AMIT P. MEHTA, District Judge
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 Tobias
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 Tobias
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.
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. 7-1,
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:
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:
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:
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:
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.
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"):
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:
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
Defendants have moved under Federal Rule of Civil Procedure 12(b)(1) to dismiss certain of Plaintiff's claims for lack of subject matter jurisdiction, either on mootness grounds or for lack of standing. Under Rule 12(b)(1), a court has "an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). Plaintiff, however, bears the burden of proving that the court has subject matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "For this reason, `the [p]laintiff's factual allegations in the complaint... will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F.Supp.2d at 13-14 (citation omitted).
In analyzing a 12(b)(1) motion, a court need not limit itself to the complaint. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C.Cir.2005). It "may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections and Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000) (citations omitted); see also Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992) ("[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." (citations omitted)).
As to other claims, Defendants have moved under Rule 12(b)(6) to dismiss for failure to state a claim on which relief can be granted, including on the ground of nonjusticiability. See Sierra Club v. Jackson, 648 F.3d 848, 853-54 (D.C.Cir.2011) (clarifying that a challenge to the justiciability of a claim is properly considered under Rule 12(b)(6)). However, Rule 12(d) provides that "[i]f, on a motion under Rule 12(b)(6) ... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d). Here, both parties have presented substantial materials outside the pleadings, including an Administrative Record, and relied on those materials extensively. And both parties have been "given a reasonable opportunity to present all the material that is pertinent to the[ir] motion[s]." Id.
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).
To begin, Plaintiff asserts that the decision to rescind his six-year reenlistment contract violated the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq., the First Amendment, and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. Defendants have moved under Rule 12(b)(1) to dismiss those claims on the ground that they are moot. Mem. in Supp. of Defs.' Mot. to Dismiss and for Summ. J., ECF No. 14, at 8-9 [hereinafter Defs.' Mot.]. The court agrees that all of Plaintiff's claims challenging the decision to rescind his six-year reenlistment contract fail to present a live case or controversy and thus must be dismissed.
"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, 89 S.Ct. 1944, 23 L.Ed.2d 491 (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 reinstatement
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"), 42 U.S.C. §§ 2000bb et seq. See Compl. ¶¶ 55-56, 60-62.
RFRA provides that the government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability," unless the burden "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1. Thus, the first inquiry under RFRA is whether a government act has substantially burdened the plaintiff's religious exercise. See Kaemmerling v. Lappin, 553 F.3d 669, 677-78 (D.C.Cir.2008). In evaluating whether government action has substantially burdened a religious exercise, the court must, as a preliminary matter, identify the religious action or practice that the plaintiff asserts was substantially burdened. See id. at 679 ("Religious exercise necessarily involves an action or practice"). The religious action or practice need not be "compelled by, or central to, a system of religious beliefs." 42 U.S.C. §§ 2000cc-5(7)(A). Nor shall the court "determine what religious observance [a plaintiff's] faith commands." Priests for Life v. U.S. Dep't of Health & Human Servs., 772 F.3d 229, 247 (D.C.Cir.2014). Instead, courts must look to the religious action or practice the plaintiff identifies as having been substantially burdened, without questioning either whether it is central to the plaintiff's faith or whether the plaintiff sincerely holds his religious beliefs.
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 RFRA. The Court of Appeals so concluded in Kaemmerling. There, the plaintiff asserted that the federal government's collection and storage of
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 RFRA violation where plaintiffs claimed that they wished to engage in speech about their religion but had not alleged that such speech was "part of the exercise of their religion"). Plaintiff only contends that, under LDS doctrine, homosexuality is a sin. Wilson Aff. ¶ 3. His religious belief, however, does not become a protected religious exercise under RFRA simply because Plaintiff expressed it through speech. See Mahoney, 454 F.Supp.2d at 38 (observing that "[i]t is not the case that every activity which could be cast as `religiously motivated' is the kind of exercise of religion protected by RFRA") (citation omitted).
