HISGEN v. MCHUGH
MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 9/20/2016. (lcrmc1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
COLONEL JENNIFER A. HISGEN
Civil Action No. 14-1204 (RMC)
ERIC K. FANNING,
Acting Secretary of the Army,
Colonel (Ret.) Jennifer A. Hisgen, U.S. Army, sues Erik K. Fanning, Acting
Secretary of the Army, in his official capacity. Col. Hisgen served with distinction for 30 years,
mostly in the Judge Advocate General Corps. She has brought suit to overturn a decision of the
Army Board for Correction of Military Records (Board) confirming that she violated the Military
Whistleblower Protection Act by reprising against a service member who made a protected
communication. Col. Hisgen disagrees with the decision and alleges that the Board violated the
standards set forth in the Administrative Procedure Act (APA), 5 U.S.C. § 706(2).
The parties have cross-moved for summary judgment. For the reasons that follow, the Court will
grant Secretary Fanning’s Motion for Summary Judgment and deny Col. Hisgen’s Cross Motion
for Summary Judgment.
Col. Hisgen spent most of her Army career on active duty as a commissioned
officer in the U.S. Army Reserve Active Guard Reserve program, specifically in the Judge
Advocate General Corps. See Admin Record [Dkt. 19] at AR 016. 1 In 2012, Col. Hisgen was
selected to serve as the Command Inspector General for the U.S. Army Reserve Command,
which is a non-Judge Advocate position. See AR 066, 096, 097. An Inspector General (IG) is
tasked with protecting the rights of individuals, as well as the interests of the Army, in
accordance with applicable laws and regulations. AR 103. Her performance as Command IG
was rated as outstanding by her superior officer. AR 102, 242-43.
Army Reserve Command consists of over 200,000 personnel, including 10,000
full-time Soldiers and 3,000 Army civilian employees. Id. As Command IG, Col. Hisgen was a
member of the personal staff of the Commanding General. She was responsible for leading,
mentoring, and training a directorate of 27 IGs and for the technical supervision of more than
300 Army Reserve IGs supporting over 45 Major Subordinate Commands. AR 102. Col.
Hisgen served as Command IG from April 30, 2012 to February 19, 2013. AR 048-49, 247. She
did not receive any adverse markings on her performance evaluation. AR 099-100.
As Command IG, Col. Hisgen was responsible for reviewing and making
recommendations on whether to extend tours of duty for the 300 IGs in the Army Reserve
Command. AR 005, 102-03. Normally a three-year appointment, an IG can request a fourth,
and even a fifth, year extension. Id. While the Command IG is solely responsible for approving
fourth-year extension requests, the Command IG must forward all fifth-year extension requests
that he or she supports to the Department of the Army Inspector General (Army IG), Operations
and Support Division for final approval by The Inspector General (TIG). Id. In other words, the
Citations to the Administrative Record are annotated as “AR XXX.” Although the Record is
numbered to six digits, the first three digits are omitted for the convenience of the reader.
Command IG has denial authority over such extension requests because he or she only forwards
those with a favorable recommendation.
A few weeks into her new position as Command IG, on June 10, 2012, Col.
Hisgen forwarded her favorable recommendation of Lieutenant Colonel (LTC) MF’s fifth-year
extension request to the Army IG for final approval. She noted that “LTC [MF’s] performance
with the 79th [(Sustainment Support Command)] SSC was remarkable” and that “[a]pproval of a
5th Year Extension will allow [Central Command] to retain a highly skilled IG who will greatly
contribute to mission success by providing quality IG support and leadership in a deployed
environment.” AR 137.
The 79th SSC, to which LTC MF was assigned, has authority over several units,
including the 311th Expeditionary Sustainment Command (ESC). AR 029, 043. As a result,
LTC MF would often interact as part of his normal duties with Judge Advocates in the 311th
ESC, such as Captain (CPT) TC. AR 018. LTC MF communicated his concerns about CPT
TC’s performance and work as a Judge Advocate to Colonel (COL) JS, who was assigned to the
79th SSC. AR 017-18, 141. COL JS was also the chief legal officer, known as the Staff Judge
Advocate, for the 311th SSC. COL JS requested that LTC MF provide his concerns in writing.
