SCHNELL v. PANETTA
Filing
29
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 8/26/2013, RECOMMENDING that Defendant Panetta's Motion to Dismiss [Doc. # 12 ] be granted, and that this action be dismiss ed. FURTHER RECOMMENDING that Plaintiff Schnell's Motions for Summary Judgment [Doc. # 24 , # 25 , # 26 , # 27 , # 28 ] be denied. ORDERING that Plaintiff Schnell's Motions for Production of Documents [Doc.# 8 , # 22 ] are DENIED WITHOUT PREJUDICE; and that Defendant Panetta's Motion for Protective Order [Doc. # 15 ] is GRANTED. (Lloyd, Donna)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN VERNON SCHNELL,
Plaintiff,
v.
LEON E. PANETTA, Secretary of Defense,
Defendant.
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1:12CV679
MEMORANDUM OPINION, ORDER, AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This is an action by Plaintiff John Schnell, a former U.S. Navy service member, alleging
that the United States Navy violated his 14th Amendment Constitutional rights and that the
Board for Correction of Naval Records (“BCNR”) erred in handling his petition for correction
of his Navy records. Defendant Leon Panetta, former Secretary of Defense, has filed a Motion
to Dismiss [Doc. #12], seeking to dismiss Plaintiff Schnell’s action pursuant to Federal Rules
of Civil Procedure 12(b)(1) and (6), or alternatively for judgment on the pleadings pursuant to
Rule 12(c). Defendant Panetta has also moved for a protective order [Doc. #15] to stay any
discovery until resolution of the Motion to Dismiss. Plaintiff Schnell has moved for the Court’s
assistance in obtaining documents [Doc. #8, #22]. Plaintiff Schnell has also filed a series of
Motions for Summary Judgment [Doc. #24, #25, #26, #27, #28]. Plaintiff Schnell is
proceeding pro se in this action. For the reasons that follow, Defendant Panetta’s Motion to
Dismiss should be granted, and Plaintiff Schnell’s Motions for Summary Judgment should be
denied. Defendant Panetta’s Motion for Protective Order will be granted, and Plaintiff Schnell’s
Motions for Production of Documents will be denied without prejudice.
I.
FACTS, CLAIMS, AND PROCEDURAL HISTORY
A.
Plaintiff’s Complaint
In his Complaint, Plaintiff alleges that while he was in the Navy, the Navy “had an
uneven application of policies in violation of the equal protection clause of the 14th
amendment.” (Compl. [Doc. #2] at 3.) In support of this contention, Plaintiff describes an
incident occurring on October 19, 1993, while he was onboard the USS New York City.
Plaintiff states that he was “reduced in rate” for not properly “tagging out” a lube oil purifier.
He says that the command was using a procedure for tagging out that differed from two other
commands under which he had served. Plaintiff uses this as an example of an “unequal
application of requirements.” Plaintiff also refers to two alleged incidents of hazing that he says
he witnessed while onboard Navy ships. Plaintiff alleges that the first occurred on March 9,
1997, on the USS Alaska. Plaintiff says that he “declined to take part in the ‘crossing the line
ceremony’ for crossing the equator that this command allowed to happen.” (Id.) Plaintiff
contends that the second incident occurred when “people would make rate or get their
‘dolphins,’” and those of higher rate, or who had their “dolphins,” would “punch the person
in the arm or chest depending on the ‘tacking ceremony’ needed.” (Id.) Plaintiff does not allege
that he took part in these ceremonies. These allegations comprise Plaintiff’s equal protection
clause claim.
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Plaintiff also alleges that he applied to the Board for Correction of Naval Records to
“upgrade” his discharge, raising allegations that the Navy did not properly investigate his
allegations of sexual harassment that occurred while he was on active duty. (Id. at 4.) He then
goes on to list the various incidents of alleged harassment and retaliation which he contends
occurred in 1996 and 1997. (Id. at 4-10.) Plaintiff contends that his subsequent “write ups” in
1996 and 1997 were in retaliation for complaining about the alleged harassment, culminating in
his discharge in 1997. However, Plaintiff did not file any type of claim or complaint until 2010,
when he requested correction of his records by the BCNR.
