Augustus v. McHugh

• Decision Date: 22 November 2011
• Docket Number: Civil Action No. 02–2545 (RWR).
• Parties: Alma T. AUGUSTUS, Plaintiff, v. John McHUGH, Secretary of the Army, Defendant.
• Court: U.S. District Court — District of Columbia

825 F.Supp.2d 245

Alma T. AUGUSTUS, Plaintiff,

v.John McHUGH, Secretary of the Army, Defendant.

Civil Action No. 02–2545 (RWR).

United States District Court, District of Columbia.

Nov. 22, 2011.

Alma T. Augustus, Falls Church, VA, pro se.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Pro se plaintiff Alma Augustus brought this action against the Secretary ¹ of the United States Army alleging violations of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a.² The parties have each moved for summary judgment under Federal Rule of Civil Procedure 56. Because the Secretary failed to comply with the procedures prescribed in the Army's regulations when responding to complaints Augustus filed, judgment will be entered for her on her APA claim. Because Augustus either has not factually substantiated her Privacy Act claim or has not presented facts revealing a genuine dispute over the Secretary's evidence disproving her Privacy Act claim, summary judgment will be entered for the Secretary as to that claim. However, because neither party has demonstrated entitlement to summary judgment as to Augustus's FOIA claim, both parties' motions will be denied without prejudice as to that claim.

BACKGROUND

The background of this case is discussed fully in an earlier Memorandum Opinion and Order issued in this case. ( See Docket # 34, Sept. 29, 2004 Mem. Op. and Order (“Mem. Op.”).) In short, Augustus, an African–American woman, was a Lieutenant Colonel in the United States Army National Guard Bureau (“NGB”) assigned to active duty as an Automation Officer at the Army National Guard Readiness Center in Arlington, Virginia. (Am. Compl. at 1; see also Mem. Op. at 3.) She claims that she was unlawfully denied a promotion and suffered from other unlawful forms of discrimination and retaliation, including not being considered for the Army's scholarship awards, after she voiced concerns about the NGB's alleged discriminatory personnel policies and procedures. (Am. Compl. at 2–3; see also Pl.'s Mem. of P. & A. in Supp. of Pl.'s Opp'n to Def.'s Summ. J. and Cross Mot. for Summ. J. (“Pl.'s Mem.”) at 15.) Although Augustus took steps through informal channels to specify her concerns about NGB's discriminatory practices, she was not promoted and the NGB failed to address her concerns. (Mem. Op. at 5.) She filed a formal equal opportunity (“EO”) complaint with the NGB. (Am. Compl. Ex. 3.)

Augustus asserts that the NGB's discriminatory motives underlying its failure to promote her were memorialized in a report of investigation (“ROI”) prepared by Major General Peter Gravett in March 2001. ( Id. at 5 ¶ 7.) She claims that the ROI “substantiated [her] unlawful gender and race discrimination” claims and recommended that she be promoted retroactively to the rank of Colonel. ( Id.) Augustus claims further that Lieutenant General Roger Schultz and Major General James T. Jackson approved a separate ROI and deemed Gravett's ROI procedurally and substantively flawed and disregarded its recommendations. (Mem. Op. at 8.)

On account of the perceived discrimination, Augustus filed three Article 138 complaints ³ with the NGB, requesting that it investigate violations of her privacy that allegedly occurred when the NGB's Inspector General's Office (“IG”) revealed to Schultz both the discrimination allegations it received confidentially from Augustus and her identity, investigate a threatened reprisal for formally lodging complaints, and investigate allegations that Schultz threatened to take adverse action against her. ( Id. at 9–10.) Augustus also asserts that her Privacy Act rights were violated when, among other things, the NGB questioned her—without providing her with a copy of a Privacy Act statement—about the NGB's suspicion that she violated the Privacy Act herself. ( Id. at 12.) The NGB returned the complaints to her, claiming they were deficient for failure to meet Army regulations.

