Alvarez et al v. Grosso et al
ORDER by Judge Philip A. Brimmer on 9/29/15. ORDERED: Defendants' Motion to Dismiss 41 is GRANTED. ORDERED: This case is dismissed in its entirety.(kpreu)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-01319-PAB-MJW
ROBERT ALVAREZ and
COL DAVID GROSSO, in his official capacity,
SGM MARK COOK, in his official capacity,
COL JOHN IRGENS, in his official capacity,
LTG JOSEPH ANDERSON, in his official capacity, and,
COL JOEL HAMILTON, in his official capacity,
This matter is before the Court on the Motion to Dismiss [Docket No. 41]
pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by defendants Colonel David
Grosso, Sergeant Major Mark Cook, Colonel John Irgens, Lieutenant General Joseph
Anderson, and Colonel Joel Hamilton. Plaintiffs filed this lawsuit to rescind an order of
the commander of Fort Carson barring plaintiffs from the military installation.
In 2008, plaintiffs Robert Alvarez and Georg-Andreas Pogány began providing
pro bono investigative and advocacy services to U.S. Army service members facing
administrative and judicial proceedings at the U.S. Army installation at Fort Carson,
The following facts, unless otherwise indicated, are taken from plaintiffs’
amended complaint and are presumed true for purposes of resolving this motion.
which is located in El Paso County, Colorado. Docket No. 36 at 3, ¶ 10. Plaintif fs’
services included providing case analysis, seeking correction of health care records
and/or additional medical evaluations, communicating with clients’ superiors,
investigating allegations underlying improper conduct discharges, and providing trial
support services. Id. at 3-4, ¶ 10. The majority of plaintiffs’ clients suffer from mental
illness precipitated by service-related traumatic brain injury (“TBI”) and/or post-traumatic
stress disorder (“PTSD”). Id. at 4, ¶ 11. Plaintiffs work together and sometimes with
attorneys representing service members. Id. at 5, ¶ 12. The nature of plaintiffs’
advocacy work requires base access, including an opportunity to interview military
personnel, see id. at 5-6, ¶¶ 14-15, and attend courts martial and administrative
hearings, which were held on Fort Carson. Id. at 5, ¶ 14. In providing their pro bono
services, plaintiffs conducted themselves professionally and with respect for military
order and discipline. Id. at 6, ¶ 16. When plaintiffs were unable to resolve
disagreements with Fort Carson command staff regarding their clients, plaintiffs
reported such disagreements to the Office of the Surgeon General of the U.S. Army, to
the Vice-Chief of the U.S. Army, and to senators and congressional representatives. Id.
at 7, ¶ 19. Plaintiffs also requested Army Regulation 15-6 investigations of Fort Carson
physicians and commanders for interference in plaintiffs’ clients’ medical evaluations
and separation proceedings. Id.
Col. Grosso, Col. Irgens, Sgt. Cook, and Lt. Gen. Anderson were all part of Fort
Carson’s command staff in 2012. Id. at 1-2, ¶¶ 2-3. Col. Grosso was the Garrison
Commander of Fort Carson in 2012. Id. at 6, ¶ 16. 2 In late 2011, plaintiffs identified an
increase in the military’s use of adverse discharge proceedings to expel
servicemembers who should have been released through medical disposition due to
service-related injuries. Id. at 6-7, ¶ 17. In early 2012, Sgt. Cook, on behalf of Col.
Irgens and Lt. Gen. Anderson, invited plaintiffs to collaborate with Fort Carson staff in
identifying soldiers whose misconduct was caused by service-related injuries. Id. With
the exception of Col. Hamilton, defendants were members of a group called the Tiger
Team “formed by LTG ANDERSON ostensibly to ensure that complicated cases have
all matters fully considered prior to being brought before him or his subordinate
commanders for decision.” Id. at 10, ¶ 24.
In March and April 2012, plaintiffs communicated with defendants regarding the
discharge of Spc. Nesbett, one of plaintiffs’ clients. Docket No. 36 at 8, ¶¶ 20-21.
Plaintiffs asked Lt. Gen. Anderson to suspend separation activ ity on Spc. Nesbett’s
case. Id. Sgt. Cook responded on Lt. Gen. Anderson’s behalf , asserting that discharge
proceedings were proper. Id. Plaintiffs then advised Lt. Gen. Anderson that they would
take their concerns to the Senate Veterans Af fairs Committee and Senate Armed
Services Committee. Id. Lt. Gen. Anderson suspended separation proceeding s for
Spc. Nesbett. Id.
