Bickel v. The Delaware Air National Guard et al

Filing 28

ORDER granting 21 Motion to Dismiss. This case is DISMISSED without prejudice. The Preliminary Injunction hearing scheduled for 5/25/2018 is VACATED.. Signed by Judge Algenon L. Marbley on 5/11/2018. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PETER W. BICKEL,

Plaintiff,
v.
THE DELAWARE AIR NATIONAL
GUARD, et al.,
Defendants.

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Case No. 2:18-cv-00119
JUDGE ALGENON L. MARBLEY
Magistrate Judge Vascura

OPINION & ORDER
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Motion for
Preliminary Injunction (ECF No. 7) and First Amended Complaint For Injunctive Relief (ECF
No. 2) (“Motion to Dismiss”) (ECF No. 21). For the reasons stated below, Defendants’ Motion
to Dismiss is GRANTED.
I. BACKGROUND
A. Factual Background
Plaintiff Peter Bickel is an Ohio licensed doctor of optometry, a Colonel in the Delaware
Air National Guard (“DE ANG”), and a reserve of the Air Force. (ECF No. 7-1 at ¶ 2). Col
Bickel served in various positions in the Air National Guard and as a reserve of the Air Force for
over 29 years. (Id.). In 2014, Col Bickel was offered a position as DE ANG’s 166th Airlift
Wing’s Medical Group Commander, which he accepted. (ECF No. 2 at ¶ 10). His first official
day as the Medical Group Commander was January 15, 2015. (Id.).
During his tenure as Medical Group Commander, Col Bickel frequently engaged his partand full-time staff by telecommuting through text messaging, telephone, and electronic mail.

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(ECF No. 7-1 at ¶ 3). Col Bickel contends telecommuting was necessary given his part-time
status and the Major General’s focus on Officer Performance Reports as a method of improving
Wing Readiness. (Id.). Col Bickel discussed telecommuting with his immediate supervisor, then
Vice Wing Commander, Colonel Donald Bevis.

(Id. at ¶ 4).

Col Bickel and Col Bevis

completed the Air National Guard Telecommuting Work Agreement and the Air National Guard
Telecommuting Supervisor and Telecommuter Checklist required by Air National Guard
Instruction 36-8001 (“ANGI”). (Id. at ¶¶ 3-4). Col Bevis orally approved Col Bickel’s request
to report his time in complete days, accumulating time spent on various days and only reporting
when it reached a full eight hour day. (Id. at ¶ 4). Col Bickel thus reported his time using an
approved spreadsheet and Col Bevis never refused to make a payment because of the manner in
which the telecommute time was submitted. (Id. at ¶ 5). Col Bickel was often advised, however,
that there was no budget for payment, and he then would accumulate telecommute time and resubmit the request when money was available. (Id.).
In August of 2016 Col Bevis was replaced by Colonel Robert E. Culcasi. (Id. at ¶ 6).
Col Culcasi stopped all telecommuting time when he took over, but permitted Col Bickel to be
reimbursed for telecommuting time that he had previously submitted. (Id.). Col Bickel had
accumulated but not submitted additional telecommuting time before Col Culcasi halted
telecommuting, and Col Culcasi asked to review that time. Col Bickel has not been paid for that
time and has not submitted any additional telecommute time after August of 2016.
On June 1, 2017, Col Culcasi authorized an investigation under his command of Col
Bickel’s alleged abuse of telework, government owned vehicles, and his position. (ECF No. 211 at ¶ 6). This Commander Directed Investigation (“CDI”) was conducted from June 1 to July
30, 2017. (Id.). Col Bickel initially believed the CDI was directed against a different target and