On June 6, 2016, LTC MF sent an e-mail to COL JS describing his concerns and
complaints about CPT TC’s alleged mishandling of legal matters. The e-mail contained five
(1) CPT TC provided incorrect legal advice concerning the standard
of proof required in an administrative separation or non-judic ia l
punishment case against a sergeant accused of committing
(2) CPT TC provided incorrect legal advice concerning what claims
had to be investigated and failed to identify various deficiencies
(i.e., unsigned sworn statements and unsupported conclusions
without proper fact finding) in his legal review of the
(3) CPT TC failed to pay enough attention to detail in his legal
review of an Equal Opportunity investigation report and allowed
an incomplete report to go forward to the decision maker for
(4) CPT TC was “very late” in reviewing, redacting, and providing
documents to Army Reserve Command in response to a
Freedom of Information Act (FOIA) request; and
(5) CPT TC lacks professionalism based on the fact that he
withdrew without permission from a conference call with senior
officers and his higher command (i.e., 79th SCC).
AR 131-32. Upon receipt of the e-mail, COL JS contacted the Office of The Judge Advocate
General and Army Reserve Command’s Staff Judge Advocate to examine the allegations. AR
145. They determined that sufficient evidence existed to initiate a preliminary screening inquiry
into CPT TC. Id. On June 21, 2012, COL JS authorized the inquiry; once completed, it
determined that CPT TC did not commit any professional responsibility violations. AR 117,
On July 16-17, 2012, Sergeant Major (SGM) VJ, an Assistant IG assigned to the
Army Reserve Command, visited the 311th ESC and learned about tension between the IG
offices of the 311th ESC and the 79th SSC. AR 108-09. SGM VJ reported his findings to Col.
Hisgen and gave her a hard copy of LTC MF’s e-mail concerning CPT TC’s performance. AR
016, 138, 143, 146. On July 25, 2012, Col. Hisgen received another copy of the e-mail when
CPT TC submitted an IG complaint against LTC MF. AR 006-7, 013, 104, 193. On August 1,
2012, Col. Hisgen signed a memorandum disapproving LTC MF’s fifth-year extension. AR 019,
The following day, on August 2, 2012, Col. Hisgen contacted COL RJ, her
technical supervisor and Command IG of the Forces Command, to ask for his opinion about LTC
MF’s extension request. AR 143, 153. Col. Hisgen showed COL RJ a copy of the e-mail, as
well as the appointment memorandum for CPT TC’s preliminary screening inquiry, to which
COL RJ replied that he concurred with Col. Hisgen that LTC MF’s request should be denied.
AR 006, 104, 143. Col. Hisgen proceeded to contact LTC MF to inform him that she denied his
extension request and that he should return to service in his basic branch, Military Police. AR
On September 5, 2012, LTC MF filed a complaint against Col. Hisgen alleging a
violation of Department of Defense (DoD) Directive 7050.06, which provides implementation
instructions for the Military Whistleblower Protection Act (MWPA), 10 U.S.C. § 1034.
Specifically, LTC MF alleged that Col. Hisgen retaliated against him by taking an unfavorable
personnel action on the basis of a protected communication. AR 136, 144. On October 25,
2012, the Army IG initiated an investigation of the complaint from which the investigator
concluded that Col. Hisgen “recommended approval of the personnel action, received the
protected communication, and then reversed her decision regarding [LTC MF’S] personnel
action.” AR 152. The investigator’s report was forwarded to DoD-IG for final approval. The
report was approved and Col. Hisgen was so informed in a memorandum dated February 13,
2013. AR 024.
Col. Hisgen appealed the Army IG’s findings and, on March 26, 2013, DoD-IG
denied her appeal because “she had not provided any new or compelling information or evidence
to warrant overturning” the findings. Id. In response, Col. Hisgen then applied to the Army
Board for Correction of Military Records (ABCMR) in accordance with 10 U.S.C. § 1552 and 32
C.F.R. § 581.3 to correct the finding of reprisal and remove any document reflecting a violation
of the MWPA. AR 230. The ABCMR is authorized to “consider applications . . . for the
purpose of determining the existence of error or injustice in the army records of current and
former members of the Army, to make recommendations to the Secretary [of the Army] or take
corrective action on the Secretary’s behalf when authorized.” 32 C.F.R. § 581.3. Specifically,
Col. Hisgen argued before ABCMR that the Army IG had incorrectly concluded that LTC MF’s
e-mail was a protected communication for purposes of the MWPA. AR 205-07. On October 22,
2013, ABCMR denied Col. Hisgen’s application. AR 215-29.
