal courts to refrain from rendering a decision “if events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.” Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990). Although exceptions to the mootness doctrine exist, see, e.g., Clarke v. United States, 915 F.2d 699, 703 (D.C. Cir. 1990), Plaintiff has not raised any of them here.
Once Plaintiff‘s six-year reenlistment contract was reinstated on November 13, 2013, Pl.‘s Counter SOF ¶ 9; Defs.’ SOF ¶ 10, the decision to rescind that contract no longer presented a live controversy. See Gibbs v. Brady, 773 F.Supp. 454, 457 (D.D.C. 1991) (dismissing as moot federal employee‘s claim for reinstatement where “voluntary corrective action taken by [the government]” placed the plaintiff in a position “reasonably similar to plaintiff‘s former position“). Plaintiff already has received the relief he seeks—full rein-
C. Plaintiff‘s Claims Under the Religious Freedom Restoration Act
Moving on to claims that present a live case or controversy, among Plaintiff‘s primary contentions is that Defendants’ issuance of the First LOR placed a substantial burden on his exercise of religion in violation of the Religious Freedom Restoration Act (“RFRA“),
Here, Plaintiff has not asserted that the First LOR substantially burdened any religious action or practice. Rather, Plaintiff only asserts that the discipline imposed substantially burdened a religious belief, i.e., that same-sex marriage is a sin. Plaintiff is a member of the LDS faith, Wilson Aff. ¶ 3. He states that the “tenents of [LDS] hold[ ] that homosexual acts are a sin” and that he “believe[s] that any act, endorsement, sanction, practice or support of the homosexual act on a military installation is inappropriate.” Id. (emphasis added). In his briefs, Plaintiff similarly reiterates that “LDS doctrine holds that homosexual marriage and homosexual activity is a sin,” “it is within [his] religious practices to believe that,” and he “sought to express his religious beliefs when he mistakenly believed he was sending an email communication to a Chaplain.” Pl.‘s Reply to Defs.’ Opp‘n to Pl.‘s Mot. for Summ. J., ECF No. 24, at 15 [hereinafter Pl.‘s Reply] (emphasis added). Plaintiff contends that “he is suffering reprisal for voicing [his] beliefs.” Mem. in Supp. of Pl.‘s Mot. for Summ. J., ECF 13-4, at 14 [hereinafter Pl.‘s Mot.] (emphasis added); see also Pl.‘s Opp‘n to Defs.’ Mot. to Dismiss and for Summ. J., ECF No. 17, at 11-12 [hereinafter Pl.‘s Opp‘n] (arguing that “he is being punished for the belief that homosexual marriage and homosexual activity is a sin“) (emphasis added).
A substantial burden on one‘s religious beliefs—as distinct from such a burden on one‘s exercise of religious beliefs—does not violate
Admittedly, the First LOR likely chilled Plaintiff‘s speech regarding his religious beliefs, especially within the military setting. But nowhere does Plaintiff assert that LDS doctrine requires him to publicly voice his dissent about homosexuality or same-sex marriage. See Mahoney v. U.S. Marshals Serv., 454 F.Supp.2d 21, 38 (D.D.C. 2006) (rejecting an asserted
But even if Plaintiff‘s speech about same-sex marriage could be considered a religious exercise under
A similar result obtains here. The First LOR punished Plaintiff for voicing his views about same-sex marriage, using his military email account, to a senior officer outside his chain of command. That is all. It did not bar him from voicing his opposition to same-sex marriage in other fora or by other means, and certainly not in his
D. Plaintiff‘s First Amendment Claims
The court next considers Plaintiff‘s First Amendment claims, which fall into two categories—abridgement of his right to free speech and abridgement of his right to free exercise. In a related argument, Plaintiff asserts that Air Force Instruction 1-1, which he claims was a basis for the disciplinary actions taken against him, violates the First Amendment “facially and as applied.” Pl.‘s Mot. at 26.
1. Freedom of Speech
“While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections.” Parker v. Levy, 417 U.S. 733, 758 (1974). Unlike civil society, the military “is not a deliberative body. It is the executive arm. Its law is that of obedience.” Id. at 744 (quoting In re Grimley, 137 U.S. 147, 153 (1890)). Such obedience, order, and discipline “cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection.” Chappell v. Wallace, 462 U.S. 296, 300 (1983). And so “[t]he military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment.” Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (citations omitted).
Further, the Supreme Court has observed that “the established relationship between enlisted military personnel and their superior officers is at the heart of the necessarily unique structure of the military establishment.” Chappell, 462 U.S. at 300. “The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.” Parker, 417 U.S. at 758. Thus, speech by a member of the military that undermines the chain of command, and the obedience, order, and discipline it is designed to ensure, does not receive First Amendment protection. See Millican v. United States, 744 F.Supp.2d 296, 307 (D.D.C. 2010).
