JIM TURNER v. U.S. NAVY
U.S. District Court, DC, 1998
[09 OCT 98]
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CIVIL ACTION NO. 1:97CV01653 (PLF)
JIM A. TURNER, Plaintiff, v.
UNITED STATES NAVY, et al., Defendants.
PLAINTIFF'S REPLY IN SUPPORT OF HIS CROSS-MOTION FOR SUMMARY JUDGMENT
Mark H. Lynch D.C. Bar No. 193110, Allan B. Moore D.C. Bar No. 429108, Erin M. Egan D.C. Bar No. 452009, Covington & Burling, 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004, Telephone: (202) 662-5575 Facsimile: (202) 662-6291, Attorneys for Plaintiff
Dated: October 9 1998
TABLE OF CONTENTS
C. The Record Demonstrates That Seaman Maurer's Testimony Was Not Reliable
1. Poore Alleged a Single Incident, Which Was " Horseplay"
2. Defendants' Rely Entirely on Ambiguous Statements by the ADB
3. The Alleged Statement Was Made in Jest
4. There Was No " Solicitation" of Any Offense
2. DEFENDANTS HAVE MISSTATED SETTLED PRINCIPLES OF ADMINISTRATIVE LAW
C. Defendants Cannot Avoid Judicial Review Of The Undisputed Facts
TABLE OF AUTHORITIES
CASES
Cappella v. United States, 624 F.2d 976 (Cl. Ct. 1980)
Chappell v. Wallace, 462 U.S. 296(1983)
Cochran v. United States, I Cl. Ct. 759 (Cl. Ct. 1983), affd, 732 F.2d 168 (Fed. Cir. 1984)
Daleandro v. Dalton, 948 F. Supp. 95 (D.D.C. 1996)
DeLouis v. United States, No. 94-1042C (Cl. Ct. May II, 1998)
*Dilley v. Alexander, 603 F.2d 914 (D.C. Cir. 1979), relief clarified, 627 F.2d 407 (1980)
Dowds v. Bush, 792 F. Supp. 1289 (D.D.C. 1992)
Dowds v. Clinton, 18 F.3d 953 (D.C. Cir. 1994)
Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984)
Esch v. Younger, 876 F.2d 976 (D.C. Cir. 1989)
*Geyen v. Marsh, 775 F.2d 1303 (5th Cir. 1985)
Gottlieb v. Pena , 41 F.3d 730 (D.C. Cir. 1994)
*Hagarty v. United States, W F.2d 352 (Cl. Ct. 1971)
Kreis v. Secretary of the Air Force, 866 F.2d 1508 (D.C. Cir. 1989)
*Matlovich v. Secretary of the Air Force, 591 F.2d 852 (D.C. Cir. 1978)
McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998)
*Miller v. Lehman, 801 F.2d 492 (D.C. Cir. 1986)
Murphy v. United States, 993 F.2d 871 (Fed. Cir. 1993)
*Neal v. Secretary of the Navy, 639 F.2d 1029 (3d Cir. 1981)
*Ogden v. Zuckert, 298 F.2d 312 (D.C. Cir. 1961)
*Perez v. United States, 850 F.Supp. 1354 (N.D. III. 1994)
*Proper v. United States, 154 F.Supp. 317 (Ct.CI. 1957)
Sargisson v. United States, 913 F.2d 918 (Fed. Cir. 1990)
Service v. Dalles, 354 U.S. 363 (1957)
Southern Union Gas Co. v. FERC, 840 F.2d 964 (D.C. Cir. 1988)
United States v. Asfeld, , 30 M.J. 917 (ACMR 1990)
United States v. Goodwin, 37 M.J. 606 (ACMR 1993)
United States v. Hullett, 40 M.J. 189(CMA 1994)
United States v. Pierce, 27 M.J. 367 (CMA 1989)
United States v. Thompson, 41 M.J. 895 (CMA 1995)
Vitarelli v. Seaton, 359 U.S. 535 (1959)
Walters v. Secretary of Defense, 725 F.2d 107 (D.C. Cir. 1983)
Wolfe v. Marsh, 835 F.2d 354 (D.C. Cir. 1987)
STATUTES AND REGULATIONS
10 U.S.C. ß 1552(a)
32 C.F.R. ß723.7(a)
*5 U.S.C. ß 706(2)(E)
Defendants advance two arguments in opposing plaintiff's cross-motion for summary judgment. First, they continue to assert that the underlying facts are irrelevant because plaintiff has failed to state a cognizable legal claim. In a slight variation on this theme, they further assert that, even if plaintiff has stated a cognizable claim, the proper standard of judicial review is so highly deferential that this Court lacks the power to examine the substance of what has happened here (i.e., the undisputed facts in the record) and instead, must confine itself to a narrow determination of whether the Navy followed proper procedures in the last of the three administrative proceedings that plaintiff has challenged: his postdischarge petition to the Board for Correction of Naval Records ("BCNR"). See Def. Opp. at 1-10, 28-35. Second, defendants argue that plaintiff's claims must fail because "substantial evidence" in the record supports their administrative actions against him. Id. at 11-28, 35-40.
Defendants' first argument ignores overwhelming contrary authority and misconstrues settled administrative law. Their second argument fails to identify the "substantial evidence" on which it is based and selectively cites and mischaracterizes both the current record and plaintiff's claims. In the face of these shortcomings and the arguments and facts presented in plaintiff's opening papers and this reply, the Court should grant plaintiff's cross-motion for summary judgment and deny defendants' motion for summary judgment.
