Chavez v. Hagel et al

Filing 37

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS (ECF NO. 30 ) AND DENYING PLAINTIFF'S FILING ENTITLED "MOTION GRANTING ORDER FOR DEPOSITION SUBPOENA" (ECF NO. 34 ) - Signed by JUDGE HELEN GILLMOR on 1/31/2018. "Defendants United States, United States Special Operations Command, Special Operations Command Central, and Special Operations Command Pacific's Motion to Dismiss (ECF No. 30) is GRANTED. Chavez may seek review in this Court, pursuant to the Administrative Procedure Act, if he is dissatisfied by the decision of the ABCMR. See Clinton v. Goldsmith, 526 U.S. 529, 539 (1999). Plaintiff's filing entitled "MOTION GRANTING ORDER FOR DEPOSITION SUBPOENA" (ECF No. 34) is DENIED AS MOOT. The Clerk of Court is DIRECTED TO CLOSE THE CASE." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Leonardo R. Chavez shall be served by first class mail to the address of record on February 1, 2018.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LEONARDO R. CHAVEZ,

)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA;
)
U.S. SPECIAL OPERATIONS
)
COMMAND; SPECIAL OPERATIONS
)
COMMAND CENTRAL; SPECIAL
)
OPERATIONS COMMAND PACIFIC,
)
)
Defendants.
)
________________________________

CIVIL NO. 16-00685 HG-KJM

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS (ECF No. 30)
AND
DENYING PLAINTIFF’S FILING ENTITLED “MOTION GRANTING ORDER FOR
DEPOSITION SUBPOENA” (ECF No. 34)
Plaintiff Leonardo R. Chavez appears pro se.
soldier in the United States Army.

He is a former

Plaintiff’s Second Amended

Complaint claims that Defendants violated Article I, Section 8 of
the United States Constitution and 10 U.S.C. § 991 by deploying
him without his receiving adequate time between deployments.
Plaintiff also claims violations of the Fifth and Fourteenth
Amendments of the United States Constitution.
Defendants move to dismiss Plaintiff’s complaint for lack of
jurisdiction.
Plaintiff also filed a motion entitled “MOTION GRANTING
ORDER FOR DEPOSITION SUBPOENA”.

(ECF No. 34).

Defendants’ Motion to Dismiss (ECF No. 30) is GRANTED.
Plaintiff’s Second Amended Complaint is DISMISSED.

1

PROCEDURAL HISTORY
On December 30, 2016, Plaintiff Leonardo R. Chavez filed a
PRISONER CIVIL RIGHTS COMPLAINT.

(ECF No. 1).

On January 23, 2017, the Court granted Plaintiff’s in forma
pauperis (“IFP”) application.

(ECF No. 5).

On February 17, 2017, before the Court screened the
Complaint, Plaintiff submitted a new pleading labeled as an
“ORIGINAL COMPLAINT” and a letter.

(ECF Nos. 6, 7).

Plaintiff

mistakenly believed the Court had terminated his action when it
granted his IFP application.

(ECF No. 7).

He thought he needed

to commence a new action alleging the same claims.

The Court

construed his second pleading as an Amended Complaint.

(Amended

Complaint, ECF No. 6).
On March 9, 2017, the Court issued an ORDER DISMISSING
AMENDED COMPLAINT WITH LEAVE GRANTED TO AMEND.

(ECF No. 9).

On April 5, 2017, Plaintiff filed a SECOND AMENDED
COMPLAINT.

(ECF No. 10).

On April 20, 2017, the Court issued an ORDER DIRECTING
SERVICE.

(ECF No. 11).

On September 22, 2017, Defendants filed a Motion to Dismiss.
(ECF No. 30).
On October 10, 2017, Plaintiff filed a pleading entitled
“PLAINTIFF’S OBJECTION TO DEFENDANTS MOTION TO DISMISS” which the
Court construes as an Opposition.

(ECF No. 32).

On October 23, 2017, Defendants filed a DEFENDANT’S REPLY TO
PLAINTIFF’S RESPONSE TO THE MOTION TO DISMISS.
2

(ECF No. 33).

On October 27, 2017, Plaintiff filed a pleading entitled
“MOTION GRANTING ORDER FOR DEPOSITION SUBPOENA” which the Court
construes as a request for a subpoena.

(ECF No. 34).

On October 31, 2017, Plaintiff filed a pleading entitled
“PLAINTIFF’S OBJECTION AND REPLY TO DEFENDANTS CONTINUED MOTION
TO DISMISS.”

