SCHULSINGER v. PERCHETTI et al

Filing 60

OPINION. Signed by Judge Noel L. Hillman on 8/18/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EDWARD SCHULSINGER,
Civil No. 15-5752 (NLH/AMD)
Plaintiff,
OPINION

v.
JOSEPH N. PERCHETTI, PATRICIA
MARTIN, PAUL D.J. ARNETT,
and FRANK T. STEWART,
Defendants.

APPEARANCES:
EDWARD SCHULSINGER
13 IVY LANE
CHERRY HILL, NJ 08002
Appearing pro se
JOHN ANDREW RUYMANN
OFFICE OF THE US ATTORNEY
402 EAST STATE STREET
SUITE 430
TRENTON, NJ 08608
On behalf of defendants
HILLMAN, District Judge
Presently before the Court is the motion of defendants to
dismiss plaintiff’s amended complaint, which concerns plaintiff’s
disenrollment from the Coast Guard Auxiliary.

For the reasons

expressed below, defendant’s motion will be granted.
BACKGROUND
Plaintiff, Edward Schulsinger, is a former member of the
Coast Guard Auxiliary.

The Auxiliary is a nonmilitary

organization administered by the Commandant of the United States
Coast Guard and governed by Title 14 U.S.C. § 821.

Plaintiff’s

case was removed from the Superior Court of New Jersey, Law
Division, Camden County, Special Civil Part to this Court under 28
U.S.C. §§ 1442(a)(l) and 2679(d)(2) by the four named defendants:
Paul D.J. Arnett, a Coast Guard Officer and former Director of the
Coast Guard Auxiliary (North) for the Fifth Coast Guard District,
Frank T. Stewart, Auxiliary member, Patricia Martin, Auxiliary
member, and Joseph N. Perchetti, Auxiliary member.
By statute, members of the Coast Guard Auxiliary are deemed
to be federal employees when they are sued for claims under
various federal statutes and for “noncontractual civil liability.”
14 U.S.C. § 832a(b).

They are also deemed to be acting under the

authority of a federal officer or agency for purposes of the
federal removal statute. 14 U.S.C. § 832a(c)(auxiliary member
deemed acting under federal officer for purposes of 28 U.S.C. §
1441(a)(1)).
Plaintiff’s original complaint was on a form provided by the
state court Special Civil Part, along with an additional page that
states:
THE UNITED STATES COAST GUARD AUXILIARY (TO BE KNOWN AS THE
U.S.C.G.A.) IS A NONMILITARY CITIZEN ORGANIZATION WHICH ACT'S
AS A CLUB BY COLLECTING DUES EACH YEAR. THE U.S.C.G.A. IS
ENACTED BY CONGRESS TO WORK WITH THE UNITED STATES COAST
GUARD (TO BE KNOWN AS U.S.C.G.)
2

THIS CIVIL ACTION COMPLAINT IS BASED ON THESE INFRACTION'S:
FRAUD DEFAMATION
GROSSE INCOMPETANCE
CONSPIRACY
LACK OF DUE PROCESS RULE VIOLATION
DENIAL OF CIVIL RIGHTS
INCIDENT REPORT'S FALSE IN NATURE
ALL OF THESE INFRACTIONS ARE BACKED BY EVIDENCE READY TO BE
SUBMITTED IN A REAL COURT WITH A REAL JUDGE.
(Docket No. 1-2 at 3.)
Plaintiff’s original complaint demanded $15,000 from
defendants, plus interest and $118.00 for the costs of suing. 1
(Docket No. 1-2 at 2.)
Previously, defendants had moved to dismiss plaintiff’s
complaint, or in the alternative, for a more definite statement.
The Court dismissed plaintiff’s complaint because it failed to
comply with Supreme Court precedent setting forth pleading
standards and Federal Civil Procedure Rule 8(a).
at 7.)

(Docket No. 17

The Court permitted plaintiff to file an amended complaint

within 30 days.
After several conferences with the Magistrate Judge, the
parties agreed that the matter should be stayed so that plaintiff

1

Plaintiff’s most recent submission – his opposition to
defendants’ motion to dismiss - demands $1.5 million in pain and
suffering and $50 million in punitive damages. (Docket No. 58 at
10.)
3

could complete the applicable administrative procedures relating
to his disenrollment from the Coast Guard Auxiliary.
37.)

(Docket No.

During the stay, plaintiff was provided with copies of the

statements gathered during the investigation, and his appeal was
considered by the District Commander, Rear Admiral Meredith
Austin.