Because this case hinges on its facts, as set forth in the record and properly reviewed under the Administrative Procedure Act ("APA"), we first address defendants' factual arguments and then address their purely legal arguments, which urge the Court to ignore the facts.
Defendants' argument that plaintiff had no legal right to the greater procedural protections of a court-martial in lieu of a nonjudicial punishment ("NJP") proceeding misses the point because it ignores the facts of this case. See Def. Opp. at 35-39. Although it is true, as a matter of law, that a commanding officer has (and must have) broad discretion in determining whether to treat an alleged offense as "serious" or "minor," it is equally true that, according to the undisputed facts of this case, the command at issue considered plaintiff's alleged offenses to be serious.
The command expressly characterized plaintiff's alleged conduct as constituting a "serious offense" in the official notice that it issued to plaintiff on May 3, 1994, advising him of the commencement of the discharge proceedings against him. R. 164. Although this notice initiated plaintiff's administrative discharge proceeding ("ADB") and not his NJP proceeding, the command issued this notice on the same day that it initiated and conducted the NJP proceeding (R. 164; R. 53-54), and the command made its decision to pursue plaintiff's discharge before the NJP had even occurred (R. 1349)- i.e., on the basis of the charges themselves and not on the basis of any evidence adduced at the NJP proceeding. [The fact that the command decided, ab initio, to conduct tandem NJP and ADB proceedings (see R. 1349) supports an inference of impropriety. See PI. Mem. at 41-42; R. 611.]
Further, the command expressly characterized plaintiff's alleged offenses as serious in several additional communications. For example, a June 1994 message from the ANTIETAM to Navy personnel authorities referred to the "extreme sensitivity of [the] case" and the "seriousness of [the] charges" and warned of a "potential international incident" if plaintiff remained onboard. R. 909. In another report that same month, the ANTIETAM's commanding officer. Captain Frank, characterized his view of plaintiff's alleged offenses -- as outlined at the NJP proceeding over which Frank himself presided -- as posing "an immediate threat to my entire crew" and as "sexual harassment of the most egregious nature." R. 68. [At the NJP proceeding, the command did not present or consider direct evidence of plaintiff's alleged wrongdoing above and beyond what was already set forth in the written statements of King, Poore, and Maurer, and having been denied counsel, plaintiff invoked his right to remain silent. See PSUMF, 46-49, 57-60. Accordingly, Captain Frank's view of the seriousness of the charges was not based on evidence adduced during the proceeding.] Indeed, the command "initially . . . desired to convene a court-martial" but decided instead to pursue tandem NJP and ADB proceedings, purportedly because of "the cost and time required for court-martial"-not because of the "minor" nature of the offenses charged. R. 1349.
The record thus establishes that, whatever legal discretion the command may have had to treat plaintiff's offenses as either "serious" or "minor," it regarded those offenses as "serious." The command's discretion is not so broad that it may treat as minor offenses that the command itself deems serious, both before and after the NJP and ADB proceedings. Such inconsistency is the essence of arbitrary action.
Defendants' protracted discussion of the case law therefore misses the mark. All of the cases on which defendants rely concern whether, as a matter of law, a military command has the authority to treat a given offense as minor, notwithstanding its potential to result in a punishment traditionally regarded as serious (see, e.g., Cochran v. United States, 1 Cl. Ct. 759, 766 (Cl. Ct. 1983), aff'd, 732 F.2d 168 (Fed. Cir. 1984); Cappella v. United States, 624 F.2d 976, 978-79 (Cl. Ct. 1980)), or whether a military command can first treat an offense as minor in an NJP proceeding and "later, in a separate consideration" for a different proceeding, treat the same offense as serious (see, e.g., DeLouis v. United States, No. 94-1042C, at 14 (Cl. Ct. May II, 1998) (unpublished) (Def. Opp., Att. B); see also United States v. Pierce, 27 M.J. 367, 368 n.2 (CMA 1989)). Here, as a matter of fact, the Navy treated plaintiff's offenses as serious, both from the outset and throughout both proceedings.
Defendants' reading of the cases is also unpersuasive. Contrary to defendants' suggestion (and the conclusion of the military legal advisor to the BCNR (see R. 898-99)), Cappella in no way undercuts the holding of Hagarty v. United States, 449 F.2d 352 (Cl. Ct. 1971), on which plaintiff relies. See PI. Mem. at 38-42. Cappella involved an offense for which the maximum imposable sentence was only two years, and the court there expressly distinguished Hagarty [United States v. Thompson, 41 M.J. 895 (Army Ct. Crim, App. 1995), on which defendants also rely, did not directly address this issue.]: "in contrast [to Hagarty], the offense the plaintiff was found to have committed [here] was a minor incident, charged and dealt with as such, and not the kind of serious conduct for which trial by court-martial was deemed appropriate" in Hagarty. Cappella, 624 F.2d at 979.
Here, plaintiff was charged with Article 134 offenses, which Hagarty found "serious" by statutory definition (see 449 F.2d at 356-57), and offenses with maximum sentences of at least 10 years (see PI. Mem. at 39), which far exceed the severity of any of the offenses at issue in any of the cases defendants cite and even the severity of the offenses at issue in Hagarty (i.e., submission of false receipts). By any reasonable measure, these charges, which included claims of indecent sexual assault and assault with intent to commit sodomy, were "serious." The Court, therefore, should set aside plaintiff's NJP and the subsequent discharge proceeding predicated upon it. R. 164 (stating that ADB was predicated on NJP).
