HUFFMAN v. JOHNSON

Filing 20

MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on March 8, 2017. (lcrbw1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIAN C. HUFFMAN,
Plaintiff,
v.
JOHN KELLY, 1
Secretary of Homeland Security,
Defendant.

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Civil Action No. 16-861 (RBW)

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

1

Pursuant to Federal Rule of Civil Procedure 25(d), John Kelly has been automatically substituted for Jeh Johnson,
whom the parties’ pleadings name as the defendant.
2

In addition to the filings already identified, the Court considered the following submissions in reaching its
decision: (1) the defendant’s Memorandum in Support of Defendant’s Motion to Dismiss and for Summary
Judgment (“Def.’s Mem.”); (2) the Plaintiff’s Memorandum of Points and Authorities (1) in Support of Plaintiff’s
Cross-Motion for Summary Judgment, (2) in Opposition to Defendant’s Motion to Dismiss, and (3) in Opposition to
Defendant’s Motion for Summary Judgment (“Pl.’s Mem.”); (3) the Defendant’s Memorandum in Opposition to
Plaintiff’s Cross Motion for Summary Judgment and Reply to Plaintiff’s Opposition to Motion to Dismiss and
(continued . . . )

concludes that it must grant in part and deny in part the defendant’s motion to dismiss, deny the
plaintiff’s motion for summary judgment, and enter summary judgment in favor of the
defendant.
I.
A.

BACKGROUND

Events Leading to the Plaintiff’s Discharge
The plaintiff enlisted in the Coast Guard on July 27, 1999, AR 0225, and his
military record contains several awards and letters of appreciation highly praising
his excellent performance and hard work as a[ machinery technician]. His record
also contains documentation showing that in 1999 and 2000 he was counseled on
Page 7s[3] many times about unacceptable behavior, including insubordination,
argumentativeness, apathy, provocative and contemptuous language, and ignoring
military customs and courtesies. He was also placed on performance probation and
awarded nonjudicial punishment (NJP) at mast in 2000 because of such behavior.
In 2001, the [plaintiff] received another Page 7 for disrupting work with sarcasm,
provocative language, and resentment, and he was referred for anger management
training. However, there are no negative entries in his record from 2002 to
December 2006.

AR 0225.
On December 8, 2006, while stationed in Miami, Florida, see Compl. ¶ 13; Def.’s Mem.
at 4, the plaintiff was arrested and charged with battering and kidnapping his wife, and detained
for two weeks by Florida state authorities. AR 0225-0226; Compl. ¶ 15. These charges were
subsequently dismissed. AR 0017. “On December 29, 2006, [the plaintiff’s commanding
officer] issued a Military No-contact Order requiring the [plaintiff] not to have any contact with
his wife for 30 days except during formal marriage counseling sessions through the Work

( . . . continued)
Motion for Summary Judgment (“Def.’s Reply”); (4) the Plaintiff’s Reply Memorandum in Support of Plaintiff’s
Cross-Motion for Summary Judgment (“Pl.’s Reply”); and (5) the Joint Appendix consisting of portions of the
administrative record compiled in this case (“AR”).
3

“Page 7s” are official comments entered on a service member’s record. See Def.’s Mem. at 4 n.4.

2

Life/Employee Assistance Program (EAP).” AR 0226. Thereafter, “the Family Advocacy
Specialist handling his case [ ] determined that the allegations of spousal abuse . . . had been
substantiated . . . [and] the command renewed the no-contact order and made it indefinite until
rescinded.” AR 0226.
On February 27, 2007, the plaintiff was charged “with failing to obey the no-contact
order in violation of Article 92 of the [United Code of Military Justice].” AR 0226. On March
8, 2007, after an investigation into the charge, the plaintiff received
as nonjudicial punishment [a] reduction in pay grade . . . , restriction to base for two
weeks, and two extra hours of duty per day for two weeks. On a performance
evaluation prepared pursuant to the [nonjudicial punishment], the applicant
received high marks in certain categories, such as professional knowledge and
stamina, but low marks for communicating, working with others, responsibility,
setting an example, military bearing, customs and courtesies, integrity, loyalty,
respecting others, and judgment. He was not recommended for advancement.
AR 0227. The plaintiff was also put on performance probation for “failure to obey direct orders,
lack of attention to detail, and [his] argumentative and disrespectful behavior.” AR 0227. The
plaintiff’s commanding officer warned the plaintiff “that if he failed to make an effort to
overcome his deficiencies or violated the conditions of the probation, the [commanding officer]
would initiate his discharge.” AR 0227. The plaintiff appealed his nonjudicial punishment, but
his appeal was denied. See AR 0227, 0229.
On March 15, 2007, the plaintiff filed “an informal complaint of religious discrimination
and retaliation” on the part of his supervisor. AR 0228; see also AR 0224. “On March 30, 2007,
the [plaintiff] filed a formal complaint of discrimination and retaliation after a meeting with his

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chain of command and a District mediator the day before had not resolved his complaint.” AR
0229. 4
The plaintiff received additional Page 7s on March 20, 2007, for failure to obey a direct
order to report for duty at 7:00 a.m. that morning, see AR 0229, and on April 9, 2007, for
“showing direct disrespect and insubordination,” AR 0230. Also on April 9, 2007, the plaintiff
was charged with failure to obey an order and absence without leave. See AR 0230. On April
16, 2007, after an investigation of the two April 9, 2007 charges, the plaintiff received “two
weeks of restriction to base and extra duties,” and was told “that he was being processed for a
General discharge because of continued misconduct.” AR 0231. The plaintiff was told “that he
had a right to consult a lawyer and to submit a statement on his own behalf.” AR 0231.
B.

