Bowman v. U.S., 07-4322.

• Citation: 564 F.3d 765
• Decision Date: 18 December 2008
• Docket Number: No. 07-4322.,07-4322.
• Parties: Linden BOWMAN, Plaintiff-Appellant, v. UNITED STATES of America; Donald Rumsfeld, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

564 F.3d 765

Linden BOWMAN, Plaintiff-Appellant, v. UNITED STATES of America; Donald Rumsfeld, Defendants-Appellees.

No. 07-4322.

United States Court of Appeals, Sixth Circuit.

Argued: October 24, 2008.

Decided and Filed: December 18, 2008.^*

ARGUED:

Robert T. Lynch, Lynch Legal Services, Cleveland, Ohio, for Appellant. Lowell V. Sturgill, Jr., United States Department of Justice, Washington, D.C., for Appellees. Alexander Joseph Luchenitser, Americans United For Separation of Church and State, Washington, D.C., for Amici Curiae.

ON BRIEF:

Robert T. Lynch, Lynch Legal Services, Cleveland, Ohio, for Appellant. Lowell V. Sturgill, Jr., Robert M. Loeb, United States Department of Justice, Washington, D.C., for Appellees. Alexander Joseph Luchenitser, Americans United for Separation of Church and State, Washington, D.C., Richard L. Rosen and George Langendorf, Arnold & Porter LLP, Washington, D.C., Steven W. Fitschen, National Legal Foundation, Virginia Beach, Virginia, for Amici Curiae.

Before: GIBBONS and COOK, Circuit Judges; STEEH, District Judge.^**

GEORGE CARAM STEEH, District Judge.

This lawsuit arises from plaintiff Linden Bowman's early retirement from the United States Air Force and his failed attempt to participate in a program that would allow him to have community service work count toward his years of service needed to obtain a full twenty-year military retirement. The Secretary of Defense failed to process his request for military service credit for his work as a youth minister on grounds that the regulations specifically prohibit credit for employment with "religious organizations engaged in religious activities, unless such activities are unrelated to religious instruction, worship services, or any form of proselytization." Bowman claims the regulation violates the express language of the enabling legislation and is unconstitutional on its face and as applied to him in violation of his Fifth Amendment Equal Protection rights. The district court dismissed his complaint for failure to state a claim. Bowman now appeals that dismissal.¹ Because we find the regulation is consistent with the enabling statute and does not violate Bowman's equal protection rights, we AFFIRM.

BACKGROUND

Bowman served in the United States Air Force from September, 1977 until January, 1996, when he took an early retirement as part of a reduction in force. Bowman received a final rank of Technical Sergeant. Because Bowman was just a few years shy of the twenty-years required for a full retirement, he was eligible to participate in a program ("Program") allowing him to perform community service that would be counted toward his years of military service for retirement. The Program was provided by the National Defense Authorization Act for Fiscal Year 1993 which directed the Secretary of Defense to "implement a program to encourage members and former members of the armed forces to enter into public and community service jobs after discharge or release from active duty." See Pub.L. No. 102-484, § 4462(a)(1), 106 Stat. 2702, 2741 (1992) codified at 10 U.S.C. § 1143a ("Statute"). Section 1143a is entitled "Encouragement of postseparation public and community service."² The Statute defines "public service organizations" as organizations providing school services and education administration, law enforcement, public health care, social services and "[a]ny other public or community service." 10 U.S.C § 1143a(g).

The Secretary of Defense promulgated regulations for the Community Service Program. 32 C.F.R. §§ 77.1-77.6. The Program authorized service members who retired from active duty with at least 15 but fewer than 20 years of service to accrue additional retirement credit for work in a qualified public or community service organization. 32 C.F.R. § 77.3(c). The regulations permit qualified former military personnel to accrue additional service credit for retirement through employment with "public or community service organization[s] that provide the services listed in sections 77.3(d)(1) through (d)(12)." 32 C.F.R. § 77.4(b)(2). Section 77.3(d) paints with a very broad brush the types of public and community service organizations for which retirement credit is allowed:

(d) Public and community service organization. Government or private organizations that provide or coordinate the provision of the following services[:]

(1) Elementary, secondary, or post secondary school teaching or administration.

(2) Support of teachers or school administrators.

(3) Law enforcement.

(4) Public health care.

(5) Social services.

(6) Public safety.