Defendants do not deny that the Secretary of the Navy, acting through a designee, rejected the majority decision of the BCNR (which had found in plaintiff's favor on multiple grounds) by adopting-without comment and literally by rubber stamp-the dissent of the BCNR's minority member. See R. 615. Defendants also do not deny that the practical effect of this perfunctory action was to reinstate, in its entirety, the underlying military rulings against plaintiff and to deny plaintiff's otherwise successful petition for relief. Instead, relying primarily on Kreis v. Secretary of the Air Force, 866 F.2d 1508 (D.C. Cir. 1989), and Daleandro v. Dalton, 948 F. Supp. 95 (D.D.C. 1996), defendants argue that plaintiff's challenge to this action is "legally deficient" because, under applicable Navy regulations, the Secretary is at liberty to adopt either position whenever a correction board reaches a split decision. Def. Opp. at 39, 40; see also 32 C.F.R. ß 723.7(a).
Defendants' argument proves too much and conflicts with Miller v. Lehman, 801 F.2d 492, 497 (D.C. Cir. 1986); Neal v. Secretary of the Navy, 639 F.2d 1029, 1043 n.l3 (3d Cir. 1981); and Proper v. United States, 154 F. Supp. 317, 326 (Ct. Cl. 1957). These cases recognize that the secretary of a military department may not arbitrarily reject a correction board's decision. The Secretary is not free, like a Roman emperor at the Coliseum, to turn his thumb up or down without regard to the evidence. Rather, when, as in this case, the majority's position is supported by the overwhelming weight of evidence, the secretary's rejection of that decision is unlawful. See PI. Mem. at 42-45 (discussing foregoing cases); R. 610-12 (BCNR majority opinion). Kreis and Daleandro are not the contrary. In Kreis, the D.C. Circuit expressly recognized both the power and the duty of the federal courts to set aside "arbitrary and capricious" decisions by military departments in correction board proceedings. See 866 F.2d at 1513-15. In Daleandro, the court held only that, on the particular facts of that case, "[t]he Secretary could have followed either recommendation without being arbitrary or capricious." 948 F. Supp. at 97. There, the Secretary's delegate had "elaborated upon her conclusion" to side with the minority member's position in a reasoned, written statement, and the court further found that neither the correction board's majority nor counsel had articulated any clear error or injustice warranting correction under 10 U.S.C. ß 1552(a). Id. at 97.
Here, by contrast, the BCNR findings in favor of plaintiff were supported by substantial evidence; the dissenting board member's analysis (which essentially adopted the advice of the military JAG advisor and rejected all of plaintiff's claims) lacks record support; and the Secretary's designee has articulated no reasoning whatsoever for her decision to adopt the minority position. The Court thus has no factual basis on which to conclude that the Secretary has properly exercised his broad discretion and ample basis for concluding otherwise. To allow the Secretary's decision to stand in this case would render the correction board process a farce.
C. The Record Demonstrates That Seaman Maurer's Testimony Was Not Reliable.
Plaintiff recognizes that, except in extreme cases, a court cannot set aside the credibility determinations of a military administrative tribunal. He also does not deny that Seaman Maurer repeatedly stated under oath that his allegations and testimony were truthful. However, when viewed in its entirety, the record demonstrates that the circumstances under which Maurer testified defeat any presumption of procedural regularity and render his sworn assurances, like the rest of his testimony, facially unreliable.
As plaintiff demonstrated in his opening brief, the record establishes that the command of the ANTIETAM used a combined "stick-and-carrot" approach toward Maurer. On one hand, the command subjected him to an intimidating, openly suggestive, and bizarre interrogation-even after he denied that he had any allegation to make against plaintiff-that made Maurer feel "like a suspect," rather than a complaining victim. See R. 104-05. In the course of this interrogation, the command also undeniably violated the Navy's own "Don't Ask" proscription by directly questioning Maurer on his sexual orientation. See id., see also R. 1952 ("Don't Ask" proscription). On the other hand, the command enticed Maurer (either expressly or impliedly) to provide allegations and testimony favorable to its case by holding over his head the prospect of his much desired "early out"-an entirely discretionary prize that Maurer ultimately received, at the command's direction, immediately upon the heels of his testimony against plaintiff. See R. 96; see also PSUMF, 67-70. The fact that Maurer broke down emotionally during his first interrogation does not enhance but undercuts the reliability of his testimony. It indicates the pressure he felt. R. 63.
Although defendants urge that Maurer already had his early separation in hand when he testified, the record shows otherwise. Maurer was an active duty sailor, still subject to the command's control, both when he swore out his allegations and later when he testified, and he did not receive his separation until after the proceedings. See PSUMF, 102-03; R. 2315. [ Defendants have not produced (and have suggested, through counsel, that they no longer possess) the processing paperwork for Maurer's early separation, which presumably would show the precise timing of his application and approval for separation.] Moreover, after he had been separated for many months, Maurer voluntarily corresponded with plaintiff by e-mail; confirmed that his testimony had been pressured; and indicated a desire to recant if he could be protected from the repercussions. See R. 14. In a scurrilous and unsubstantiated attack on plaintiff's integrity, defendants now question for the first time -- in their final brief before this Court -- the authenticity of this e-mail, which they claim is "obviously redacted." Def. Opp. at 25. Defendants' protestations only underscore the extent to which this document discredits their reliance on Maurer -- a document that defendants, not plaintiff, have certified and introduced before this Court as part of the official administrative record. Their admission now that this document is troubling only emphasizes the arbitrary and capricious nature of their refusal to have acted upon it earlier. [Plaintiff objects to defendants' suggestion that the Maurer e-mail (R. 14) has been redacted and has submitted herewith a sworn declaration that he has not redacted this document.]