Plaintiffs continued their work through the summer and fall of 2012. During that
time, plaintiffs represented Spc. Bettencourt, a soldier facing adverse discharge as a
result of misconduct. Docket No. 36 at 10, ¶ 24. Plaintif fs believed that such
Col. Hamilton took over as Garrison Commander of Fort Carson in May 2014.
Id. at 2, ¶ 3.
misconduct was caused by a service-related injury and contacted the Tiger Team,
requesting that the defendants suspend the discharge proceedings and process Spc.
Bettencourt for medical disposition. Id. Although defendants temporarily suspended
discharge proceedings, on October 23, 2012, those proceedings resumed. Id. at 10,
¶ 25. However, Col. Irgens advised plaintiffs that the Tiger Team would continue to
receive their input, stating
[w]e hope that you will continue to provide information to the Tiger Team
regarding perceived problems with systems used by the Installation, and
specific injustices you believe are happening to individuals Soldiers . . . Your
input regarding issues is valued, as this Installation and its Commanders
care deeply about Soldiers. They are highly interested in looking into any
matter that might be perceived as or actually does deprive a Soldier of any
fairness. Please feel free to notify the Tiger Team of all issues.
On October 27, 2012, plaintiffs asked Lt. Gen. Anderson to suspend Spc.
Bettencourt’s discharge. Id. at 11, ¶ 26. On October 30, 2012, Sgt. Cook invited
plaintiffs “to present issues that you would like the Tiger Team to look into” at a Tiger
Team meeting on November 1, 2012. Id. at 12, ¶ 29. On October 31, 2012, plaintif fs
emailed Lt. Gen. Anderson, expressing concern that Lt. Gen. Anderson’s subordinates
were violating Article 134 of the Uniform Code of Military Justice, including “wrongful
interference with an adverse administrative proceeding,” and notifying Lt. Gen.
Anderson that they intended to approach the Armed Services Committee to seek
intervention on behalf of Spc. Bettencourt. Id. at 11, ¶ 27. On October 31, 2012, Mr.
Alvarez accompanied Spc. Bettencourt through his out-processing from Fort Carson.
Id. at 12, ¶ 28. Mr. Pogany was not physically present. Id. Midway through the out-
processing, the proceeding was halted because of a telephone call from Spc.
Bettencourt’s physician, who ordered Spc. Bettencourt’s discharge halted for further
medical evaluation. Id.
On November 5, 2012, Col. Grosso issued a debarment order (the “debarment
order”) preventing plaintiffs from entering Fort Carson. Id. at 12, ¶ 30. Col. Grosso
notified plaintiffs of the decision via a letter, which stated, “I have determined that your
presence is disruptive to the good order and discipline of the Fort Carson installation.
You are hereby ordered not to reenter or be found within the limits of Fort Carson,
Colorado.” See Docket No. 41-1; Docket No. 41-2. 3 The letter explained that plaintiffs
could submit a written statement requesting modification or rescission of the debarment
order. Id. Plaintiffs sought reversal of the debarment order by higher authorities. Id. at
13-14, ¶ 34. In response to plaintiffs’ appeal to higher authorities, defendants provided
specific reasons for issuing the debarment order, including that plaintiffs had physically
interfered with the out-processing of Spc. Bettencourt and had told “a solider to ‘drool’
and otherwise falsify symptoms of mental illness in order to justify medical disposition
and evade bad conduct discharge proceedings.” Id. at 13-14, ¶ 34. Plaintiffs claim that
such statements are false. Id.
On May 12, 2014, plaintiffs filed this case against defendants in their individual
and official capacities. Docket No. 1. On September 22, 2014, plaintiffs filed an
amended complaint asserting claims for First Amendment retaliation, violation of due
Because these documents are referenced in plaintiffs’ complaint and are central
to their claims, the Court can consider them without converting the present motion to a
motion for summary judgment. See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215
(10th Cir. 2007).
process, and violation of First Amendment right of access to courts. Id. at 15, 17, 19.
On October 7, 2014, the Court dismissed with prejudice all claims against defendants in
their individual capacities. Docket No. 40 at 1. Plaintiffs are seeking declaratory and
injunctive relief vacating the debarment order. Docket No. 36 at 21, ¶ 57.