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thought he was a potential witness. (ECF No. 7-1 at ¶ 7). Col Bickel was informed that the CDI
was against him on July 12, 2017. (ECF No. 24 at ¶ 3, Ex. A). That month, he was assigned a
military defense attorney JAG officer to assist him with the CDI. (ECF No. 7-1 at ¶ 7). On July
24, 2017 Bickel responded to a series of questions relating to the CDI. (ECF No. 24, Ex. B). On
July 30, 2017, a Report of Investigation (“ROI”) was issued, spanning approximately 400 pages
and including sworn statements of eleven witnesses and other supporting documents. (ECF No.
21-1 at ¶¶ 7, 8). Col Bickel contends that he has never seen the ROI, while Defendants assert that
the DE ANG Staff Judge Advocate, Lieutenant Colonel Jonathan Wasden, discussed or shared
the ROI with four different lawyers representing Col Bickel. (Compare ECF No. 23 at 5 with
ECF No. 27-1 at ¶ 6). In any event, the ROI and CDI file were then reviewed by Lt Co Wasden,
who drafted a memorandum recommending that Col Culcasi approve the CDI/ROI findings that
Col Bickel (1) did not comply with telework procedures and instruction, and his claim for
telework was unreasonable; and (2) violated regulation by using a government owned vehicle in
a prohibited manner. (ECF No. 21-1 ¶ 10).
In September of 2017, Col Bickel was asked to meet with Col Culcasi and Lt Co Wasden.
(ECF No. 7-1 at ¶ 9). Col Bickel was not represented by counsel at the meeting, and contends
that he previously conferred with his assigned JAG counsel who “advised that it was not
necessary for assigned JAG counsel to attend because it was likely that an apology for the CDI
was going to be offered.” (Id.). At the meeting, however, Lt Co Wasden delivered two Letters
of Reprimand (“LORs”), the first LORs of Col Bickel’s career. (Id.). The LORs purported to
discipline Col Bickel for failure to comply with telework instructions and legal requirements and
questioning witnesses about their testimony while the investigation was pending, in violation of a
direct order. (ECF No. 21-1 at ¶ 11). Col Bickel signed acknowledgement of receipt of the

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LORs, but advised Col Culcasi and Lt Co Wasden that he denied any wrong-doing. (ECF No. 71 at ¶ 9).
Col Bickel was given three days to submit a rebuttal to the LORs. (Id. at ¶ 10).
Alternatively, he was told he could retire to avoid any negative implications from the LORs.
(Id.). Col Bickel consulted his assigned JAG counsel about rebutting the LORs, and alleges that
he was advised that regardless of the reasonableness and adequacy of the rebuttal, Lt Co Wasden
had informed the assigned JAG counsel that efforts to rebut the LORs would be futile. (Id.).
Thereafter, Col Bickel met with Col Culcasi and the Wing’s Vice Commander, Colonel Trevor
Fulmer, to advise them of what his JAG counsel told him regarding Lt Co Wasden’s statement
about futility. (Id. at ¶ 11). Col Bickel told Col Culcasi and Col Fulmer that he would no longer
work with that assigned JAG counsel, and Col Fulmer advised Col Bickel that new counsel
would be provided. (Id.). Col Bickel also requested an extension of time to submit his rebuttals
to the LORs, and was granted an extension to November of 2017. (Id.). On September 20, 2017,
however, Col Bickel was advised by Col Culcasi that it was Col Bickel’s responsibility to obtain
new JAG counsel, and that he must submit his rebuttals to the LORs by September 29, 2017.
(Id. at ¶ 12). By October 3, 2017, Col Bickel informed Col Culcasi that he would not respond to
the LORS, based on the advice of civilian counsel. (ECF No. 21-1 at ¶ 14). The LORs and
supporting documentation were placed into an Unfavorable Information File (“UIF”). (Id. at ¶
15).
On November 28, 2017, Col Culcasi sent a letter to Col Bickel informing him of Col
Culcasi’s recommendation that Col Bickel’s federal recognition be withdrawn, and that Col
Bickel be discharged from the DE ANG for misconduct. (Id. at ¶ 16). The letter informed Col
Bickel that a board of officers would be convened to determine whether he should be discharged

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and lose his federal recognition. (Id. at Ex. A). The letter further notified Col Bickel that he has
the right to consult civilian legal counsel at his own expense, or military legal counsel at no cost,
the right to present his case to the board, and the right to submit statements on his own behalf at
any time. (Id.). After the board makes its determination, the determination must be approved by
the Secretary of the Air Force. (Id.). If Col Bickel is not satisfied with the decision, he may
appeal to an Air Force Discharge Review Board, which is a multi-phase process that includes
briefing, oral argument, findings of fact and law, and a final order/decision. (ECF No. 21-1 at ¶¶
19, 20). To date, a board of officers has not been convened. Col Bickel’s mandatory retirement
date is June 1, 2019. (ECF No. 7-1 at ¶ 13).
In December of 2018, Col Bickel filed a complaint with the Air Force Inspector General
(“AFIG”). (Id.). In January of 2018, Col Bickel was notified of DE ANG’s intent to recoup
amounts paid to him for telecommuting time, totaling $36,984.07. (Id. at ¶¶ 12, 14). In the same
month, a Security Information File was created and Col Bickel was notified of DE ANG’s intent
to suspend and ultimately revoke his security clearance. (Id.). In February of 2018, Col Bickel’s
discovered that he was denied access to his military electronic account. (Id. at ¶ 12). On
February 1, 2018, Col Bickel filed a second complaint with AFIG. (Id. at ¶ 14). To date, the
AFIG has failed to act. (Id. at ¶ 13).
B. Procedural History
Col Bickel initiated this action on February 14, 2018 against DE ANG, Major General Carol
A Timmons in her official capacity as the Adjutant General of the DE ANG, and the United
States Department of Defense (DoD), James N. Mattis, in his official capacity as the United
States Secretary of Defense. (ECF No. 1). On February 16, Col Bickel filed an Amended