On July 17, 2014, Col. Hisgen filed the instant action seeking judicial review of
the ABCMR Decision pursuant to the APA. See Compl. [Dkt. 1]. Defendant was unable to
provide a certified copy of the administrative record so that, on December 18, 2014, the Court
granted a motion for voluntary remand. On remand, a new panel of ABCMR reviewed Col.
Hisgen’s case and denied her supplemented Application for Correction of her military record on
June 6, 2015. AR 003-46. ABCMR specifically noted that “there is no evidence of any
derogatory information related to this investigation or any IG investigation in her OMPF
[(official military personnel file)].” AR 046. Since there was no evidence that the Army IG’s
investigation report was unjust or untrue, ABCMR concluded that there was no legal basis to
order the removal of records from the Army IG’s database. AR 045.
Col. Hisgen filed an Amended Complaint in this Court on August 7, 2015,
alleging that ABCMR’s denial of her supplemented Application for Correction was arbitrary,
capricious, an abuse of discretion, or otherwise contrary to law and regulations in violation of the
APA. See Am. Compl. [Dkt. 10]. The parties cross-moved for summary judgment and the
merits are fully briefed and ripe for resolution. See Def. Mot. for Summ. J. [Dkt. 12] (Def.
Mot.); Pl. Opp’n & Cross-Mot. for Summ. J. [Dkts. 14 & 16] (Pl. Mot.); Def. Opp’n & Reply
[Dkt. 15] (Def. Opp’n); Pl. Reply [Dkt. 18].
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). “In a case involving review of a final agency
action under the Administrative Procedure Act, however, the standard set forth in Rule 56[ ] does
not apply because of the limited role of a court in reviewing the administrative record.” Sierra
Club v. Mainella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006) (internal citation omitted); see also
Charter Operators of Alaska v. Blank, 844 F. Supp. 2d 122, 126-27 (D.D.C. 2012). Under the
APA, the agency’s role is to resolve factual issues to reach a decision supported by the
administrative record, while “‘the function of the district court is to determine whether or not as
a matter of law the evidence in the administrative record permitted the agency to make the
decision it did.’” Sierra Club, 459 F. Supp. 2d at 90 (quoting Occidental Eng’g Co. v. INS, 753
F.2d 766, 769-70 (9th Cir. 1985)). “Summary judgment thus serves as the mechanism for
deciding, as a matter of law, whether the agency action is supported by the administrative record
and otherwise consistent with the APA standard of review.” Id. (citing Richards v. INS, 554
F.2d 1173, 1177 & n. 28 (D.C. Cir. 1977)).
Under the APA, a reviewing court can set aside an agency action if the action is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). A reviewing court “must consider whether the [agency’s] decision was based on a
consideration of the relevant factors and whether there has been a clear error of judgment.”
Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989) (internal quotation marks and
citation omitted). At a minimum, the agency must have considered relevant data and articulated
an explanation establishing a “rational connection between the facts found and the choice made.”
Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 626 (1986) (internal quotation marks and citation
omitted); see also Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) (“The
requirement that agency action not be arbitrary or capricious includes a requirement that the
agency adequately explain its result.”). The Court “will uphold a decision of less than ideal
clarity if the agency’s path may be reasonably discerned.” Dickson v. Sec’y of Defense, 68 F.3d
1396, 1404 (D.C. Cir. 1995) (citation omitted).
An agency action usually is arbitrary or capricious if:
the agency has relied on factors which Congress has not intended it
to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). As the Supreme Court has explained, “the scope of review under the ‘arbitrary and
capricious’ standard is narrow and a court is not to substitute its judgment for that of the
agency.” Id. Rather, agency action is normally “entitled to a presumption of regularity.”
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977).
With respect to military correction board decisions, Congress authorized the
Secretary of the Army to act through a civilian board whenever it is “necessary to correct an
error or remove an injustice” from an Army record. 10 U.S.C. § 1552(a)(1); see also 32 C.F.R.
§ 581.3. Judicial review of such decisions is subject to an “‘unusually deferential application of
the arbitrary or capricious standard’ of the APA.” Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir.
2000) (quoting Kreis v. Sec’y of the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)). This
standard of review “ensure[s] that the courts do not become a forum for appeals by every soldier
dissatisfied with [a military personnel decision], a result that would destabilize military
command and take the judiciary far afield of its area of competence.” Escobedo v. Green, 602 F.
Supp. 2d 244, 248-49 (D.D.C. 2009) (quoting Cone, 223 F.3d at 793). Only egregious agency
decisions do not satisfy this deferential standard of review. Kreis, 866 F.2d at 1515.