But even if Plaintiff's speech about same-sex marriage could be considered a religious exercise under RFRA, the First LOR did not "substantially burden" it. The Court of Appeals has found that a neutral regulation that places a limit on where someone may engage in religiously motivated expression does not violate RFRA. In Henderson, the Court of Appeals held that a ban on selling t-shirts on the National Mall that expressed a religious message did not constitute a "substantial burden" on religious exercise. See 253 F.3d at 17 ("Because the Park Service's ban on sales on the Mall is at most a restriction on one of a multitude of means, it is not a substantial burden on their vocation."). Similarly, in Mahoney, the court held that security limitations on where the plaintiffs could protest outside the Red Mass, an annual ceremony at St. Matthew's Cathedral that marks the beginning of the judicial year, did not violate RFRA. See 454 F.Supp.2d at 38 (finding that there was no RFRA violation where the plaintiffs did not "allege that their religion compels them to demonstrate in favor of the public display of the Ten Commandments at all time and in all places").
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
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.
"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, 94 S.Ct. 2547, 41 L.Ed.2d 439 (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, 94 S.Ct. 2547 (quoting In re Grimley, 137 U.S. 147, 153, 11 S.Ct. 54, 34 L.Ed. 636 (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, 103 S.Ct. 2362, 76 L.Ed.2d 586 (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, 106 S.Ct. 1310, 89 L.Ed.2d 478 (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, 103 S.Ct. 2362. "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, 94 S.Ct. 2547. 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.
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[.]" U.S. Const. amend. I. "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (citations omitted). If a law is aimed at "infring[ing] upon or restrict[ing] practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest." Id. at 533, 113 S.Ct. 2217. If, however, the law is both neutral and of general applicability, no compelling interest need be shown — "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Employment Division v. Smith, 494 U.S. 872, 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (citations omitted) (internal quotation marks omitted). In other words, a plaintiff who fails to allege that the challenged law "is not, in theory or practice, a religion-neutral, generally applicable law... alleges no Free Exercise violation, even if the [law] incidentally affects religiously motivated action." Kaemmerling, 553 F.3d at 677.
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. Title 10 U.S.C. § 8013 is listed on both LORs as "authority" for their
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 AFI 1-1 (7 August 2012), ECF No. 13-7 [hereinafter AF 1-1]. One of its many sections addresses the "Use of Social Media." See id. § 2.15. Plaintiff challenges the constitutionality of that section, contending that it is "void for vagueness" because its enforcement is left to the "unbridled discretion" of the Air Force; it is "overbroad"; and it "chills the free speech, including political and religious speech, of National Guardsmen." Pl.'s Mot. at 43; see also Compl. ¶¶ 91-95. Defendants argue that Plaintiff lacks standing to challenge the constitutionality of AF 1-1. See Defs.' Mot. at 24-25. The court agrees.
Article III of the Constitution limits the jurisdiction of federal courts to "cases" and "controversies." U.S. Const. art. III, § 2. Rooted in this constraint is the concept of standing, which requires that a plaintiff establish three things in order to maintain a claim: "First, the plaintiff must have suffered an injury in fact"; "[s]econd, there must be a causal connection between the injury and the conduct complained of"; and "[t]hird, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (citations omitted) (internal quotation marks omitted). On a motion for summary judgment, a plaintiff "must `set forth' by affidavit or other evidence `specific facts'" that support each of the three elements. Id. at 561, 112 S.Ct. 2130 (citing Fed.R.Civ.P. 56(e)). Here, Plaintiff has failed to carry his burden as to the "causal connection" requirement of standing, because he has not offered any evidence showing that either LOR or any other discipline imposed is fairly traceable to his superiors' application of AF 1-1. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976).
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.
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[.]" U.S. Const. amend. V. "Procedural due process imposes constraints on governmental decisions which deprive individuals of `liberty' or `property' interests within the meaning of the Due Process Clause." Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). To prevail on a Due Process Clause claim, a plaintiff must demonstrate, first, that he was deprived by the government of a "liberty or property interest" to which he had a "legitimate claim of entitlement;" and second, that "the procedures attendant upon that deprivation were constitutionally [in]sufficient." Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).
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.").
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, 103 S.Ct. 1741, 75 L.Ed.2d 813 (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, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (citations omitted).