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Complaint alleging violations of his constitutional due process rights and seeking injunctive
relief to:


Enjoin DE ANG from continuing to deprive Bickel of his means of livelihood by denying
Bickel his due process rights related to the CDI and any future actions related thereto
because Bickel has not been provided with proper documentation regarding the CDI



Enjoin DE ANG from continuing to interfere with Bickel’s ability to obtain new military
assignments based on allegations made against him while denied his due process rights



Enjoin DE ANG from depriving Bickel of his means of livelihood in its continuing
efforts to withdraw Bickel’s federal recognition based on allegations made against him
while being denied his due process rights



Enjoin DE ANG from depriving Bickel of his means of livelihood in its continuing its
efforts to obtain a suspension or revocation of Bickel’s security clearance based on
allegations made against him while being denied his due process rights



Enjoin DE ANG from depriving Bickel of his means of livelihood by its continuing its its
efforts to den Bickel access to his military electronic mail account based on allegations
made against him while being denied his due process rights



Enjoin DE ANG from depriving Bickel of his means of livelihood by denying Bickel’s
right to train and report to duty based on allegations made against him while being denied
his due process rights



Enjoin DoD from suspending or revoking Bickel’s security clearance.

(ECF No. 2). On February 28, 2018, Col Bickel filed a Motion for a Preliminary Injunction,
seeking to enjoin Defendants from:
1. Continuing to deprive Bickel of his right to his liberty to pursue his profession and his
means of livelihood without due process by including LORs resulting principally from a
CDI about which Bickel has never had an opportunity to review to be heard, in a
specially created UIF;
2. Depriving Bickel of certain retirement benefits without due process as a results of efforts
to withdraw his federal recognition based on the LORs, resulting from the CDI, that
require an Officer’s board to be convened when convening a board and hearing the matter
will not realistically take place before Bickel’s mandatory separation date;
3. Depriving Bickel of his right to his liberty to pursue his profession and his means of
livelihood without due process by initiating actions to suspend or revoke Bickel’s
security clearance as a result of placing the LORs in the UIF;

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4. Depriving Bickel of his liberty to pursue his profession and his means of livelihood
without due process by initiating actions to suspend or revoke Bickel’s security clearance
based on allegations that have no nexus to Bickel’s patriotism, trustworthiness, or his
eligibility to hold a security clearance as defined in DoD 5200.2-R
5. Depriving Bickel of his liberty to pursue his profession and his means of livelihood by
denying access to his military electronic mail account which denies Bickel access to
records required to obtain a new billet without due process as a result of the UIF and
actions taken to suspend or revoke Bickel’s security clearance
6. Depriving Bickel of his liberty to pursue his profession and his means of livelihood as a
practicing civilian optometrist in Ohio without due process as a result of the UIF and the
actions taken to suspend or revoke Bickel’s security clearance; and,
7. Depriving Bickel of his liberty to pursue his profession and his means of livelihood as
well as his property rights in his retirement benefits without due process by denying
Bickel the ability to train and report to duty based on the CDI and UIF.
(ECF No. 7). The Preliminary Injunction Hearing is currently scheduled for May 25, 2018.
(ECF No. 22). On March 28, 2018, Defendants filed a Motion to Dismiss Plaintiff’s Motion for
Preliminary Injunction (ECF No. 7) and First Amended Complaint for Injunctive Relief (ECF
No. 2). (ECF No. 21). The Motion to Dismiss is fully briefed and ripe for decision.
II. STANDARD OF REVIEW
Defendants bring their Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted and Rule 12(b)(1) for lack
of subject matter jurisdiction. “A motion to dismiss based on Rule 12(b)(1) for lack of subject
matter jurisdiction must be considered before a motion brought under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted.” HSBC Mortg. Servs., Inc. v. Horn, No.
1:07CV699, 2008 WL 4449497, at *1 (S.D. Ohio Sept. 30, 2008). This order is necessary
because “the Rule 12(b)(6) challenge becomes moot if this Court lacks subject matter
jurisdiction.” Whitestone Grp., Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA., No. 2:15CV-962, 2016 WL 1117595, at *2 (S.D. Ohio Mar. 21, 2016).