Col. Hisgen disagrees with ABCMR’s finding of reprisal. Four elements must be
established to find reprisal: (1) a protected communication; (2) an unfavorable or adverse
personnel action against the complainant; (3) the deciding official’s knowledge of the
complainant’s protected communication; and (4) the personnel action would not have been taken
absent the protected communication. AR 044 (citing Def. Mot., Ex. 1 [Dkt. 12-2] (DoD
Directive 7050.06)). Col. Hisgen disputes only the first and fourth elements. Specifically, she
argues that ABCMR’s Decision was arbitrary and capricious because: (1) LTC MF’s e-mail was
not a protected communication for purposes of the MWPA; (2) LTC MF’s extension request was
not denied because of his e-mail; and (3) ABCMR did not review all the evidence and failed to
reach an independent decision. Defendant opposes and contends that ABCMR’s decision was
reasonable and supported by substantial evidence in the record.
A. The E-mail as a Protected Communication
It is DoD policy that “[m]embers of the Armed Forces shall be free to make a
protected communication.” DoD Directive 7050.06 at A-2. Any unfavorable personnel action
taken against a complainant on the basis of a protected communication constitutes reprisal under
MWPA and DoD Directive 7050.06. A protected communication is a:
communication in which a member of the Armed Forces
communicates information that a member reasonably believes
evidences a violation of law or regulation . . . when such
communication is made to any of the following: . . . [a]ny person or
organization in the chain of command; or any other person
designated pursuant to regulations or other established
receive such complaint.
Id. at A-12; see also AR 042. In other words, a protected communication must satisfy three key
elements: (1) the complainant is a member of the Armed Forces, (2) who reasonably believes
that he or she is reporting a possible violation of law or regulation, and (3) communicates the
information to someone in the chain of command. Col. Hisgen focuses on the last two elements
and contends that ABCMR erroneously concluded that LTC MF’s e-mail was a protected
communication because: (1) LTC MF did not complain about criminal or illegal conduct; and
(2) COL JS, the recipient of the e-mail, was not in LTC MF’s chain of command or in his
supervisory or rating chain. These arguments do not demonstrate that ABCMR acted arbitrarily
1. “A Violation of Law or Regulation”: The E-mail’s Content
Col. Hisgen argues that the e-mail does not fall within the ambit of the MWPA
because it did not report a criminal or illegal act. This argument misinterprets the law. The DoD
Directive and the MWPA do not contain the term “criminal.” By referring to a “violation of law
or regulation,” Congress and DoD intended a much broader scope of protection for
communications. 10 U.S.C. § 1034(c)(2)(A); DoD Directive 7050.06 at A-12. The MWPA’s
purpose is “to provide a degree of protection to military personnel who report information on
improper or illegal activities by other military personnel.” Hernandez v. United States, 38 Fed.
Cl. 532, 535 (1997) (emphasis added). Improper conduct that contravenes a DoD Directive or
Army regulation need not be criminal in nature to violate the Uniform Code of Military Justice
(UCMJ). See United States v. Green, 58 M.J. 855, 859 (A. Ct. Crim. App. 2003) (affirming “a
finding of guilty of dereliction of duty”); United States v. Shavrnoch, 49 M.J. 334, 336 (C.A.A.F.
1998) (holding that “[a] non-punitive regulation . . . may be considered in the context of
establishing a standard of military conduct with respect to the less serious offense of dereliction
of duty”) (citation omitted).2 Consequently, Col. Hisgen’s exclusive focus on criminal conduct
is at odds with the statutory language and purpose of both DoD Directive 7050.06 and the
“In a dereliction case, the Government must prove that the accused knew or reasonably should
have known of the applicable duty and that actions inconsistent with the duty were either willful,
the result of neglect, or the product of culpable inefficiency.” Shavrnoch, 49 M.J. at 337
(citation omitted). Negligent dereliction of duty constitutes a violation of Article 92 (“Failure to
Obey Order or Regulation”) of the UCMJ.