II. STANDARD OF REVIEW
The Court’s function on a Rule 12(b)(6) motion for failure to state a claim upon
which relief can be granted is not to weigh potential evidence that the parties might
present at trial, but to assess whether the plaintiff’s complaint alone is sufficient to
plausibly state a claim. Fed. R. Civ. P. 12(b)(6); see also Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003). In doing so, the Court “must accept all the wellpleaded allegations of the complaint as true and must construe them in the light most
favorable to the plaintiff.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir.
2007) (quotation marks and citation omitted). At the same time, however, a court need
not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc., 291 F.3d
1227, 1232 (10th Cir. 2002).
To survive a motion to dismiss under Fed. R. Civ. P. Rule 12(b)(6), a complaint
must allege enough factual matter that, taken as true, makes the plaintiff’s “claim to
relief . . . plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th
Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W ]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged–but it has not shown–that the pleader is entitled
to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and
alteration marks omitted); see also Khalik, 671 F.3d at 1190 (quoting Twombly, 550
U.S. at 570) (“A plaintiff must nudge [his] claims across the line from conceivable to
plausible in order to survive a motion to dismiss.”). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson v. Gonzales,
534 F.3d 1282, 1286 (10th Cir. 2008) (alteration m arks omitted).
A key to the resolution of defendants’ motion is the location on which plaintiffs’
alleged activities principally occurred – a military base. It is also important to keep in
mind what action of defendants plaintiffs challenge – an order barring them from Fort
Carson – and what relief plaintiffs seek – rescission of the debarment order.
Base commanders have considerable discretion to exclude civilians from military
bases. In fact, the Supreme Court has noted the “historically unquestioned power of a
commanding officer summarily to exclude civilians from the area of his command.”
Cafeteria & Restaurant Workers Union, Local 473, AFL-CI0 v. McElroy, 367 U.S. 886,
893 (1961); see also United States v. Albertini, 472 U.S. 675, 690 (1985); Greer v.
Spock, 424 U.S. 828, 838 (1976); United States v. Gourley, 502 F.2d 785, 786-87 (10th
Cir. 1973) (“[It is] well recognized that the commander of a military installation has and
must have the broad authority and discretion to summarily exclude persons
therefrom.”). Such power comes principally from the Constitution, which grants
Congress “plenary authority . . . ‘To raise and support Armies’; ‘To provide and maintain
a Navy’; and ‘To make Rules for the Government and Regulation of the land and naval
Forces.’” Chappell v. Wallace, 462 U.S. 296, 301 (1983) (citing U.S. Const. Art. I, § 8,
cls. 12-14); see also Cafeteria Workers, 367 U.S. 890 (“The control of access to a
military base is clearly within the constitutional powers granted to both Congress and
the President”). “‘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.” Chappell, 462 U.S. at 301. As a result, in cases arising in the
context of Congress’ authority over national defense and military affairs, “perhaps in no
other area has the Court accorded Congress greater deference.” See Rostker v.
Goldberg, 453 U.S. 57, 64-65 (1981); see also Albertini, 472 U.S. at 689. The Supreme
Court has, however, suggested that civilians may not be excluded from a military base
“if the announced grounds for . . . exclusion [are] patently arbitrary or discriminatory.”
See Cafeteria Workers, 367 U.S. at 898.
Although invoking different constitutional rights, each of plaintiffs’ claims seeks
the same thing: an opportunity to challenge defendants’ stated reasons for issuing the
A. Due Process
Plaintiffs argue that, by issuing the debarment order, defendants violated
plaintiffs’ procedural and substantive due process rights. See Docket No. 36 at 17-18,
Ordinarily, courts “examine procedural due process questions in two steps: the
first asks whether there exists a liberty or property interest which has been interfered
with by the [government]; the second examines whether the procedures attendant upon
that deprivation were constitutionally sufficient.” Kentucky Dep’t of Corr. v. Thompson,
490 U.S. 454, 460 (1989) (internal citations omitted); see also Ward v. Anderson, 494
F.3d 929, 934 (10th Cir. 2007). Defendants argue that plaintiffs have not established
either prong, Docket No. 41 at 13, and plaintiffs do not directly respond. The Court
agrees with defendants.