Augustus filed an eleven-count amended complaint in this court alleging that the United States Army engaged in sex-based and race-based discrimination and took other actions that violated her rights under the Constitution, federal statutes, and internal Army regulations and operating procedures. The Secretary filed a motion to dismiss the amended complaint under Rule 12(b)(1) for lack of subject matter jurisdiction and under Rule 12(b)(6) for failure to state a claim for which relief can be granted. The memorandum opinion addressing the defendant's motion to dismiss grouped Augustus's various allegations into eight claims: (1) discriminatory non-promotion (Counts 1, 5, 7, 9, 11); (2) erroneous records (counts 1, 6, 8); (3) failure to investigate Article 138 complaints (Counts 1, 11); (4) procedural inadequacies in investigating her EO complaint (Counts 1, 11); (5) a general atmosphere of discrimination in the Army (Counts 1, 3, 5, 7, 9, 11); (6) violation of FOIA (Count 10); (7) violation of the Privacy Act (Count 6); and (8) retaliation under the Military Whistleblower Protection Act (“MWPA”) (Counts 1, 2, 5, 8, 11). (Mem. Op. at 15.) The Secretary's motion to dismiss was granted in part and denied in part, and most, but not all, of Augustus's claims were dismissed for want of subject matter jurisdiction. The Secretary's motion was denied with respect to Augustus's (1) Article 138 claims under the APA; (2) FOIA claim seeking an unredacted copy of Gravett's ROI ⁴; and (3) Privacy Act claim for damages, alleging that the defendant invaded her privacy by exceeding the Privacy Act's limitations on collecting information from third parties, failing to publish a record keeping system, and failing to safeguard her private information. The parties have cross-moved for summary judgment as to these remaining claims.

DISCUSSION

Rule 56(c) provides that summary judgment may be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A dispute about a material fact is “genuine ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (internal quotation marks omitted). Facts in dispute are material if they are capable of affecting the outcome of the suit under governing substantive law. Id. In considering a motion for summary judgment, a court must view all evidence and inferences to be drawn from the underlying facts “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In opposing a motion for summary judgment “ ‘an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading [.]’ ” Heller v. Fortis Benefits Ins. Co., 142 F.3d 487, 492 (D.C.Cir.1998) (quoting Fed.R.Civ.P. 56(e) (1987)). Rather, “ ‘the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.’ ” Id. (quoting Fed.R.Civ.P. 56(e) (1987)).

I. ARTICLE 138 COMPLAINTS

Augustus alleges that the Army arbitrarily and capriciously failed to follow its own regulations when processing her Article 138 complaints against Schultz, Lieutenant Colonel Mitchell, and the IG, in violation of the APA. An agency's alleged failure to follow its own regulations is reviewable under the APA. See Webster v. Doe, 486 U.S. 592, 602 n. 7, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988). Under the APA, a reviewing court must “hold unlawful and set aside agency action ... found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706. “The APA [also] provides that, in reviewing agency action, the court ‘shall’ take account of ‘the rule of prejudicial error,’ 5 U.S.C. § 706, that is, whether the error caused prejudice.” Nevada v. Dep't of Energy, 457 F.3d 78, 90 (D.C.Cir.2006). “If the agency's mistake did not affect the outcome, ... it would be senseless to vacate and remand for reconsideration.” PDK Labs. Inc. v. U.S. Drug Enforcement Auth., 362 F.3d 786, 799 (D.C.Cir.2004).

An Article 138 complaint allows

[a]ny member of the armed forces who believes [her]self wronged by [her] commanding officer, and who, upon due application to that commanding officer, is refused redress, [to] complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made.

10 U.S.C. § 938. Only certain wrongs may be righted through the Article 138 complaint process. If “other, more specific channels and procedures ... ensure the soldier has an adequate opportunity to be heard[,] ... [then] [t]hose specific procedures” should be used. Id. ¶ 20–5(a). “Article 138 procedures should neither substitute for nor duplicate them.” Id.⁵

Army Regulation 27–10 ⁶ sets forth the specific procedures required to file an Article 138 complaint. These require the soldier filing the complaint first to attempt informal communication between herself and her commanding officer, Army Reg. 27–10 ¶ 20–3, and then to file a request for redress, id. ¶ 20–6, before finally filing a formal Article 138 complaint. Id. ¶ 20–7. An Article 138 complaint must contain the identity of the offending commanding officer. Id. ¶ 19–7(a)(5). A complaint may be rejected if it “does not substantially meet the requirements of Article 138 ... [and] no determination as to the merits of the complaint is required. Unless the deficiency is...