On December 1, 2016, Rear Admiral Austin upheld

plaintiff’s disenrollment, finding:
Serving the American public as a volunteer lifesaver is a
noble undertaking and I appreciate your passion for service.
However, membership in the Coast Guard Auxiliary hinges upon
the demonstrated commitment to and practice of the Coast
Guard's core values of Honor, Respect, and Devotion to Duty.
I cannot overlook your detrimental conduct and the impact it
had on Coast Guard and Auxiliary operations. Your aggressive
and disruptive behavior runs counter to the mission of the
Coast Guard Auxiliary and the Coast Guard core values.
(Docket No. 50 at 3.)
Having exhausted his administrative remedies, on December 28,
2016, plaintiff filed an amended complaint.

Plaintiff claims the

following:
(1) The documents provided to plaintiff relating to the
investigation into plaintiff’s misconduct were redacted, and
plaintiff claims that this constitutes tampering with vital
evidence;
(2) Plaintiff’s honor was defamed;
(3) The Coast Guard Auxiliary failed to follow “Roberts Rules
of Order” as required by the Coast Guard manual; and
4

(4) Plaintiff was disenrolled in violation of the Coast Guard
manual, which states that no auxiliary member can be disenrolled.
(Docket No. 49.)
Defendants have moved to dismiss plaintiff’s amended
complaint.

They argue that the complaint fails to state any

cognizable claims, but even if the amended complaint is construed
liberally to assert a claim for violations of the Administrative
Procedures Act, 5 U.S.C. §§ 701-706, such a claim fails as a matter
of law.

Plaintiff has opposed defendants’ motion.
DISCUSSION

A.

Jurisdiction

The plaintiff filed suit against federal employees who are
persons acting under an officer of the United States or federal
agency, 14 U.S.C. § 832a(b), (c). 2

Accordingly, this Court

exercises subject matter jurisdiction over this action, which was
removed from state court, pursuant to 28 U.S.C. §§ 1442(a)(1) and
2679(d)(2).

2

One defendant, Paul D.J. Arnett, is a Coast Guard Officer as well
as having served as the former director of the Coast Guard
Auxiliary (North). In addition to 14 U.S.C. § 832a(b) and (c),
federal jurisdiction may also be premised on 28 U.S.C. §
1442(a)(1), and in accord with Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971), where the United States
Supreme Court recognized for the first time an implied private
action for damages against federal officers alleged to have
violated a citizen's constitutional rights.
5

B.

Motion to Dismiss Standard

When considering a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept all
well-pleaded allegations in the complaint as true and view them in
the light most favorable to the plaintiff.
F.3d 347, 351 (3d Cir. 2005).

Evancho v. Fisher, 423

It is well settled that a pleading

is sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).

Fed. R.

Under the liberal federal pleading rules, it is

not necessary to plead evidence, and it is not necessary to plead
all the facts that serve as a basis for the claim.
Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977).

Bogosian v.
However,

“[a]lthough the Federal Rules of Civil Procedure do not require a
claimant to set forth an intricately detailed description of the
asserted basis for relief, they do require that the pleadings give
defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.”

Baldwin Cnty. Welcome Ctr. v.

Brown, 466 U.S. 147, 149-50 n.3 (1984) (quotation and citation
omitted).
A district court, in weighing a motion to dismiss, asks “‘not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.’”
6

Bell Atlantic v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’ . . . .”);
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“Iqbal
. . . provides the final nail-in-the-coffin for the ‘no set of
facts’ standard that applied to federal complaints before
Twombly.”).
Following the Twombly/Iqbal standard, the Third Circuit has
instructed a two-part analysis in reviewing a complaint under Rule
12(b)(6).

First, the factual and legal elements of a claim should

be separated; a district court must accept all of the complaint's
well-pleaded facts as true, but may disregard any legal
conclusions.
1950).

Fowler, 578 F.3d at 210 (citing Iqbal, 129 S. Ct. at

Second, a district court must then determine whether the

facts alleged in the complaint are sufficient to show that the
plaintiff has a “‘plausible claim for relief.’”
Iqbal, 129 S. Ct. at 1950).

Id. (quoting

A complaint must do more than allege

the plaintiff's entitlement to relief.

Id.; see also Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that
the “Supreme Court's Twombly formulation of the pleading standard
can be summed up thus: ‘stating . . . a claim requires a complaint
with enough factual matter (taken as true) to suggest’ the
7

required element.

This ‘does not impose a probability requirement

at the pleading stage,’ but instead ‘simply calls for enough facts
to raise a reasonable expectation that discovery will reveal
evidence of’ the necessary element”).

A court need not credit

either “bald assertions” or “legal conclusions” in a complaint
when deciding a motion to dismiss.

In re Burlington Coat Factory

Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997).

The defendant

bears the burden of showing that no claim has been presented.
Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.
1991)).
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents
attached thereto as exhibits, and matters of judicial notice.

S.

Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd., 181
F.3d 410, 426 (3d Cir. 1999).

A court may consider, however, “an

undisputedly authentic document that a defendant attaches as an
exhibit to a motion to dismiss if the plaintiff’s claims are based
on the document.”

