Gengler v. U.S. ex rel. Its Dept. of Def. and Navy
| Decision Date | 24 August 2006 |
| Docket Number | No. 1:06-CV-00362 OWW LJO.,1:06-CV-00362 OWW LJO. |
| Court | U.S. District Court — Eastern District of California |
| Parties | Lt. Richard T. GENGLER and Lt. Daniel S. McSeveney, Plaintiffs, v. UNITED STATES of America through ITS DEPARTMENT OF DEFENSE AND NAVY; and Secretary Donald C. Winter, Defendant. |
Timothy Ross Lord, Lewis Brisbois Bisgaard & Smith LLP, San Francisco, CA, Jeffrey Bruce Stoltz, Lewis Brisbois Bisgaard and Smith, Los Angeles, CA, for Plaintiffs.
Kimberly Anne Gaab, Kristi Culver Kapetan, United States Attorney, Fresno, CA, for Defendant.
Before the court for decision is Defendants' motion to dismiss for lack of subject matter jurisdiction, Fed. R. Civ. Pro. 12(b)(2), and for failure to state a claim, Fed.R.Civ.P. 12(b)(6). (Doc. 31, filed Aug. 3 2006.)
Plaintiffs Richard T. Gengler and Lt. Daniel S. McSeveney are Naval Officers and Aviators who are currently stationed with the Operational Test Evaluation Squadron Nine (VX-9) in China Lake, California. They are assigned as Operational Test Directors for the F/A-18C-F weapons system programs and currently are on "detachment" in Key West, Florida, performing operational tests on a radar system. (Doc. 16 at 1; Pltfs' Decis. at ¶ 7; Gunter Decl. at 3.)
Plaintiffs both entered the Navy in April 1996, after signing separate "Aviation Officer Candidate Program Service Agreements (the `Service Agreements"). The Service Agreements were drafted by the Navy and signed on the Navy's behalf by another Naval Officer. Among other things, the Service Agreements state that each consented to "serve on active duty as a commissioned officer for a period of seven years from date of, designation as a Naval Aviator." (Pltfs' Decls. Ex A, at ¶ 2.)2
Plaintiffs successfully completed their flight training and were designated as Naval Aviators in February 1999 (Gengler) and April 1999 (McSeveney), respectively. The Navy asserts that Plaintiffs confirmed their eight year term of duty when Plaintiffs were given their "winging orders," a document both Plaintiffs received in 1999. (Doc. 25, Gunter Decl. at 2).3 Plaintiffs assert, however, that the seven year commitment term contained in their Service Agreements was confirmed orally by a "Student Control Officer" in April 1999. (Plaintiffs' Decls. at ¶ 6.)4
It is undisputed that Plaintiffs have served with distinction since 1999. Each logged more than 150 hours in combat situations and each received numerous medals for valor during combat. (Doc. 16 at 4.)
When their contractual seven-year term of active duty approached its end, both Plaintiffs notified their Commanding Officers that they would be requesting release from active duty ("RAD"). (Pltfs' Decls. at ¶ 8.) The Navy denied Plaintiffs' requests. (Id.) Plaintiffs appealed the denial to (a) their Commanding Officer, (b) the Naval Personnel Department, (c) the Board for Correction of Naval Records ("BCNR"), a nd (c) the Secretary of the Navy. (Id. at ¶¶ 9-13 & Ex. I — S.) All these appeals were rejected, and the Navy informed Plaintiffs that their administrative remedies had been exhausted. (Id. at Ex. E.)