(ECF No. 35).

The Court construes this as a Sur-

Reply.
The Court elected to decide the Motion without a hearing
pursuant to Local Rule 7.2(d).

(ECF No. 31).

BACKGROUND
Plaintiff is incarcerated at the Oahu Community Correctional
Center awaiting trial in the Circuit Court of the First Circuit,
State of Hawaii.1

(Complaint at p. 7, ECF No. 1); State of

Hawaii v. Chavez, 14-1-000360 (Haw. 1st Cir. Ct. 2014).

He is

charged with murder in the Second Degree and Carrying or Use of a
Firearm in the Commission of a Separate Felony.

(Id.)

Plaintiff alleges Defendants violated Article I, Section 8
of the United States Constitution and 10 U.S.C. § 991 by
deploying him overseas in violation of § 991's “high-deployment”
thresholds without the explicit approval of the Secretary of
Defense or another delegated official.
1

(Second Amended Complaint

See United States ex rel. Robinson Rancheria Citizens
Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)
(approving taking judicial notice of proceedings in other courts
“if those proceedings have a direct relation to matters at
issue”)(citing St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d
1169, 1172 (10th Cir. 1979)); see also Fed. R. Evid. 201(c)(1).
3

at pp. 5, 5A, ECF No. 10).

Plaintiff alleges Defendants’ actions

resulted in over-deployment, in violation of the Fifth and
Fourteenth Amendments of the United States Constitution.

(Id.)

Plaintiff was discharged from the Army in “Under Other Than
Honorable Conditions” on May 19, 2016. (Certificate of Release or
Discharge from Active Duty, ECF No. 10-4).
The gravamen of Plaintiff’s Second Amended Complaint is that
the Army failed to receive written authority to deploy him
without affording him proper “dwell time”2 between deployments.
Plaintiff has withdrawn his request for money damages.
Amended Complaint at pp. 5, 5A, ECF No. 10).

(Second

Plaintiff states

that he has initiated review of his discharge with the Army
Review Boards Agency.

(Id.)

STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) authorizes a court
to dismiss claims over which it lacks proper subject matter
jurisdiction.

“Unless the jurisdictional issue is inextricable

from the merits of a case, the court may determine jurisdiction
on a motion to dismiss for lack of jurisdiction under Rule
12(b)(1) of the Federal Rules of Civil Procedure.” Kingman Reef
Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195 (9th
Cir. 2008); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.

2

“Dwell time” refers to the amount of time a member of the
armed forces spends at the permanent duty station or home port
after returning from deployment. 10 U.S.C. § 991(f)(1)(A).
4

1987).

The moving party should prevail on a motion to dismiss if

the material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of law.
Casumpang v. Int'l Longshoremen's & Warehousemen's Union, Local
142, 269 F.3d 1042, 1060-61 (9th Cir. 2001) (citing Augustine v.
United States, 704 F.2d 1074, 1077 (9th Cir. 1983)); Tosco Corp.
v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001).
A Rule 12(b)(1) jurisdictional attack may be facial or
factual.

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039

(9th Cir. 2004).

In a facial attack such as in the case here,

the court may dismiss a complaint when its allegations are
insufficient to confer subject matter jurisdiction.

When the

allegations of a complaint are examined to determine whether they
are sufficient to confer subject matter jurisdiction, all
allegations of material fact are taken as true and construed in
the light most favorable to the nonmoving party.

Fed'n of

African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207
(9th Cir. 1996).

In such a facial attack on jurisdiction, the

court limits its analysis to the allegations of and the documents
attached to the complaint.

Savage v. Glendale Union High Sch.,

Dist. No. 205, 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).

ANALYSIS
Plaintiff appears pro se.
Plaintiff’s filings.

The Court liberally construes

Erickson v. Pardus, 551 U.S. 89, 94 (2007);

Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The
5

Supreme Court has instructed the federal courts to liberally
construe the ‘inartful pleading’ of pro se litigants.”) (citing
Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).

The Parties
Plaintiff Leonardo R. Chavez (hereinafter “Chavez” or
“Plaintiff Chavez”) names the United States, United States
Special Operations Command, Special Operations Command Central,
and Special Operations Command Pacific as Defendants in this
action.
Congress created the United States Special Operations
Command of joint military forces (hereinafter “USSOCOM”) to carry
out missions related to counterterrorism and unconventional
warfare, among other things.