In the face of these undisputed facts, Maurer's testimony cannot reasonably be credited as a basis upon which to end plaintiff's distinguished career and permanently stigmatize him as a homosexual sex offender. Indeed, the BCNR-the only dispassionate deliberative body (before this Court) to review Maurer's testimony-so concluded. The BCNR majority found:
[T]here is a strong implication that [Seaman Maurer's] allegation that he was solicited by [Plaintiff] was made out of a fear that his early separation would not be approved if he did not so allege. Further, [Seaman Maurer's] testimony clearly indicates that he would not have made a statement had he not been ordered to report to [the Chief Master-at-Arms]. His testimony also indicates that the portion of his statement to the effect that he was offered money for sexual favors, came only after the [Chief Master-at-Arms] asked if such had happened. R. 612.
In the face of these indicia of unreliability, it was arbitrary and capricious for the Navy to have credited Maurer's testimony (and to have rejected the BCNR's findings), and this Court is not obligated to defer to those arbitrary decisions.
Defendants insist that substantial evidence supports their finding that plaintiff unlawfully solicited Seaman Poore for oral sex in September 1993. In their view, the record establishes that the ADB "was careful to distinguish between plaintiff's alleged grabbing of Poore and plaintiff's statement to Poore that I'm going to suck your dick.'" Def. Opp. at 19 (emphasis added). As defendants parse the record, the three members of the ADB properly distinguished the first "assault" allegation, which both they and Poore considered "horseplay," from a second supposed "statements" allegation, which both they and Poore considered "serious." Id. at 20. This "careful distinction" argument has several fatal flaws.
1. Poore Alleged a Single Incident, Which Was "Horseplay."
First, Poore only alleged a single incident, and as he himself recalled and testified about that incident, it was found to have been "horseplay." On the evidence presented, there is simply no basis for defendants' proffered conclusion that plaintiff's alleged physical action (i.e., grabbing Poore and throwing him on the bed) was performed in jest, while his alleged simultaneous and accompanying statement was spoken with serious intent. [Defendants err in staling that the ADB found that plaintiff threw Poore on the bed. Compare R. 158 with Def. Opp. at 20. They also err in stating that plaintiff has never denied making the alleged solicitous and indecent statement. See R. 137-39. Plaintiff has denied, and continues to deny, all of defendants' charges in the strongest terms. See especially R. 136-41.] See Manual for Courts-Martial ("MCM"), Part IV, If 105(b)(2) (PSUMF, Ex. E) (solicitation requires that the accused intend "that the offense actually be committed").
Specifically, Poore alleged that, while he and plaintiff were alone playing cards together in a hotel room in September 1993:
[Plaintiff] . . . grabbed my arm and threw me on the bed. At first I thought that he was horseplaying. But he was serious, he then stated "It's time for me to pay up, and I'm going to suck your dick." I immediately pushed him to the side and left the hotel room. No words were exchanged. R. 49.
In his ADB testimony, Poore testified that plaintiff's alleged assault and statement were parts of a single incident:
Q. What happened?
A. What happened was we were playing cards. I went-uh-to go and get another beer. He grabbed my arm, threw me on the bed and said "It's time for me to pay up. I'm going to suck your dick. " I said "No" and I pushed him away and I left.
See R. 85 (emphasis added).
Defendants do not dispute that-through Poore's direct testimony, his cross-examination, and the testimony of Seamen Maurer and Barnett-Poore's assault allegation was thoroughly discredited. See PI. Mem. at 16-18. As shown above, the ADB itself concluded that there had been no assault and that, at the time, Poore himself had regarded the alleged incident as "horseplay." R. 158. In fact, Poore did not conclude that plaintiff "was not joking around with [him]" (and thus, did not come forward with his allegation) until after he had spoken with plaintiffs other two accusers. King and Maurer, about their allegations. R. 88. Those discussions occurred seven months after Poore's alleged incident, which neither King nor Maurer witnessed. Id.; see also Pi. Mem. at 17.
Having thus correctly concluded that Poore's allegation was not reliable and that the "assault," if it occurred at all, was "horseplay," any finding by the ADB against plaintiff on the supposed "statement" allegation is arbitrary. There was only one incident, and it was horseplay. To attempt to distinguish Poore's "assault" allegation from his supposed "statements" allegation slices the evidence more thinly than the record will allow. While the Navy presented multiple charges on the basis of Poore's allegation, Poore himself made a single, unitary allegation.
2. Defendants' Rely Entirely on Ambiguous Statements by the ADB.
Second, defendants' "careful distinction" argument relies entirely on an ambiguous passage of the ADB transcript. R. 158-60. There, two members of the ADB attempt, with limited success, to explain the ADB's findings with respect to all of the Navy's charges against plaintiff, with reference back to the command's final charging sheet (R. 55-56). [Attachment A to the Declaration of Allan B. Moore, which plaintiff submitted with his opening summary judgment brief, reconciles the ADB's statement of its findings on pages 157-60 of the record with the Navy's charging sheet, to the extent that a reconciliation is possible.]
Defendants have quoted most but not all of this critical passage, which reads as follows:
Senior Chief Wnorowski: We found King an uncredible witness, pretty much. Anything that had to do with Petty Officer King was thrown out-and I believe we agreed that the assault taking place with Petty Officer Poore-
President: Petty Officer Poore believed that it was horseplay at first and we considered that an assault needed to be perceived by the victim as an assault- so we don't think he perceived it as an assault at the time-
Senior Chief Wnorowski: Somebody said that he was already on the bed and then somebody said that he was thrown on the bed and there was enough grey area in there that we couldn 't come to say that he actually did that. . . .
