Hoffler v. Hagel, 2:14–CV–63–D.

• Citation: 122 F.Supp.3d 438
• Decision Date: 10 August 2015
• Docket Number: No. 2:14–CV–63–D.,2:14–CV–63–D.
• Court: United States District Courts. 4th Circuit. Eastern District of North Carolina
• Parties: Joseph W. HOFFLER, Plaintiff, v. Charles HAGEL, Secretary of Defense, and Deborah Lee James, Secretary of the Air Force, Defendants.

122 F.Supp.3d 438

Joseph W. HOFFLER, Plaintiff,

v.Charles HAGEL, Secretary of Defense, and Deborah Lee James, Secretary of the Air Force, Defendants.

No. 2:14–CV–63–D.

United States District Court, E.D. North Carolina, Northern Division.

Signed Aug. 10, 2015.

Joseph W. Hoffler, Hertford, NC, pro se.

Matthew Lee Fesak, U.S. Attorney's Office, Raleigh, NC, for Defendant.

ORDER

JAMES C. DEVER III, Chief Judge.

On October 17, 2014, Joseph W. Hoffler ("Hoffler" or "plaintiff"), proceeding pro se, filed suit against Charles Hagel, Secretary of Defense, and Deborah Lee James, Secretary of the Air Force (collectively, "defendants") [D.E. 1].¹ Hoffler alleges that defendants violated the Administrative Procedure Act ("APA") when the Air Force Board for the Correction of Military Records ("AFBCMR") denied Hoffler's request for his military records to be corrected and for him to be promoted to colonel. Compl. [D.E. 1] 42–43. On January 6, 2015, Hoffler filed an amended complaint [D.E. 18]. Hoffler attached numerous documents to both complaints. On March 5, 2015, defendants moved to dismiss the case for lack of subject-matter jurisdiction or, in the alternative, for summary judgment [D.E. 21], On March 6, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975) (per curiam), the court notified Hoffler about the motion, the consequences of failing to respond, and the response deadline [D.E. 24], On April 27, 2015, Hoffler responded in opposition [D.E. 32]. On May 26, 2015, defendants replied [D.E. 35]. As explained below, the court grants in part and denies in part defendants' motion to dismiss for lack of subject-matter jurisdiction, and grants defendants' motion for summary judgment.

I.

Hoffler is a retired lieutenant colonel in the United States Air Force ("Air Force"). See [D.E. 22–1] 3 (AR 1). On September 27, 1962, Hoffler enlisted in the Air Force. Id. 37 (AR 35). After graduating from the Air Force Officer's Training School in July 1964, Hoffler served in multiple positions before being named commander of the 7625th Security Police Squadron at the Air Force Academy in June 1979. Am. Compl. [D.E. 18] ¶¶ 9–20. In October 1979, Hoffler was promoted to lieutenant colonel. Id. 5. "In December 1983, [Hoffler's] career advisor called him and informed him that he was ‘looking good’ for promotion to colonel." Id. ¶ 24.

In late 1983 or early 1984, Hoffler requested an extension of his assignment at the Air Force Academy, which was scheduled to end in June 1984, to September or October 1984. Id. 5–6. Although Colonel Melville, the then-Vice Chief of Staff at the Air Force Academy, initially denied the extension request, Colonel Henn, the Chief of Staff, approved the extension through September 1984. Id. 6–7. On January 17, 1984, in an attempt "to circumvent" a review by Colonel Melville from reaching the colonel's board, Hoffler submitted his retirement papers for Colonel Henn's approval so that Colonel Henn would write a (presumably) favorable review for Hoffler's promotion to colonel, but Hoffler planned on "rescind[ing] his retirement paperwork and meet[ing] the colonel's board" at the end of his extension in September. Id. ¶¶ 32–33; [D.E. 22–1] 102(AR 100). Hoffler "plann[ed] on being a 30 year Air Force man." Am. Compl. ¶ 33.

In early 1984, Colonel Melville replaced Colonel Henn as Chief of Staff. See id. ¶¶ 27, 38. In March 1984, following "allegations of fraud, waste, and abuse made to the [Inspector General]" by a member of Hoffler's squadron, Colonel Melville ordered a "special inquiry." [D.E. 22–1] 40 (AR 38); Am. Compl. ¶¶ 35, 38. After the inquiry was complete, a reviewing officer concluded that "[t]he evidence persuade[s] me" that Hoffler took government property for personal use, "countenanced and participated in gambling in the unit," and "abused his authority" with respect to a subordinate. [D.E. 22–1] 72 (AR 70).

On April 23, 1984, Colonel Melville issued a Letter of Reprimand ("LOR") to Hoffler, based on the special inquiry's findings. Id. 68 (AR 66). On April 26, 1984, Hoffler acknowledged receiving the LOR. Id. Hoffler contends that Colonel Melville issued the LOR to "destroy [Hoffler's] outstanding military career." Am. Compl. ¶¶ 67–68, 121.

