Cillie v. McCarthy

• Decision Date: 21 August 2020
• Docket Number: No. 3:19-cv-334 (VAB),3:19-cv-334 (VAB)
• Court: U.S. District Court — District of Connecticut
• Parties: CHRISTOPHER CILLIE, Plaintiff, v. RYAN MCCARTHY, SECRETARY OF THE ARMY, Defendant.

CHRISTOPHER CILLIE, Plaintiff, v. RYAN MCCARTHY, SECRETARY OF THE ARMY, Defendant.

No. 3:19-cv-334 (VAB)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

August 21, 2020

RULING AND ORDER ON MOTION TO DISMISS

Christopher Cillie("Plaintiff") has sued Ryan McCarthy, Secretary of the Army ("Secretary McCarthy" or "Defendant"), in his official capacity, alleging violations of the Administrative Procedure Act,5 U.S.C. § 706("APA") and violations of his due process rights under the Fifth Amendment of the United States Constitution.¹Compl. at 14-16, ECF No. 1(Mar. 7, 2019).

Secretary McCarthy has moved to dismiss the Complaint for lack of jurisdiction.Mot. to Dismiss, ECF No. 11(Sept. 3, 2019)("Def.'s Mot.").

For the following reasons, the motion to dismiss is GRANTED.

I.FACTUAL AND PROCEDURAL BACKGROUND

A.Factual Allegations²

Mr. Cillie is a veteran of the United States Army ("Army"), Compl. ¶ 3, currently serving as a Lieutenant Colonel in the United States Army Reserve, and living in Cheshire, Connecticut.Def.'s Ex. A, ECFNo. 11-2(Sept. 3, 2019)(Declaration of Kenneth Clayton, Paralegal Specialist with the U.S. Army Legal Services Agency, and attachments)("Clayton Decl.").³For more than twenty years, Mr. Cillie allegedly received payments from the Army for his duty by direct deposit.Compl.¶ 8.

In December of 2012, Mr. Cillie allegedly interviewed for an Army instructor position with Lieutenant Colonel ("Lt. Col.")⁴Michael Morris.Compl.¶ 5.

In the fall of 2013, Mr. Cillie received a phone call from Lt. Col. Jeffrey Thurber stating that he would "shortly be assigned as a student instructor at the New London, CT site" forIntermediate Level Education (ILE) instruction.Id.¶ 6.Soon thereafter, he received an assignment and began instructing ILE students in New London.Id.¶ 7.

"Beginning with the first payment for drill attendance subsequent to" Mr. Cillie's teaching assignment, he allegedly began receiving his payments by physical check, with allegedly no explanation as to why his direct deposit had been stopped.Id.¶ 8.

Mr. Cillie allegedly raised these issues with his supervisor, Lt. Col. Michael Higgins, "who [allegedly] indicated caution in working with full time staff."Id.¶ 10. Lt. Col. Higgins allegedly told Mr. Cillie about a student instructor at the New London site who had experienced difficulties attempting to attend Faculty Development (IFD) training that was required for instructors.Id.That instructor allegedly waited for eighteen months as an instructor without attending the required IFD training.Id.

In November and December of 2013, Mr. Cillie allegedly "attended to various readiness requirements to support the commander . . . by becoming 'green' for reporting status."Id.¶ 11.These requirements "included mental, dental, and weapons qualification."Id."Weapons qualification was [allegedly] unusual[,] as it required travel to Massachusetts to qualify at a private range using a weapon privately owned by another member of the unit" named Paul, whose last name Mr. Cillie does not recall.Id.Mr. Cillie allegedly "paid for the ammunition used for weapons qualification out-o[f]-pocket, paying Paul for rounds expended while using his weapon."Id.

Mr. Cillie also "sought a seat for IFD training" as part of his effort to "become green" to support the commander.Id.¶ 12.He received notice from Sergeant First Class ("SFC") Polanco that he"had a reserved slot for IFD training between March 10, 2014 and March 15, 2014—which would require travel on March 9, 2014," along with an application for a government travelcredit card, which would be necessary for his travel.Id.Mr. Cillie allegedly completed and returned the credit card application and coordinated with his employer to be out of the office for week of March 10, 2014.Id.

By Friday, March 7, 2014, Mr. Cillie had allegedly not received orders for IFD training or any information indicating travel arrangements had been made.Id.¶ 13.He therefore allegedly "unwound [his] coordination with [his] employer to be out of the office the next week," and went to the New London site for the "battle assembly" scheduled the next day, Saturday.Id.

On that Saturday, March 8, 2014, Mr. Cillie told Lt. Col. Thurber and Lt. Col. Higgins that he had no orders for travel for IFD training.Id.¶ 14. Lt. Col. Thurber allegedly tried to help and "sympathized with the problem of order generation in the unit generally" and "indicated that orders ha[ve] historically [been] an in issue in the unit."Id.¶¶ 14-15.Mr. Cillie also allegedly spoke with SFC Polanco by phone that day, who allegedly stated that he had sent orders for IFD training by e-mail on February 29, 2014; but that was "impossible because 2014 was not a leap year."Id.¶ 16.