The Plaintiff’s Discharge Process
On April 17, 2007, the plaintiff’s commanding officer issued a memorandum to the

plaintiff informing the plaintiff that he supported the plaintiff’s general discharge. See AR 0231.
The commanding officer “again advised the [plaintiff] that he had a right to consult a lawyer and
to submit a statement on his own behalf. [The commanding officer] told the [plaintiff] to submit
his statement within three days and that the statement would be forwarded with the
recommendation for separation.” AR 0231–0232.
[L]ater that day, the [plaintiff] signed a modified acknowledgement form
with a note stating that he would contact a lawyer that day and would submit a
statement within three working days. In response, the Personnel Command advised
the sector to be sure that the [plaintiff] knew he had five days from the date of
notification to submit his statement and that the Sector should inform them when
the [plaintiff] had spoken to an attorney.
***

4

The plaintiff “did not submit [to the Board] a copy of the Final Agency Decision on his [equal employment
opportunity] complaint,” AR 0225, and thus, that complaint is not part of the administrative record in this case. The
plaintiff does not pursue his retaliation claim before this Court. See generally Compl.

4

On April 19, 2007, the Sector Chief of Logistics sent an email to the
Personnel Command stating that the [plaintiff] had consulted an attorney and had
had ample opportunity to prepare his rebuttal statement but had not yet done so.
She requested authority to discharge the [plaintiff]. She stated that she would “like
to see [discharge] orders tomorrow.”
On April 20, 2007, a chief warrant officer at the Sector sent an email to the
Personnel Command inquiring into the status of the [plaintiff’s] discharge. He
noted that the [plaintiff] had not yet submitted a rebuttal statement although he “has
been given ample time to work on it (no other work except to work on his
statement).”
Also on April 20, 2007, the Coast Guard Personnel Command issued
separation orders authorizing the [plaintiff’s] General discharge “by reason [of]
misconduct due to [involvement] of a discreditable nature with civil or military
authorities.” The orders required use of the separation code JKA, which denotes
an involuntary discharge due to a “pattern of misconduct.”
On April 23, 2007, the [plaintiff] received a General discharge from the
Coast Guard. His original [discharge papers] showed that he received an RE-4
reenlistment code (ineligible for reenlist) and a JKA separation code, reflecting
separation due to a “Pattern of Misconduct” pursuant to Article 12.B.18 of the
Personnel Manual.
AR 0232–0233.
C.

The Discharge Review Board and the Upgrade of the Plaintiff’s Discharge and
Reenlistment Code
After the plaintiff was discharged from the Coast Guard, he applied to the Discharge

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

The Board’s Decisions
Thereafter, the plaintiff “filed an application with [the Board] requesting a change in the

reenlistment code from RE-4 (ineligible to reenlist) to RE-1 (eligible to reenlist).” Compl. ¶ 44;
see also Def.’s Mem. at 11. 5 The plaintiff alleged that “his chain of command railroaded his
discharge . . . in retaliation for his decision to file a formal [equal employment opportunity]
complaint against his supervisor, who had harassed him because of his religion.” AR 0016. The
Board denied his request on August 20, 2009. See AR 0016, 0041. The plaintiff then filed a
request for reconsideration of the Board’s decision on September 4, 2009, based on the
submission of additional evidence—the complete report of investigation of the plaintiff’s equal
opportunity complaint—as well as the “legal and factual errors made on behalf of the [ ]
[B]oard.” See AR 0276. The Board denied the plaintiff’s request for reconsideration on May
27, 2010. See AR 0224, 0256.
E.

This Civil Action
On May 6, 2016, the plaintiff filed his Complaint in this case. See Compl. at 1. Count I

of the Complaint alleges that the Board’s “determination that [the plaintiff’s] separation was not
wrong, unlawful, in error, or unjust was in violation of [Coast Guard] rules, regulations, and

5

In his Complaint, the plaintiff states that he filed his application with the Board in “early 2009” and that, in
addition to requesting a change in his reenlistment code, he also requested that “his rank be returned to MK2/E-5.”
See Compl. ¶ 44. The plaintiff’s application to the Board, however, was filed on August 8, 2008, see AR 0220,
before the Commandant corrected the plaintiff’s record to show an Honorable discharge, see AR 0099, and the
plaintiff’s application only included a request for an upgrade to an Honorable discharge and a change to his
reenlistment code, but not a request for a change in his rank, see AR 0220.

6

policies.” Id. ¶ 52. Count II alleges that the Board’s decision “was in violation of wellestablished constitutional protections due to [the plaintiff] under the Fifth and Fourteenth
Amendments.” Id. ¶ 76. Count III alleges that “[the Board’s] decision to not correct [the
plaintiff’s] record was arbitrary, capricious, and an abuse of discretion.” Id. at 13. The
defendant seeks the dismissal of Counts I and II of the plaintiff’s Complaint under Rule 12(b)(1)
of the Federal Rules of Civil Procedure because these claims are time-barred, “implicate nonjusticiable military personnel decisions[,] and seek relief that the Court does not have the
authority to grant.” Def.’s Mem. at 2–3. In addition, the defendant asserts that Count II should
be dismissed pursuant to Rule 12(b)(6) because the plaintiff fails to state a valid due process
claim upon which relief may be granted. See id. at 3. Both parties have also filed motions for
summary judgment. See Def.’s Mot. at 1; Pl.’s Mot. at 1.
II.
A.