Plaintiff seeks relief in the form of monetary damages, including “$300 trillion” in
punitive damages, and various forms of equitable relief, including having punishments he
received removed from his naval records, restoring his rank, awarding back pay, granting him
a military retirement, and issuing him an updated DD-214. (Id. at 12-13.)
B.
Administrative Record
To the extent Plaintiff challenges the action of the Board for Correction of Naval
Records, the Navy has produced a copy of the administrative record relating to this case, which
is on file in the Navy Personnel Command and Board for Correction of Naval Records.
According to that record (the “AR”), Plaintiff Schnell first entered the Navy on November 14,
1984. (AR 100.) He was honorably discharged on May 14, 1987, but re-enlisted in the Naval
Reserve Officer Program the following day. (AR 95, 140.) On June 5, 1989, he was honorably
discharged from the Naval Reserves and re-enlisted on June 20, 1989. (AR 96, 142.) He
received non-judicial punishment of reduction in rate to E-5 and loss of pay on October 19-20,
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1993, when he was found guilty of dereliction of duty. (AR 300.) A Letter of Substandard
Service was placed in his file on June 6, 1994, and Plaintiff was told that he could not re-enlist
unless his performance improved. (AR 301.) He showed improvement, and this restriction on
re-enlisting was removed on October 27, 1995. (AR 304). On February 12, 1997, Plaintiff was
found guilty of three instances of failing to obey orders by: (1) failing to log his name as ordered;
(2) failing to stop and acknowledge a superior as ordered; and (3) failing to document a
deficiency which he believed existed with a valve in the ship’s evaporator. (AR 305-06.) On
March 25, 1997, he was found guilty of tripping shut a trip valve without permission. (AR 305.)
In March 1997, he was advised that he was being considered for an administrative separation
from the Navy because of misconduct. (AR 307-09.) The Navy discharged Plaintiff on April
14, 1997, with a general discharge under honorable conditions. Plaintiff did not appeal his
dismissal or file any sexual harassment claim. (AR 96.)
The record also reflects that Plaintiff received a negative evaluation report for the period
from March 1996 until March 1997. According to the report, Plaintiff “display[ed] a continued
resistance to teamwork within the machinery division.” (AR 63.) In addition, Plaintiff’s
evaluation report for the period from March 1997 until April 1997 reflects that he was being
separated for his pattern of misconduct as evidenced by all of his punishments under the
Uniform Code of Military Justice. (AR 60-61.)
Over 13 years later, in December 2010, Plaintiff submitted his Application for Correction
of Military Record to the BCNR. (AR 40.) He identified the errors to be corrected as a change
in discharge, repayment of monies, reinstatement of rank, and the granting of retirement. (Id.)
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As the reason for his request, Plaintiff stated that he had been subjected to a hostile
environment. (Id.) In support of his request, Plaintiff submitted his allegations of harassment,
4 sheets of medical examinations, an achievement medal, several evaluation reports, his enlisted
performance record, and his history of assignments. (AR 40-70.) The 4 sheets of medical
records reflect that on September 20, 1996, Plaintiff told medical personnel that “a disparaging
rumor” about him (which he reported as being false) was spread around the ship and his
shipmates were harassing him about it, including a Chief. (AR 57.) In September 2011, the
Board wrote to Plaintiff to advise him that “the Board found the evidence submitted was
insufficient to establish the existence of probable material error or injustice.” (AR 37.)
In a follow-up email dated October 6, 2011, the Board advised Plaintiff that with respect
to his allegation of sexual harassment, it did not “have the authority or the responsibility to
initiate an investigation [sic] which occurred over fourteen years ago.” (AR 35.) The email
further advised Plaintiff that in his record “there was no documented mention/evidence of an
incident.” (Id.) The email concluded by advising Plaintiff that he was entitled to have the Board
reconsider its decision upon submission of new and material evidence or other matter not
previously considered by the Board. (Id.) On October 7, 2011, Plaintiff wrote to the Board that
none of his records mention “the incident,” except the reference in the medical examination
notes referred to above. (AR 34.) Although the record contains a few more emails to the Board
from Plaintiff, there is no record of him requesting that the Board reconsider his application.
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II.
DISCUSSION
A.