ABCMR assessed all five allegations in LTC MF’s e-mail and concluded that
they reasonably “alleged a violation of law or regulation.” AR 042-43. With respect to the first
three alleged incidents of incorrect legal advice, “sloppy legal review,” and “negligent attention
to detail,” ABCMR found that CPT TC’s alleged conduct reflected a “lack of competence to
perform legal duties” and “failure to use due care” in violation of Army Regulation 27-26,
paragraph 1.1 of the Rules for Professional Conduct for Lawyers. Id.3 ABCMR also noted that
CPT TC’s alleged conduct rose to the level of “negligent dereliction of duty.” AR 043. With
respect to the fourth allegation concerning CPT TC’s failure to properly review and redact
documents in response to a FOIA request, ABCMR found that it described a “violation of law”
(i.e., processing requirements under FOIA, 5 U.S.C. § 552), as well as a “potential willful
dereliction of duty in performing the tasks mandated by statute in a timely fashion.” Id. Finally,
ABCMR concluded that the fifth allegation concerning CPT TC’s withdrawal from a conference
call without his superiors’ permission “demonstrates a possible willful dereliction of duty in
failing to attend a required meeting.” Id.
Col. Hisgen does not address these findings and instead focuses exclusively on
her argument that DoD Directive 7050.06 and MWPA only cover criminal conduct. Because her
argument is incorrect as a matter of law, it follows that Col. Hisgen has failed to argue, let alone
show, that LTC MF’s e-mail did not reasonably allege “improper” conduct or a potential
violation of law or regulation (i.e., FOIA, Army Regulation 27-26, and negligent dereliction of
duty under UCMJ Article 92).
The Regulation requires a lawyer to provide “competent representation to a client,” which
“requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation of the client.” AR 042.
Col. Hisgen also focuses on several facts that are not germane to whether the email constituted a protected communication. Col. Hisgen argues that the e-mail lost its protected
status because it was made in the course of LTC MF’s normal duties and was “solicited by LTC
MF’s fellow staff officer, to document performance concerns about [CPT TC], not to report
criminal violations of law or regulation.” Pl. Mot. at 13. Col. Hisgen also questions LTC MF’s
motives and contends that “the timing of the complaint of whistleblower retaliation only arose as
a tactical ploy by LTC MF when he learned that his unusual fifth year extension in the IG would
not be approved.” Id. These extraneous facts are not relevant in a reprisal analysis under the
MWPA. MWPA makes clear that a “communication . . . shall not be excluded from the
protections” of the statute because “of the member’s motive for making the communication” or
because “the communication was made during the normal course of duties of the member.” 10
U.S.C. § 1034(c)(3).
LTC MF’s supposed ulterior motive, as well as the fact that COL JS requested
LTC MF to provide his concerns about CPT TC in writing (after he had already made the
complaints to COL JS verbally), do not affect ABCMR’s reasoning and findings. Neither does
the fact that CPT TC was investigated and no violations were found. An actual violation is not a
necessary precondition for a finding of reprisal because the communication needed only
reasonably to allege a possible violation of law or regulation. See DoD Directive 7050.06
(noting that the member need only “reasonably believe” that the information being
communicated “evidences a violation of law or regulation”); see also 10 U.S.C. § 1034(c)(2).
“So long as [the complainant’s] belief is reasonable, the complainant need not be right about the
underlying allegation.” Def. Mot., Ex. 2 [Dkt. 12-2] (DoD Whistleblower Guide) at A-21.
Similarly, Col. Hisgen’s argument that COL RJ, her technical supervisor, did not recognize the
e-mail as a protected communication, even if relevant, does not carry enough weight to render
the Army IG’s contrary findings and ABCMR’s determination unreasonable.
ABCMR’s conclusion that LTC MF’s e-mail communicated, or was perceived as
communicating, information reasonably believed to constitute evidence of a violation of law or
regulation was both reasonable and supported by substantial evidence.
2. Communication to “Any Person or Organization in the Chain of
A communication is protected if it is made to “[a]ny person or organization in
chain of command; or any other person designated pursuant to regulations or other established
administrative procedures to receive such complaint.” DoD Directive 7050.06 at A-12; see also
AR 042. The controlling Directive and its accompanying IG Guide defined chain of command
as “the succession of commanding officers from a superior to a subordinate through which
command is exercised,” and “the succession of officers, enlisted members or civilians through
whom administrative control is exercised, including supervision and rating performance.” DoD
Directive 7050.06 at A-11. Col. Hisgen argues that LTC MF was required to make a report to a
superior officer or someone “within [his] supervision or performance rating chain.” Pl. Mot. at
15. COL JS, although superior in rank to LTC MF, was a fellow staff officer at the 79th SSC,
and, like LTC MF, reported directly to the Commander. As a result, Col. Hisgen concludes that
COL JS was not in LTC MF’s chain of command.
