Allen v. U.S. Air Force
| Decision Date | 28 July 2016 |
| Docket Number | NO: 2:15-CV-354-RMP,: 2:15-CV-354-RMP |
| Court | U.S. District Court — District of Washington |
| Parties | ARTHUR A. ALLEN, Plaintiff, v. UNITED STATES AIR FORCE, Defendant. |
BEFORE THE COURT is Defendant's Motion to Dismiss, ECF No. 13. The Court has reviewed the motion, the record, and is fully informed.
Plaintiff brings this action against the United States Air Force alleging violations of his rights under the Administrative Procedures Act ("APA") and the United States Constitution, seeking declaratory and monetary relief. ECF No. 17. As Defendant's motion attacks the sufficiency of Plaintiff's claims, the Court briefly summarizes the facts as stated in Plaintiff's First Amended Complaint, ECF No. 17 ("FAC").
Plaintiff is a former officer in the United States Air Force ("USAF") and alleges that prior to the events that gave rise to this litigation, he was consistently "identified as a superior performer . . . ." Id. at 3. On January 9, 2012, then Captain Allen was informed that his urinalysis test randomly administered in the preceding month reflected a positive result for the presence of drugs. The result indicated the presence of oxycodone/oxymorphone, despite Plaintiff's assertion that he never knowingly ingested that substance. Id. at 4-5. Plaintiff's chain of command was not satisfied with his denial and offered Plaintiff the choice of proceeding with a court-martial prosecution or a Non-Judicial Punishment (NJP) pursuant to Article 15 of the Uniformed Code of Military Justice. Id.
On March 27, 2012, Plaintiff accepted NJP, which resulted in his forfeiting one month's pay and receiving a formal reprimand. Id. at 7. His subsequent appeal was denied. Id. Following the adverse finding of the Article 15, the USAF convened a Board of Inquiry (BOI) to determine the propriety of terminating Plaintiff's employment for knowingly using narcotics. Id. On June 19, 2012, following an extensive hearing, the BOI panel found in Plaintiff's favor, and, in Plaintiff's words, "found that Captain Allen did not wrongfully use oxycodone in the November - December 2011 timeframe . . . ." Id.
However, other proceedings stemming from the NJP continued, and on June 22, 2012, Plaintiff's chain of command contacted the Air Force Central Adjudication Facility to begin the process of revoking his security clearance. Id. at8. Without knowing of that request, Plaintiff presented the BOI's determination to Lieutenant General Mark Ramsay, the 18th Air Force Commander ("18 AF/CC") with a request that he "set-aside" his previous Article 15. Lieutenant General Ramsay denied the request and stated in relevant part that:
See id. at 8-9. Plaintiff alleges that he was not given that opportunity but that he had requested a polygraph examination from a civilian source, which he passed. Id.
On July 16, 2012, Plaintiff's chain of command "began the process of requesting the SECAF [Secretary of the Air Force] remove Captain Allen from the Captain-to-Major promotion list." Id. at 9. Although Plaintiff asserts that he was medically cleared by "flight doctors" to return to flight status, his chain of command denied him that opportunity and continued administrative proceedings to permanently bar him from flying.
ECF No. 17 at 10. Plaintiff supported his petition by arguing that the Article 15 NJP conflicted with the BOI's findings and his polygraph examination,1 and that the conflict between the two processes was "not without precedence." Plaintiff relied on a prior AFBCMR decision (Number 94 - 02889) that expressed disapproval of a commander's refusal to set aside an Article 15 in the face of a favorable finding from a board that Plaintiff argues was similar to the BOI in his case. Id. at 10-11.
On October 10, 2012, the Secretary of the Air Force denied the request to remove Plaintiff's name from the promotion list, thereby enabling him to timely be promoted to Major. Id. at 12. However, Plaintiff was informed that the SECAF's decision did not vitiate the other administrative proceedings that were then pending against him. He was also told that Lieutenant Colonel Sherman, the Chief Judge Advocate at Fairchild Air Force Base, reacted to the denial by stating: Id. Regardless, Plaintiff supplemented his AFBCMR petition with this determination and subsequently submitted copies of his successful polygraph examination and a memorandumdisputing the assertion that he was ever offered the opportunity to take a USAF-approved polygraph examination. Id.