As to the first prong, plaintiffs do not identify any “statute, regulation, or contract”
that establishes their entitlement to continued admission to Fort Carson, see Serrano
Medina v. United States, 709 F.2d 104, 108 (1st Cir. 1983), or identif y any recognized
basis for overriding a base commander’s “broad authority and discretion to summarily
exclude persons” from military installations. See Gourley, 502 F.2d at 786. In light of
Cafeteria Workers and its progeny, the Court finds no basis for concluding that plaintiffs
have established a property or liberty interest which the debarment order interferes
As to the second prong, where, as here, a private interest can be characterized
“as a mere privilege subject to the Executive’s plenary power, it has traditionally been
held that notice and hearing are not constitutionally required.” Cafeteria Workers, 367
U.S. at 895. Courts interpreting Cafeteria Workers generally conclude that a
commanding officer does not violate a civilian’s due process rights by summarily
excluding him or her from a military base without notice and a hearing. See Serrano
Medina, 709 F.2d at 108 (collecting cases). The Court therefore rejects plaintiffs’ claim
that they were entitled to “notice and the opportunity to be heard” before being excluded
from Fort Carson. See Docket No. 36 at 18, ¶ 45. 4
Plaintiffs’ argument in support of their due process claims is that the debarment
order was “patently arbitrary . . . as retaliation for Plaintiffs’ advocacy and reporting of
misconduct in the disposition of wounded soldiers’ medical and legal cases.” Docket
No. 44 at 13. The Supreme Court has stated, in dicta:
We may assume that Rachel Brawner could not constitutionally have been
excluded from the Gun Factory if the announced grounds for her exclusion
had been patently arbitrary or discriminatory – that she could not have been
kept out because she was a Democrat or a Methodist. It does not follow,
however, that she was entitled to notice and a hearing when the reason
advanced for her exclusion was, as here, entirely rational and in accord with
the contract with M & M.
Cafeteria Workers, 367 U.S. at 898. Courts have interpreted this language as placing a
limit on a base commander’s otherwise unfettered discretion to exclude civilians from
military installations. See Berry v. Bean, 796 F.2d 713, 717 (4th Cir. 1986); see also
Tokar v. Hearne, 699 F.2d 753, 757 (5th Cir. 1983). Some courts, however, have
grappled with the question of how such a limitation should be applied, including whether
a plaintiff invoking this limitation is entitled to challenge the factual basis for a base
The letters notifying plaintiffs of the debarment order give plaintiffs the option of
providing a written statement to Col. Grosso requesting modification or rescission of the
debarment order. See Docket Nos. 41-1 and 41-2. It is not clear that plaintif fs availed
themselves of the opportunity. However, plaintiffs allege that they “sought reversal of
and investigation of the debarment order by other and higher authorities.” Docket No.
36 at 13-14, ¶ 34. Although plaintiffs’ attempt to have the debarment order rescinded
was unsuccessful through military channels, the fact that plaintiffs had (and apparently
exercised) some right to recourse further undercuts their assertion that they were not
given sufficient procedural protections.
commander’s stated reasons for exclusion. See Berry, 796 F.2d at 717; Serrano
Medina, 709 F.2d at 109. The court in Serrano Medina, in considering this issue,
looked to the Supreme Court’s language in Cafeteria Workers:
Cafeteria Workers indicates that the factual basis behind the commander’s
allegations is not subject to judicial scrutiny. The Court was not willing to
look behind the “announced grounds” for the exclusion; it upheld the
exclusion because “the reason advanced” was “entirely rational.” Thus,
Cafeteria Workers would seem, at most, to allow us only to question whether
the allegations, assumed to be true, are such as would constitutionally permit
an exclusion order to stand; that is, whether the assumed facts may
constitutionally be the basis for judgment that [plaintiff] merits exclusion.
Id. (citations and quotations omitted, emphasis in original) (quoting Cafeteria Workers).
see also Berry, 769 F.2d at 717 (finding considerable support for the view that a court
reviewing a commander’s bar order “may consider only whether it states facially valid
reasons for exclusion, with no scrutiny of the factual basis for the exclusion”); Garrison
v. United States, 688 F. Supp. 1469, 1475 (D. Nev. 1988) (deciding on motion to
dismiss that “bar order issued to Garrison was based on legitimate grounds, in keeping
with the broad discretion granted the base commander” (citing Serrano Medina)).