STANDARDS OF REVIEW

Federal Rule of Civil Procedure 12(b)(1)
Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins.

Co., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under [Federal Rule of Civil
Procedure] 12(b)(1) ‘presents a threshold challenge to the court’s jurisdiction,’” Morrow v.
United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions,
835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, a district court is obligated to dismiss a claim if it
“lack[s] . . . subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Because “[i]t is to be
presumed that a cause lies outside [a federal court’s] limited jurisdiction,” Kokkonen, 511 U.S. at
377, the plaintiff bears the burden of establishing by a preponderance of the evidence that a
district court has subject-matter jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992).

7

In deciding a motion to dismiss for lack of subject-matter jurisdiction, the district court
“need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal Order of
Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, “a court may consider such
materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has
jurisdiction [over] the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22
(D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.
2005). Additionally, a district court must “assume the truth of all material factual allegations in
the complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all
inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d
1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).
However, “‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in
resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion’ for failure to state a claim.”
Grand Lodge, 185 F. Supp. 2d at 13–14 (quoting Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1350 (3d ed. 1998)).
B.

Federal Rule of Civil Procedure 12(b)(6)
A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, to survive a motion to dismiss for
“failure to state a claim upon which relief may be granted,” Fed. R. Civ. P. 12(b)(6), the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A “claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see also Kowal v. MCI

8

Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (noting that the plaintiff is entitled to “the
benefit of all inferences that can be derived from the facts alleged”). Although the Court must
accept the facts pleaded as true, legal allegations devoid of factual support are not entitled to this
assumption. See, e.g., Kowal, 16 F.3d at 1276. Along with the allegations made within the four
corners of the complaint, the court may also consider “any documents either attached to or
incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
C.

Summary Judgment Under the Administrative Procedure Act
“The Secretary of Homeland Security may . . . correct any military record of the Coast

Guard . . . through boards of civilians” “when the Secretary considers it necessary to correct an
error or remove an injustice.” 10 U.S.C. § 1552(a)(1).
Although judicial review is available under the APA to review correction-board
decisions, courts apply an “unusually deferential application of the arbitrary or
capricious standard of the APA” to ensure that “the courts do not become a forum
for appeals by every soldier dissatisfied with his or her ratings [and thereby]
destabilize military command and take the judiciary far afield of its area of
competence.”
Rudo v. Green, 818 F. Supp. 2d 17, 24–25 (D.D.C. 2011) (alteration in original) (quoting
Musengo v. White, 286 F.3d 535, 538 (D.C. Cir. 2002)). Accordingly, the Court must determine
only whether the Secretary’s decision not to take corrective action “is flawed for one or more of
the reasons enumerated in 5 U.S.C. § 706(2), not whether the decision was correct.” Lebrun v.
England, 212 F. Supp. 2d 5, 14 (D.D.C. 2002) (Walton, J.) (citing Kreis v. Sec’y of Air Force,
866 F.2d 1508, 1511 (D.C. Cir. 1989)). Therefore, “the agency must examine the relevant data
and articulate a satisfactory explanation for its action including a ‘rational connection between
the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371
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U.S. 156, 168 (1962)). “Courts ‘will uphold a decision of less than ideal clarity if the agency’s
path may reasonably be discerned.’” Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir.
993) (quoting Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286
(1974)). The District of Columbia Circuit has noted that “[p]erhaps only the most egregious
decisions may be prevented under such a deferential standard of review.” Kreis, 866 F.2d at
1515.
III.
A.

ANALYSIS

Subject Matter Jurisdiction and Justiciability of Counts I and II
1.

Statute of Limitations for Counts I and II

28 U.S.C. § 2401(a) provides, in relevant part, that a “civil action commenced against the
United States shall be barred unless the complaint is filed within six years after the right of
action first accrues.” Section 2401(a) applies to an APA claim, which “‘first accrues,’ within the
meaning of § 2401(a), as soon as (but not before) the person challenging the agency action can
institute and maintain a suit in court.” Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 56 (D.C.
Cir. 1987) (quoting 28 U.S.C. § 2401(a)). In Spannaus, the District of Columbia Circuit noted
that, “[u]nlike an ordinary statute of limitations, § 2401(a) is a jurisdictional condition attached
to the government’s waiver of sovereign immunity, and as such must be strictly construed.” Id.
at 55; see also P & V Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir.
2008) (affirming Spannaus). “Because this statute of limitations is jurisdictional, neither waiver
nor equitable tolling is applicable.” Horvath v. Dodaro, 160 F. Supp. 3d 32, 43 & n. 9 (D.D.C.
2015) (“In United States v. Kwai Fun Wong, [ __ U.S. __, __, 135 S. Ct. 1625, 1632 (2015),] the
Supreme Court recently held that [the] statute of limitations with respect to the Federal Tort
Claims Act in 28 U.S.C. § 2401(b) was not jurisdictional . . . . Nonetheless, because the D.C.