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In considering motions to dismiss for lack of subject matter jurisdiction, “[t]he Sixth
Circuit has distinguished between facial and factual attacks.” Id. Facial challenges merely
question the sufficiency of the pleading, whereas factual attacks challenge the factual existence
of subject matter jurisdiction. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). In
reviewing a facial challenge, the trial court takes the allegations as true and employs standards
similar to 12(b)(6) safeguards. Ohio Nat. Life Ins. Co. v. U.S., 922 F.2d 320, 325 (6th Cir.1990).
In reviewing a factual challenge, no presumptive truthfulness applies and the trial court “is free
to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” United
States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). In considering motions to dismiss for lack of
subject matter jurisdiction, courts may look to evidence outside the pleadings.

Nichols v.

Muskingum College, 318 F.3d 674, 677 (6th Cir.2003).
The Court may dismiss a cause of action under Federal Rule of Civil Procedure 12(b)(6)
for “failure to state a claim upon which relief can be granted.” Such a motion “is a test of the
plaintiff’s cause of action as stated in the complaint, not a challenge to the plaintiff’s factual
allegations.” Golden v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). The Court
must construe the complaint in the light most favorable to the non-moving party. Total Benefits
Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008).
The Court is not required, however, to accept as true mere legal conclusions unsupported by
factual allegations.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Although liberal, Rule

12(b)(6) requires more than bare assertions of legal conclusions. Allard v. Weitzman, 991 F.2d
1236, 1240 (6th Cir. 1993) (citation omitted). Generally, 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). In short, a complaint’s factual allegations “must be enough to raise a right to relief

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above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must
contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
III. ANALYSIS
Defendants argue that this Court lacks subject matter jurisdiction because Col Bickel’s
claims are barred by the Feres doctrine. Col Bickel contends that an exception1 to the Feres
doctrine, as articulated in Mindes v. Seaman, 453 F. 2d 197 (5th Cir. 1971), applies. In Feres v.
United States, the Supreme Court held that the “Government is not liable under the Federal Torts
Claims Act for injuries to servicemen where the injuries arise out of or are in the course of
activity incident to service.” 340 U.S. 135, 146 (1950). The doctrine is premised on three
underlying rationales: “(1) the peculiar and special relationship of the soldier to his superiors; (2)
the effects of the maintenance of such suits on discipline; and (3) the extreme results that might
obtain if suits under the FTCA were allowed for negligent orders given or negligent acts
committed in the course of military duty.” Mackey v. United States, 226 F.3d 773, 775 (6th Cir.
2000) (citing United States v. Shearer, 473 U.S. 52, 57 (1985)); see also United States v.
Johnson, 481 U.S. 681 (explaining the rationales underlying Feres as (1) the “distinctively
federal in character” relationship between the Government and members of the armed forces; (2)
the existence of generous statutory disability and death benefits for servicemen; and (3) the fact
that the types of claims implicated by the doctrine, if permitted, “would involve the judiciary in
sensitive military affairs at the expense of military discipline and effectiveness.”).
Since Feres, the Supreme Court has expanded the doctrine to cover more than just FTCA
claims. Of relevance here, the Court has held that the Feres doctrine can bar constitutional

