Wenzler, James v. U.S. Coast Guard et al
Filing
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OPINION and ORDER granting in part and denying in part 17 Motion to Dismiss. Plaintiff may proceed on an APA claim against the Coast Guard for injunctive relief. Officer James A. Gibson, Jr. and Harvey Gene Randall are dismissed. Signed by District Judge James D. Peterson on 3/27/24. (jat),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JAMES C. WENZLER,
Plaintiff,
v.
OPINION and ORDER
U.S. COAST GUARD, OFFICER JAMES A. GIBSON,
JR., and HARVEY GENE RANDALL,
23-cv-170-jdp
Defendants.
The United States Coast Guard Auxiliary consists of volunteers who support Coast
Guard missions. See 14 U.S.C. §§ 3901–13, 4101–04 (the Auxiliary Act). Plaintiff James C.
Wenzler, without counsel, alleges in an amended complaint that defendants disenrolled him
from the Auxiliary based on his on social media activity and other conduct. Wenzler contends
that the investigation by which defendants reached this decision was discriminatory and
procedurally flawed, and he raises claims under the First Amendment, Due Process Clause, and
Administrative Procedures Act (APA).
Defendants have moved to dismiss, contending that Wenzler hasn’t alleged a basis for
the court to exercise subject matter jurisdiction over some of his claims, and that his other
claims are facially implausible. See Dkt. 17 and Dkt. 18. I will grant defendants’ motion to
dismiss in part. Wenzler states a claim for injunctive relief under the APA against defendant
U.S. Coast Guard, but I will dismiss his other claims and remove the other defendants from
the case.
BACKGROUND
The commandant of the U.S. Coast Guard administers the Auxiliary. 14 U.S.C.
§ 3901(a). The Auxiliary includes organizational elements and units that the commandant
approves, including districts, regions, divisions, and flotillas. Id. Prospective Auxiliary members
may be enrolled pursuant to applicable regulations. Id. § 3903(2). Auxiliary members are not
considered federal employees for most purposes, although the commandant may prescribe
standards for the conduct and behavior of Auxiliary members. Id. § 3904(a). Auxiliary members
may be disenrolled pursuant to applicable regulations. Id. § 3905. “A member of the Auxiliary
will be disenrolled on the member’s request, upon ceasing to possess the qualifications for
membership, for cause, or upon direction of the commandant.” 33 C.F.R. § 5.19.
The commandant has promulgated an Auxiliary Manual establishing policies and
procedures for all Auxiliary members. The Auxiliary Manual provides that membership “may
reasonably be expected to be granted and sustained as long as an individual meets basic
eligibility and sustainability for service criteria . . . [and demonstrates] commitment to and
practice of the Coast Guard’s core values[ of] Honor, Respect, and Devotion to Duty.”
Auxiliary Manual, ch. 3, § F.1. Further, the Auxiliary Manual Provides that membership “is
not a constitutionally protected liberty or property interest” or an “entitlement due to the
meeting of basic membership eligibility criteria.” Id. However, “[m]embership shall be provided
minimal due process protections” that the Auxiliary Manual sets forth. Id.
The commandant has delegated his authority to disenroll Auxiliary members to the
director and chief director. Id. § H.5; see also Auxiliary Manual, ch. 1, § B.10.b.(8). Among other
reasons, the director may disenroll an Auxiliary member for “cause.” Id. § H.5.a. The Auxiliary
Manual defines “cause” as any infraction set forth in chapter three, §§ F, G, and H of the
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Manual, or any other action that, “in the Director’s opinion,” “has a disruptive impact that
adversely affects the normal operations, administration, [or] functions. . . [of] the Auxiliary[ or]
Coast Guard.” Id. § H.5.a(4).
Appeals of disenrollment resulting from formal disciplinary action must be made in
writing to the district commander within 30 days of the date of notice of disenrollment. Id.
§ J.2.e. The standard of review shall be limited to whether the prescribed disciplinary
procedures were followed. Id.
ALLEGATIONS OF FACT
Wenzler does not allege which defendants or other individuals committed the conduct
he describes, so the facts are stated mostly in the passive voice.
Wenzler was ordered to remove posts, whose content he doesn’t specify, from his
personal social media account. After that, a disciplinary process was instituted against him.