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Circuit Court of Appeals has explicitly held that [§] 2401(a) is jurisdictional, see Spannaus, 824
F.2d at 52, and because the Supreme Court’s holding in Wong is limited to the [§] 2401(b),
Circuit precedent remains binding on this Court”).
The defendant argues that Counts I and II of the plaintiff’s Complaint should be
dismissed because they are time-barred under § 2401(a). See Def.’s Mem. at 18–21; see also
Def.’s Reply at 2–4. Specifically, the defendant asserts that Counts I and II challenge the
plaintiff’s original discharge in April 2007, rather than the Board’s decision upholding the
discharge on May 27, 2010, and thus, the six-year statute of limitations expired in April 2013,
over three years before the plaintiff filed his Complaint on May 6, 2016. See Def.’s Mem. at 19–
20; Def.’s Reply at 2. The plaintiff argues that Counts I and II challenge the Board’s decision,
not his original discharge, and therefore, these claims were filed timely. See Pl.’s Mem. at 9–10.
The Court agrees with the plaintiff that Counts I and II are not time-barred. Although the
defendant is correct that both counts contain a “litany of allegations against the discharge
process,” Def.’s Mem. at 20; see also Compl. ¶¶ 53–73, 77–94, each count also contains a
specific allegation that the Board’s decision was, in the case of Count I, “in violation of [Coast
Guard] rules, regulations, and policies,” Compl. ¶ 52, and, in the case of Count II, “in violation
of well-established constitutional protections due to [the plaintiff] under the Fifth and Fourteenth
Amendments,” id. ¶ 76. Both of these claims are proper under the APA, see 5 U.S.C. § 706
(permitting a district court to “hold unlawful and set aside agency action . . . found to be . . . not
in accordance with law [or] contrary to constitutional right”), and the Court is satisfied that these
allegations “sufficed to put the defendant on notice as to the nature of the claim against him and
the relief sought,” see Twombly, 550 U.S. at 574, particularly because the defendant was able to
respond to both of these claims on the merits, see Def.’s Mem. at 28–34, Def.’s Reply at 11–12.

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Given the Court’s obligation to “construe the complaint liberally in [the plaintiff’s] favor in
accordance with the standard of Federal Rule of Civil Procedure 8(a),” see Wuterich v. Murtha,
562 F.3d 375, 383 (D.C. Cir. 2009), as well as the procedural posture of this case, see Ass’n of
Civilian Technicians, Inc. v. United States, 601 F. Supp. 2d 146, 158 & n.12 (D.D.C. 2009)
(crediting the “[p]laintiffs’ assertion that they are in fact seeking relief pursuant to the APA”
despite “the nebulous nature of the Complaint,” and declining to require the plaintiffs to file an
amended Complaint, because “the filing of an amended Complaint is obviously unnecessary”
“given the disposition of this case on the parties’ Cross-Motions for Summary Judgment”), the
Court concludes that Counts I and II are challenges to the Board’s decision, not the underlying
discharge, and thus are timely because the Complaint was filed within six years of the Board’s
decision. 6
2.

Justiciability of the Relief Sought

In his Complaint, the plaintiff seeks judgment in his favor and a court order directing the
Coast Guard to (1) upgrade his RE-4 reenlistment code; (2) restore him to active duty with all
back pay, entitlements, and credit for time served; and (3) pay his remaining enlistment bonus of
$4,240.60. See Compl. at 14. The defendant argues that the plaintiff’s requests for relief, with
the exception of the plaintiff’s request that the Board’s decision be ruled a violation of the APA,
constitute relief that the Court does not have the authority to grant. See Def.’s Mem. at 23.
The Court agrees that its authority is limited to determining whether the Board’s
decisions violated the APA, and, if so, the relief the Court may award is limited to remanding the

6

Because the Court determines that Counts I and II of the plaintiff’s Complaint challenge the Board’s decision and
not the merits of the plaintiff’s underlying discharge or the events leading up to the discharge, the defendant’s
argument that the plaintiff’s claims are non-justiciable because he “challenges the merits of the Coast Guard’s
decision to discharge [the p]laintiff,” see Def.’s Mem. at 23, is moot because the Court agrees with the plaintiff that
he is not challenging his underlying discharge, see supra at Part III.A.1.

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Board’s decision to the Board. Another member of this Court has stated that, upon finding that
the Board’s “decision violated the APA, the Court would vacate and remand the Board’s
decision; the Court would not tell the Board how to decide on remand.” Bates v. Donley, 935 F.
Supp. 2d 14, 27 (D.D.C. 2013) (refusing to order the Board to, among other things, upgrade the
plaintiff’s discharge status and credit the plaintiff with back pay and allowances); see also
Sakievich v. United States, 160 F. Supp. 3d 215, 220, 221 (D.D.C. 2016) (noting that the Court’s
authority was limited to “review [of] the [Board’s] decisions for reasonableness,” and therefore,
it could not “grant [the] plaintiff active duty status he did not have”), appeal docketed, No. 165072 (D.C. Cir. Apr. 11, 2016); Remmie v. Mabus, 846 F. Supp. 2d 91, 95 (D.D.C. 2012)
(noting that “the Court cannot order reenlistment” in the military). Consequently, the Court does
not have the authority to upgrade the plaintiff’s reenlistment code or restore him to active duty
with all corresponding benefits. 7
B.