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Col Bickel characterizes Mindes as an exception to Feres and Defendants do not object. Given
this Court’s holding discussed below, it is not necessary for the Court to examine the interplay
between the two doctrines.
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claims. In Chappell v. Wallace, the Supreme Court held that the Feres doctrine bars Bivens-type
actions where enlisted military personnel seek to recover damages from a superior officer for
alleged constitutional violations. 462 U.S. 296, 305 (1983). Chappell’s holding has been
interpreted to bar all Bivens remedies for injuries that “arise out of or are in the course of activity
incident to service.” United States v. Stanley, 483 U.S. 669, 683–84 (1987). Circuits are split
over the issue of whether Feres bars claims for injunctive relief. Compare Watson v. Arkansas
Nat. Guard, 886 F.2d 1004, 1009 (8th Cir. 1989) (finding that Feres and Chappell bar suits for
injunctive relief and reasoning that “[t]he judiciary does not acquire competence . . . merely
because the remedy sought is an injunction rather than damages”) with Wilkins v. United States,
279 F.3d 782, 787 (9th Cir. 2002) (finding that “Feres applies only to money damages” because
“[t]o conclude otherwise would leave military personnel without judicial recourse to challenge
unconstitutional policies.”). The Sixth Circuit has not explicitly ruled on this issue.2
This Court need not determine whether the Feres doctrine applies to bar the instant
action, because even under the Mindes test advocated by Col Bickel, Col Bickel’s claims are
nonreveiwable. In Mindes, the Fifth Circuit articulated a test for determining the reviewability of
particular military decisions. 452 F.3d at 201. The court first held that courts “should not review
internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional
right, or an allegation that the military has acted in violation of applicable statutes or its own
regulations, and (b) exhaustion of available intraservice corrective measures.” Id. If those two
2

In an unpublished decision, the Sixth Circuit affirmed the judgment of the district court
dismissing Plaintiff’s complaint brought under Bivens and 42 U.S.C. § 1983 that sought both
damages and injunctive relief for his discharge from the Rhode Island Army Reserve National
Guard, which he alleged deprived him of his constitutional rights. Tracy v. Nat’l Guard Chief,
76 F.3d 380 (Table) (6th Cir. 1996). The Court held that “Plaintiff’s claims clearly are barred
under the doctrine enunciated in Feres,” suggesting that the Sixth Circuit would join the majority
of circuits in holding that Feres applies to claims for injunctive relief as well.
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prerequisites are satisfied, Mindes then directs courts to weigh the following factors in order to
determine if the case is reviewable:
1.

The nature and strength of the plaintiff’s challenge to the military determination;

2.

The potential injury to the plaintiff if review is refused;

3.

The type and degree of anticipated interference with the military function; and

4.

The extent to which the exercise of military expertise or discretion is involved.

Id. at 201-202. The Sixth Circuit explicitly adopted the Mindes test as the proper framework for
determining the justiciability of claims involving internal military decisions in Harkness v.
Secretary of Navy, 858 F.3d 437 (6th Cir 2017).
In Harkness, a former Navy chaplain alleged that he was denied various promotions and
duty assignments in violation of the First Amendment. Id. at 443. The district court dismissed
his claim as non-justiciable. Id. In reviewing the appeal, the Sixth Circuit first noted that “courts
are generally reluctant to review claims involving military duty assignments.” Id. The court
stated that “[s]everal justifications for this rule exist: lack of expertise, deference to the unique
role of the military in our constitutional structure, and the practical difficulties that would arise if
every military duty assignment was open to judicial review.” Id.

The court then held that

“Mindes provides the proper framework for analyzing the justiciability of [plaintiff’s] First
Amendment retaliation claim ” thus explicitly adopting the Mindes test and joining “other
circuits [that] have adopted this test for determining the justiciability of claims involving internal
military decisions.” Id. at 444. The Harkness Court found that no dispute existed as to whether
plaintiff met the two threshold requirements, and went on to analyze the four Mindes factors,
ultimately finding that plaintiff’s claims were nonjusticiable. Id.

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Unlike in Harnkess, the Court need not even reach the four Mindes factors here because
the two perquisites are not met. While Col Bickel has alleged deprivation of a constitutional
right, he has not exhausted his available intraservice corrective measures. A board of officers
has not yet convened to determine whether Col Bickel’s federal recognition should be withdrawn
or whether he be discharged from the DE ANG for misconduct. (ECF No. 21-1 at ¶ 16; Ex. A);
see also Air Force Instruction 51-62 (“AFI”) available at www.e-Publishing.af.mil (providing
instructions for conducting boards of officers proceedings).

