Huffman v. Kelly, Civil Action No. 16–861 (RBW)

239 F.Supp.3d 144

Brian C. HUFFMAN, Plaintiff,

v.John KELLY,¹ Secretary of Homeland Security, Defendant.

Civil Action No. 16–861 (RBW)

United States District Court, District of Columbia.

Signed March 8, 2017

Eric Sebastian Montalvo, FEDERAL PRACTICE GROUP WORLDWIDE SERVICE, Washington, DC, for Plaintiff.

Daniel Patrick Schaefer, U.S. ATTORNEY'S OFFICE, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, Brian Huffman, seeks judicial review under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 706 (2012), of a decision by the United States Coast Guard Board for Correction of Military Records (the "Board") denying his application to upgrade his reenlistment code and his rank after he was involuntarily discharged from the United States Coast Guard (the "Coast Guard"). See Complaint ("Compl.") ¶¶ 3, 37, 44. Currently before the Court is the Defendant's Motion to Dismiss and for Summary Judgment ("Def.'s Mot.") and the Plaintiff's Cross–Motion for Summary Judg[ ]ment and Opposition to Defendant's Motion to Dismiss and Defendant's Motion for Summary Judgment ("Pl.'s Mot."). Upon careful consideration of the parties' submissions and the administrative record in this case,² the Court concludes that it must grant in part and deny in part the defendant's motion to dismiss, deny the plaintiff's motion for summary judgment, and enter summary judgment in favor of the defendant.

I. BACKGROUND

A. Events Leading to the Plaintiff's Discharge

The plaintiff enlisted in the Coast Guard on July 27, 1999, AR 0225, and his

military record contains several awards and letters of appreciation highly praising his excellent performance and hard work as a[ machinery technician]. His record also contains documentation showing that in 1999 and 2000 he was counseled on Page 7s^{[3 ]} many times about unacceptable behavior, including insubordination, argumentativeness, apathy, provocative and contemptuous language, and ignoring military customs and courtesies. He was also placed on performance probation and awarded nonjudicial punishment (NJP) at mast in 2000 because of such behavior. In 2001, the [plaintiff] received another Page 7 for disrupting work with sarcasm, provocative language, and resentment, and he was referred for anger management training. However, there are no negative entries in his record from 2002 to December 2006.

AR 0225.

On December 8, 2006, while stationed in Miami, Florida, see Compl. ¶ 13; Def.'s Mem. at 4, the plaintiff was arrested and charged with battering and kidnapping his wife, and detained for two weeks by Florida state authorities. AR 0225–0226; Compl. ¶ 15. These charges were subsequently dismissed. AR 0017. "On December 29, 2006, [the plaintiff's commanding officer] issued a Military No-contact Order requiring the [plaintiff] not to have any contact with his wife for 30 days except during formal marriage counseling sessions through the Work Life/Employee Assistance Program (EAP)." AR 0226. Thereafter, "the Family Advocacy Specialist handling his case [ ] determined that the allegations of spousal abuse ... had been substantiated ... [and] the command renewed the no-contact order and made it indefinite until rescinded." AR 0226.

On February 27, 2007, the plaintiff was charged "with failing to obey the no-contact order in violation of Article 92 of the [United Code of Military Justice]." AR 0226. On March 8, 2007, after an investigation into the charge, the plaintiff received

as nonjudicial punishment [a] reduction in pay grade ... , restriction to base for two weeks, and two extra hours of duty per day for two weeks. On a performance evaluation prepared pursuant to the [nonjudicial punishment], the applicant received high marks in certain categories, such as professional knowledge and stamina, but low marks for communicating, working with others, responsibility, setting an example, military bearing, customs and courtesies, integrity, loyalty, respecting others, and judgment. He was not recommended for advancement.

AR 0227. The plaintiff was also put on performance probation for "failure to obey direct orders, lack of attention to detail, and [his] argumentative and disrespectful behavior." AR 0227. The plaintiff's commanding officer warned the plaintiff "that if he failed to make an effort to overcome his deficiencies or violated the conditions of the probation, the [commanding officer] would initiate his discharge." AR 0227. The plaintiff appealed his nonjudicial punishment, but his appeal was denied. See AR 0227, 0229.