Counsel for Respondent: So now, I guess what we're left with is the solicitation for money on-not King but Maurer and, that's it.
Senior Chief Wnorowski: There was one in there on Poore. We didn't find that he had been assaulted and thrown on the bed but I believe that he went in there and propositioned him for indecent sexual acts. I'd have to look at my thing. Basically, everything with King, we tossed. If it had King's name on it, we tossed it.
Counsel for Respondent: Okay. Cause one of the charges-the only charge with Poore was the sexual assault.
Senior Chief Wnorowski: No, I believe there were two or three things with Poore's name on it. Poore had the very first thing, I believe it was with Poore.
Counsel for Respondent: What? Can you just go cross out what was not proved?
Senior Chief Wnorowski: Okay. We threw out the one with-Okay. [T]he first one with Maurer with undressing him. We threw that out. I mean he couldn't-he didn't remember anything. So there was nobody-so we threw that out. The uh-we didn't-we threw out Charge I-both of them in Charge I were thrown out. Uh one down here with-1 believe those were the two we threw out and then anything that had King in it. We uh just didn't believe King. Okay, you said, before, you said those two were-didn't count anyway-
Recorder: Right.
President: And then the false official statement we tossed.
Senior Chief Wnorowski: All right, I believe charge V too was the one that I said that, you know, there were two of them together. Basically, like, they charged him with the same thing twice--indecent assault--says the same thing about grabbing Poore. They are-they are almost word for word. Is it possible to do that?
Counsel for Respondent: So, the indecent assault was thrown out? Is that what we are saying?
Recorder: Yes, charge IV, V, and VI were not considered or he was found not guilty.
Senior Chief Wnorowski: Right, we don't believe that he intended to commit sodomy. We don't believe he actually grabbed him and threw him on the bed.
Counsel for Respondent: Okay. So, what is the charge that he was actually found guilty of? Senior Chief Wnorowski: Indecent language and soliciting another to commit an offense were the ones-
Counsel for Respondent: Those two-Okay.
R. 158-60.
To suggest that this passage demonstrates the ADB's "careful distinguishing" of the factual allegations and evidence relating to Seaman Poore is absurd. Although the passage makes plain the board's rejection of Poore's assault allegation (and six other allegations, including "anything" having to do with Petty Officer King), it reveals an administrative body that is not able to explain what else it decided, particularly with respect to the solicitation and indecent language counts relating to Poore. With respect to the solicitation charge, the passage shows that a single member of the board, Senior Chief Wnorowski, addressed the matter. Rather than clarify and explain the board's findings, however, he voiced substantial uncertainty, both about what the board had found and about whether the Navy had engaged in impermissible multiple-charging. R. 158-59. At the same time. Chief Wnorowski stated his apparent personal finding on this charge, without any express indication from the other two members of their respective conclusions:
There was one in there on Poore. We didn't find that he had been assaulted and thrown on the bed but / believe that [plaintiff] went in there and propositioned [Poore] for indecent sexual acts. I'd have to look at my thing.
R. 158-59 (emphasis added).
To uphold plaintiff's discharge (or his NJP, for which there is no substantive factual record or transcript of any kind) vis-a-vis the Poore "solicitation" count-on the basis of this equivocal passage-would be profoundly unjust. Neither this passage nor any other part of the record provides substantial evidence to support the Navy's conclusion that, having rejected Poore's assault allegation, the ADB properly and indisputably found against plaintiff on the solicitation charge. See, e.g., Perez v. United States, 850 F. Supp. 1354, 1365-66 (N.D. III. 1994) (Navy discharge board's failure to specify findings in sexual assault case violated Navy's own discharge regulations, plaintiff's due process rights, and APA and prejudiced plaintiff's "ability to challenge the basis for his discharge").
3. The Alleged Statement Was Made in Jest.
Even if plaintiff's alleged statement to Poore is viewed in isolation and artificially segregated from Poore's assault allegation, the record does not support the conclusion, apparently voiced by Chief Wnorowski, that plaintiff sincerely solicited a sex act. Poore's own allegation and testimony demonstrate that, at the time, he thought that plaintiff was joking. R. 49, 86, 88. Barnett testified that he understood, from Poore himself, that Poore may have shared in the verbal jesting. R. 93. And Maurer testified that he similarly understood from Poore that Poore himself, not plaintiff, was the one who uttered the alleged statement and that it was uttered as a "joke." R. 102-03. Defendants ignore this testimony, while quoting selectively from Poore's allegation and testimony.
4. There Was No "Solicitation" of Any Offense.
Finally, defendants cannot avoid the definitional fact that a statement cannot constitute unlawful solicitation unless it actually "solicits" an unlawful act. See MCM Part IV, 105(b)(l) (PSUMF, Ex. E). Military law is clear on this point. See United States v. Asfeld, -14- 30 M.J. 917, 924 (ACMR 1990); see also United States v. Hullett, 40 M.J. 189, 192 (CMA 1994). Here, the alleged statement was a statement of the speaker's intent, not a request for the listener to commit any act. Defendants' response-that Asfeld and Hullett involved court-martial proceedings and different facts-misses the mark. Regardless of the applicable burden of proof or the specific context, it is an essential element of the offense that the statement solicit wrongdoing. Here, as in Asfeld and Hullett, the statement solicited no wrongdoing. [Defendants miscite United States v. Goodwin, 37 M.J. 606, 607 (ACMR 1993), for the proposition that a later panel of the Army Court of Military Review reasoned that Asfeld should be "restricted to its facts." Def. Opp. at 22. Goodwin did not involve a solicitation charge.]