Pension Benefit Guar. Corp. v. White Consol.

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

If any other

matters outside the pleadings are presented to the court, and the
court does not exclude those matters, a Rule 12(b)(6) motion will
be treated as a summary judgment motion pursuant to Rule 56.
8

Fed.

R. Civ. P. 12(b).
C.

Analysis

In his amended complaint, plaintiff contends that defendants
tampered with evidence by redacting certain information in their
investigation statements, improperly disenrolled him in the Coast
Guard Auxiliary, and defamed his honor.

The fundamental problem

with plaintiff’s amended complaint is the same as his first
complaint - it fails to allege sufficient facts from which one can
infer any plausible violation of law.

Completely lacking is any

discussion or allegations of what materials were redacted from the
record, why the redaction was not permissible, how the
disenrollment process was invalid, and by whom he was defamed and
how.

Such factual allegations are critical in determining whether

plaintiff has asserted plausible claims and are required to place
the defendants on notice of their alleged wrongdoing.

While it is

clear that Plaintiff believes that he has been treated unfairly
and maligned in some way, absent such specificity in his
allegations Plaintiff’s assertions are mere legal conclusions
insufficient to state a claim.
As the Court stated in the Opinion dismissing plaintiff’s
original complaint, even though pro se complaints are to be
construed liberally, Estelle v. Gamble, 429 U.S. 97, 107 (1976),
pro se litigants “must still plead the essential elements of
9

[their] claim and [are] not excused from conforming to the
standard rules of civil procedure,” McNeil v. United States, 508
U.S. 106, 113 (1993), and under the liberal federal pleading
rules, the pleadings are required to give the defendants fair
notice of what plaintiff’s claim is and the grounds upon which it
rests, Baldwin County Welcome Ctr., 466 U.S. at 149-50 n.3.
The Court also pointed out that insufficiencies in
plaintiff’s claims in his complaint cannot be cured by a brief or
other documents submitted in opposition to defendants’ motion.
(Docket No. 17 at 8.)

Plaintiff’s amended complaint is therefore

dismissible for the same reasons as his original complaint –
failing to comply with Twombly/Iqbal and Federal Civil Procedure
Rule 8(a).
Even if the Court were to overlook the dearth of factual
allegations and generously construe plaintiff’s amended complaint
as alleging a due process violation relating to the Coast Guard’s
administrative procedures such a claim would fail.

Under the APA,

while “[a]gency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court are
subject to judicial review,” a court may only set aside agency
actions, findings, or conclusions that are “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. §§ 704, 706(2)(A).

The scope of review under the APA
10

“standard is ‘narrow, and a court is not to substitute its
judgment for that of the agency.’”

Prometheus Radio Project v.

F.C.C., 373 F.3d 372, 389 (3d Cir. 2004) (quoting Motor Veh.
Mfgrs. Ass’n v. State Farm Mut., 463 U.S. 29, 42 (1983)).
The United States Code provides that Coast Guard Auxiliary
members “shall not be considered to be a Federal employee and
shall not be subject to the provisions of law relating to Federal
employment.”

14 U.S.C. § 823a(a). 3

It further provides, “Members

of the Auxiliary may be disenrolled pursuant to applicable
regulations.”

Id. § 824.

The Auxiliary Manual 4 establishes the

detailed process for disenrollment of a Coast Guard Auxiliarist.
See Chapter 3.H-K.

It allows for an Auxiliarist to be disenrolled

for cause if in the opinion of the director, the Auxiliarist’s

3

As noted supra, the four defendants are Auxiliary members who are
considered Federal employees under 14 U.S.C. § 823a(b) and (c)
only because they have been named as defendants in a lawsuit
contesting their official actions. The statute is equally clear,
that Auxiliarists, including plaintiff, are not federal employees
and enjoy not of the protections that stem from that status. 14
U.S.C. § 823a(a).
4

The Auxiliary Manual is available at
https://www.uscg.mil/auxiliary/publications/auxman.pdf.
Correspondence between the Coast Guard Auxiliary and plaintiff
refers to the Auxiliary Manual and the provisions applicable to
plaintiff’s suspension and ultimate disenrollment (see Docket No.
13). While plaintiff complains that he does not have a computer
and therefore could not access the manual, he admits he was
provided a copy of the manual during this litigation. Plaintiff
does not allege how the substantive provisions of the manual
violate his rights or the law.
11

actions have had a “disruptive impact that adversely affects the
normal operations” of the Auxiliary or a Coast Guard unit.

Id. at

H.5.a.(4).
The Coast Guard Auxiliary director, Rear Admiral Austin,
disenrolled plaintiff “for cause” because of his disruptive and
aggressive behavior.

(Docket No. 50.)