Plaintiff‘s rant against his commanding officer, Lt. Colonel Tobias, is afforded even less First Amendment protection. In the Facebook Post, Plaintiff wrote about Tobias: “You are way out of line!!! ... You embarrass me, our country, and our unit!!! ... You are part [of] the problem with this country. . . . Shame on you sir!!!!” Id. at 22. It goes without saying that speech by a subordinate that publicly denigrates and humiliates a commanding officer is not entitled to the First Amendment‘s protections.
2. Free Exercise Clause
Plaintiff also has failed to allege a violation of the Free Exercise Clause. The Free Exercise Clause provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]”
Here, aside from Air Force Instruction 1-1, which he lacks standing to challenge, see infra Part III.D.3, Plaintiff has not pointed to any law or regulation whose application allegedly violated the Free Exercise Clause. The record reflects only one statute and one military regulation as legal grounds for the issuance of the LORs.
3. Constitutionality of AF 1-1
Within the context of his First Amendment claims, Plaintiff asks the court to declare Air Force Instruction 1-1, known as “AF 1-1,” unconstitutional under the First Amendment. Compl. ¶ 117; Pl.‘s Mot. at 23-28, 43-44. Generally speaking, AF 1-1 is a standards policy for members of the Air Force. See
The First LOR nowhere mentions AF 1-1. Indeed, it does not specify which Air Force regulation or policy Plaintiff violated. And Plaintiff has not presented any evidence that Tobias or anyone else told him, verbally or in writing, that he was disciplined because the Email violated AF 1-1. In an effort to link AF 1-1 to Tobias’ actions, Plaintiff points to a single line in a June 19, 2013, memorandum written by Colonel Ronald Blunck, UTANG‘s Director of Staff, in response to complaints Plaintiff made to a Member of Congress. AR at 76-79. In his memorandum, Colonel Blunck wrote: “Tobias[‘] response is in complete harmony with [AF] 1-1 paragraph 2.12.2[, which] states ‘Your right to practice your religious beliefs does not excuse you from complying with directives, instructions, and lawful orders.‘” Id. at 79; see also Pl.‘s Reply at 21. But Colonel Blunck‘s post-hoc statement that the First
The Second LOR similarly cannot be traced to the challenged Air Force policy. Indeed, the parties agree that the regulation does not apply to off-duty conduct like Plaintiff‘s public rebuke of his commanding officer on Facebook. Pl.‘s Mot. at 25 (“[T]he Air Force only has jurisdiction over plaintiff when on active duty[.] Consequently, the Air Force had no jurisdiction over Plaintiff when he wrote the Facebook post concerning Defendant Tobias[.]“); Supplemental Mem. in Supp. of Defs.’ Mot. to Dismiss and for Summ. J., ECF No. 29, at 6 (“Plaintiff claims that AF 1-1 did not apply to him in civilian status, and he was in civilian status when he made his Facebook posts that resulted in the [Second LOR]; Defendants agree[.]“). Thus, having failed to establish a “causal connection” between AF 1-1 and either of the LORs, Plaintiff lacks standing to challenge the regulation‘s constitutionality.6
E. Plaintiff‘s Claims Under the Due Process Clause of the Fifth Amendment
Moving from the First to the Fifth Amendment, Plaintiff asserts that the adverse personnel actions taken against him infringed his “liberty and property interest in his career.” Pl.‘s Mot. at 44-45; Pl.‘s Opp‘n at 40-42. He also asserts that Defendants’ failure “to provide specific information as to which of the 74 Facebook pages they believe calls Plaintiff‘s allegiance to the United States” into question deprived him of due process. Pl.‘s Mot. at 44.
The Due Process Clause of the Fifth Amendment provides that “[n]o person shall be ... deprived of life, liberty, or property, without due process of law[.]”
1. Plaintiff‘s Liberty and Property Interests in His Employment and His Career
Plaintiff asserts that he has a “liberty interest in not being improperly separated from the military service” and “a property interest in his military career.” Pl.‘s Opp‘n at 40-41. In support of these
To allege a liberty interest in government employment, a plaintiff must claim a “discharge ... or at least a demotion in rank and pay.” O‘Donnell v. Barry, 148 F.3d 1126, 1140 (D.C. Cir. 1998) (citation omitted) (internal quotation marks omitted); see also Smith v. Harvey, 541 F.Supp.2d 8, 12, 16 (D.D.C. 2008) (finding that a member of the Army Reserves who received “a suspension of favorable personnel action, also known as a flag, on [her] personnel file” had “not been discharged from employment or demoted, and [thus] failed to allege a constitutionally-protected liberty interest“). And to allege a property interest in government employment, a plaintiff must demonstrate that he was deprived of a benefit “created by sources independent of the constitution,” such as a “statute, contract, or other independent source of law.” Harvey, 541 F.Supp.2d at 15-16.