Defendants likewise fail to show how the record supports their findings, at both the NJP and ADB levels, that plaintiff communicated "indecent language" to Seaman Poore. [The Court should summarily reject defendants' contention that plaintiff failed to present this claim in his complaint and failed to preserve it in the administrative setting. He did both. 218; R. 137-41 (plaintiffs ADB testimony); R. 287 (BCNR petition).] The language at issue is the same alleged statement that forms the basis for defendants' defective "solicitation" charge. See R. 49, 55. And the record is even more deficient as it pertains to the indecent language charge. Nowhere in the ADB's explanation of its findings, which plaintiff has quoted at length above (see pages 11-13, supra), does any member of the ADB state whether the board found for or against plaintiff on this charge, and nowhere does any member of the board clearly indicate whether he even considered this charge. R. 157-60.
The closest that any member comes to explaining the ADB's position on this point is Chief Wnorowski's statement that " I believe that [plaintiff] went in there and propositioned [Poore] for indecent sexual acts." R. 159 (emphasis added). This statement gives no indication that Wnorowski was speaking for the board, and by its terms, it suggests, at most, that he personally found against plaintiff on the solicitation charge, not necessarily the indecent language charge. In fact, following, as it does, Wnorowski's observation that the board apparently found against plaintiff on only "one" of the Poore specifications, this statement actually suggests that the board may not have found against plaintiff on the indecent language charge. See R. 159 ("[t]here was one in there on Poore"). It thus remains unclear what the board decided, and this defect alone entitles plaintiff to relief. See Perez., 850 F. Supp. at 1365-66 (Navy discharge board's failure to specify findings prejudiced plaintiff's ability to challenge its reasoning and violated Navy regulations, due process, and APA).
In addition, it follows from plaintiff's foregoing challenge to defendants' solicitation findings that any indecent language finding cannot stand. The record establishes that any such statement was spoken in jest, and casual joking in an off-duty setting, even of an explicit sexual nature, cannot legally be regarded as "indecent." See PI. Mem. at 29-31.
2. DEFENDANTS HAVE MISSTATED SETTLED PRINCIPLES OF ADMINISTRATIVE LAW.
Defendants continue to insist that plaintiff has "failed to state any claim upon which relief c[an] be granted"- i.e., that there is no conceivable set of facts under which plaintiff can prevail on any one of his legal claims. Def. Opp. at 1, 8-10. Despite extensive briefing, however, defendants still have not cited a single case that supports this extreme proposition, and there is overwhelming contrary authority. See PI. Mem. at Att. A, Parts 1-11 (listing and describing cases).
Matlovich v. Secretary of the Air Force, 591 F.2d 852 (D.C. Cir. 1978), which defendants ignore, is directly on point. There, the D.C. Circuit reviewed and set aside the Air -16- Force's discharge of an exemplary serviceman for homosexual conduct-following a military investigation, an administrative separation proceeding, and review by the service branch correction board. The court found that the decisions of both the administrative discharge board and the Air Force's equivalent of the BCNR failed to provide a reasoned explanation for the service branch's actions sufficient to demonstrate that the Air Force had not been "arbitrary, capricious, or unlawful in exercising its discretion." 591 F.2d at 857; see generally id. at 853-61. The court found the justiciability of the plaintiff's claims beyond challenge: "It is established, of course, that the federal courts have the power and the duty to inquire whether a military discharge was properly issued under the Constitution, statutes, and regulations." Id. at 859 (citations omitted).
Both before and since Matlovich, dozens of courts, in this jurisdiction and elsewhere, have recognized that military discharge decisions are subject to judicial review. See, e.g., Dronenburg v. Zech, 741 F.2d 1388, 1390 (D.C. Cir. 1984) ("the federal courts have jurisdiction to determine the legality and constitutionality of a military discharge") (citing Matlovich), PI. Mem., Att. A, Part I (listing cases). The courts have likewise recognized that decisions of the military correction boards are subject to judicial review. See Chappell v. Wallace, 462 U.S. 296, 303 (1983) (correction board decisions "are subject to judicial review and can be set aside if they are arbitrary, capricious, or not based on substantial evidence"); PI. Mem., Att. A, Part II (listing cases). In the face of these authorities, defendants cannot seriously maintain that plaintiff has failed to state a claim.
Perhaps recognizing this fact, defendants advance a more nuanced version of their "justiciability" argument. First, they contend that, even if plaintiff has stated a claim, he is only entitled to judicial review of the "final agency action" arising from his BCNR petition. -17 - Def. Opp. at 6-7. Second, they insist that, whatever the Court may do, it cannot review the Navy's decisions to "investigate" and "initiate processing" against plaintiff. Id. at 28-35. Third, they argue that any judicial review must be limited to a highly deferential examination of whether the Navy followed proper procedures in reviewing plaintiff's BCNR petition and not an examination of the underlying facts-even if those facts are undisputed matters of administrative record. Id. at 4-6. None of these arguments withstands scrutiny.
Quoting Miller v. Lehman, 801 F.2d 492 (D.C. Cir. 1986), and Dowds v. Bush, 792 F. Supp. 1289 (D.D.C. 1992) and citing three other cases, defendants insist that, because plaintiff petitioned the BCNR for relief, he is limited in his judicial challenge to the Navy's handling of that petition and may not challenge his underlying discharge or nonjudicial punishment ("NJP"). Def. Opp. at 6-7 & n.5. None of the cases defendants cite supports this proposition, and settled administrative law holds otherwise.
