Berg v. Commander, Fifth Coast Guard Dist., Civ. A. No. 3:92CV193.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Citation810 F. Supp. 703
Decision Date20 January 1993
Docket NumberCiv. A. No. 3:92CV193.
PartiesRoy C. BERG, Plaintiff, v. COMMANDER, FIFTH COAST GUARD DISTRICT, Defendant.

810 F. Supp. 703

Roy C. BERG, Plaintiff,

Civ. A. No. 3:92CV193.

United States District Court, E.D. Virginia, Norfolk Division.

December 31, 1992.

Supplemental Memorandum Opinion and Order January 20, 1993.

810 F. Supp. 704

Thomas Henry Oxenham, III, Oxenham, Rohde & Oxenham, Richmond, VA, for Roy C. Berg, Jr.

Robert William Jaspen, U.S. Atty.'s Office, Richmond, VA, for Commander, Fifth Coast Guard Dist.


PAYNE, District Judge.

Roy C. Berg ("Berg") filed this action to secure judicial review and reversal of a decision to disenroll him from the United States Coast Guard Auxiliary (the "Auxiliary"). Berg contends that the disenrollment presents a federal question within the meaning of 28 U.S.C. § 1331, and that the scope of review is prescribed by the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Specifically, Berg contends that the decision violated his Fifth Amendment due process rights and hence is reviewable under 5 U.S.C. § 706(2)(B). Alternatively, Berg challenges the administrative decision as arbitrary, capricious, an abuse of discretion

810 F. Supp. 705
and otherwise not in accordance with law, and hence seeks review also under 5 U.S.C. § 706(2)(A). Finally, Berg asserts that a trial de novo is warranted under 5 U.S.C. § 706(2)(F).1

The defendant, Commander of the Fifth Coast Guard District (the "Commander"), has moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) or, alternatively, for summary judgment under Fed.R.Civ.P. 56. The Commander's pleadings raise matters beyond the complaint and hence must be treated as a motion for summary judgment. Fed.R.Civ.P. 12(b).

For the reasons explained below, the Commander's motion for summary judgment on Berg's due process claim is granted; the remainder of the Commander's motion for summary judgment is denied; Berg's motion for trial de novo is denied; and the court will review Berg's disenrollment under 5 U.S.C. § 706(2)(A).

Statement of Facts

Berg joined the Auxiliary in April 1985. The Auxiliary is a non-military organization administered by the Commandant of the United States Coast Guard (the "Coast Guard"). See 14 U.S.C. § 821. The members of the Auxiliary are non-salaried civilian volunteers. The purposes of the Auxiliary are:

(a) to promote safety and to effect rescues on and over the high seas and on navigable waters;
(b) to promote efficiency in the operation of motorboats and yachts;
(c) to foster a wider knowledge of, and better compliance with, the laws, rules, and regulations governing the operation of motorboats and yachts; and
(d) to facilitate other operations of the Coast Guard.

14 U.S.C. § 822. Membership in the Auxiliary is open to owners of boats, aircraft and radio stations, and to other individuals whose special training or experience would qualify them for duty in the organization. 14 U.S.C. § 823. The Commandant of the Coast Guard has issued an Auxiliary Manual (the "Manual"), COMDTINST M16790.1C, which applies to "all members of the Auxiliary and all active duty personnel involved in Auxiliary administration."

The Auxiliary is divided into ten geographic districts. The Commonwealth of Virginia is located in the Fifth District. The Fifth District is subdivided into the Northern Region and the Southern Region. There are approximately 3800 members in the Fifth Southern Region. Each Region is further subdivided into smaller units called Flotilla. When Berg joined the Auxiliary in April 1985, he became a member of Auxiliary Flotilla 38, Fifth Southern Region. From June 1990, until his disenrollment on February 21, 1992, Berg was a member of Auxiliary Flotilla 31, Fifth Southern Region.

Each Auxiliary unit has its own civilian "officer" structure,2 but the Auxiliary actually operates under the formal direction of the military staff of the Coast Guard. Each Auxiliary region is headed by a Director of Auxiliary, who is a commissioned officer on active duty in the Coast Guard. From July 1991 through May 1992, the Director of Auxiliary for the Fifth Southern Region was Lieutenant Willie M. DuPriest. Lieutenant DuPriest's supervisor at all times relevant to this action was Captain Robert A. Melvin, III, Chief of the Fifth District's Boating Safety Division. Captain Melvin also served as the Director of Auxiliary for the Fifth Coast Guard District. From June 1991 through April 1992, Captain Melvin's immediate supervisor was Captain (now Rear Admiral) Roger J. Rufe who, at the time, was the Fifth District's Chief of Staff and the second highest ranking Coast Guard officer assigned to the Fifth District. Since July 1991, the District Commander of the Fifth

810 F. Supp. 706
Coast Guard District has been Rear Admiral Walter T. Leland

In late 1989, several fellow members of the Auxiliary refused to certify Berg as a Courtesy Marine Examiner and vessel operator. Berg protested this decision to the Director of the Auxiliary who had the matter investigated. Subsequently, Berg was qualified as a Courtesy Marine Examiner and vessel operator. Berg alleges that the fact that he received his qualifications did not sit well with other members of his Flotilla and that some of them made harassing phone calls to him and that others defamed him with accusations of misconduct. Berg successfully prosecuted two defamation suits in state court as a result of these incidents.