Plaintiff has failed to allege a cognizable liberty interest in his employment with the military, as he was not discharged or demoted in rank or pay. Nor has he alleged a cognizable property interest, as UTANG did not deprive him of any benefit to which the law entitles him. These deficiencies are fatal to Plaintiff‘s due process claim. See Roberts v. United States, 741 F.3d 152, 162 (D.C. Cir. 2014) (“[Plaintiff Naval Officer] says she has a property interest in her ‘employment’ and a liberty interest in her ‘freedom to practice her chosen profession,’ but these are not implicated because [she] remains employed by the Navy.“).
2. Failure to Identify Particular Facebook Postings
Plaintiff also argues that Defendants deprived him of due process of law in connection with opening the SIF and revoking his security clearance. In support of this claim, Plaintiff asserts that “Defendants deprived [him] of reasonable notice as to the allegations against him” and “[a]s a result, these allegations are too vague to determine whether or not Plaintiff‘s allegiance has been placed at issue, [which] prejudice[s] his ability to prepare a response.” Pl.‘s Mot. at 44. In particular, Plaintiff argues that Defendants should have specified which Facebook posts they relied upon to make adverse determinations about his security-worthiness. Id. He also claims that “the lack of specificity is a violation of DOD Directive 5200.2 and DOD 5200-2-R.” Id.
The Supreme Court has made clear that “[p]rocess is not an end in itself.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983). Rather, “[i]ts constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” Id.; see also Roberts, 741 F.3d at 162 (dismissing due process claims of plaintiff who had alleged that “she ha[d] a ‘liberty and property interest in a fair evaluation process‘” because “a ‘fair evaluation process’ is still a process, not a substantive interest in liberty or property“). Thus, “[t]he first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘liberty’ or ‘property.‘” Only after finding the deprivation of a protected interest do we look to see if the [government‘s] procedures comport with due process.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citations omitted).
F. Plaintiff‘s Administrative Procedure Act Challenge to the LORS
Plaintiff also seeks review of the disciplinary actions taken against him under the Administrative Procedure Act (“APA“),
Plaintiff advances two main arguments that challenge the LORs under the APA. First, he argues that the issuance of the LORs was arbitrary and capricious. Second, he asserts that the LORs do not accord with
1. Nonjusticiability of the LORs
“The complex subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see also Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953) (“The responsibility for setting up channels through which [military] grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates.“). Accordingly, the jurisdiction of federal courts concerning military personnel decisions is “typically limited to challenges to procedures—it does not extend to the merits.” Reilly v. Sec‘y of the Navy, 12 F.Supp.3d 125, 140 (D.D.C. 2014); see also Orloff, 345 U.S. at 94 (“The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.“); Burt v. Winter, 503 F.Supp.2d 388, 390 (D.D.C. 2007) (stating that “military personnel decisions themselves lie outside the court‘s jurisdiction“). Decisions within this Circuit routinely have found military personnel actions—including promotions, discharges, and discipline—to be nonjusticiable. See, e.g., Kreis v. Sec‘y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989) (Air Force Major‘s claim for retroactive promotion is nonjusticiable); Daniels v. U.S., 947 F.Supp.2d 11, 19 (D.D.C. 2013) (decision to discharge midshipmen from the U.S. Naval Academy is nonjusticiable);
Here, Plaintiff directly challenges whether his conduct warranted the LORs. For instance, with regard to the Second LOR, Plaintiff contends that Defendants intended to “ensnare and ambush [him] to construct a reason for discipline” and “[w]hen he accidentally posted a [Facebook] post critical of Defendant Tobias, they sprung the trap.” Pl.‘s Mot. at 33. He adds that the “quick action taken by Plaintiff when he accidentally posted the Facebook entry should have obviated the need for an LOR.” Id. at 34. That is precisely the type of argument that the courts are not permitted to address. Granting the relief Plaintiff seeks—removal of the LORs from his official record, Compl. at 24—would require this court to second-guess the wisdom of a military decision to reprimand Plaintiff. The court is ill-equipped to make such a judgment. See Kreis, 866 F.2d at 1511.
2. DOD Directive 7050.06
Plaintiff alternatively seeks review of the LORs under the APA on the ground that they were issued in violation of
The problem Plaintiff faces here is that he did not raise either of these arguments through the established administrative channels. The
Additionally, under the
There can be little doubt that, where Congress and the DOD have developed such a comprehensive scheme to address allegations of retaliatory conduct, an aggrieved member of the military, like Plaintiff, must first exhaust administrative remedies before coming to federal court and seeking review under the APA. See
Here, Plaintiff made no effort to avail himself of available administrative remedies before filing suit. See Logrande Decl., ECF No. 14-5, ¶ 2. He neither filed a complaint with the Air Force‘s Inspector General nor sought correction of his personnel record by the Air Force Board for
G. Plaintiff‘s Various Claims Challenging Security-Related Actions
Plaintiff challenges the security-related actions taken against him—the opening of the SIF and the revocation of his security clearance—on both constitutional and statutory grounds. Those claims, however, are nonjusticiable under Department of the Navy v. Egan, 484 U.S. 518 (1988).