Wenzler complained of discrimination, but the complaint wasn’t forwarded to the appropriate
personnel. Wenzler informed defendant Gibson, the Ninth District Director of Auxiliary, that
Gibson was discriminating against him and supporting others’ discrimination, but Gibson
failed to cease this conduct. Other members of the Auxiliary participated in and allowed
discrimination against Wenzler. Wenzler was disciplined, which included disenrollment from
the Auxiliary. The discipline was imposed because Wenzler was exercising his constitutional
rights. Not all the available information was reviewed before Wenzler was disciplined. The
Auxiliary members who disciplined Wenzler failed to follow the procedures in the Auxiliary
Manual.
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Wenzler attributes this conduct to Gibson and defendant Randall, a district
commodore. Wenzler identifies other Auxiliary members and contends that their “inaction and
action” led to his disenrollment, but he doesn’t name them as defendants in the amended
complaint’s caption.
DISCUSSION
A. Standard of review
Defendants raise a facial challenge to subject matter jurisdiction. Dkt. 18 at 5–6. Even
though Wenzler cites several documents in his response, he agrees that defendants’ challenge
is facial. See Dkt. 21 at 11. Because defendants challenge subject matter jurisdiction on facial
grounds, I will not consider Wenzler’s evidence. See Silha v. ACT, Inc., 807 F.3d 169, 174 (7th
Cir. 2015) (facial challenges to subject matter jurisdiction are evaluated under the same
standard used to evaluate motions to dismiss under Federal Rule of Civil Procedure 12(b)(6)).
I will, however, consider the Auxiliary Manual because it’s publicly available and the amended
complaint incorporates it by reference.
B. Discrimination claim
Wenzler alleges unspecified discrimination in his amended complaint, but he hasn’t
disputed that he’s failed to state any plausible discrimination claim. Thus, I will deem any
potential discrimination claim abandoned. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th
Cir. 2011). In any case, Wenzler hasn’t alleged the type of discrimination that he experienced,
which precludes a discrimination claim. See Freeman v. Metro. Water Reclamation Dist. of Greater
Chi., 927 F.3d 961, 965 (7th Cir. 2019); Clark v. L. Off. of Terrence Kennedy, Jr.,
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709 F. App’x 826, 828 (7th Cir. 2017). I will not allow Wenzler to proceed on a discrimination
claim.
C. Bivens claims
Wenzler brings First Amendment and due process claims and seeks damages against
defendants individually under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). Wenzler bases his First Amendment claim on allegations that defendants
started a disciplinary process because of posts he made on his own social media account, and
took further retaliatory action against him based on a complaint he made during the
disciplinary process. The Supreme Court has held that “there is no Bivens action for First
Amendment retaliation,” which forecloses Wenzler’s First Amendment claim for damages.
See Egbert v. Boule, 596 U.S. 482, 499 (2022). I will not allow Wenzler to proceed on this claim.
I will consider whether Bivens creates a damages remedy for Wenzler’s due process
claim. Bivens “authorized a damages action against federal officials for alleged violations of the
Fourth Amendment.” Id. at 486. Later, the Supreme Court authorized a damages action “for a
former congressional staffer’s Fifth Amendment sex-discrimination claim,” and “a federal
prisoner’s inadequate-care claim under the Eighth Amendment.” Id. at 490–91. The Supreme
Court hasn’t extended Bivens beyond these three contexts. See id. at 491; Ziglar v. Abbasi,
582 U.S. 120, 131 (2017).
Recognizing a cause of action under Bivens is “a disfavored judicial activity.” Egbert,
596 U.S. at 491. As a general rule, courts may extend the Bivens remedy to a new context only
if there’s no “reason to think that Congress might be better equipped to create a damages
remedy.” See id. at 492. The mere potential that extending Bivens to a new context would be
harmful or inappropriate is enough to stop the court from taking that action. See id. at 496.
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This case involves a considerably different context than the cases in which the Supreme
Court has recognized a Bivens remedy. The claims, underlying facts, and “category of
defendants” are all distinct. See id. at 492; see also Schweiker v. Chilicky, 487 U.S. 412, 414 (1988)
(declining to extend Bivens to procedural due process claim against federal officials).
Furthermore, pursuant to a Congressional delegation, the commandant has promulgated the
Auxiliary Manual, which “establishes the detailed process for disenrollment of a Coast Guard
Auxiliarist.” See Schulsinger v. Perchetti, No. 15-5752, 2017 WL 3579207, at *4 (D.N.J.