On January 10, 2013, Plaintiff was informed that the Air Force Adjudication Facility intended to revoke his security clearance due to the Article 15. ECF No. 17 at 13. Plaintiff subsequently hired legal counsel and incurred $20,237.54 in legal costs contesting these administrative proceedings. Id. at 14.
On January 30, 2014, the AFBCMR acknowledged the inconsistent results, but found "insufficient relevant evidence has been presented to demonstrate the existence of error or injustice," and, accordingly, did not remove the Article 15 from his records. Id. at 14.
On March 5, 2014, the Air Force Personnel Security Appeal Board ("PSAB") fully reinstated Plaintiff's security clearance and, according to Plaintiff, found that he did not knowingly ingest oxycodone.2 Following this decision, Plaintiff states that he "retained local counsel and then began to take steps to re-engage the BCMR with the PSAB's results; but, beforehand submitted two Freedom of Information Act (FOIA) requests directed at the FAFB Drug Demand Reduction (DDR) program and the on-base pharmacy that issued Major Allen'sDecember 2011 Robaxin prescription [a muscle relaxant that he was prescribed]."3 ECF No. 17 at 16. The USAF produced responsive documents that Plaintiff alleges revealed that the lab was found not to have fully complied with drug testing regulations during inspections that spanned the time when Plaintiff's test results were positive: as urinalysis handlers were not wearing gloves; the JAG office that prosecuted Plaintiff was the same office that inspected the drug lab; and the lab that had issued Plaintiff a prescription for Robaxin had apparently been cited for failing to properly account for prescription narcotics during the relevant timeframe. Id.
Plaintiff alleges that the investigation report found that "[t]he 92 ARW did not always effectively manage controlled drugs, as MDG pharmacy operations required improvement over selected safeguarding and accountability controls... specifically ... comply with physical and system access (safeguard) controls over pharmacy operations ... correctly document controlled drug inventories.. .provide proper accountability for selected drug transactions." Id. at 17.
On July 28, 2014, armed with new information and the set of administrative findings in his favor, Plaintiff submitted a renewed request to set aside his Article 15 NJP. Id. The request was reviewed by a new 18th AFCC, Lieutenant General Everhart, and on September 9, 2014, the USAF set aside Plaintiff's Article 15 NJP. Plaintiff was reimbursed for the one month's pay and two years' worth of aviation incentive pay that he had not been paid while disqualified from aviation service. Id. at 19. On September 12, 2014, Plaintiff requested reimbursement for the attorney's fees he incurred "contesting the Air Force's attempt to permanently revoke his Security Clearance and Major Allen's post-BCMR petition denial of his Article 15 set-aside request." ECF No. 17 at 19. The USAF denied this request. Id.
From January 2012 to September 2014, Plaintiff received poor ratings on his Officer Personnel Report, and Plaintiff states that he was "forced" to submit a "Request for Requalification for Aviation Service" on June 10, 2014. Id. Plaintiff alleged that his chain of command purposefully delayed his request, causing him to subsequently file a complaint with the Inspector General. As a result, Plaintiff argues that "[p]ractically speaking, having been given two poor OPRs and having complained to the IG, Major Allen's active-duty Air Force career was effectively over which, in turn, forced him to leave the active-duty Air Force and transition to the Air Force Reserves." Id. at 20.
As Plaintiff transferred to the Air Force Reserves, he sought out employment with civilian airlines. Id. at 20. During the application process, he answered truthfully when asked whether his flying status has ever been revoked at any time during his military career. Id. Plaintiff has not received any offers of employment from those airlines. Id.
Plaintiff now seeks various forms of relief in eight different legal claims and has chosen to categorize them as follows:
Counts One, Two, and Three -"Violation of the Administrative Procedures Act, Declaration of APA Violation, and [V]iolation of 10 U.S.C. §1552." ECF No. 17 at 22.
Counts Four & Five - "Declaration that Defendant Violated the U.S.
Constitution & 5th Amendment Claim." Id. at 25.
Count Six - "Attorneys' Fees and Costs." Id. at 31.
Count Seven - "Declaration that...
To continue reading
Request your trial