ABCMR did not interpret DoD Directive 7050.06 to require the complainant
(LTC MF) to make the communication to someone in his chain of command. To be clear, the
directive requires the communication to be made to someone in the chain of command. This
language, however, can be construed to mean someone in the complainant’s chain of command
or in the chain of command of the subject of the complaint, that is, someone in LTC MF or in
CPT TC’s chain of command. Col. Hisgen points to the DoD IG Guide to Investigating Military
Whistleblower Reprisal and Restriction Complaints to support her interpretation of chain of
command. That Guide states that “Officials authorized to receive [protected communications]
include: any person or organization in the complainant’s chain of command.” DoD
Whistleblower Guide at A-21 (emphasis added). However, the Guide was published on June 29,
2015, which is more than three years after LTC MF sent an e-mail to COL JS and after Col.
Hisgen denied LTC MF’s fifth-year extension. Therefore, the Guide was not in effect during the
relevant time. Moreover, the Guide does not provide an exhaustive list of those authorized to
receive protected communications. By using the word “include,” the Guide cannot be read to be
restrictive; rather, it offered an example of an authorized recipient. Id. It does not follow from
this statement that ABCMR was arbitrary and capricious in accepting that someone in CPT TC’s
chain of command was authorized to receive the communication.
In any event, unlike the June 2015 Guide, the controlling IG Reprisal Guide at the
relevant time did not impose this supposed limitation on “chain of command.” Def. Mot., Ex. 3
[Dkt. 12-2] (IG Reprisal Guide) at A-27-A-37. Nor does MWPA or DoD Directive 7050.06,
including the most current version updated on April 17, 2015, impose such a limitation. The
Court cannot say that ABCMR’s interpretation of DoD Directive 7050.06 was unreasonable or
incorrect as a matter of law. In fact, this interpretation is consistent with the statute and intent of
MWPA to protect against unfavorable personnel actions and ensure that members of the Armed
Forces are free to make protected communications. See 10 U.S.C. § 1034(b)(1); DoD Directive
7050.06 at A-2. Moreover, it is perfectly reasonable to conclude that Congress and DoD
intended to protect those reporting a possible violation of law or regulation to someone in the
chain of command, or supervisor, of the person allegedly committing the violation. Since the
statutory language does not impose the limitation advanced by Col. Hisgen, it follows that she
has failed to show that ABCMR’s decision was arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.
It is clear from the record that COL JS, as the Staff Judge Advocate for the 79th
SSC, was someone in CPT TC’s chain of command because he had supervisory authority over
CPT TC and those in the 311th ESC, which was a subordinate command. COL JS was
“responsible for[, among other things,] planning and resourcing legal support as well as
conducting training, assignments, and professional development of JAGC [Judge Advocate
General Corps] personnel assigned to the command and its subordinate units.” Def. Opp’n, Ex.
3 [Dkt. 15-1] (Field Manual 1-04) at A-14 (emphasis added). He was also “the field
representative of The Judge Advocate General,” id., and responsible for the “[t]echnical
supervision of JAGC officers, Active and Reserve, civilian attorneys, legal technicians, and
enlisted legal specialists located in the headquarters or assigned to subordinate commanders,”
Def. Opp’n, Ex. 1 [Dkt. 15-1] (Army Regulation 27-1) at A-14.4 Therefore, COL JS was in CPT
TC’s chain of command for purposes of MWPA and the DoD Directive. Col. Hisgen’s
reasonable disagreement with ABCMR’s decision is not sufficient reason to reverse it under the
Defendant argues in passing that COL JS’s duties included the supervision of JAGC personnel
within 79th SSC and, thus, he was in LTC MF’s supervisory chain. The Court will not address
this argument because it finds that neither MWPA nor DoD Directive 7050.06 requires the
recipient of the communication to be in the complainant’s chain of command.
APA, particularly in this area of military correction board decisions. See Escobedo, 602 F. Supp.
2d at 248-49; see also Coburn v. McHugh, 77 F. Supp. 3d 24, 31 (D.D.C. 2014) (stating that a
“plaintiff’s disagreement with [an] ABCMR decision is not a valid basis for a [c]ourt to set aside
an agency action supported by the record”).
Finally, under Army Regulation 20-1, LTC MF was required to report his
allegation of professional misconduct to the legal advisor to the Army IG, so that the legal
advisor could forward the complaint to “the senior counsel having jurisdiction over the subject
lawyer.” Def. Mot., Ex. 5 [Dkt. 12-2] (Army Reg. 20-1) at A-51. ABCMR acknowledged that
LTC MF failed to comply with this regulation because he reported the allegations directly to
COL JS and not the legal advisor to the Army IG. However, as ABCMR concluded, this
procedural failure “does not change the nature of the protected communication.” AR 044. Col.