After the board of officers

deliberates, its decision must be approved by the Secretary of the Air Force. (Id. at Ex. A). And
then Col Bickel may appeal to an Air Force Discharge Review Board that has the discretionary
authority to review discharges. (ECF No. 23 at 6-7); 32 CFR §§ 865.103, 105.
Given all of the remaining steps in the military process, it is clear that Col Bickel has not
yet exhausted his administrative remedies. His claims therefore fail. See, e.g., Montgomery v.
Sanders, No. 3:07-CV-470, 2008 WL 4546262, at *5 (S.D. Ohio Aug. 18, 2008) (dismissing
plaintiff’s claim when he failed to exhaust internal military review processes including the Air
Force Board for the Correction of Military Records and the Personnel Security Appeals Board);
Heidman v. United States, 414 F. Supp. 47, 49 (N.D. Ohio 1976) (“Since further administrative
remedies are available to plaintiff, the Court concludes that the Motion for Preliminary
Injunction must be denied and that the action is dismissed without prejudice.”); Fay v. Arizona
Army Nat. Guard, No. CV-12-1079-PHX-DGC, 2012 WL 4478811, at *3 (D. Ariz. Sept. 28,
2012) (“Plaintiff has not exhausted his nonjudicial remedies, nor has he demonstrated that his
case should be exempted from the exhaustion requirement. Accordingly, he has failed to satisfy
the second element of the Mindes test . . . and the Court need not consider the additional
factors.”); see also Vaughan v. Kentucky Army Nat. Guard, No. CIV.A. 3:12-35-DCR, 2013 WL

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211075, at *6 (E.D. Ky. Jan. 18, 2013) (finding plaintiff’s claim not justiciable because “it
hing[ed] on hypothetical future events”, where plaintiff’s security clearance was suspended, but
not yet permanently revoked, nor had his federal recognition been finally withdrawn).
Col Bickel contends he need not exhaust because it would be futile. (ECF No. 23 at 19).
He points to his JAG officer’s statement that any challenges to rebut the LORs would be futile.
(Id.). The Court is not persuaded that a statement by one military officer about one step in the
military process renders the entire process futile. While one officer may have believed rebutting
the LORs would have been futile, there is nothing to suggest that the board of officers hearing
would be futile. The relevant AFI provides that it is “the board’s duty to ascertain and consider
the evidence on all sides of each issue, thoroughly and impartially, and to make findings and
recommendations that are warranted by the facts and that comply with the instruction of the
appointing authority.” This Court has no reason to believe that the board, once convened, will
not fulfill its responsibility of being impartial and give Col Bickel a fair hearing.
Col Bickel next argues that an exception to the exhaustion requirement applies here
because the status quo under the administrative decision pending review would itself constitute a
hardship or leave him in an emergency situation. In support of this contention, Col Bickel states
that the only relief he is requesting from this Court is an injunction allowing him to train and
receive retirement credits while he waits for the military appeals process to conclude. (ECF No.
23 at 7, 11). Col Bickel argues that the board will likely not be convened before his mandatory
retirement date and if this Court does not grant him such an injunction his full maximum
retirement benefits will be lost. (Id. at 11). In response, Defendants contend if all Col Bickel
seeks is the ability to train, his request is moot because there is currently no prohibition on Col
Bickel attending drills or training. (ECF No. 27-1 at ¶ 14). Given Defendants’ sworn affidavit

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stating Col Bickel is allowed to participate in drills and trainings, the Court finds that the status
quo will not constitute a hardship or leave Col Bickel in an emergency situation. See Layman v.
Harvey, No. 8:05-CV-2208-T24EAJ, 2007 WL 430678, at *7 (M.D. Fla. Feb. 5, 2007) (finding
plaintiff failed to exhaust his administrative remedies despite his contention that “he will not
receive a determination from the Board before his activation and deployment”).
Finally, Col Bickel contends that he meets the exception to exhaustion that courts find
when “the complaint involved a matter of law only and did not require or involve application of
military expertise.” Seepe v. Dep’t of the Navy, 518 F.2d 760, 762 (6th Cir. 1975). This
argument is unpersuasive. As in the Seepe case Col Bickel cites, the court is “confronted by a
mixed question of fact and law. In this case the service’s development of a factual record and its
interpretation of the law as applied to the facts may well prove of value to the reviewing court.”
Id. at 764.
Given the Supreme Court’s repeated guidance that “special factors counsel[] hesitation,”
before entertaining military suits—namely “the unique disciplinary structure of the Military
Establishment and Congress’ activity in the field”—this Court dismisses Col Bickel’s claims
without prejudice to afford him the opportunity to exhaust all intraservice remedies. United
States v. Stanley, 483 U.S. 669, 683–84 (1987).
IV. CONCLUSION
For these reasons, Defendants’ Motion to Dismiss (ECF No. 21) is hereby GRANTED.
The Preliminary Injunction hearing scheduled for May 25, 2018 is therefore VACATED and the
above-referenced matter is DISMISSED without prejudice.

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IT IS SO ORDERED.

/s/ Algenon L. Marbley___
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: May 11, 2018

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