10 U.S.C. § 167.

The

United

States Special Operations Command is organized under the
Department of Defense.

Id.

The Special Operations Command Central (hereinafter
“SOCCENT”) and Special Operations Command Pacific (hereinafter
“SOCPAC”) are subdivisions of the United States Special
Operations Command which focus on different geographic areas.
The Special Operations Command Central operates in the Middle
East and Central Asia.

The Special Operations Command Pacific

operates in South and East Asia, the Pacific, and Antarctica.
Chavez alleges Defendants the United States, USSOCOM,
SOCCENT, and SOCPAC violated military regulations and the United
States Constitution during his service in the United States Army.
6

He seeks correction of his military records.

Procedural History
On December 30, 2016, Chavez commenced this Action.

(ECF

No. 1).
On February 17, 2017, Chavez filed an amended complaint.
(Amended Complaint, ECF No. 6).

He alleged that the Secretary of

Defense and individual officers in the United States Army chain
of command violated the Constitution when they denied him
adequate rest between deployments, falsified his military
records, violated military policies, and stripped him of his
retirement.

Chavez sought $1 billion in damages and the

correction of his military records.
On March 9 2017, the Court dismissed Chavez’s Amended
Complaint for failure to state a cognizable claim for relief.
(ECF No. 9).

The Second Amended Complaint
On April 5, 2017, Chavez filed a Second Amended Complaint.
(ECF No. 10).

He now alleges Defendants violated Article I,

Section 8 of the United States Constitution3 and 10 U.S.C. § 991
when they allegedly deployed him overseas in excess of § 991's

3

Article I, Section 8 vests in Congress the power to
“provide for the common Defence,” “declare War,” “raise and
support Armies,” “provide and maintain a Navy;” and make rules
for the “regulation of the land and naval Forces.”
7

one and two year “high-deployment” thresholds4 without the
explicit approval of the Secretary of Defense or another
delegated official having been noted in his records.

He alleges

that this failure, and his resulting alleged over-deployment,
violated the Fifth and Fourteenth Amendments.

Chavez was

discharged from the Army in “Under Other Than Honorable
Conditions” on May 19, 2016.
Discharge from Active Duty,

(Certificate of Release or
ECF No. 10-4).

Chavez seeks an order directing USSOCOM and the Pentagon “to
produce the waiver request and the approval by the Armed Services
of the Senate and the Committee on Armed Services of the House of
Representatives” for his “Operational Personnel Tempo.”5
Amended Complaint at p. 8A, ECF No. 10).
request for money damages.

(Second

He has withdrawn his

Chavez states that he has initiated

review of his discharge with the Army Review Boards Agency
(ARBA), which is also known as the Army Board for Correction of
Military Records (“ABCMR”).6

(Id.)

4

Title 10, U.S. Code, Section 991 governs the management of
deployments of members of the Armed Forces.
5

“ ‘[O]perating tempo’ means the rate at which units of the
armed forces are involved in all military operations[,]” and “
‘personnel tempo’ means the amount of time members of the armed
forces are engaged in their official duties at a location or
under circumstances that make it infeasible for a member to spend
off-duty time in the housing in which the member resides.” 10
U.S.C. § 991(f)(1)(B).
6

“The Army Board for Correction of Military Records (ABCMR)
is the highest level of administrative review within the
Department of the Army with the mission to correct errors in or
remove injustices from Army military records.”
http://arba.army.pentagon.mil/abcmr-overview.html (last visited
8

Jurisdiction
The Court liberally construes Chavez’s claim as seeking
relief under the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 702, 704.

The Act provides a limited waiver of sovereign

immunity for judicial review of agency decisions, including
decisions of the ABCMR.

Clinton v. Goldsmith, 526 U.S. 529, 539

(1999).
“Military discharge decisions are subject to judicial
review.”

Muhammad v. Sec’y of Army, 770 F.2d 1494, 1495 (9th

Cir. 1985).

The Court may review military decisions if the

plaintiff alleges (a) violation of a constitutional right,
federal statute, or military regulations, and (b) exhaustion of
administrative remedies, unless exhaustion is excused.

Wenger v.

Monroe, 282 F.3d 1068, 1072 (9th Cir. 2002); Khalsa v.
Weinberger, 779 F.2d 1393, 1398 (9th Cir. 1985)).
Plaintiff has alleged a violation of a federal statute, 10
U.S.C. § 991.