On August 16, 1984, Hoffler filed a complaint and alleged that he received the LOR and was "fired from command of his squadron" because of Colonel Melville's "racial beliefs." [D.E. 22–1] 39 (AR 37); cf. Am. Compl. ¶¶ 41–43. On August 21, 1984, the Air Force ordered an Equal Opportunity and Treatment ("EOT") inquiry. [D.E. 22–1] 39 (AR 37). The inquiry officer concluded that, although the earlier "investigation of fraud, waste and abuse was conducted in an unprofessional manner," he could "find no compelling evidence to conclude that decisions made were on the basis of [Hoffler's] race." Id. 41 (AR 39).

On September 10, 1984, Hoffler was not selected for promotion to colonel. Id. 102 (AR 100). The promotion board saw his January 17, 1984 application for voluntary retirement, but no evidence suggests that the board saw the LOR. Id. 8 (AR 6). On September 30, 1984, Hoffler retired from the Air Force. Id. 8, 66 (AR 6, 64). The Air Force awarded Hoffler the Air Force Meritorious Service Medal ("MSM") for his service at the Air Force Academy. Id. 110 (AR 108). On May 21, 1985, however, the Superintendent of the Air Force Academy, Lieutenant General Scott, revoked Hoffler's MSM award, based on a March 29, 1985 inquiry. Id. 70, 110 (AR 68, 108).

In 1987, Hoffler appealed the revocation of the MSM to the AFBCMR and alleged that the revocation was "based on a very biased investigation which was a reprisal for his writing to his Senator." Id. 110 (AR 108). On October 26, 1987, the AFBCMR concluded that Hoffler failed to provide substantive evidence to prove that General Scott's revocation was an abuse of discretion, improper, or based on erroneous information. Id. 112 (AR 110). Thus, the AFBCMR denied Hoffler's request. Id.; see also id. 64 (AR 62).

On June 30, 2008, Hoffler again applied to the AFBCMR for correction of his military records by removing the LOR, promoting him to colonel, and reconsidering the MSM award. Id. 3, 13 (AR 1, 11). Although the application was untimely, the AFBCMR excused the application's untimeliness in the interest of justice. Id. 10 (AR 8). The AFBCMR concluded that Hoffler failed to present sufficient relevant evidence "to demonstrate the existence of error or injustice," and denied the application on January 14, 2009. Id. 3, 10 (AR 1, 8).

On February 20, 2014, Hoffler sent a letter to the Secretary of Defense. See id. 3 (AR 1). On March 20, 2014, the Director of the Air Force Review Boards Agency informed Hoffler that Hoffler had "exhausted all available administrative remedies." Id. 3–4 (AR 1–2). On October 17, 2014, Hoffler filed the instant action. [D.E. 1].

II.

Defendants moved to dismiss the complaint for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. [D.E. 21]; see Fed.R.Civ.P. 12(b)(1). Hoffler must establish jurisdiction. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93–94, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ; Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir.1991). When, as here, a defendant facially challenges the sufficiency of the allegations to support subject-matter jurisdiction, "the trial court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged." Kerns v. United States, 585 F.3d 187, 193 (4th Cir.2009). Additionally, a suit against the federal government or its officers in their official capacities requires the plaintiff to prove a waiver of sovereign immunity. See Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 733–34, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982) ; Mann v. Haigh, 120 F.3d 34, 37 (4th Cir.1997) ; Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995) ; Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994) ; Portsmouth Redev. & Hous. Auth. v. Pierce, 706 F.2d 471, 473 (4th Cir.1983).

Hoffler argues two statutory waivers of sovereign immunity grant this court subject-matter jurisdiction: (1) the APA, codified at 5 U.S.C. § 702 ; and (2) Title VII, codified at 42 U.S.C. § 2000e–16. See Am. Compl. 40–41 (advancing a claim under the APA); Pl.'s Mem. [D.E. 32] 23 (noting that the "essential issues of the case" include "racial discrimination [and] hostile workplace").² The court addresses each argument in turn.

A.

The APA permits private parties to sue the federal government to seek "relief other than money damages" for "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. §§ 702, 704. Accordingly, to have jurisdiction over an APA claim, the court must find that (1) Hoffler seeks relief other than money damages, and (2) there is no other adequate remedy in a court, including the United States Court of Federal Claims ("Claims Court"). See 5 U.S.C. §§ 702, 704 ; Bowen v. Massachusetts, 487 U.S. 879, 891, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) ; James v. Caldera, 159 F.3d 573, 578–79 (Fed.Cir.1998).

As for the first requirement, defendants do not argue, and it does not appear from the record, that Hoffler seeks money damages. See Bowen, 487 U.S. at 900–01, 910, 108 S.Ct. 2722 ; Schism v. United States, 316 F.3d 1259, 1268 (Fed.Cir.2002) (en banc); Ulmet v. United States, 888 F.2d 1028,1030–31 (4th Cir.1989) ; Nieves v. McHugh, 111 F.Supp.3d 667, 673–75, No. 5:14–CV–434–D, 2015 WL 3540455, at *4–6 (E.D.N.C. June 3, 2015) ; Defs.' Mem. [D.E. 22] 11–12. Thus, section 702's waiver of sovereign immunity applies.

As for the second requirement, section 704 permits judicial review for "final agency action for which there is no other adequate remedy." 5 U.S.C. § 704. Defendants argue that the Claims Court provides an adequate remedy for Hoffler and that this court cannot review Hoffler's claim under the APA. Defs....