Hisgen cites no legal support for the proposition that a whistleblower communication loses its
protected status because it was processed incorrectly. To the contrary, DoD Directive 7050.06
states that a communication is protected if it is made to “[a]ny person or organization in chain of
command; or any other person designated pursuant to regulations or other established
administrative procedures to receive such complaint.” DoD Directive 7050.06 at A-12
(emphasis added). Even if COL JS were not “designated pursuant to regulations . . . to receive
[the] complaint,” he was in CPT TC’s chain of command, and, thus, authorized to receive LTC
MF’s protected communication. Id.
Accordingly, ABCMR’s conclusion that LTC MF’s e-mail was a protected
communication was reasonable and supported by substantial evidence.
B. The Denial of LTC MF’s Extension Because of the E-mail
ABCMR found that Col. Hisgen would not have taken the unfavorable personnel
action (i.e., the denial of LTC MF’s fifth-year extension request) absent his protected
communication (i.e., the e-mail to COL JS). This conclusion regarding the fourth element of a
reprisal claim was both reasonable and supported by substantial evidence. When Col. Hisgen
contacted LTC MF to inform him of her decision to deny his extension request, she stated “I’ve
had it [(i.e., the e-mail)] on my desk have been looking at it every day and I’ve been trying to
figure out how to deal with you.” AR 139. She also told LTC MF, “You were out of line ––
what were you thinking? Initiating an inquiry into a JAG officer is a serious thing. Do you
realize what you did?” Id. She told the Army IG investigator that “her reason for disapproval
was because [LTC MF] sent an email to the 79th SSC SJA [(Staff Judge Advocate)].” AR 150.
Other similar statements include that “she disapproved the extension request because [LTC MF]
questioned the legal opinion of an attorney” and that she “was ‘sensitive’ to the email because of
her military background as a 27A, Judge Advocate.” AR 153. This evidence alone was
sufficient to conclude reasonably that the protected communication was key to her decision to
deny LTC MF’s fifth-year extension. AR 045.
Col. Hisgen points to other evidence to support her position that there were
“substantial factual bases,” aside from the e-mail, “to change her endorsement [of LTC MF’s
extension request] to one of disapproval.” Pl. Reply at 6-7. However, the evidence she cites
relates to the e-mail in some way. For example, Col. Hisgen points to the oral and written
reports by SGM VJ discussing the “tumultuous relationship” between 311th ESC and 79th SSC
IG offices. AR 044, 061-62. These reports included a copy of the e-mail and discussed LTC
MF’s allegations about CPT TC. See AR 108-09, 143. CPT TC’s IG complaint against LTC
MF, also cited by Col. Hisgen, is related to the e-mail. That complaint states that “[i]t has
become abundantly clear that [LTC MF] has a strong, personal bias against me, so far as to lodge
false, frivolous claims of professional misconduct through the 79th SSC SJA [(Staff Judge
Advocate)].” AR 122.
Col. Hisgen relies, in part, on the fact that COL RJ concurred with her decision to
deny LTC MF’s fifth-year extension request. See AR 003-039. The Court fails to see the
materiality of this evidence in that Col. Hisgen had already executed the memorandum denying
LTC MF’s extension prior to soliciting COL RJ’s opinion on August 2, 2012. Therefore, COL
RJ’s opinion, even if it confirmed her decision, could not have influenced it. Moreover, when
Col. Hisgen contacted COL RJ to solicit his opinion, she attached a copy of the e-mail and the
memorandum for CPT TC’s preliminary screening inquiry, which were the focal point of Col.
Hisgen’s exchange with COL RJ.
ABCMR considered Col. Hisgen’s evidence and rejected her arguments. Col.
Hisgen’s emphasis on allegations concerning LTC MF’s inappropriate behavior and
unprofessional conduct does not undermine the Army IG’s findings or ABCMR’s conclusion
that she would not have denied him a fifth-year extension absent the protected communication.
Her contemporary statements that the e-mail was the reason that “led [her] to recommend
disapproval” are fatal to her current arguments. AR 151. ABCMR’s conclusion that Col. Hisgen
retaliated against LTC MF because of the e-mail was both reasonable and supported by
C. ABCMR’s Independent Analysis and its Statutory Mandate
Further, Col. Hisgen argues that “ABCMR rubber-stamped the IG’s conclusions
without any independent analysis, in violation of its statutory mandate.” Pl. Mot. at 17. Col.