In Weissman v. United States, 387 F.2d 271, 272-73 (10th Cir. 1967), the base
commander at Fort Sill in Oklahoma received reports that defendants were verbally
disrupting a court-martial proceeding. The commander issued a bar order, preventing
defendants from reentering Fort Sill. Id. Shortly thereafter, defendants were found on
the base and were charged with and convicted of violating 18 U.S.C. § 1382. Id. On
appeal, defendants challenged the bar order, arguing that the government showed no
valid reason for its promulgation. The Tenth Circuit disagreed. The commander,
General Brown, testified that he issued the bar order on the basis of reports of
defendants’ behavior and because he considered the conduct of the defendants
“prejudicial to good order and discipline, and the accomplishment of my mission.” Id. at
274. On the basis of the commander’s stated reasons for issuing the bar order, the
Tenth Circuit concluded that the order was reasonable. Moreover, the court added that,
“[e]ven if we did not so believe, the order was within the discretionary power of the
commandant and not reviewable by the courts.” Id. Defendants also argued that they
were entitled to production of the written reports relevant to the commander’s testimony,
but the Tenth Circuit disagreed, holding, “[a]s a matter of law there may be no
challenge to the General’s statement of the reason for the bar order.” Id.; see also
United States v. May, 622 F.2d 1000, 1006 (9th Cir. 1980) (noting that scope of review
in challenge to bar order “extremely limited”).
Some courts appear willing to examine the factual predicate of a base
commander’s stated reasons. See, e.g., Tokar v. Hearne, 699 F.2d 753, 757 (5th Cir.
1983) (upholding bar order after district court bench trial, concluding “there was ample
evidence to support Colonel Hearne’s actions”); Serrano Medina, 709 F.2d at 109-10
(collecting cases). Nonetheless, the Court is persuaded by the reasoning of Weissman
and Serrano Medina. Such reasoning is consistent with Cafeteria Workers and the
deference courts traditionally afford base commanders to manage a military installation.
As the First Circuit has pointed out, to conclude otherwise and “delve into the truth or
falsity of the facts behind the exclusion would be to require the very hearing that
appellant has been found not entitled to.” See Serrano Medina, 709 F.2d at 109.
Here, plaintiffs have failed to state a claim that defendants’ stated reasons for
issuing the debarment order are patently arbitrary or discriminatory. In the November 5,
2012 letters to plaintiffs, Col. Grosso states “I have determined that your presence is
disruptive to the good order and discipline of the Fort Carson installation.” See Docket
No. 41-1 at 1. Courts have upheld bar orders issued under similar reasoning, see, e.g.,
Weissman, 387 F.2d at 274, and such reasoning appears to fall well within Col.
Grosso’s discretion to summarily exclude civilians from a military installation. See
Gourley, 502 F.2d at 786-87. The Court therefore finds that plaintiffs have failed to
state a claim that the debarment order was patently arbitrary or discriminatory.
Although it is far from clear that defendants were required to state additional
reasons for excluding plaintiffs from Fort Carson, defendants nevertheless did so.
Plaintiffs’ complaint states that, after plaintiffs challenged the debarment order with
“higher authorities,” defendants offered specific reasons for the debarment order,
including that Mr. Alvarez and Mr. Pogany physically interfered with the out-processing
of SPC Bettencourt and told “a solider to ‘drool’ and otherwise falsify symptoms of
mental illness in order to justify medical disposition and evade bad conduct discharge
proceedings.” Docket No. 36 at 13-14, ¶ 34. Plaintiffs adamantly deny these
accusations, id., but the Court’s review is not concerned with whether there is sufficient
factual support for defendants’ stated reasons. See Garrison, 688 F. Supp. at 1475
(assuming, without deciding, that plaintiff was correct that bar order was issued without
sufficient factual investigation, “the factual basis behind the commander’s allegations is
not subject to judicial scrutiny”); see also Serrano Medina, 709 F.2d at 109; Weissman,
387 F.2d at 274. Plaintiffs further assert that defendants’ post-hoc articulation of
additional grounds for the debarment order renders such grounds inherently suspect.
Id. It is not clear, as noted above, that plaintiffs were entitled to additional explanation
of the grounds for the bar order. Moreover, the Court finds nothing patently arbitrary or
discriminatory about defendants’ more specific reasons for excluding plaintiffs from Fort
Carson. Col. Grosso undoubtedly has an interest in assuring that civilians are not
physically interfering with the out-processing of a service member from the base. The
other reason that plaintiffs cite in the complaint is that plaintiffs were coaching a witness
to falsify symptoms of mental illness to gain an advantage in discharge proceedings.
Plaintiffs do not dispute that, if true, this would constitute serious misconduct. Col.