Standard
The standard for granting judgment on the pleadings is the same as for granting a motion
to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Burbach Broad. Co. v. Elkins
Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). In addition, the standard for granting a
dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as for
dismissal under Rule 12(b)(6). De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). A
plaintiff fails to state a claim upon which relief may be granted under Rule 12(b)(6) when the
complaint does not “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 Atlantic
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.” Iqbal, 556 U.S. at 678.
B.
Equal Protection Claim
Plaintiff first claims that his equal protection rights were violated by the Navy because
of his reduction in rate and his witnessing two hazing incidents. Defendant argues that this
claim should be dismissed because it fails to state a claim under Federal Rule of Civil Procedure
12(b)(6). The Court agrees that Plaintiff has not stated a valid claim for relief on equal
protection grounds.1
1
Plaintiff raises his equal protection claim under the Fourteenth Amendment, which governs only state
action and not the type of federal action of which Plaintiff complains. See United States v. Morrison, 529 U.S.
598, 621 (2000) (“the Fourteenth Amendment, by its very terms, prohibits only state action”). The Court will
consider Plaintiff’s claim as being raised pursuant to the Fifth Amendment. The same analysis applies under both
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“To succeed on an equal protection claim, a plaintiff must first demonstrate that he has
been treated differently from others with whom he is similarly situated and that the unequal
treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty,
239 F.3d 648, 654 (4th Cir. 2001). Once this showing is made, the Court considers whether the
disparity in treatment can be justified under the proper level of scrutiny. Id. In the present case,
Plaintiff’s theory is that his equal protection rights were violated because he was disciplined for
“tagging out” the oil purifier in a manner that complied with a previous command’s procedures.
Plaintiff does not argue that this procedure complied with his current command’s procedures.
He also does not allege that another crew member of his current command was allowed to tag
out the oil purifier in the manner he did and was treated differently. Plaintiff’s allegation that
he witnessed two incidents of hazing also does not show that he was treated differently from
someone similarly situated. Plaintiff’s equal protection claim should be dismissed on this basis.
Moreover, Plaintiff may not state a cause of action for a constitutional tort against Navy
officials or former Secretary Panetta. The Supreme Court and the Fourth Circuit have made
clear that a claim for damages for a constitutional tort, a Bivens2 type of action, is not “available
for injuries that ‘arise out of or are in the course of activity incident to service.’” Randall v.
United States, 95 F.3d 339, 344 (4th Cir. 1996) (quoting United States v. Stanley, 483 U.S. 669,
684 (1987)). The Randall court concluded that the plaintiff’s claim that he was denied
promotion in the United States Army as a result of racial discrimination “arose out of or was in
amendments.
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
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the course of activity incident to service.” Id. The Fourth Circuit recently reviewed the relevant
cases in this area and “restate[d] the principles guiding [the court’s] analysis . . .: no Bivens action
will lie where special factors counsel hesitation in creating an implied right of action and special
factors clearly counsel hesitation in implying a cause of action for injuries arising out of military
service.” Cioca v. Rumsfeld, 720 F.3d 505, 512 (4th Cir. 2013). Injuries are considered “incident
to service” where “a complaint asserts injuries that stem from the relationship between the
plaintiff and the plaintiff’s service in the military.” Cioca, 720 F.3d at 515. In the present case,
Plaintiff Schnell’s claims arose while he was serving on active duty in the United States Navy and
involve issues of discipline and his ultimate discharge from the Navy. Therefore, they “arose
out of or were in the course of activity incident to his service” and fail to state a valid claim for
relief. Randall, 95 F.3d at 344 (affirming district court’s dismissal of the plaintiff’s due process
cause of action for failing to state a claim). For all of these reasons, Plaintiff’s equal protection
claim should be dismissed.
C.
Review of the Decision of the Board for Correction of Naval Records
In addition to his equal protection claim, Plaintiff also seeks review of the decision of the
BCNR denying his request for correction of his military records. However, Plaintiff does not
state under what authority he seeks review of the BCNR’s decision. There are two possible
avenues of relief for plaintiffs challenging a decision of a board for the correction of military
records: the Tucker Act, 28 U.S.C. § 1346(a)(2), § 1491; and, if no other adequate remedy is
available, the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701-06. See Randall, 95 F.3d
at 345. However, under the Tucker Act, if the plaintiff’s claim is for more than $10,000, he must
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bring his action in the Court of Federal Claims rather than this Court. Id.; see also Mitchell v.