The documents attached to

plaintiff’s pleadings demonstrate that the Coast Guard Auxiliary
followed the manual’s disciplinary procedure, including the
requirement to redact certain personally identifiable information. 5

5

Plaintiff cites to the Auxiliary Manual to support his contention
that the Auxiliary was required to conduct meetings under the
“Robert’s Rules of Order.” This “requirement” is actually a
suggested guideline to Auxiliary leadership on how to help ensure
their meetings are a success. (See Docket No. 49 at 13, citing
Auxiliary Manual, Chapter 1, Section C.8.d.) The suggestion that
Auxiliary meetings are to follow “Robert’s Rules of Order” is
different from the administrative process for the disenrollment of
an Auxiliarist. (See Auxiliary Manual, Chapter 2, Section H,
Formal Disciplinary Action.) In that same vein, plaintiff cites
to the Auxiliary leadership section of the manual to support his
contention that he cannot be disenrolled: “The Auxiliary, as a
uniformed organization of civilian volunteers, presents unusual
leadership and management challenges. There is no authority to
hire or fire an Auxiliarist, nor is there any military command
authority.” (Docket No. 49 at 12, citing Auxiliary Manual,
Chapter 1, Section C.6.) Plaintiff misconstrues this provision,
which aligns with the Code provision that states that an Auxiliary
member “shall not be considered to be a Federal employee and shall
not be subject to the provisions of law relating to Federal
employment.” 14 U.S.C. § 823a(a). The Auxiliary leadership cannot
“hire” or “fire” Auxiliarists because they are volunteers and not
employees. Auxiliarists may be disenrolled from their volunteer
service, however, and the procedures for disenrollment are
explicitly and clearly set forth in Chapter 2, Section H.
12

See Chapter 5.E.

Plaintiff pleads in his amended complaint that

he was dissatisfied with the outcome of the procedure, but he does
plead how the Coast Guard Auxiliary was arbitrary, capricious,
abused its discretion, or otherwise acted not in accordance with
law.

The lack of such allegations, and a factual predicate for

such allegations, is fatal to the viability of any APA violation
claim.
Moreover, to the extent that any defamation claim can be
construed to be asserted against defendants, that claims fails as
a matter of law because such a claim is barred by 28 U.S.C. §
2680(h), the intentional tort exception of the Federal Tort Claims
Act.

See, e.g., Brumfield v. Sanders, 232 F.3d 376 (3d Cir. 2000)

(citations omitted) (“[D]efamation suits against the United States
are prohibited.”); id. (“[A[n individual who is defamed by a
federal employee acting within the scope of his or her employment
has no remedy due to the protections afforded by the Westfall Act
and the FTCA.”).

See 14 U.S.C. § 823a(b)(1)(member of the Coast

Guard Auxiliary is a federal employee for purposes of the Federal
Tort Claims Act).
As the Court noted it its prior Opinion, to the extent that
plaintiff’s claims implicate civil rights violations, 6 Third

6

To the extent Plaintiff asserts a Bivens claim in his amended
complaint, such a claim also fails to meet the pleading
13

Circuit precedent “supports the notion that in civil rights cases
district courts must offer amendment - irrespective of whether it
is requested - when dismissing a case for failure to state a
claim.”

Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc.,

482 F.3d 247, 251 (3d Cir. 2007).

The caveat to that notion is

that leave to file an amended complaint should be denied when
doing so would be inequitable or futile.

Id.

In the decision dismissing plaintiff’s original complaint,
the Court permitted plaintiff to file an amended complaint, and
provided direction to plaintiff on the proper pleading standards.
(Docket No. 17 at 7-9.)

Shortly thereafter, plaintiff’s case was

stayed so that he could receive his full administrative remedies,
which had been halted due to plaintiff’s failure to appeal and by
his filing of his original complaint.
When the Coast Guard Auxiliary director issued the agency’s
final decision to uphold plaintiff’s disenrollment, plaintiff
filed his amended complaint which contains the same pleading
deficiencies as his original complaint.

And now that Plaintiff

has exhausted his administrative remedies, his must allege how
that process violated the law.

He has failed to allege any

plausible claim.

requirements set for in Bell Atlantic v. Twombly, 550 U.S. 544,
563 n.8 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009).
14

As we noted previously, the Court acknowledges that plaintiff
feels that the Coast Guard Auxiliary has disparaged his honor and
has renounced his fifteen years of volunteer service.

Mere

disagreement with an agency decision that is not coupled with
factual allegations which if proven would tend to show an action
which was arbitrary, capricious, or otherwise unlawful fail to
assert a viable cause of action against these defendants.
Consequently, the Court finds that plaintiff’s amended
complaint must be dismissed because it fails to comply with
Twombly/Iqbal and Federal Civil Procedure Rule 8(a).

Based on the

circumstances of this case, the Court also finds that providing
plaintiff leave to file a third complaint would be futile.
An appropriate Order will be entered.

Date: August 18, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

15