Aug. 18, 2017); see also Egbert, 596 U.S. at 493 (“If there are alternative remedial structures in
place, that alone . . . is reason enough to limit the power of the Judiciary to infer a new Bivens
cause of action.”). The Auxiliary Manual doesn’t authorize damages for improper disciplinary
actions, but it’s immaterial “that existing remedies do not provide complete relief.” See Egbert,
596 U.S. at 493. Congress and the executive branch are much “better equipped to decide
whether existing remedies should be augmented by the creation of a new judicial remedy” in
this novel and carefully circumscribed context. See id.
The Auxiliary Act curtails the rights of auxiliaries compared to federal employees and
military personnel. See 14 U.S.C. § 3094(a) (auxiliary members shall not be considered federal
employees for most purposes); id. § 4103 (Auxiliary members shall be entitled only to the rights
specifically set forth in the Auxiliary Act or that Congress specifically provides in other
legislation). The Supreme Court has yet to extend Bivens to executive branch employees or
military personnel. See United States v. Stanley, 483 U.S. 669, 684 (1987) (“We hold that no
Bivens remedy is available for injuries that arise out of or are in the course of activity incident
to service.”). It’s possible that Congress would question the wisdom of extending Bivens to
Auxiliary members, who enjoy curtailed rights compared to federal employees and military
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personnel. Cf. Egbert, 596 U.S. at 496 (stating that, even if there’s a “potential” for harmful or
inappropriate consequences, courts cannot create a Bivens remedy (emphasis omitted)).
In sum, there are sound reasons to think that Congress is better equipped to create a
damages remedy for Auxiliary members. I will not allow Wenzler to proceed on Bivens claims
against Gibson and Randall.
D. 28 U.S.C. § 1331 claims
Wenzler contends, in essence, that even if he does not have a remedy under Bivens, he
can proceed directly under 28 U.S.C. § 1331. As relevant here, § 1331 provides that “district
courts shall have original jurisdiction of all civil actions arising under the Constitution.”
Defendants don’t address whether Wenzler can bring his constitutional claims for injunctive
relief directly under § 1331; they argue that he’s failed to state a procedural due process claim
because he lacks a liberty or property interest in Auxiliary membership.
I’ll assume, at least for purposes of this motion, that Wenzler can proceed directly under
§ 1331. Section 1331 “provides not only the authority to decide whether a cause of action is
stated by a plaintiff’s claim that he has been injured by a violation of the Constitution, but also
the authority to choose among available judicial remedies in order to vindicate constitutional
rights.” Bush, 462 U.S. at 374. “Courts have long recognized the existence of an implied cause
of action through which plaintiffs may seek equitable relief to remedy a constitutional
violation.” Roman v. Wolf, 977 F.3d 935, 941 (9th Cir. 2020). But bare assertions of a
constitutional violation aren’t enough to proceed under § 1331 on a claim for injunctive relief.
See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231–32 (10th Cir. 2005). Wenzler must
state a claim upon which relief may be granted. See id. at 1232. This is where Wenzler’s claim
under § 1331 falters.
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I begin with Wenzler’s First Amendment retaliation claim. To state a claim, Wenzler
must allege that: (1) he engaged in activity protected by the First Amendment; (2) he suffered
a deprivation that would likely deter future First Amendment activity; and (3) the protected
activity was at least a motivating factor in defendants’ decision to take the retaliatory action.
Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). The First Amendment protects, among
other rights, a private citizen’s right to criticize public officials. New York Times Co. v. Sullivan,
376 U.S. 254, 273 (1964); Foxworthy v. Buetow, 492 F. Supp. 2d 974, 983 (S.D. Ind. 2007).
Here, Wenzler alleges that defendants disenrolled him from the Auxiliary because of
posts he made on his own social media account and complaints he made during the disciplinary
process. But Wenzler fails to describe the posts or complaints in the amended complaint, so I
cannot plausibly infer that the First Amendment protected this speech. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“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.”). Wenzler has not stated a First Amendment retaliation claim for
injunctive relief.
That leaves Wenzler’s due process claim which, in his response, he contends has
substantive and procedural components. I will not allow Wenzler to proceed on a substantive
due process claim because his allegations don’t suggest that defendants have deprived him of a
right “deeply rooted in this Nation’s history and tradition, and implicit in the concept of
ordered liberty, such that neither liberty nor justice would exist if [the right] were sacrificed.”
See Khan v. Bland, 630 F.3d 519, 535 (7th Cir. 2010).