He also claims violations of Article 1, Section 8,

the Fifth Amendment, and the Fourteenth Amendment of the United
States Constitution.

The Court finds the allegation of the

statutory violation sufficient to require consideration of
exhaustion.
Plaintiff admits that he has not exhausted his
administrative remedies.

Plaintiff states that a “Congressional

review of my discharge has been initiated ... [w]ith the Army

Jan. 31, 2018).
9

Review Board Agency."
No. 10).

(Second Amended Complaint at p. 8A, ECF

According to Plaintiff, he filed a matter with the Army

Review Boards Agency on April 21, 2017, and has not yet received
a final determination from the Agency.

(Plaintiff's Opposition

at pp. 10-11, ECF No. 32-1).

Exhaustion of Administrative Remedies
Plaintiff argues that his failure to exhaust his
administrative remedies is excusable.

(Id. at 10).

If

Plaintiff's failure to exhaust his administrative remedies is not
excusable, his Second Amended Complaint must be dismissed.
Muhammad, 770 F.2d at 1495; Sakievich v. United States, 160 F.
Supp. 3d 215, 222-25 (D.D.C. 2016)(case dismissed for lack of
jurisdiction due to failure to exhaust intraservice remedies).
Exhaustion of administrative remedies may be excused “(1) if
the intraservice remedies do not provide an opportunity for
adequate relief; [or] (2) if the petitioner will suffer
irreparable harm if compelled to seek administrative relief; [or]
(3) if administrative appeal would be futile; or (4) if
substantial constitutional questions are raised.”

Wenger, 282

F.3d at 1073; Stein v. Mabus, 2013 WL 12092058, at *3 (S.D. Cal.
Feb. 14, 2013).
Plaintiff appears to argue that exhaustion will take too
long.

He refers to a statement he received from the

Army Review

Boards Agency that indicates it is currently taking 12 months or
longer to process an application.
10

(Plaintiff's Opposition at p.

11, ECF No. 32-1).

It is true that administrative review may

often be less than speedy, but that alone will not justify
immediate resort to the courts.

Gorsline v. United States Army

Reserve, 13 F.3d 405, 1993 WL 525674 *1 (10th Cir. Dec. 21 1993).
(1) Will Intraservice Remedies Provide Relief?
Under the first reason to excuse exhaustion (1), Plaintiff
has not argued that the intraservice remedies will not provide an
opportunity for adequate relief.
A member of the armed services who seeks judicial review of
an alleged violation of a recognized constitutional right, a
federal statute, or military regulations must typically first
seek relief with the Army Board for Correction of Military
Records.

The

Army Board for Correction of Military Records

consists of civilians appointed by the Secretary of the Army.
C.F.R. § 581.3(c)(1).

32

Among other duties, "it directs or

recommends correction of military records to remove an error or
injustice." See Sung v. Gallagher, CIV. No. 11-00103 JMS, 2011 WL
4952617, at *6 (D. Haw. Oct. 17, 2011) ; 32 C.F.R. § 581.3(c)(2);
see also 10 U.S.C. § 1552(a)(1) (allowing Secretary of a military
department to "correct any military record ... when the Secretary
considers it necessary to correct an error or remove an
injustice.").

The Army Review Boards Agency administers the Army

Board for Correction of Military Records.
Plaintiff seeks a correction of military records related to
his deployment and “dwell time.”

The ABCMR has the authority to

correct any military record and provide Plaintiff the relief he
11

seeks.

Kennedy v. Sec'y of Army, 191 F.3d 460, 1999 WL 710317 at

*3 (9th Cir. Sept. 10 1999).

Plaintiff has not satisfied the

first circumstance that would excuse exhaustion.

(2) Irreparable Harm
Pursuant to the second reason to excuse exhaustion (2),
Plaintiff seeks to remedy an injury he allegedly suffered when he
was deployed without significant "dwell time" in the past.

Past

injury does not meet the irreparability requirement for waiver.
Kaiser v. Blue Cross of California, 347 F.3d 1107, 1115 (9th Cir.
2003).

Plaintiff

future harm.

Id.

must show that denial of relief will cause a
Plaintiff is unable to identify a future harm

which he will suffer if forced to seek administrative relief.
Gorsline, 1993 WL 525674 *1.

Plaintiff has not satisfied the

second reason to excuse exhaustion.

(3) Futility
Plaintiff has not shown that the administrative appeal he
has initiated would be futile.