The cases defendants cite stand for the undisputed proposition that, in court challenges to correction board proceedings, judicial review is limited by the deferential standards of administrative law: the question is whether the service's action was "arbitrary and capricious" or "unsupported by substantial evidence." These cases thus address the standard of review to be applied to correction board proceedings. They do not hold that, having pursued a petition before a correction board, a service member may not thereafter bring a judicial challenge, under those same administrative standards, to an underlying discharge or nonjudicial punishment. Not one of the five cases that defendants cite even addresses this issue, and the district court decision in Dowds that defendants rely upon has been overruled. See Dowds v. Clinton, 18 F.3d 953 (D.C. Cir. 1994) (mem.) (resort to a military correction board is voluntary and is not required, as a matter of administrative exhaustion, before judicial review) (citing Ogden v. Zuckert, 298 F.2d 312 (D.C. Cir. 1961), and reversing and remanding Dowds v. Bush, 792 F. Supp. 1289 (D.D.C. 1992)). [ Neither Miller nor Gottlieb v. Pena, 41 F.3d 730 (D.C. Cir. 1994)--the two D.C. Circuit cases on which defendants rely--involved a challenge to an underlying discharge, NJP, or any similar service branch decision. Both exclusively involved challenges to service branch actions at the correction board level.]
Like the D.C. Circuit in Dowds, numerous courts have recognized that military correction board proceedings are collateral proceedings, separate and apart from the underlying discharge and disciplinary proceedings that they may be invoked to review. Accordingly, a lawsuit (like plaintiff's here) may challenge both an underlying administrative action and a correction board decision, so long as each has resulted in a "final administrative action. " Ogden is illustrative. There, the D.C. Circuit rejected the government's contention that a discharged Air Force officer had failed to exhaust his administrative remedies when he sued to challenge his discharge without first petitioning a correction board. As the Court explained:
The Board furnishes a means by which to seek correction of error or injustice, but neither statute nor regulation requires this means to be pursued as a condition to finality of the Secretary's [discharge] action. The relief which might ensue after Board consideration, similar to relief previously obtained by private bills enacted by Congress, is through a procedure over and above that which guides the administrative process itself to its end. It is a part of a different and subsequent procedure. The place and function of the Board may be roughly compared to that of the bill of review in equity which sought relief from a final judgment where error or injustice appeared. Ogden, 298 F.2d at 315.
Geyen v. Marsh, 775 F.2d 1303 (5 Cir. 1985), is similarly on point. There, an Army serviceman alleged "(1) that the Army violated the Constitution and its own regulations in involuntarily activating him . . . and twice denying him a hardship discharge . . ., and (2) that the decision of the Army Board for the Correction of Military Records (ABCMR) denying him an upgraded discharge was arbitrary, capricious, unsupported by substantial evidence, and erroneous as a matter of law." Id. at 1305. The Fifth Circuit affirmed the district court's dismissal of the first claim under the applicable limitations period but remanded for the case to proceed on the second claim. As the court explained:
We have no doubt that [the second] cause of action is distinct from the first, in which Geyen challenges his activation and the Army's denials of his hardship applications. Neither action depends upon the other for its vitality. The two actions seek review of different final administrative orders. . . . Other courts considering suits such as Geyen's have treated the two causes of action as distinct.
Id. at 1308, 1309 (citations omitted); cf. Walters v. Secretary of Defense, 725 F.2d 107, 114-15 (D.C. Cir. 1983). Here, plaintiff challenges three separate and equally final administrative actions: his "other than honorable" discharge, his nonjudicial punishment, and the arbitrary repudiation of his initially successful BCNR petition. Each of these separate but related administrative actions violated his rights in separate ways; each suffered from distinct but overlapping legal defects; and, contrary to defendants' assertion, each became final at a separate point in time, irrespective of the other two. Plaintiffs NJP became final upon the denial of his NJP appeal on May 29, 1994, as a result of which he was demoted in rank and stripped of two months of pay (see PSUMF, 61, 92); his discharge became final on August 25, 1994, when he was involuntarily separated from the Navy with an "other than honorable" discharge (see id., 94); and his BCNR proceeding became final on May 30, 1996, when the Secretary of the Navy's designee arbitrarily rejected the corrective findings and conclusions of a majority of that board (see id., If 101). See Geyen, 775 F.2d at 1308 n.6 ("A final agency action [for purposes of judicial review] is one that imposes an obligation, denies a right, or fixes a legal relationship;" both the underlying Army decisions and the ABCMR decision challenged by Geyen are "final agency actions") (citation omitted); see also DeLouis v. United States, No. 94-1042C (Cl. Ct. May II, 1998) (Def. Opp., Att. B) (addressing on the merits, as separate justiciable claims, plaintiff's challenges to his NJP and his "other than honorable" discharge).
Defendants have not rebutted plaintiff's showing that the investigation and processing of the charges against him violated the Navy's own "Don't Ask, Don't Tell" regulations in multiple respects. See PI. Mem. at 33-36 (detailing these violations). Instead, they argue that-despite what established APA jurisprudence may hold-the "Don't Ask, Don't Tell" regulations deny plaintiff any right to judicial review of these violations. See Def. Opp. at 28-32. For this argument, defendants rely on the final sentence of the final enclosure to the pertinent DoD Directive, which, after detailing the procedures that govern fact-finding inquiries into allegations of homosexual conduct, tersely states: "The procedures in this enclosure create no substantive or procedural rights." DoD Dir. No. 1332.14, enc. 4, If E (PSUMF, Ex. G).