Grosso’s decision to exclude plaintiffs for those reasons is facially rational, and plaintiffs
do not otherwise identify a sufficient basis for the Court to interfere in what is a facially
legitimate exercise of discretion. See Albertini, 472 U.S. at 689 (noting that analysis of
bar order “does not turn on a judge’s agreement with the responsible decisionmaker
concerning the most appropriate method for promoting significant government
interests”); Chappell, 462 U.S. at 301. 5
Plaintiffs rely on Robinson v. Overseas Military Sales Corp., 827 F. Supp. 915
(E.D.N.Y. 1993), for the proposition that defendants exceeded their discretion in issuing
the debarment order because they did not issue the order based upon a “rational
reason.” In Robinson, the plaintiff was employed by a private company to sell cars at a
United States military installation in Korea. Id. at 919. The U.S. Army investigated
allegations plaintiff sold goods on the black market to Korean nationals and improperly
purchased rations at a military base. Id. Based on a report of such investigation, the
base commander barred plaintiff from military bases in Korea and, as a result, plaintiff
was terminated from his job. Id. at 919-20. Plaintiff filed suit against his employer as
This reasoning applies with equal force to plaintiffs’ substantive due process
claim. The substantive due process doctrine has two strands: “One strand protects an
individual’s fundamental liberty interests, while the other protects against the exercise of
governmental power that shocks the conscience.” Seegmiller v. LaVerkin City, 528
F.3d 762, 767 (10th Cir. 2008). Plaintiffs’ allegations arise out of the latter strand. See
Docket No. 44 at 12. To constitute conscience shocking behavior, the government
action must be “arbitrary and unrestrained by the established principles of private right
and distributive justice.” Seegmiller, 528 F.3d at 767 (quotation marks and citations
omitted). The Supreme Court has made clear that “only the most egregious official
conduct can be said to be arbitrary in the constitutional sense.” Cty. of Sacramento v.
Lewis, 523 U.S. 833, 846 (1998). In light of commanding officers’ broad discretion to
summarily exclude civilians from a military base and the grounds identified as the
reasons for the debarment order here, defendants’ issuance of the debarment order
falls well short of conscience shocking behavior. See Albertini, 472 U.S. at 690;
Serrano Medina, 709 F.2d at 109.
well as other defendants affiliated with the government alleging that the investigation
had caused him to lose his job. Id. at 920. As to his claim that the government
defendants’ actions constituted a property deprivation in violation of the due process
clause, the court found his argument frivolous because he had no property interest in
his job. Id. at 924. The court rejected plaintiff’s argument that the government should
have presented him with its investigation findings prior to barring him from bases,
concluding that plaintiff was not entitled to a hearing “where that officer relied on a
rational reason for the debarment.” Id. (citing Cafeteria Workers). Although Robinson
was decided on summary judgment, its reasoning applies here. See Garrison, 688 F.
Supp. at 1475.
B. First Amendment Retaliation
Plaintiffs’ complaint alleges that the debarment order violates their First
Amendment rights to “freedom of speech, freedom of association and freedom from
retaliation for protected conduct.” Docket No. 36 at 16, ¶ 40. Plaintif fs, however,
appear to have abandoned their freedom of speech and association theories,
proceeding exclusively on a retaliation theory. Docket No. 44 at 9-10. Plaintiffs
contend that this case “should be analyzed by answering whether a commander’s
discretion to exclude civilians covers debarments ordered as retaliation for protected
conduct.” Id. at 2.
To bring a First Amendment retaliation claim outside the employment context, a
plaintiff must establish three elements:
(1) that the plaintiff was engaged in constitutionally protected activity; (2) that
the defendant’s actions caused the plaintiff to suffer an injury that would chill
a person of ordinary firmness from continuing to engage in that activity; and
(3) that the defendant’s adverse action was substantially motivated as a
response to the plaintiff’s exercise of constitutionally protected conduct.
Leverington v. City of Colo. Springs, 643 F.3d 719, 729 (10th Cir. 2011) (quotations
omitted). As to the first element, plaintiffs allege that they engaged in a variety of
protected activity, including engaging in advocacy work on Fort Carson, communicating
with defendants regarding soldiers’ separation proceedings, and communicating with
the Office of the Surgeon General and Inspector General of the United States Army as
well as senators and congressmen regarding investigative findings. Docket No. 36 at
16, ¶ 39; see also id. at 7, ¶ 19. Plaintiffs appear to take the position that such conduct
is constitutionally protected petitioning activity. Docket No. 44 at 10; see also Van
Deelen v. Johnson, 497 F.3d 1151, 1156 (10th Cir. 2007) (“a private citizen exercises a
constitutionally protected First Amendment right anytime he or she petitions the
government for redress” (emphasis in original)). However, by abandoning their freedom
of speech and association theories, plaintiffs all but concede that they have no absolute
First Amendment right to engage in speech within the confines of Fort Carson. See
Greer, 424 U.S. at 836 (“the First Amendment [has] never meant that people who want
to propagandize protests or views have a constitutional right to do so whenever and
however and wherever they please”). In fact, plaintiffs do not explicitly challenge
defendants’ argument that plaintiffs have not alleged any facts entitling them to engage
in First Amendment activity within Fort Carson. Docket No. 41 at 10.