The futility exception (3) to the

exhaustion requirement should be interpreted narrowly.

Mitchell

v. United States, 26 Cl. Ct. 1329, 1332 n.3 (1992) (citing Kawitt
v. United States, 842 F.2d 951, 953 (7th Cir.1988)).
Plaintiff does not argue that the ABCMR would automatically
deny his claim, making exhaustion futile.
710317 at *3.

Kennedy, 1999 WL

There is a viable possibility that the ABCMR may

determine that Plaintiff was deployed without receiving adequate
12

dwell time in between deployments.

The Army is expected to be

the primary authority for the interpretation of its own
regulations.
Cir. 1980).

Von Hoffburg v. Alexander, 615 F.2d 633, 639 (5th
Application of the exhaustion principle is

particularly important here, given the ABCMR’s special expertise
in dealing with the different military regulations, records, and
statutes that are pertinent to Chavez’s claims.

Gorsline, 1993

WL 525674 *1.
If Plaintiff seeks judicial review after an adverse
administrative proceeding, then the Court will have a definitive
interpretation of the regulations at issue and an explanation of
the relevant facts from the highest administrative body in the
Army’s own appellate system.

Von Hoffburg, 615 F.2d at 639

(citing Hodges v. Callaway, 499 F.2d 417, 422 (5th Cir. 1974)).

(4) Substantial Constitutional Questions
Exhaustion may be excused if Plaintiff has raised a (4)
substantial constitutional question.

Courts have narrowly

construed what constitutes a substantial constitutional question.
Stein v. Mabus, No. 312CV00816HBGS, 2013 WL 12092058, at *3 (S.D.
Cal. Feb. 14, 2013) (plaintiff alleged he was subject to unfair
administrative proceedings in retaliation for protected political
speech); Cooney v. Dalton, 877 F. Supp. 508, 513–14 (D. Haw.
1995) (plaintiff alleged he was subject to double jeopardy).
Plaintiff does not provide any support for a finding that a
substantial constitutional question has been raised.
13

Plaintiff's bare bones Second Amended Complaint states his
belief that the Army violated Article I, Section 8 of the United
States Constitution, as well as the Fifth and Fourteenth
Amendments.

Plaintiff has provided no support for the idea that

there has been a violation of Section I, Article 8 of the
Constitution.

Nor can Plaintiff bring a Fourteenth Amendment

procedural due process claim against the Federal Government
because the Fourteenth Amendment applies only to the individual
states.

United States v. Navarro, 800 F.3d 1104, 1112 n.6 (9th

Cir. 2015).

Plaintiff lacks a sufficiently detailed allegation

of a Fifth Amendment due process violation for the Court to
perceive a substantial constitutional claim.

Kennedy, 1999 WL

710317 at *3.
Plaintiff has not provided information upon which the Court
could rely in order to excuse exhaustion.

Accordingly, the Court

DISMISSES Plaintiff’s Second Amended Complaint without prejudice.

Plaintiff’s Subpoena Request
On October 27, 2017, Plaintiff filed a pleading entitled
“MOTION GRANTING ORDER FOR DEPOSITION SUBPOENA” which the Court
construes as a request for a subpoena.

(ECF No. 34).

No claims remain. Plaintiff’s Motion, construed as a request
for a subpoena to allow for the taking of depositions, is DENIED
AS MOOT.

14

CONCLUSION
Defendants United States, United States Special Operations
Command, Special Operations Command Central, and Special
Operations Command Pacific's Motion to Dismiss (ECF No. 30) is
GRANTED.
Chavez may seek review in this Court, pursuant to the
Administrative Procedure Act, if he is dissatisfied by the
decision of the ABCMR.

See Clinton v. Goldsmith, 526 U.S. 529,

539 (1999).
Plaintiff’s filing entitled “MOTION GRANTING ORDER FOR
DEPOSITION SUBPOENA” (ECF No. 34) is DENIED AS MOOT.
The Clerk of Court is DIRECTED TO CLOSE THE CASE.
IT IS SO ORDERED.

DATED:

Leonardo
16-00685
(ECF No.
GRANTING

Honolulu, Hawaii, January 31, 2018.

R. Chavez v. United States of America et al.; Civ No.
HG-KJM; ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
30) AND DENYING PLAINTIFF’S FILING ENTITLED “MOTION
ORDER FOR DEPOSITION SUBPOENA” (ECF No. 34)
15