This argument is misguided. While it may be true that neither Congress nor the Defense Department meant to create any new rights in their promulgation of the fact-finding procedures in the "Don't Ask, Don't Tell" policy, it does not follow that arbitrary and capricious action, either pursuant to or in violation of that policy, is unreviewable under the APA. Here, plaintiff does not assert that he has an independent, private cause of action under the "Don't Ask, Don't Tell" law; rather, he contends that defendants' failure to treat him in -21 - accordance with their own regulations violates the APA and due process. See, e.g., Compi. HI 206-09. Settled law recognizes that "[i]t is the duty of the federal courts to inquire whether an action of a military agency conforms to the law, or is instead arbitrary, capricious, or contrary to the statutes and regulations governing that agency." Dilley v. Alexander, 603 F.2d 914, 920 (D.C. Cir. 1979) (citations omitted), relief clarified, 627 F.2d 407 (1980); see also McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998) (enjoining plaintiff's discharge where Navy failed to rely on "credible information" as required by "Don't Ask, Don't Tell"). [ See also Murphy v. United States, 993 F.2d 871, 873 (Fed. Cir. 1993) ("A court may appropriately decide whether the military followed procedures because by their nature the procedures limit the military's discretion."); Sargisson v. United States, 913 F.2d 918, 920 (Fed. Cir. 1990) (even where "statute does not place any procedural or substantive limitations on the Secretary's discretion^] once the Secretary [of the Air Force] promulgated regulations and instructions and made them the basis for [the challenged decision], his action became subject to judicial review for compliance with those regulations and instructions"); Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989) (it is "well settled that an agency is legally bound to respect its own regulations, and commits procedural errors if it fails to abide them"); see also Vitarelli v. Seaton, 359 U.S. 535, 539-46 (1959) (same); Service v. Dulles, 354 U.S. 363, 379-89 (1957).]
In Dilley, for example, the D.C. Circuit ordered the reinstatement of Army Reservists, who had been involuntarily discharged, because the Army failed to follow the governing statute and DoD directive for the composition of its promotion selection boards. The court analyzed the plaintiffs' claims not pursuant to any right to judicial review provided in the statute or directive at issue but rather, under the familiar standards and settled right to review provided by the APA as applied to the statute and directive at issue. [
Wolfe v. Marsh, 835 F.2d 354 (D.C. Cir. 1987), is not to the contrary. There, in a manner consistent with Dilley and Matlovich, the court held that an "[Army] Correction Board's decision not to take corrective action was not arbitrary, capricious or contrary to law." 835 F.2d at 359-60. The court reached its decision after "[careful review of the Correction Board's function and of the Court's duty to ensure that the Correction Board faithfully and responsibly performed] that function." Id. at 357 (emphasis added).
Finally, as defendants well know (see PI. 56(f) Reply at 18-20), plaintiff does not challenge the Navy's decision "to conduct an investigation." Rather, he challenges its failure, in the course of that "investigation" and in its subsequent proceedings, to seek and rely upon "credible information;" to conduct non-coercive witness interviews; and to refrain from violating the "Don't Ask" proscription-all in violation of its own regulations and settled administrative law.
C. Defendants Cannot Avoid Judicial Review Of The Undisputed Facts.
Finally, defendants err in their contention that plaintiff seeks "de novo" review of the material facts. Def. Opp. at 5. Plaintiff's cross-motion neither requires nor relies upon any new or extraneous evidence. The facts essential to his motion are set forth in the current record, as recited (with supporting citations) in Plaintiff's Statement of Undisputed Material Facts ("PSUMF"). The material facts cannot be disputed and demonstrate plaintiff's right to relief. See generally PSUMF, 1-108.
In effect, defendants' quarrel is not with plaintiffs' recitation of these facts but with the undisputed facts themselves. Defendants thus urge the Court to sidestep the facts by suggesting, as a matter of law, that the Court must accept "the findings made below." Def. Opp. at 5. In making this suggestion, defendants request judicial abdication, not judicial deference, and as defendants themselves repeatedly acknowledge, the law requires more. The Court must review the undisputed facts to determine if the record contains "substantial evidence" to support defendants' actions against plaintiff. See 5 U.S.C. ß 706(2)(E). In conducting this admittedly deferential inquiry, the Court is neither beholden to the findings made below nor (assuming a proper and complete record) empowered to engage in de novo fact-finding.
Here, defendants have responded to most of plaintiff's factual recitations by mechanically asserting that "substantial evidence" supports their actions (and occasionally by adding a partial or technical denial), without any particularized showing of where or what that "substantial evidence" is. See, e.g., Def. Fact Resp., 26-32, 36-44, 46-49, 53-55, 59-62, 64-80, 82, 84-91, 93, 95-96, 98-100. This showing is insufficient, as a matter of law, to defeat plaintiff's cross-motion for summary judgment. See Fed. R. Civ. P. 56(e) (party opposing summary judgment may not rest on "mere allegations or denials" but must "set forth specific facts showing that there is a genuine issue for trial"); L.R. 108(h) (nonmovant must set forth "all material facts as to which it is contended there exists a genuine issue necessary to be litigated" with record references to support each statement).
For the foregoing reasons and for the facts and reasons set forth in plaintiff's opening papers, the Court should grant plaintiff's cross-motion for summary judgment.
Respectfully submitted, Mark H .Lynch D.C. Bar No. 193110, Allan B. Moore D.C. Bar No. 429108, Erin M. Egan D.C. Bar No. 452009, Covington & Burling 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Telephone: (202) 662-5575 Attorneys for Plaintiff
Dated: October 9 1998