During the afternoon of March 8, 2014, Mr. Cillie allegedly spoke with Lt. Col. Morris about the issues with generating his order for IFD training.Id.¶ 17. Lt. Col. Morris allegedly "indicated a desire to fire drill the matter—that is[,] to apply direct pressure to [Mr. Cillie] to travel that day to attend the training in concert with energizing SFC Polan[c]o to generate an order."Id.Mr. Cillie allegedly indicated to Lt. Col. Morris that "such pressure was unacceptable" and "an improper response to the root cause of the problem[:] . . . administrative dysfunction."Id.

On March 9, 2014, Mr. Cillie allegedly submitted a form to Lt. Col. Higgins requesting to be transferred.Id.

On March 10, 2014, Mr. Cillie allegedly requested an inquiry into the unit's alleged failure to timely generate an order for training, which allegedly resulted in his inability to attend training.Id.¶ 19.

On the same day, Mr. Cillie allegedly received the government travel credit card for which he had applied.Id.¶ 18.Sometime thereafter, he allegedly received a credit card statement indicating that he owed for a charge on the card which he allegedly did not incur.Id.

On March 29, 2014, Lt. Col. Higgins allegedly sent Mr. Cillie a text message informing him that the March 2014"class/drill" with the unit would be his last.Id.¶ 20.

On March 31, 2014, Mr. Cillie allegedly sent a letter to Lt. Col. Morris asking for assistance getting the charge removed from his credit card.Id.¶ 18. Lt. Col. Morris allegedly refused.Id.

Thereafter, Mr. Cillie allegedly conducted his own research and learned that, by regulation, when applications for government travel credit cards are expedited for individuals scheduled to travel within five working days, a fee for expedited travel will be charged to the account; that "special efforts" must be taken "to make the cardholder aware that a fee for expedited travel will be charged to the account[;] and [] that cardholders can claim reimbursement of a fee for expedited service in the event that scheduled travel does not occur."Id.¶ 21.He also allegedly learned that it was common practice for credit card applications to be sent to unit members pre-filled with authorizations for expedited card delivery.Id.

Since his travel allegedly did not occur, Mr. Cillie allegedly submitted a reimbursement request consistent with the regulation.Id.¶ 22.He allegedly attached a letter "gently inquir[ing]" whether "the rules for expedited service set forth in the regulation" had been followed.Id.

Later, Mr. Cillie allegedly received a letter and a check from Lt. Col. Morris for $20, which he interpreted "as payment for silence on the issue of waste in the [government travel credit card program] for unnecessary expedited applications."Id.

On June 9, 2014, Lt. Col. Higgins allegedly sent Mr. Cillie an e-mail with "a 17-day order for annual training commencing on June 12, 2014."Id.This e-mail allegedly surprised Mr. Cillie, as he thought based on Lt. Col. Higgins's last communication that his last "class/drill" with the unit had been in March.Id.He allegedly responded to the e-mail stating that he was unable to attend the annual training on such short notice.Id.⁵

In late June or early July of 2014, Mr. Cillie allegedly received a check in the amount of $4,170.09.Id.¶ 24.Mr. Cillie allegedly believed that "an unidentified individual made a false claim for pay and benefits in connection with the" annual training and that he had received the check in error.Id.He allegedly "safeguarded the check until the end of the fiscal year with some expectation that the error would be corrected at the close of the fiscal year," but when he received no indication of a correction, he allegedly returned the check "with a letter indicating that the wrongful payment was indication of further waste and abuse of authority . . . , and requesting correction of [his] pay records."Id.Subsequently, however, "[i]nstead of correcting [his] pay records," the Army allegedly took steps to collect a debt against Mr. Cillie "in the amount of $5,817.30 .. . on each subsequently received [leave and earnings statement]."Id.

In April of 2015, Mr. Cillie allegedly discovered that an evaluation had been placed in his personnel file that was "referred," or marked negative, based on his "failure to attend battleassemblies in March, April, and May of 2014; failure to attend IFD training; and non-attendance at annual training."Id.¶ 25.

On April 24, 2015, Mr. Cillie allegedly sent a letter requesting that a commander's inquiry be conducted into the referred evaluation and "identifying errors associated with administrative inefficiency in the unit."Id.¶ 26.Allegedly, no inquiry took place.

On July 21, 2015, Mr. Cillie allegedly sent another letter requesting a commander's inquiry.Id.¶ 27.He then allegedly received a message from a JAG Officer indicating that a commander's inquiry would be conducted, but allegedly no inquiry resulted.Id.

On September 2, 2015, as allegedly discovered later by Mr. Cillie, Lt. Col. Scarcella allegedly initiated an involuntary separation process against Mr. Cillie.Id.¶ 33.

In December of 2015, Lt. Col....