As for a procedural claim, Wenzler must allege “a constitutionally protected liberty or
property interest in order for some process to be ‘due’ under the Fifth Amendment.” See Adame
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v. Holder, 762 F.3d 667, 670 (7th Cir. 2014) (parentheses omitted). Property interests are
created and their dimensions are defined by existing rules or understandings that stem from a
source other than the Constitution, such as state law or a federal statutes. See Mathews v.
Eldridge, 424 U.S. 319, 332 (1976); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972). A liberty interest may be protected by the Due Process Clause itself, or created by
other federal law or state law. See Caldwell v. Miller, 790 F.2d 589, 602 (7th Cir. 1986).
Wenzler’s allegations fail to suggest that he had a property or liberty interest in
volunteering for the Auxiliary. The Auxiliary Manual provides that membership “is not a
constitutionally protected liberty or property interest” or an “entitlement due to the meeting
of basic membership eligibility criteria.” Auxiliary Manual, ch. 3, § F.1. Consistently, the Ninth
Circuit has concluded that a plaintiff lacked “a property interest in his position as a volunteer
with the Auxiliary.” Verbil v. U.S. Coast Guard, 683 F. App’x 600, 600 (9th Cir. 2017). The
Auxiliary Manual provides that membership “shall be provided [the] minimal due process
protections” set forth in it. Auxiliary Manual, ch. 3, § F.1. But these minimal “limits [on] the
grounds on which [] a volunteer may be discharged, . . . do[] not create a liberty or property
interest” by themselves. Cf. Auchinleck v. Town of LaGrange, 30 F. App’x 640, 642
(7th Cir. 2002).
In essence, Wenzler contends that he has a property interest in his position as an
auxiliarist because the Auxiliary Manual provides that the director may disenroll him only for
cause. See Dkt. 21 at 21. But cause is only one of the reasons warranting disenrollment.
See Auxiliary Manual, ch. 3, § H.5.a. Furthermore, the Auxiliary Manual broadly defines cause
to include not just the infractions outlined in it, but any action that, “in the Director’s
opinion,” has “a disruptive impact that adversely affects the [Auxiliary’s] normal operations,
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administration, [or] functions.” Auxiliary Manual, ch. 3, § H.5.a.(4). The Auxiliary Manual
does not suggest, for instance, that the director’s “discretion is clearly limited so that [an
auxiliarist] cannot be [disenrolled] unless specific conditions are met.” See Dibble v. Quinn, 793
F.3d 803, 808 (7th Cir. 2015). By the same token, the Auxiliary Manual doesn’t identify “a
concrete personal interest that is protected by the ‘cause’ rule.” See Auchinleck,
30 F. App’x at 642 (emphasis omitted). No plausible reading of the Auxiliary Manual supports
the position that it confers a property interest in membership on Wenzler.
Wenzler doesn’t appear to contend that he has a liberty interest in volunteering for the
Auxiliary, and I cannot plausibly infer that he does. Cf. Olim v. Wakinekona, 461 U.S. 238, 251
n.12 (1983) (“[A]n expectation of receiving process is not, without more, a liberty interest
protected by the Due Process Clause.”); Miller, 790 F.2d at 602 (giving examples of protected
liberty interests, none of which applies here). In sum, because Wenzler has failed to state a
facially plausible First Amendment or due process claim, I will not allow him to proceed on his
claims for injunctive relief under § 1331.
E. APA claim
Wenzler seeks injunctive relief under the APA, contending that defendants’ decision to
discipline him was arbitrary and capricious. See 5 U.S.C. § 706(2)(A). I will analyze this claim
against the Coast Guard only because “the APA applies only to federal agencies.” Brady v. Jess,
No. 18-cv-1162, 2018 WL 5251751, at *4 (E.D. Wis. Oct. 22, 2018) (citing 5 U.S.C.
§ 551(1)).
As a general rule, the APA “provides a right to judicial review of all final agency action
for which there is no other adequate remedy in a court.” See Bennett v. Spear, 520 U.S. 154,
175 (1997); 5 U.S.C. § 704. “‘Agency action’ is defined as ‘the whole or a part of an agency
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rule, order, license, sanction, relief or the equivalent or denial thereof, or failure to act[.]’” Mich.
v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 786 (7th Cir. 2011) (quoting 5 U.S.C. § 551(13)).
“Agency action is ‘final’ when it marks the consummation of the agency’s decisionmaking
process and determines legal rights or obligations.” Id. at 787. The APA requires the court to
set aside final agency action “only if it is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.’” See Highway J Citizens Grp. v. Mineta, 349 F.3d 938,
952 (7th Cir. 2003) (quoting 5 U.S.C. § 706(2)(A)).
