Coburn v. Mchugh, Civil No. 09–1266(RJL).

• Decision Date: 29 September 2010
• Docket Number: Civil No. 09–1266(RJL).
• Citation: 744 F.Supp.2d 177
• Parties: Trent M. COBURN, Plaintiff,v.John McHUGH,1 Defendant.
• Court: U.S. District Court — District of Columbia

744 F.Supp.2d 177

Trent M. COBURN, Plaintiff,

v.John McHUGH,1 Defendant.

Civil No. 09–1266(RJL).

United States District Court, District of Columbia.

Sept. 29, 2010.

Raymond J. Toney, The Law Office of Raymond J. Toney, Woodland, CA, David Patrick Sheldon, Law Office of David P. Sheldon, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Plaintiff Trent M. Coburn (“Coburn”), a former active member of the U.S. Army, brings this lawsuit under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., challenging two decisions of the Army Board for Correction of Military Records (“ABCMR”) upholding his involuntary discharge under the Qualitative Management Program (“QMP”). Currently pending before the Court are defendant's Motion to Dismiss or in the Alternative, for Summary Judgment and plaintiff's Cross–Motion for Summary Judgment. Upon review of the pleadings, the entire record, and the applicable law, defendant's motion is GRANTED, and plaintiff's cross-motion is DENIED.

BACKGROUND

Coburn enlisted in the Army on November 6, 1984. AR 311. On December 7, 1999, during routine screening, he tested positive for marijuana. AR 136–40. On March 24, 2000, at a nonjudicial punishment hearing pursuant to Article 15 of the Uniform Code of Military Justice, Coburn was found guilty of wrongful use of marijuana. AR 274. Plaintiff elected not to appeal the Article 15 findings or his punishment of a fine and extra duty. Id.

On August 25, 2000, Coburn received an unfavorable annual Noncommissioned Officer Evaluation Report (“NCOER”) for the rating period from August 1999 through July 2000. AR 275–76. The NCOER referenced his positive marijuana test but also noted that he “uses poor judgment,” that his “leadership [is] marred by actions unbecoming a noncommissioned officer,” that he “fails to follow all regulations,” and that his “personal conduct is prejudicial to good order and discipline to the unit.” Id. On October 25–26, 2000, plaintiff appeared before an administrative separation board to determine whether he should be separated for misconduct. See AR 89. The board recommended that Coburn be retained in the service. AR 88. Coburn then petitioned both the brigade commander and the commanding general to set aside the Article 15 finding, but both requests were denied. AR 89–96.

The Army's QMP is governed by Army Regulation 635–200, Chapter 19. Noncommissioned officers “whose performance, conduct, and/or potential for advancement do not meet Army standards, as determined by the approved recommendations of [the Army] centralized selection boards responsible for QMP screening, will be denied continued service.” Army Reg. 635–200 ¶ 19–2. On April 20, 2001, pursuant to the QMP, plaintiff was selected for separation from service and barred from reenlistment. AR 97–98. The grounds for his separation were his unfavorable NCOER and his Article 15 record of misconduct. AR 99. After being notified of his selection under the QMP, Coburn petitioned to have his Article 15 record transferred to the restricted portion of his official records and to have the unfavorable sections of the NCOER blacked out or the entire NCOER removed from his records. AR 134, 291. His requests were denied. AR 133, 287.

On August 24, 2001, Coburn petitioned the ABCMR, again requesting that his Article 15 findings be set aside or transferred into the restricted portion of his personnel file and that unfavorable NCOER be set aside or redacted. AR 80. On March 28, 2002, the ABCMR unanimously denied the application. AR 72–79. The ABCMR found that plaintiff had presented no evidence that his Article 15 record of nonjudicial punishment was erroneous or unjust, and that no compelling evidence existed to remove it from his file or to transfer it to his restricted fiche. AR 78. Furthermore, the ABCMR found that Coburn had presented no evidence that his NCOER was improper, and that no basis existed to remove it or to amend its contents. Id.