(7) Emergency relief.

(8) Public housing.

(9) Conservation.

(10) Environment.

(11) Job training.

(12) Other public and community service not listed previously, but consistent with or related to services described in paragraphs (d)(1) through (11) of this section.

32 C.F.R. § 77.3(d)(1)-(12). The regulations bar credit toward retirement for employment with "organizations engaged in religious activities, unless such activities are unrelated to religious instructions, worship services, or any form of proselytization." 32 C.F.R. § 77.3(a). The regulations also exclude "businesses organized for profit, labor unions, [and] partisan political organizations." Id.

At the time of his retirement, Bowman had 17 years and three months of service in the Air Force. After retiring from the Air Force, Bowman began employment with the People's Church of C & MA ("Church") in Geneva, Ohio, first as a lay intern, and later as a youth minister. He does not dispute that his duties included religious instructions, worship services, or proselytization. The complaint does not elaborate on what his duties were either as a lay intern or as a youth minister. Bowman was employed with the Church continuously from his retirement until February, 2001. Bowman contends that this employment should be counted toward his years of service so that he is entitled to a full retirement. According to his complaint, if he were granted the retirement credit for his work as a youth minister, he would be entitled to receive 50 percent of his base military pay upon reaching the age of 62, as opposed to receiving only 42 percent of his base military pay. The complaint does not quantify the money difference.

Bowman alleges that he filed for military service credit under the Program "late in the year 1998," again in November, 2002, and again in October, 2004, this time with the assistance of counsel, by submitting a Validation of Public or Community Service Employment Form to the Defense Manpower Data Center. Neither plaintiff nor his counsel has ever received a response. Plaintiff alleges that his request for creditable service has not been granted or even processed because the form shows that his employment was with a religious organization. Bowman alleges that the exclusion of employment with organizations engaged in religious activities from qualification for creditable early retirement under the Program conflicts with the broadly drafted enabling legislation, 10 U.S.C. § 1143a, and is unconstitutional on its face and as applied to him in violation of his Fifth Amendment Equal Protection rights.

ANALYSIS

A. Standard of Review

Whether or not a district court properly dismissed a complaint for failure to state a claim under Rule 12(b)(6) is subject to de novo review. Ass'n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir.2007). Under the Supreme Court's recent articulation of the Rule 12(b)(6) standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007), the Court must construe the complaint in favor of the plaintiff, accept the allegations of the complaint as true, and determine whether plaintiff's factual allegations present plausible claims. To survive a Rule 12(b)(6) motion to dismiss, plaintiff's pleading for relief must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Ass'n of Cleveland Fire Fighters, 502 F.3d at 548 (quoting Twombly, 127 S.Ct. at 1964-65).

An agency must interpret its implementing legislation in a reasonable manner and may not "promulgate regulations in a manner that are arbitrary or capricious in substance, or manifestly contrary to the statute." Clark Reg'l Med. Ctr. v. United States Dep't of Health & Human Services, 314 F.3d 241, 244-45 (6th Cir.2002). Where Congress empowers an agency to enact rules and regulations necessary to carry out an Act, those regulations are to be upheld "so long as [they are] reasonably related to the purposes of the enabling legislation." Jackson v. Richards Med. Co., 961 F.2d 575, 585 (6th Cir.1992) (quoting Mourning v. Family Publ'ns Serv., Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973)).

B. The regulation comports with the statute and Congressional intent

Bowman argues that the regulatory exclusion in 32 C.F.R. § 77.3(a) is not authorized by the enabling legislation, 10 U.S.C. § 1143a, and is contrary to the purpose and intent of Congress in establishing the Program. The government, on the other hand, argues that the regulatory exclusion is authorized by § 1143a, is supported by the legislative history, and is entitled to substantial deference under Chevron U.S.A., Inc. v. Nat'l Res. Def. Council Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). For the reasons discussed below, the district court properly held that the regulatory exclusion contained in 32 C.F.R. § 77.3(a) is consistent with the authorization provision of 10 U.S.C. § 1143a.

In deciding whether the regulatory exclusion conflicts with the statutory enactment, 10 U.S.C. § 1143a(g), the proper starting point is the enabling legislation itself. 10 U.S.C. § 1143a(a) provides:

1143a. Encouragement of postseparation public and community service (a) In general. The Secretary of Defense shall implement a program to encourage members and...