The Commander contends, and the record reflects, that Berg made repeated demands that the Coast Guard take disciplinary action against several members of the Auxiliary because of these incidents. Ultimately, one member of the Auxiliary against whom Berg had lodged complaints was disenrolled for cause. However, Berg's complaints against the other members of the Auxiliary were found to be without merit.

The Coast Guard's decision declining to take further action on the complaints apparently did not sit well with Berg because it touched off a series of hostile letters and telephone calls from Berg to Lieutenant DuPriest. The record before the court is replete with correspondence from Berg containing accusations of conspiracy, discrimination and favoritism within the ranks of the Auxiliary. The record also reflects that Berg made numerous telephone calls of the same ilk to Coast Guard officials. On December 4, 1991, Lieutenant DuPriest informed Berg that his conduct had become an administrative burden on the Coast Guard and instructed Berg to cease it. Berg responded on December 5, 1991 with a vituperative sixteen page letter in which he withdrew from active participation in the Auxiliary.

On December 20, 1991, Lieutenant DuPriest notified Berg of his intent to recommend that Berg be disenrolled from the Auxiliary. The notice explained that Berg had ignored the December 4 warning and had continued to make oral and written demands and threats in an insulting and discourteous manner. Berg's letter dated December 5, 1991 and an undated letter received on December 20, 1991, were characterized by Lieutenant DuPriest as evidencing a "rude, sarcastic, demeaning tone and content" which was "prejudicial to the good order of the Auxiliary." Berg also was cited as having created an administrative burden upon the military staff of the Coast Guard. The notice advised that the disenrollment would be "for cause" and accorded Berg thirty days to submit a statement concerning the proposed disenrollment.

By letter dated December 23, 1991, Berg's counsel asked the Coast Guard to defer action upon the disenrollment recommendation until after January 2, 1992 because Berg was at that time previously committed to the prosecution of lawsuits underway in state court. In response to this request the Coast Guard extended the deadline for submission of Berg's statement until February 10, 1992, and before that date Berg submitted his position statement and supporting materials.

On February 10, 1992, Lieutenant DuPriest forwarded a letter to Captain Rufe through Captain Melvin, in which Lieutenant DuPriest recommended that Berg be disenrolled from the Auxiliary. There were numerous accompanying documents, including Berg's written position on the proposed disenrollment and all correspondence on that subject from Berg's counsel. Captain Melvin agreed that Berg should be disenrolled from the Auxiliary and so recommended to Captain Rufe. Captain Melvin's concurrence in the recommended disenrollment explained that the demands placed on Lieutenant DuPriest's time by Berg had impaired Lieutenant DuPriest's ability to serve the other 3800 Auxiliary members in the Fifth District's Southern Region. Captain Melvin also commented that Berg's continuous accusations against other Auxiliary members had caused damage to the Auxiliary because it had caused members to leave the Auxiliary and had

810 F. Supp. 707
left the remaining senior Auxiliary leaders feeling helpless to deal with the ongoing conflict. In Captain Melvin's judgment, Berg had prejudiced good order in the Auxiliary by engaging in "threatening, demanding, insulting, and otherwise disrespectful behavior towards commissioned Coast Guard officers." This too was thought to contribute to the findings of cause warranting Berg's disenrollment

On February 14, 1992, Captain Rufe decided that there was cause to disenroll Berg from the Auxiliary. By letter dated February 21, 1992, Lieutenant DuPriest advised Berg's counsel of that decision. Berg appealed the disenrollment decision to the District Commander, Rear Admiral Leland, who denied it on March 13, 1992. This litigation followed.

The Standard for Summary Judgment

Summary judgment is appropriate when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). In considering a motion for summary judgment the court is not to weigh the evidence, but rather must "determine whether there is a genuine issue for trial." Anderson v. Liberty...

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    ...a document filed pro se is to be liberally construed). 37. 5 U.S.C. § 706(2)(A); see also Berg v. Commander, Fifth Coast Guard Dist., 810 F. Supp. 703, 715 (E.D. Va,. 1992), aff'd, 27 F.3d 562 (4th Cir. 1994) (applying the arbitrary and capricious standard under almost identical facts regar......

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