On March 15, 2007, the plaintiff filed "an informal complaint of religious discrimination and retaliation" on the part of his supervisor. AR 0228; see also AR 0224. "On March 30, 2007, the [plaintiff] filed a formal complaint of discrimination and retaliation after a meeting with his chain of command and a District mediator the day before had not resolved his complaint." AR 0229.⁴

The plaintiff received additional Page 7s on March 20, 2007, for failure to obey a direct order to report for duty at 7:00 a.m. that morning, see AR 0229, and on April 9, 2007, for "showing direct disrespect and insubordination," AR 0230. Also on April 9, 2007, the plaintiff was charged with failure to obey an order and absence without leave. See AR 0230. On April 16, 2007, after an investigation of the two April 9, 2007 charges, the plaintiff received "two weeks of restriction to base and extra duties," and was told "that he was being processed for a General discharge because of continued misconduct." AR 0231. The plaintiff was told "that he had a right to consult a lawyer and to submit a statement on his own behalf." AR 0231.

B. The Plaintiff's Discharge Process

On April 17, 2007, the plaintiff's commanding officer issued a memorandum to the plaintiff informing the plaintiff that he supported the plaintiff's general discharge.

*

See

AR 0231. The commanding officer "again advised the [plaintiff] that he had a right to consult a lawyer and to submit a statement on his own behalf. [The commanding officer] told the [plaintiff] to submit his statement within three days and that the statement would be forwarded with the recommendation for separation." AR 0231–0232.

[L]ater that day, the [plaintiff] signed a modified acknowledgement form with a note stating that he would contact a lawyer that day and would submit a statement within three working days. In response, the Personnel Command advised the sector to be sure that the [plaintiff] knew he had five days from the date of notification to submit his statement and that the Sector should inform them when the [plaintiff] had spoken to an attorney.

* * *

On April 19, 2007, the Sector Chief of Logistics sent an email to the Personnel Command stating that the [plaintiff] had consulted an attorney and had had ample opportunity to prepare his rebuttal statement but had not yet done so. She requested authority to discharge the [plaintiff]. She stated that she would "like to see [discharge] orders tomorrow."

On April 20, 2007, a chief warrant officer at the Sector sent an email to the Personnel Command inquiring into the status of the [plaintiff's] discharge. He noted that the [plaintiff] had not yet submitted a rebuttal statement although he "has been given ample time to work on it (no other work except to work on his statement)."

Also on April 20, 2007, the Coast Guard Personnel Command issued separation orders authorizing the [plaintiff's] General discharge "by reason [of] misconduct due to [involvement] of a discreditable nature with civil or military authorities." The orders required use of the separation code JKA, which denotes an involuntary discharge due to a "pattern of misconduct."

On April 23, 2007, the [plaintiff] received a General discharge from the Coast Guard. His original [discharge papers] showed that he received an RE–4 reenlistment code (ineligible for reenlist) and a JKA separation code, reflecting separation due to a "Pattern of Misconduct" pursuant to Article 12.B.18 of the Personnel Manual.

AR 0232–0233.

C. The Discharge Review Board and the Upgrade of the Plaintiff's Discharge and Reenlistment Code

After the plaintiff was discharged from the Coast Guard, he applied to the Discharge Review Board to upgrade his discharge and reenlistment code. AR 0234. Although the Discharge Review Board recommended that the plaintiff's discharge "should stand as issued," AR 0100, the Commandant disagreed "due to a procedural flaw in [the plaintiff's] discharge," AR 0099, 0235. The Commandant corrected the plaintiff's record to show an Honorable discharge "for Miscellaneous/General Reasons," but did not upgrade the plaintiff's reenlistment code. AR 0099, 0235. The Commandant did not explain the "procedural flaw" that he found in the plaintiff's discharge in his Memorandum, see AR 0099, but the Board subsequently determined that "the Commandant's decision to upgrade the [plaintiff's] discharge to Honorable and his narrative reason for separation to 'Miscellaneous/General Reasons' appears to have been based on a finding of error concerning the processing of the [plaintiff's] rebuttal statement," AR 0039. The Board stated that "it appears that the Personnel Command may not have received [the rebuttal statement] nor reviewed it before issuing the [plaintiff's] discharge orders." AR 0254.

D. The Board's Decisions

Thereafter, the plaintiff "filed an application with [the Board] requesting a change in the reenlistment code from RE–4 (ineligible to reenlist) to RE–1 (eligible to reenlist)." Compl. ¶ 44; see also Def.'s Mem. at 11.⁵ The plaintiff alleged that "his chain of command railroaded his discharge ... in retaliation for his decision to file a formal [equal employment opportunity] complaint against his supervisor, who had harassed him because of his religion." AR 0016. The Board denied his request on August 20, 2009. See AR 0016, 0041. The plaintiff then filed a request for reconsideration of the Board's decision on September 4, 2009...