Plaintiff also seeks review of the disciplinary actions taken against him under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. In this section, the court considers Plaintiff's arguments with respect to the two LORs. His challenges under the APA to the security-related discipline he received are addressed in the next section.
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 Department of Defense ("DOD") Directive 7050.06, which implements the Military Whistleblower Protection Act, 10 U.S.C. § 1034. Defendants argue that Plaintiff's challenge to the LORs is nonjusticiable. They also contend that Plaintiff did not exhaust his administrative remedies insofar as his claim rests on the assertion that the LORs violated DOD Directive 7050.06. Both of Defendants' arguments are correct.
"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, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973); see also Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed. 842 (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, 73 S.Ct. 534 ("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.
Plaintiff alternatively seeks review of the LORs under the APA on the ground that they were issued in violation of DOD Directive 7050.06.
The problem Plaintiff faces here is that he did not raise either of these arguments through the established administrative channels. The MWPA and DOD Directive 7050.06 provide a comprehensive remedial scheme by which investigations, review, and appeals of allegedly retaliatory actions are to be conducted. See Hernandez, 38 Fed.Cl. at 536 ("Congress designed the [MWPA] to provide channels within the military through which members of the armed forces could bring their grievances."); see also Klingenschmitt v. United States, 119 Fed.Cl. 163, 185 (2014) (observing that "the statute provides a fairly elaborate administrative process for handling complaints of retaliatory personnel actions"). The MWPA provides that, upon receiving a complaint of a prohibited action, the Inspector General of the DOD or an Inspector General of one of the armed forces "shall" determine if there is sufficient
Additionally, under the MWPA, boards for the correction of military records are empowered to review an application submitted by a member of the armed forces who has alleged a prohibited personnel action. Id. § 1034(g). The Secretary concerned is required to issue a final decision as to an application filed with a records correction board and to take, within 180 days of the application being filed, such action "as is necessary to correct the record." Id. § 1034(g)(4)(5). The MWPA adds: "If the Secretary fails to issue such a final decision within that time, the member or former member shall be deemed to have exhausted the member's or former member's administrative remedies under section 1552 of this title." Id. (emphasis added).
DOD Directive 7050.06 implements the provisions of the MWPA. DOD Directive 7050.06, ECF No. 25-1. It establishes detailed procedures applicable to the DOD Inspector General, DOD "Component Heads," the Secretaries of the military departments, boards of correction of military records, and the Secretary of Defense. Id. at 4-9. These procedures govern investigations, the creation of investigation reports, review of investigation reports, determinations regarding violations of the MWPA, and appeals of such determinations. Id.
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 5 U.S.C. § 704 (permitting judicial review of a "final agency action"); see also Hernandez, 38 Fed.Cl. at 536 (concluding that the MWPA "affords members of the armed forces solely administrative remedies"); Acquisto v. United States, 70 F.3d 1010, 1011 (8th Cir.1995) (same); Career Educ., Inc. v. Dep't of Educ., 6 F.3d 817, 820 (D.C.Cir.1993) (requiring exhaustion "in order to give the Department's top level of appeal an opportunity to place an official imprimatur on the Department's interpretation of its regulations before it is reviewed by a federal court"); Penland v. Mabus, 78 F.Supp.3d 484, 494 (D.D.C. 2015) (holding with respect to the MWPA that, "when Congress has established a specific form of redress, it precludes alternative fora"); Conservation Force v. Salazar, 919 F.Supp.2d 85, 90 (D.D.C.2013) (stating that "if the APA and/or an agency rule provides for a review process, an aggrieved party must exhaust that process before seeking judicial review").
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
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, 108 S.Ct. 818, 98 L.Ed.2d 918 (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, 108 S.Ct. 818. 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, 108 S.Ct. 818. "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, 108 S.Ct. 818 (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) (internal quotation marks 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 statutory
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").
Plaintiff's final claim arises under the Privacy Act, 5 U.S.C. § 552a, and consists of two distinct grievances. Plaintiff first asserts that Defendants' refusal to "expunge" the LORs from his personnel file violated the Privacy Act.
Plaintiff's second Privacy Act claim is unrelated to the first. Plaintiff
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. Nowhere is a dispute 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.
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.