The Plaintiff’s Due Process Claim
As noted above, Count II of the plaintiff’s Complaint alleges that the Board’s decision

violated the plaintiff’s due process rights. See Compl. ¶ 76. Specifically, the plaintiff contends
that the Board’s “failure to find [that] the [Coast Guard’s] procedure and process in discharging
[him] violated the [Coast Guard Personnel] Manual and the Constitution is . . . a violation of
[his] due process rights.” Pl.’s Mem. at 30; see also Compl. ¶¶ 76–95. The defendant argues

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Because the Court concludes that it does not have the authority to order the Coast Guard to restore the plaintiff to
active duty, the plaintiff’s request for a Court order directing the Coast Guard to pay his remaining enlistment bonus
of $4,240.60 also fails because payment of that remaining bonus is conditioned on the plaintiff’s continued
enlistment. See AR 1116. Thus, the Court need not consider the plaintiff’s argument that it has jurisdiction over his
request for his remaining enlistment bonus under the Little Tucker Act. See Pl.’s Mem. at 12. The Court notes,
however, that the plaintiff only cited the APA, not the Little Tucker Act, as the basis for the Court’s jurisdiction in
his Complaint, see Compl. ¶¶ 3–7, and “[u]nder the APA, a plaintiff may [only] sue the United States ‘in the district
courts for remedies other than money damages arising from an agency’s unlawful action,’” Martin v. Donley, 886 F.
Supp. 2d 1, 7–8 (D.D.C. 2012) (Walton, J.) (quoting Bublitz v. Brownlee, 309 F. Supp. 2d 1, 5 (D.D.C. 2004)).

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that the plaintiff has no valid liberty or property interest that the Board could have deprived. See
Def.’s Mem. at 25–27.
“[D]ue process imposes constraints on governmental decisions which deprive individuals
of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or
Fourteenth Amendment.” McManus v. District of Columbia, 530 F. Supp. 2d 46, 72 (D.D.C.
2007) (citing Mathews v. Eldridge, 424 U.S. 319, 323 (1976)). Thus, “[f]or a plaintiff to survive
a motion to dismiss under Rule 12(b)(6), he must allege, at a minimum, that he has been
deprived of either a life, liberty, or property interest protected by the due process clause.” Id.
(citations omitted).
“To have a property interest in a benefit, a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.” Id. (quoting Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972)). “These entitlements are created by sources independent of the
Constitution.” Smith v. Harvey, 541 F. Supp. 2d 8, 15 (D.D.C. 2008). The Court agrees with the
defendant, see Def.’s Mem. at 26, that the plaintiff has “no protected property interest in
continued military service,” Spadone v. McHugh, 864 F. Supp. 2d 181, 189 (D.D.C. 2012)
(quoting Wilhelm v. Caldera, 90 F. Supp. 2d 3, 8 (D.D.C. 2000)), nor in “the employment
benefits that come with military service,” Smith, 541 F. Supp. 2d at 15. Here, the plaintiff
alleges that he “has a property interest in the final two payments of his . . . enlistment bonus
totaling $4,240.60.” Pl.’s Mem. at 28. These payments, however, were conditioned on the
plaintiff’s continued enlistment, see AR 1116, and “property interests arise in specific benefits
that a person has already acquired,” Rudo v. McHugh, 931 F. Supp. 2d 132, 143 (D.D.C. 2013),

14

not in benefits that one is “seeking to acquire,” id. Accordingly, the plaintiff has not asserted a
cognizable property interest in his remaining enlistment bonus.
In addition to protecting property interests, “[t]he Due Process Clause . . . forbids
arbitrary deprivations of liberty. ‘Where a person’s good name, reputation, honor, or integrity is
at stake because of what the government is doing to him,’ the minimal requirements of the
Clause must be satisfied.” Goss v. Lopez, 419 U.S. 565, 574 (1975) (quoting Roth, 408 U.S. at
573). “A government employee may have a liberty interest in his employment under one of two
theories: (1) a ‘reputation-plus’ theory, or (2) a ‘stigma or disability’ theory.” Brown v.
McHugh, 972 F. Supp. 2d 58, 66 (D.D.C. 2013) (quoting Okpala v. District of Columbia, 819 F.
Supp. 2d 13, 16 (D.D.C. 2011)). Here, the plaintiff asserts that he has “allege[d] a cognizable
liberty interest under the ‘stigma or disability theory,” because, even though he received an
Honorable discharge, “his discharge resulted in a RE-4 reenlistment code and a separation code
of ‘JND,’ which is ‘Other, Concealment of arrest record.’” Pl.’s Mem. at 27–28. However, the
narrative reason associated with the “JND” separation code, is not “Other, Concealment of arrest
record,” as the plaintiff alleges, see id., but rather “Separation for Miscellaneous/General
Reasons,” see AR 0094, 0878. Therefore, because the plaintiff received an honorable discharge,
and “the narrative reason for separation” on his updated discharge certificate does not disclose
the plaintiff’s misconduct, see AR 0878, no stigma or disability to the plaintiff’s reputation arises
that implicates a cognizable liberty interest. See Knehans v. Alexander, 566 F.2d 312, 422 (D.C.
Cir. 1977) (“[W]hatever ‘liberty’ interest [the appellant] may have had in his reputation, has not
been impinged by the mere fact of his honorable discharge and nonretention in the Army,
especially since the reasons for his nonpromotion were never publicly disseminated . . . .”
(citations and footnote omitted)); see also Brown, 972 F. Supp. 2d at 66 (determining that the

15

plaintiff failed to assert a valid liberty interest because he “suffered no reputational harm or
stigma because he received an honorable discharge . . . , and has not alleged that [the adverse
report in his military record] has become public”). Accordingly, the plaintiff has not asserted a
cognizable liberty interest, and his due process claim must be dismissed pursuant to Rule
12(b)(6).
C.

Review of the Board’s Final Decision on Reconsideration
1.

The Board’s Review of the Plaintiff’s Discharge Process

The plaintiff argues that the Board erred by finding that his separation from the Coast
Guard was lawful because the Coast Guard violated the Coast Guard Personnel Manual (the
“Manual”) when it discharged him by “(1) denying [him] an opportunity to consult with counsel,
(2) failing to provide [him] the requisite amount of time to respond to the notice of discharge, (3)
separating [him] without consideration of his statement, and (4) separating [him] while he was
on performance probation.” The Court will consider the Board’s review of each of these alleged
violations in turn.
a.