A few months previously, on or about January 23, 2002, plaintiff had asked Dr. Mario Caycedo (“Caycedo”) to review plaintiff's medical records for the possibility of initiating a Medical Evaluation Board (“MEB”) because of his back problems. Caycedo Decl., Sept. 3, 2009, Def.'s Ex. A, ¶ 2(b). In March 2002, Caycedo initiated an MEB. Id. ¶ 2(c). Caycedo later learned that the initial MEB paperwork had been misplaced and reinitiated the MEB on June 27, 2002. Id. ¶ 2(g). On July 28, 2002, after Coburn had met with various doctors, Caycedo reviewed Coburn's case and his medical condition and concluded that the MEB could be terminated. Caycedo Decl. ¶ 2(i). Caycedo discussed this conclusion with the MEB approval authority, Dr. Wayne Scirner. Id. Scirner decided not to terminate the MEB at that time, stating that he first wanted the pulmonary clinic to conduct an additional assessment of Coburn. Id.

On October 30, 2002, Caycedo returned to the clinic from an absence of several weeks due to military duties. Id. ¶ 2(1). He discovered that, per Scirner's directive, plaintiff had been evaluated at the pulmonary clinic in July, which found no new medical issues. Id. Caycedo informed Scirner of this assessment, and they agreed to terminate the MEB. Id. ¶ 2(m). Scirner and Caycedo based their decision on the following factors: (1) plaintiff had declined surgery; therefore, they concluded that plaintiff was not experiencing continuing debilitating pain; (2) in his several previous visits to the clinic, plaintiff did not appear to be in great discomfort and was able to perform his assigned duties; (3) both the rheumatology and the pulmonary clinic physicians had examined plaintiff and determined that he required no physical limitations; and (4) plaintiff had raised no new medical complaints over the previous six months. Id. ¶ 2(n). The MEB was terminated, and Coburn was discharged that same day, October 30, 2002, because of his selection, over eighteen months earlier, under QMP. AR 299–300, 312.

After being discharged, Coburn petitioned the ABCMR on two occasions. On December 5, 2002, plaintiff applied to the ABCMR claiming that his discharge was in error or unjust because of improper termination of the MEB. AR 59. He requested reinstatement to active duty to allow the MEB to proceed. AR 60. On August 21, 2003, the ABCMR unanimously denied plaintiff's application. AR 33–39. On January 5, 2006, plaintiff requested reconsideration of the ABCMR's opinion, challenging the validity of the discharge on the same grounds that he had in his previous application: (1) that the physician who terminated the MEB had no authority to do so and (2) that no medical justification existed to terminate the MEB. AR 14. Plaintiff provided as new evidence a Department of Veterans' Affairs (“VA”) rating decision dated June 22, 2004, that gave him a combined disability rating of 50 percent. See AR 5, 12, 15. On March 7, 2007, the ABCMR unanimously denied his reconsideration request. AR 1–7.

On July 7, 2009, Coburn brought this action, seeking review of the ABCMR's decisions in 2003 and 2007. He filed an amended complaint on September 3, 2009, seeking declaratory judgment that the Army unlawfully separated him for marijuana use, that the Army unlawfully terminated his disability evaluation, that Army regulations prohibited his separation, and that the ABCMR's decision-making process did not comply with statutory authority or Army regulations. The parties then filed the currently pending cross-motions.

ANALYSIS

I. Standards of Review

Defendant moves to dismiss under Rule 12(b)(6).² To survive a motion to dismiss for failure to state a claim upon which relief can be granted, a plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted); see also Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (stating that if a court has determined that a plaintiff has asserted “well-pleaded factual allegations,” the court “should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief”). When a Court is resolving a motion to dismiss, “the complaint is construed liberally in the plaintiff['s] favor,” and the plaintiff is granted “the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994).

The parties have also filed cross-motions for summary judgment. Summary judgment is appropriate when the pleadings and the record demonstrate 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). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and the Court draws all reasonable inferences regarding the assertions made in a light favorable to the non-moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party opposing a motion for summary judgment, however, “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (internal quotations omitted).

Under the APA, the Court will overturn an agency decision only if it is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency action is arbitrary and capricious if the agency has failed to follow procedure as required by law or has entirely failed to consider an important aspect of the problem. See Motor Vehicle Mfrs. Ass'n v....