As relevant here, even if an action is final, APA review is unavailable if “‘agency action
is committed to agency discretion by law.’” Home Builders Ass’n of Greater Chi. v. U.S. Army
Corps of Eng’rs, 335 F.3d 607, 614 (7th Cir. 2003) (quoting 5 U.S.C. § 701(a)(2)). This
exception for action committed to agency discretion is quite narrow, being restricted “to those
rare circumstances where the relevant statute is drawn so that a court would have no
meaningful standard against which to judge the agency’s exercise of discretion.” Dep’t of Com.
v. New York, 139 S. Ct. 2551, 2568 (2019).
Defendants contend that neither the Auxiliary Act nor its implementing regulations and
policies provide a “meaningful standard to review the agency’s action.” Dkt. 18 at 10. But the
statutes and regulations that defendants cite, which I’ve laid out in the background section,
generally involve the organization of the Auxiliary and the delegation of authority to the
commandant to prescribe standards for membership in it. On their face, these statutes and
regulations contain no language compelling the conclusion that the commandant enjoys
unchecked discretion in disenrollment decisions.
Defendants note that the Auxiliary Manual has a catch-all provision authorizing the
director to disenroll an auxiliarist for any action that, “in the Director’s opinion,” has “a disruptive
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impact that adversely affects the [Auxiliary’s] normal operations, administration, [or]
functions.” Auxiliary Manual, ch. 3, § H.5.a.(4) (emphasis added). Further, the Auxiliary
Manual states that: “The Director shall take such action based upon all available information
presented or after initiating further inquiry to gather additional relevant facts when, in the
Director’s judgment, it is deemed necessary.” Id. (emphasis added). These provisions, defendants
contend, further show that the director has “unconstrained discretion” “with respect to
auxiliarists’ disenrollment decisions.” See Dkt. 18 at 11–12; Dkt. 24 at 8.
I agree that the catch-all provision gives the director broad discretion to disenroll an
auxiliarist for actions that he deems to disrupt and adversely affect the Auxiliary’s functioning.
But the fact that “disenrollment for cause necessarily calls for the exercise of discretion on the
part of the decision-maker” doesn’t preclude the existence of a standard to evaluate the
director’s decision. Cf. Berg v. Commander, Fifth Coast Guard Dist., 810 F. Supp. 703, 709
(E.D. Va. 1992). The catch-all provision describes the effect an action must have to qualify as
cause. If the director relied on this provision to disenroll Wenzler, there is some definitional
language by which to evaluate his decision. And the Auxiliary Manual contains other grounds
to disenroll an auxiliarist, which defendants have yet to argue are inapplicable. Similarly,
Wenzler alleges that defendants and other officials misapplied the Auxiliary Manual in
disenrolling him, so it’s plausible that his APA claim turns on the more than the director’s
application of the catch-all provision. See Nat’l Env’t Dev. Assoc.’s Clean Air Project v. EPA,
752 F.3d 999, 1009 (D.C. Cir. 2014) (“[A]n agency action may be set aside as arbitrary and
capricious if the agency fails to comply with its own regulations.”). The other Auxiliary Manual
provision that defendants cite fails to show that the director’s disenrollment decision is
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standardless; it simply provides that the director may, in his judgment, gather additional
information before making a decision.
In sum, Wenzler has plausibly alleged that there’s a meaningful standard by which to
judge the director’s exercise of discretion, and defendants haven’t sought dismissal of his APA
claim for any other reason. Consequently, I conclude that Wenzler states a claim for injunctive
relief claim under the APA against the Coast Guard.
ORDER
IT IS ORDERED that:
1. Defendants’ motion to dismiss, Dkt. 17, is GRANTED in part and DENIED in part,
with the result that plaintiff may proceed on an APA claim against the Coast Guard
for injunctive relief.
2. Plaintiff’s other claims are DISMISSED.
3. Officer James A. Gibson, Jr. and Harvey Gene Randall are to be removed as
defendants.
4. The court expects the parties to treat each other and the court with respect. Any
abusive or threatening comments or conduct may result in sanctions, including entry
of judgment against the offending party.
5. If plaintiff moves while this case is pending, he must inform the court of his new
address. If he fails to do this and defendants or the court cannot locate him, this
case may be dismissed for failure to prosecute.
Entered March 27, 2024.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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