The Opportunity to Consult with Counsel

Article 12B.18.e. of the Manual governs honorable or generable discharges for
misconduct of Coast Guard members with fewer than eight years of service. See AR 0569. This
article states that a commanding officer shall
[a]fford the member an opportunity to consult with a lawyer as defined by Article
27(b)(1) [of the Uniform Code of Military Justice 8] if contemplating a general
discharge. If the member requests counsel and one is not available, the
commanding officer must delay discharge proceedings until such time as counsel
is available.

8

Article 27(b)(1) of the Uniform Code of Military Justice provides: “Trial counsel or defense counsel detailed for a
general court-martial . . . must be a judge advocate who is a graduate of an accredited law school or is a member of
the bar of a Federal court or of the highest court of a State; or must be a member of the bar of a Federal court or the
highest court of a State . . . .” 10 U.S.C. § 827(b)(1) (2012).

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AR 0569.
In the plaintiff’s rebuttal statement to his commanding officer’s memorandum in support
of the plaintiff’s discharge from the Coast Guard, which was submitted to and considered by the
Board, see AR 0234, the plaintiff stated:
I am submitting my response on 19 April 2007 without the benefit of counsel. It
was my and my counsel’s understanding that my statement was not due until close
of business on 20 April 2007. Therefore, my attorney has not had the opportunity
to review this statement or provide me with legal advice.
AR 0234. Upon review of this statement, the Board determined that “[t]he record shows that
[the plaintiff] was allowed to consult an attorney but apparently did not have a chance to have
the attorney review his rebuttal statement.” AR 0254.
The plaintiff argues that the Board’s conclusion that he had an opportunity to consult
with counsel, as required by the Manual, is “contrary to law” because “[m]erely having the
opportunity to briefly speak to an attorney is not an ‘opportunity to consult’ with a lawyer.” Pl.’s
Mem. at 19. The defendant responds that the Board’s conclusion was correct because the
plaintiff’s “statement that his attorney had not been able to review the statement . . . reflect[s]
that he had, in fact, consulted with a lawyer after being notified of his discharge.” Def.’s Mem.
at 29–30.
The Court agrees with the plaintiff that he did not have an adequate opportunity to
consult with a lawyer as envisioned by the Manual. The record shows that the plaintiff’s rebuttal
statement was submitted “without the benefit of counsel” because the plaintiff and his counsel
assumed that the rebuttal statement was not due until the following day. See AR 0234. Because
the plaintiff submitted his statement without the benefit of his attorney “review[ing] []his
statement or provid[ing] [him] with legal advice,” see AR 0234, the Court is unable to conclude
that the plaintiff had a meaningful opportunity to actually discuss the substance of his case with
17

his attorney. Accordingly, the Court concludes that the Board’s decision that the plaintiff had
the opportunity to consult with counsel as required by Article 12B.18.e.3 was arbitrary and
capricious.
The Court concludes, however, that the Board’s error is harmless. As noted above,
Article 12B.18.e governs only the discharge of members “recommended for honorable or general
discharge for misconduct.” AR 0569 (emphasis added). As noted earlier, on November 12,
2008, the Commandant upgraded the plaintiff’s General discharge for a “Pattern of Misconduct”
to an Honorable discharge “for Miscellaneous/General Reasons.” See AR 0099. Accordingly,
because the plaintiff’s discharge was not for misconduct, the plaintiff was not entitled to the
opportunity to consult with counsel and other procedural protections afforded by Article
12.B.18.e. See AR 0569. Thus, the Board’s error was harmless. See Jicarilla Apache Nation v.
U.S. Dep't of the Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010) (“The harmless error rule
applies to agency action because [i]f the agency’s mistake did not affect the outcome, if it did not
prejudice the petitioner, it would be senseless to vacate and remand for reconsideration.”
(internal quotation marks and citation omitted)); Appleby v. Geren, 330 Fed. App’x 196, 199
(D.C. Cir. 2009) (concluding that, “even if the Board was incorrect in concluding the delay [in
the petitioner’s promotion] was lawful in all respects, any error was harmless”).
b.

The Requisite Amount of Time to Respond to the Notice of Discharge

Article 12B.18.e.2 of the Manual states that a commanding officer must “[a]fford the
member an opportunity to make a written statement.” AR 0569. The Board noted in its decision
that
according to the Sector Chief of Logistics, the [plaintiff] was assigned no other
duties from April 16 through April 19 except to consult the attorney and write his
rebuttal statement. The [commanding officer] first notified the [plaintiff] of the
proposed discharge on a Page 7 dated April 16, 2007, but in his notification
18