In Egan, the Supreme Court held that an administrative review board lacked the authority to review the merits of the Navy‘s decision to revoke an employee‘s security clearance. Id. at 526-27. The Court acknowledged the ordinary presumption that agency action is reviewable, but declared that the presumption “runs aground when it encounters concerns of national security.” Id. at 527. “For ‘reasons ... too obvious to call for enlarged discussion,‘” the Court stated, “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” Id. at 529 (citation omitted). For this reason, “it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence.” Id.
Our Court of Appeals consistently has barred judicial review when evaluating a plaintiff‘s claim would require a court to second-guess the merits of a security clearance-related decision. See, e.g., Foote v. Moniz, 751 F.3d 656, 659 (D.C. Cir. 2014) (affirming dismissal of a Title VII claim because “the decision whether to certify an applicant ... like the decision whether to grant a regular security clearance, is ‘an attempt to predict’ an applicant‘s ‘future behavior and to assess whether, under compulsion of circumstances or for other reasons, he might compromise sensitive information‘” (citation omitted)); Bennett v. Chertoff, 425 F.3d 999, 1000, 1002 (D.C. Cir. 2005) (affirming under Egan the dismissal of a Title VII claim, the analysis of which would require “the trier of fact ... to consider the merits of th[e] defense” that the plaintiff was fired because of “her inability to sustain a security clearance“) (citations omitted); Ryan v. Reno, 168 F.3d 520, 524 (D.C. Cir. 1999) (“[U]nder Egan an adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII“).
A straightforward application of these cases requires dismissal of Plaintiff‘s statu-
Plaintiff attempts to escape from under Egan by arguing that he “is not asking the court to examine the merits of the Defendants’ decision to revoke his security clearance.... Rather, Plaintiff‘s claims are regarding the constitutional violations that occurred in the decision making process to suspend the clearance and open the SIF.” Pl.‘s Reply at 11. But the court already has held that Defendants’ actions did not violate Plaintiff‘s First Amendment speech and free exercise rights. Therefore, the court need not decide to what extent Plaintiff‘s constitutional challenges would enable him to avoid the Egan bar. See Ryan, 168 F.3d at 524 (observing that Egan “does not apply to actions alleging deprivation of constitutional rights“).
H. Plaintiff‘s Privacy Act Claim
Plaintiff‘s final claim arises under the Privacy Act,
Plaintiff‘s second Privacy Act claim is unrelated to the first. Plaintiff
Media reports and Tech. Sgt. Wilson‘s attorney have inaccurately claimed that Tech. Sgt. Wilson‘s health insurance benefits were discontinued as a direct result of his e-mail regarding the West Point chapel. Due to privacy laws and possible litigation by Tech. Sgt. Wilson, we are limited in the amount of information we are able to share here. However, the discontinuance of his medical benefits was not tied—neither directly nor indirectly—to command action; rather, the benefits were discontinued for other reasons that were completely within Tech. Sgt. Wilson‘s control.
Id. at 184. Plaintiff argues that McIntire‘s email violated the Privacy Act, not because it disclosed a break in coverage due to the contract rescission, but because it disclosed “a short interruption in benefits arising out of a dispute between Tricare and Plaintiff, that was later corrected. This was private medical information not previously disclosed outside of the agency.” Pl.‘s Opp‘n at 40.
Plaintiff‘s argument is utterly confounding. Apparently, he believes that the statement “the benefits were discontinued for other reasons” amounted to an unlawful public disclosure of a dispute that he had with his insurer. Even if by “for other reasons” McIntire meant Plaintiff‘s dispute with TriCare—which is not at all established on this record—his email cannot plausibly be read to reveal what Plaintiff claims. Nowhere is TriCare mentioned. And nowhere is a dispute with TriCare mentioned. McIntire‘s email did not disclose, let alone improperly disclose, information that is protected under the Privacy Act. Judgment therefore will be entered in favor of Defendants on Plaintiff‘s Privacy Act claim.
IV. CONCLUSION
For the foregoing reasons, the court grants Defendants’ Motion to Dismiss and for Summary Judgment in its entirety and denies Plaintiff‘s Motion for Summary Judgment in its entirety. A separate Order accompanies this Memorandum Opinion.
AMIT P. MEHTA
UNITED STATES DISTRICT JUDGE