Plaintiffs’ position on this issue is problematic to the success of their claim, given
that they seek an order from this Court restoring their ability to enter Fort Carson. By
conceding that they have no First Amendment right to engage in speech within Fort
Carson, the only conduct giving rise to this claim would appear to be petitioning activity
that took place in the form of phone calls, letters, or emails outside Fort Carson. 6
Plaintiffs identify their protected activity as “reporting to higher authorities the
efforts to subject solders to adverse administrative separation” and “advocacy against
the United States Army’s pattern and practice of reducing its ranks by ‘chaptering’
soldiers with service-related injuries.” Docket No. 44 at 10 (citing Docket No. 36 at 17,
¶ 40). Plaintiffs do not explicitly allege that their reports to higher authorities or their
advocacy against the U.S. Army – as distinguished from their representation of specific
clients – occurred on Fort Carson or that their physical presence on Fort Carson was
necessary to conduct such petitioning activity. Rather, plaintiffs seems to allege that
the petitioning activity is incident to and necessary for their representation of service
Plaintiffs’ claim that defendants’ decision to exclude them from Fort Carson was in
retaliation for such activity and that this alleged retaliatory motive is grounds for
vacating the debarment order. See Docket No. 36 at 21.
Although styled differently, plaintiffs’ First Amendment retaliation claim and due
process claims seek to rescind the debarment order by the same means, namely,
through a challenge to the factual sufficiency of Col. Grosso’s stated reasons for issuing
the debarment order. The Supreme Court has reiterated that a commanding officer’s
power to exclude civilians from a military base is not subject to the same analysis as
government regulation over other spaces, whether the challenge to that power is
asserted under the First Amendment, see, e.g., Albertini, 472 U.S. at 688, or the Due
Process Clause. See, e.g., Cafeteria Workers, 367 U.S. at 895. If a base
commander’s authority to exclude civilians prohibits a court from “delv[ing] into the truth
or falsity of the facts behind the exclusion” when reviewing a due process claim, see
Serrano Medina, 709 F.2d at 109, 7 that rationale would appear to apply with equal force
members. Given that the debarment order does not prevent them from engaging in
such petitioning activity, plaintiffs apparently claim that a debarment order cannot have
the indirect effect of interfering with the effectiveness of their petitioning activity.
Serrano Medina states that the “arbitrary or discriminatory” standard for
overturning a bar order on due process grounds may be inapplicable “if it appeared that
appellant had been excluded for the exercise of first amendment or other constitutional
rights.” 709 F.2d at 109 (citing Flower v. United States, 409 U.S. 197 (1972); Kiiskila v.
Nichols, 433 F.2d 745 (7th Cir. 1970) (en banc). This statement does not, however,
suggest a different result here. The Supreme Court’s holding in Flower was predicated
on First Amendment activity that occurred on an open street, where the military had
“abandoned any claim that it has special interests in who walks, talks, or distributes
leaflets on the avenue.” 407 U.S. at 198. In those circumstances, a base commander
to a court reviewing a First Amendment retaliation claim. See Albertini, 472 U.S. at 689
(rejecting notion that First Amendment claim assigned the judiciary “the authority to
manage military facilities throughout the Nation”). Allowing plaintiffs to test the factual
sufficiency of Col. Grosso’s stated reasons for excluding them, as noted above, would
be to grant plaintiffs the very hearing they are not otherwise entitled to. See Serrano
Medina, 709 F.2d at 109; Berry, 796 F.2d at 718 (concluding that, where facts stated in
bar order were undisputed, court need not, as plaintif f urged, consider bar order “in view
of all the circumstances surrounding the order”); Weissman, 387 F.2d at 274.