memorandum dated April 17, 2007, the [commanding officer] gave the applicant
three calendar days to submit his statement. However, an email from the Personnel
Command dated April 17, 2007, indicates that the [plaintiff] should have had five
days. Despite this information, the [commanding officer] prepared his request for
discharge and the Sector Chief prepared her endorsement on April 17, 2007, and
they apparently forwarded the discharge package to the Personnel Command on
April 19, 2007—only two days after the applicant was told that he would have three
days to submit his statement. Therefore, it appears that the applicant may have
been misled about how long his “opportunity” to submit his discharge rebuttal
would be.
AR 0254.
The plaintiff argues that he “was entitled to rely on the [three-day] time period to respond
specifically provided in the notice of discharge, and any deviation from that time period is
arbitrary and capricious.” Pl.’s Mem. at 21. Furthermore, he contends that he “should have been
informed of the five-day time period prescribed by the Personnel Command.” Id. at 20. The
defendant responds that the Board considered the plaintiff’s argument, but concluded “that the
Manual prescribed only that a member be given an ‘opportunity’ to respond—without specifying
any fixed length of time,” and therefore the Board’s conclusion that no violation of the Manual
occurred should be upheld. See Def.’s Mem. at 29.
The Court agrees with the plaintiff. Even though the Manual does not provide a specific
length of time required to make a written statement, see AR 0569, once the commanding officer
informed the plaintiff that he was entitled to three days to submit his statement, see AR 0254, the
plaintiff was entitled to reply on that representation, see Lefrancois v. Mabus, 910 F. Supp. 2d
12, 21 (D.D.C. 2012) (noting that the Board must follow its own regulations and procedures).
However, because the opportunity to make a written statement, like the opportunity to consult an
attorney, is only afforded to service members “recommended for honorable or general discharge
for misconduct,” AR 0569, the Board’s error regarding the plaintiff’s opportunity in this regard
is harmless also because the plaintiff was not discharged for misconduct.
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c.

The Lack of Consideration of the Plaintiff’s Statement

Article 12B.18.e.4.d(1) of the Manual requires the commanding officer to include the
member’s written statement in the discharge package sent to the Commander for action. AR
0569–0570. The Board noted in its decision that,
[a]lthough the [plaintiff] dated his rebuttal statement April 19, 2007, it appears that
the Personnel Command may not have received it nor reviewed it before issuing
the discharge orders on April 20, 2007. The rebuttal statement was not listed as an
enclosure to the [commanding officer’s] memorandum and is not included in the
file labeled “discharge package” in the [plaintiff’s] military record. In addition, the
Commandant’s decision to upgrade the [plaintiff’s] discharge to Honorable and his
narrative reason for separation to “Miscellaneous/General Reasons” appears to
have been based on a finding of error concerning the processing of the applicant’s
rebuttal statement. Assuming that the applicant’s rebuttal statement was not timely
considered prior to the issuance of his discharge orders in accordance with Article
12.B.18.e of the Personnel Manual, the Board is still not persuaded that his
discharge was wrong. Every member of the applicant’s chain of command from
his immediate supervisor up to the Sector Chief of Logistics had found his behavior
to be unacceptable, and numerous incidents of misconduct, including ongoing
disrespect, were documented in his record. Furthermore, the substance of the
[plaintiff’s] rebuttal statement is insufficient to rebut his [commanding officer’s]
allegations of misconduct. Therefore, it is extremely unlikely that the [plaintiff’s]
rebuttal statement, timely considered, would have prevented his discharge for
misconduct, and under the Separation Program Designator Handbook, the only
reenlistment code authorized for members discharged for misconduct is an RE-4.
Moreover, the Board finds that any negative effect the procedural error could
theoretically have had on the [plaintiff’s] character of discharge and narrative
reason for discharge has been corrected by the Commandant through the [Discharge
Review Board].
AR 0254–0255 (emphasis added).
The plaintiff argues that the Board’s decision is arbitrary and capricious because
[t]he lack of consideration [of his rebuttal statement] prejudiced [him], as he was
in effect provided no opportunity to respond to his discharge. This prejudice is
recognized by the subsequent upgrade to an Honorable discharge. This change
evidences that the [Coast Guard’s] failure to consider[] [the plaintiff’s] rebuttal
would have impacted his discharge proceedings and his reenlistment code.
Pl.’s Mem. at 22. The Court disagrees.

20

The Board’s review of the plaintiff’s rebuttal statement makes clear that the Coast
Guard’s error in failing to consider the plaintiff’s rebuttal statement was harmless because “the
substance of the [plaintiff’s] rebuttal statement [wa]s [determined by the Board to be]
insufficient to rebut his [commanding officer’s] allegations of misconduct.” AR 0255; see also
Rogers v. United States, 124 Fed. Cl. 757, 767 (2016) (noting that “the military’s failure to
comply with its procedures for effecting a discharge does not render the discharge itself
unlawful where the procedural error is deemed ‘harmless’ because the regulatory violation did
not substantially affect the outcome of the matter”). Thus, the Coast Guard’s failure to consider
the plaintiff’s rebuttal would not, as the plaintiff alleges, “have impacted his discharge
proceedings and his reenlistment code.” Pl.’s Mem. at 22. The Court agrees with the defendant
that the “[p]laintiff [ha]s not identif[ied] a single piece of evidence . . . that the Board failed to
consider.” Def.’s Reply at 15. And because the Board, upon consideration of the plaintiff’s
entire record, concluded that the plaintiff’s rebuttal statement would not have impacted his
discharge proceedings, the Court must defer to the Board’s decision that the Coast Guard’s
failure to consider the plaintiff’s rebuttal statement prior to discharging him was harmless. See
Caez v. United States, 815 F. Supp. 2d 184, 191 (D.D.C. 2011) (determining, upon review of the
evidence, that there was “no indication that the [Board] failed to consider critical evidence or
made an irrational decision”).
d.