Hisgen relies on the following paragraph from ABCMR’s Decision in support:
19. The key issue here is not whether the IG investigation was
flawed or whether the substantiated finding was supported by the
evidence. The key issue is that IG records, including the applicant’s
[Report of Investigative Inquiry] ROII and allied documents, are
properly filed. The purpose of maintaining IG records is to protect
the interests of the Army and the Soldier. In this regard, the IG
database maintains an unbroken historical record of IG functions
and activities as they relate to Soldiers, including records of
inspections, assistance, investigations, and teaching and training.
AR 045. Col. Hisgen contends that ABCMR was required by statute, 10 U.S.C. § 1552, to
determine whether the IG’s conclusions were flawed or unsupported by the evidence and not just
whether the record was properly filed. While Col. Hisgen correctly describes ABCMR’s
statutory duty, she has failed to show that ABCMR violated its mandate.
Quoting poorly articulated passages from an agency decision is insufficient to
demonstrate that the agency’s action violated the APA, particularly when the passage is cited in
isolation without consideration of the full record. ABCMR stated:
17. Neither the evidence of record nor the applicant’s provided
evidence substantiates her, and her counsel’s, contention that there
was an improper application of the law and governing regulation in
reaching the substantiated finding in the first place. The evidence
she provides does not lead to a different conclusion. Nothing she or
her counsel provides shows the IG investigation was inadequate or
tainted by the lack of evidence or thoroughness, failure to pursue
logical investigative leads, and/or conclusions that were open to
challenge based on the evidence provided.
18. The ABCMR is not an investigative agency. Likewise, the
ABCMR does not normally reexamine issues of guilt or innocence
under UCMJ or issues whether an investigation was substantiated or
unsubstantiated by an investigator, such as an IG. This is the
commander’s or directing authority’s function and it will not be
upset by the ABCMR unless the determination is clearly
unsupported by the evidence. Here, the applicant was fully aware
and was informed of the IG investigation, was afforded the
opportunity to submit supporting documentary evidence, and was
afforded the opportunity to testify. She was also afforded the
opportunity to appeal the [Army] IG’s finding through the proper
channels. She appealed the finding but her appeal was denied.
20. There is no documentary evidence that states the applicant was
removed from her duties as the [Command] IG [of the Army
Reserve Command], even though that appears to have been the case.
Likewise, there is no evidence of any derogatory information related
to this investigation or any IG investigation in her OMPF [(official
military personnel file)].
21. A record of the [Army] IG ROII for the complaint filed against
her exists in the [Army] IG database; however, neither she nor her
counsel has demonstrated the ROII is unjust or untrue, is in error,
that it should be removed from the IG database, or that removal
would be in the best interest of the Army. Therefore, she is not
entitled to relief in this case.
AR 045. These statements, part of a fuller decision, demonstrate that ABCMR satisfied its
statutory duty. It considered the Army IG’s findings, as well as Col. Hisgen’s evidence and
arguments, and concluded that Col. Hisgen failed to “demonstrate the existence of a probable
error or injustice” that would warrant correction of the Army records. AR 046. Col. Hisgen has
not produced any evidence that would warrant a reversal of the agency’s decision.
Moreover, after finding that Col. Hisgen had reprised against LTC MF, see AR
044-46, ABCMR also considered different bases for the relief sought –– namely, the existence of
any procedural errors during or after the investigation. ABCMR ultimately concluded that the
Army’s discretionary decisions were not “clearly unsupported by evidence,” and should be left
undisturbed. See AR 045. Similarly, it did not find any procedural errors warranting reversal in
favor of Col. Hisgen. See id. Accordingly, ABCMR’s Decision was not arbitrary, capricious, or
contrary to law.
ABCMR’s decision that LTC MF’s e-mail was a protected communication made
to the chain of command and that, absent the e-mail, Col. Hisgen would not have denied LTC
MF’s extension request was both reasonable and supported by substantial evidence. ABCMR
satisfied its statutory mandate when it considered and rejected Col. Hisgen’s arguments and
when it also considered and rejected the existence of any procedural errors warranting reversal.
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment [Dkt. 12] and deny Col. Hisgen’s Cross Motion for Summary Judgment [Dkt. 16].
A memorializing Order accompanies this Opinion.
Date: September 20, 2016
ROSEMARY M. COLLYER
United States District Judge
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