As a result, the Court limits its analysis of plaintiffs’ First Amendment retaliation
claim to determining whether defendants’ stated reasons for excluding plaintiffs from
Fort Carson are patently arbitrary, discriminatory, or retaliatory. Col. Grosso’s initial
stated reason for excluding plaintiffs does not patently implicate plaintiffs’ First
Amendment rights, compare Docket Nos. 41-1 and 41-2, with Kiiskila, 433 F.2d at 747,
and appears to fall well within his authority as commander of Fort Carson. See
Weissman, 387 F.2d at 274. Moreover, defendants’ subsequently stated reasons for
the debarment order are related to plaintiffs’ interference with activities taking place
within Fort Carson and do not patently implicate plaintiffs’ alleged protected petitioning
could “no more order petitioner off this public street because he was distributing leaflets
than could the city police order any leaflete(e)r off any public street.” Id.; see also
Greer, 424 U.S. at 836. In Kiiskila, the Seventh Circuit found that a base commander’s
bar order violated plaintiff’s First Amendment rights and directed that plaintiff be
readmitted to the base. 433 F.2d at 751. In Kiiskila, however, the ability to challenge
the factual basis of a base commander’s reasons for a bar order was assumed. Id. at
activity. See Docket No. 36 at 14, ¶ 34. For the reasons discussed abov e, the Court
will not inquire into the truth or falsity of these reasons. See Weissman, 387 F.2d at
274. Because these reasons are not arbitrary, discriminatory, or retaliatory, defendants’
motion to dismiss as to plaintiff’s First Amendment retaliation claim will be granted.
C. Access to Courts Martial
Plaintiffs claim that the debarment order violates their First Amendment right of
access to military courts martial held within the boundaries of Fort Carson. Docket No.
44 at 13-14.
First, plaintiffs argue that they have a right to assist counsel and testify at courts
martial and administrative hearings on behalf of their clients. Id. at 14. Plaintiffs do not,
however, identify any authority in support of their claim that non-attorneys have a right
to “assist” in courts martial and no such authority is apparent to the Court. Moreover,
plaintiffs are not attorneys, they work on a “pro bono” basis, and they are not
themselves a party to any court proceedings taking place on Fort Carson. Thus, any
injury caused by their inability to assist in courts martial would be suffered by plaintiffs’
clients, not plaintiffs. Plaintiffs therefore fail to establish that they have standing to bring
such a claim. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 180-81 (2000) (setting forth requirements of constitutional standing).8
Plaintiffs cite Williams v. Stewart, 441 F.3d 1030 (9th Cir. 2006), in support of
their argument that they have a right to provide trial and investigative services at courts
martial held on Fort Carson. Docket No. 44 at 14. However, in Williams, a criminal
defendant sought post-conviction relief, arguing that he was unconstitutionally denied
the appointment of a mitigation investigator. Williams, 441 F.3d at 1053. The Ninth
Second, plaintiffs argue that, because courts martial are open to the public, they
have a right to attend courts martial in person. Docket No. 44 at 14-15. The Supreme
Court has expressly rejected such logic. See Albertini, 472 U.S. at 687 (holding that
“valid bar letter distinguished [an individual] from the general public and provided a
reasonable grounds for excluding him from the base,” which “did not become less
weighty when other persons were allowed to enter”); Greer, 424 U.S. at 838 n.10 (“The
fact that other civilian speakers and entertainers had sometimes been invited to appear
at Fort Dix did not of itself serve to convert Fort Dix into a public forum or to confer upon
political candidates a First or Fifth Amendment right to conduct their campaigns there.”).
Moreover, in United States v. McVeigh, 106 F.3d 325, 336 (10th Cir. 1997), the T enth
Circuit held that, although the Supreme Court has recognized a “public trial-access
right,” there exists no individual right to attend a particular proceeding:
In our view, recognition of such an entitlement, arguably affording a
constitutional basis for disruptive interlocutory review in every criminal
prosecution at the behest of any disappointed would-be trial attendee,
would entail an unprecedented expansion/transformation of the public
trial-access right unwarranted by the policies cited by the Supreme Court
as the rationale for gleaning the right from the First Amendment.
Id. at 335. The Court will therefore grant defendants’ motion to dismiss as to plaintiffs’
third claim for relief.
Circuit held that, in appropriate circumstances, the Due Process Clause requires a court
to “provide investigative help to ensure that an accused has received the effective
assistance of counsel.” Id. Williams does not, despite plaintiffs’ urging, suggest that an
investigator can bring suit to enforce a criminal defendant’s right to investigative
For the foregoing reasons, it is
ORDERED that defendants’ Motion to Dismiss [Docket No. 41] is GRANTED. It
ORDERED that this case is dismissed in its entirety.
DATED September 29, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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