The seven year termination dates for Plaintiffs Gengler and McSeveney were April and February 2006, respectively. Plaintiffs assert that being required to serve beyond the seven-year contractual term constitutes irreparable harm in and of itself. Plaintiffs also point out that there is the potential for even more severe hardships if they are deployed outside the Continental United States. At the time the habeas petition in this case was filed, Plaintiffs' were on "shore duty" assigned to a "non-deployable" unit in California. Plaintiffs believe that it is likely that their status will change. According to Lt. McSeveney:
The Navy gives orders to its sailors and officers in approximately three-year blocks, typically alternating between "sea duty" and "shore duty." A sea tour typically lasts 36 months, while a shore tour lasts 33 months. During a sea tour, Navy personnel are assigned to an operational unit such as an aircraft squadron, destroyer or submarine, and are expected to deploy either on a set schedule or as needed, dictated by operational necessity. While on a shore tour, personnel are assigned to a non-deployable unit, such as a training squadron, test unit or recruiting office, and are not expected to deploy in an operational capacity. This alternating rotation is designed to ensure that Navy sailors and officers are able to spend adequate time with their families away from the stresses of operational duty. By refusing to honor my contract and delaying the administrative process for two years, the Navy has put me in an administrative limbo between shore duty and sea duty. According to my contract, my time in the Navy should have been complete last month, February 2006. My current set of orders for shore duty end[ed] March 2006. Since the Navy is attempting to keep me in for an eightli year, this will leave me with eleven months of service to complete. The Navy will not issue Permanent Change of duty station (PCS) orders for members with less than twelve months of service remaining since the cost of moving an entire family is prohibitive for that small amount of time, so my current shore tour orders will be extended. The effect of that eleven-month extension, however, is to change my duty status from non-deployable to deployable to locations outside the Continental United States ("CONUS"). Like many active duty Navy personnel on sea duty with a limited amount of time remaining in their service, it is highly likely that this change in status will result in my being deployed to Iraq, where I will augment U.S. ground forces in hard-tofill billets. In other words, the Navy is not attempting to keep me in service to take advantage of my extensive training and tactical expertise as a strike fighter pilot, but simply to use me as a body to fill the position of an Army officer the Army failed to recruit or entice to stay in the service. The navy has never made a request of me to serve any extra time in my trained capacity as a strike fighter pilot. in fact, the Navy currently has a surplus of officers as evidenced by the Involuntary Release from Active Duty (IRAD) policy, which resulted in the released of more than 400 officers in December 2003 and another 120 in May of 2004.
According to Lieutenant Commander Jeremy W. Gunter, assignment of Plaintiffs overseas is "unlikely at this point"
I am [] responsible for filling Individual Augmentee (IA) assignments for six to twelve month deployments to Iraq, Afghanistan, and other places where additional manpower for the Global War on Terror may be needed. These billets are located all over the world and included some in the Continental United States. While I do not have overall control of the selection process for officers who fill IA billets, I do coordinate the orders for officers under my assignment who are selected for such deployments. Neither LT Gengler nor LT McSeveney is currently under orders to deploy as an IA. While it is possible that their Commanding Officer may select one or both of them for such an assignment if he were asked to provide officers, it is my opinion that it is unlikely at this point.
Plaintiffs highlight several other aspects of their personal situations. First, Lt McSeveney recently purchased a home in Denver, Colorado, which his family planned to occupy in December 2005. (McSeveney Decl. at ¶ 16.) Instead, the house sits empty "and the mortgage payment is rapidly eating into [his family] savings." (Id.) He has also been forced to cancel numerous aviation-related job interviews pending the outcome of this case. (Id.) Finally, McSeveney states that his wife scheduled an in-vitro fertilization attempt for this summer and that these plans would be disrupted if the Navy chooses to deploy him. (Id.)
Lt. Gengler has been accepted for admission to the University of Chicago Business School. His acceptance, however, is contingent upon his attending classes in August 2006. Additionally, Gengler believes that his ability to obtain a deferment of admission may be adversely affected by his age. He is currently 33 years old and the oldest student accepted at Chicago Business school this year was 35. (See Gengler Decl. at ¶ 16.)
Plaintiffs allege that the Navy approved the discharge requests of as many as eight other fixed-wing jet pilots with the same Service Agreements as Plaintiffs after they served only seven years of active duty. The Navy responded to this allegation at oral argument by explaining that those pilots had less exemplary service records and were selected for discharge on those grounds. However, the Navy has yet to produce any evidence regarding these eight other pilots.
In a supplemental declaration filed on July 25, 2006, Lt. Gengler describes a recently enacted reduction in force policy issued by the Navy. Specifically, Gengler asserts that Navy has acknowledged it is "overmanned with pilots and is looking to remove 300 of them biSeptember 30, 2006 presumably in advance of the next fiscal year." (Doc. 21.)
Because the pilots in question have not volunteered to retire, the Navy would have to pay them a severance package to force them out. I believe this severance package basically equates to two years salary by law.
In a cost saving effort, the Navy has decided to implement the [Voluntary Separation Pay] program (see attached Exhibit A). They have identified some target population within each different job type that they want to reduce, and have offered those candidates the opportunity to participate. This target group consists of more than the actual number of candidates [than] the Navy is looking for, in order to allow for competition among the...
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