United States, 930 F.2d 893 (4th Cir. 1991); Remmie v. United States, 98 Fed. Cl. 383 (Fed. Cl.
2011). Therefore, to the extent Plaintiff may be seeking judicial review of the BCNR decision
under the Tucker Act, this case should be dismissed without prejudice to Plaintiff refiling it in
the Court of Federal Claims.3
In addition, to the extent that Plaintiff Schnell is attempting to raise claims for review
under the APA rather than the Tucker Act, the APA is limited to claims “for which there is no
other adequate remedy in a court.” 5 U.S.C. § 704. Here, it appears that Plaintiff’s claims could
be asserted in the Court of Federal Claims pursuant to the Tucker Act. Therefore, because
another avenue for review exists, the APA would not be available. Moreover, even if the APA
were available, Plaintiff has failed to state a valid claim under the APA. In this regard, the
Fourth Circuit has noted that APA review of the decision of a board of correction such as the
BCNR is “quite limited.” Randall, 95 F.3d at 348. Such decisions may be set aside only if they
are arbitrary, capricious, or not based on substantial evidence. Id. In this case, Plaintiff Schnell
has not stated a claim plausible on its face with regard to whether the BCNR’s decision is
arbitrary, capricious, or not based on substantial evidence. Plaintiff does not claim that the facts
as recorded in his Navy record are false. In other words, he does not contend that he was not
disciplined as set out in the record. Rather, his claim is that the Navy did not properly
investigate his claims of sexual harassment in 1996 and 1997. According to Plaintiff, if a proper
3
Because it is not clear if Plaintiff actually intends to seek review under the Tucker Act, the Court
concludes that it is not in the interest of justice to transfer this case to the Court of Federal Claims, and the Court
will instead leave it to Plaintiff to decide whether he wants to pursue his claims with that Court. See 28 U.S.C.
§ 1631.
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investigation had been conducted by the Navy in 1996 and 1997, many of the actions of which
he now complains would not have occurred because he “wouldn’t have been on board if the
command would have fully investigated the incident.” (Compl. [Doc. #2] at 8, 10.) However,
that is not a proper basis for a claim against the BCNR. Plaintiff further contends that if the
BCNR had made an appropriate investigation, it would have uncovered this harassment and
corrected his record. However, the regulations governing the BCNR state explicitly that “[t]he
Board is not an investigative body.” 32 C.F.R. § 723.2(b). The BCNR must make its decision
based upon the evidence submitted by the applicant and his service record. Therefore, even if
Plaintiff could seek review under the APA, he has failed to state a valid claim for relief.4
D.
Remaining Motions
Because this Court recommends granting Defendant Panetta’s Motion to Dismiss all of
Plaintiff’s claims, Plaintiff’s Motions for the Production of Documents [Doc. #8, #22] will be
denied without prejudice. Defendant Panetta’s Motion for a Protective Order [Doc. #15]
seeking protection from discovery requests until after a decision is rendered on its Motion to
Dismiss will be granted. Finally, Plaintiff Schnell has filed several Motions for Summary
Judgment [Doc. #24, #25, #26, #27, #28], which should be denied for the reasons set out
above.
III.
CONCLUSION
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The Court also notes that Plaintiff Schnell does not have a claim for relief under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-16, because the Fourth Circuit has found that “Congress intended to
include only civilian employees of the military departments, and not uniformed service members, within the reach
of Title VII.” Randall, 95 F.3d at 343.
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IT IS THEREFORE RECOMMENDED that Defendant Panetta’s Motion to Dismiss
[Doc. #12] be granted, and that this action be dismissed.
IT IS FURTHER RECOMMENDED that Plaintiff Schnell’s Motions for Summary
Judgment [Doc. #24, #25, #26, #27, #28] be denied.
IT IS ORDERED that Plaintiff Schnell’s Motions for Production of Documents [Doc.
#8, #22] are DENIED WITHOUT PREJUDICE; and that Defendant Panetta’s Motion for
Protective Order [Doc. #15] is GRANTED.
This, the 26th day of August, 2013.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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