The Separation of the Plaintiff While on Performance Probation

Article 12B.18.c of the Manual requires commanding officers to “afford a member a
reasonable probationary period to overcome deficiencies before initiating administrative
discharge action” for certain forms of misconduct. AR 0568. Pursuant to the Manual,
[if] a command contemplates discharging a member for reasons contained in this
paragraph, it shall counsel the member a formal probation or treatment period of at
21

least six months has begun and make an appropriate [Page 7] entry in the member’s
[record] stating the command will initiate administrative discharge processing
unless the member shows significant improvement in overcoming the deficiency
during the probationary period. . . . However, commanding officers are authorized
to recommend discharge at any time during the probation if the member is not
making an effort to overcome the deficiency.
AR 0568. The Board noted in its decision that,
[i]n light of the [plaintiff’s] repeated violations of the terms of his probation, as
documented in the Page 7s and by the [nonjudicial punishment] dated April 16,
2007, the Board finds that the [commanding officer] reasonably concluded that the
applicant was not making a reasonable effort to overcome the deficiencies detailed
in the probationary Page 7 dated March 8, 2007.
AR0254.
The plaintiff contends that because his discharge was initiated “only a month and a half
after [he] was placed on performance probation . . . [, he] was not afforded a reasonable
opportunity to overcome any deficiencies” as required by the Manual. Pl.’s Mem. at 22. This
argument clearly challenges his underlying discharge, not the Board’s decision. In any event, the
Board considered whether the plaintiff was afforded a reasonable opportunity to overcome his
deficiencies, and concluded that, given the plaintiff’s repeated documented misconduct, the
plaintiff had failed to “mak[e] a reasonable effort to overcome th[ose] deficiencies.” AR 0254.
In such circumstances, the Manual authorizes commanding officers “to recommend discharge at
any time,” AR 0568, and thus, the Board’s conclusion that the plaintiff’s discharge was proper
despite his probationary status was not arbitrary or capricious or contrary to law.
2.

The Board’s Denial of the Plaintiff’s Request to Upgrade his Reenlistment
Code and Pay Grade

The Board reached the following conclusions regarding the plaintiff’s requests for an
upgrade of his reenlistment code and pay grade in its decision:
[ ] Under the Separation Program Designator Handbook, someone
discharged for “miscellaneous/general” reasons may receive either an RE-1 or RE22

4 reenlistment code. In light of the [plaintiff’s] history of misconduct and
disrespect toward his chain of command from January through April 2007, the
Board finds that the [plaintiff] has not proved by a preponderance of the evidence
that the Coast Guard committed an error or injustice in assigning him the RE-4 code
so that he may not reenlist.
[ ] Accordingly, the applicant’s requests for relief should be denied because
he has not proved by a preponderance of the evidence that his RE-4 reenlistment
code or his reduction in pay grade at mast were or are erroneous or unjust.
AR 0255 (footnote omitted).
The plaintiff argues that the Board’s “recognition of the procedural errors in the [Coast
Guard’s] discharge and separation of [the plaintiff] and providing some, but not all, relief is
arbitrary and capricious.” Pl.’s Mem. at 23. According to the plaintiff, “[t]he deficiencies of the
proceedings rendered all actions in [his] separation void[, and that t]he Vice Commandant
recognized this by upgrading his discharge. For the same reasons, the reenlistment code should
also be upgraded.” Id. The Court disagrees because the plaintiff cites no authority, see id, nor
could the Court find any, that supports his proposition that a procedural deficiency in the
discharge process requires granting all relief requested or voids all subsequent decisions made by
the Coast Guard.
The Board considered the Vice Commandant’s decision to grant the plaintiff partial relief
by upgrading his discharge from General to Honorable and determined that, even though the
plaintiff was therefore eligible to receive either an RE-1 code (eligible to reenlist) or RE-4 code
(not eligible to reenlist), “[i]n light of the [plaintiff’s] history of misconduct and disrespect
toward his chain of command . . . , the [plaintiff] ha[d] not proved by a preponderance of the
evidence that the Coast Guard committed an error or injustice in assigning him the RE-4 code so
that he may not reenlist.” AR 0255 (footnote omitted). The Board clearly considered the
plaintiff’s request to upgrade his reenlistment code and pay grade and determined that such relief

23

would be improper considering the plaintiff’s disciplinary record. Therefore, the Court
concludes that the Board properly “examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action[,] including a ‘rational connection between the facts found and the
choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, 371 U.S. at 168).
This conclusion is especially appropriate considering that the Court’s “ability to review matters
related to military discharges is limited, as military personnel decisions themselves lie outside
the [C]ourt’s jurisdiction.” Penland v. Mabus, 78 F. Supp. 3d 484, 494 (D.D.C. 2015) (quoting
Burt v. Winter, 503 F. Supp. 2d 388, 390 (D.D.C. 2007)).
IV.

CONCLUSION

For the foregoing reasons, the Court concludes that Counts I and II of the plaintiff’s
Complaint are timely under 28 U.S.C. § 2401(a) and assert justiciable claims under the APA.
Count II, however, must be dismissed because the plaintiff failed to assert a cognizable liberty or
property interest. The Court also concludes that although the Board’s decisions regarding the
plaintiff’s opportunity to consult with counsel and submit a written statement were arbitrary and
capricious, these errors were harmless because these protections are only afforded to service
members discharged for misconduct. Finally, the Court concludes that the Board’s decisions
regarding the consideration of the plaintiff’s written statement and his discharge while on
performance probation, as well as the Board’s refusal to upgrade the plaintiff’s reenlistment code
and pay grade, were not arbitrary or capricious. Accordingly, the Court will grant in part and
deny in part the defendant’s motion to dismiss, deny the plaintiff’s motion for summary
judgment, and enter summary judgment in favor of the defendant.

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SO ORDERED this 8th day of March, 2017. 9
REGGIE B. WALTON
United States District Judge

9

The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

25