House v. United States
| Decision Date | 08 July 2011 |
| Docket Number | No. 08-758C,08-758C |
| Parties | ROGER A. HOUSE, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Military pay case; Motion to dismiss or, in the alternative, for judgment on the administrative record; Wrongful conviction; Military Pay Act - money-mandating statute; Voluntary vs. involuntary separation; Presumption of voluntariness - rebuttable where coercion; Role of wrongful conduct; Roskos; Christie - three-part coercion test; Even where wrongful conduct, claimant must show he had no choice but to resign or retire; Resignation voluntary; Back pay based upon promotion; No automatic promotion under 10 U.S.C. § 624(d); Lewis and Dysart applied; Relief denied.
OPINIONJohn B. Wells, Slidell, LA, for plaintiff.
Stacy K. Grigsby, Civil Division, United States Department of Justice, Washington, D.C., with whom was Assistant Attorney General Tony West, for defendant.
While a Navy officer, the plaintiff in this military pay case was court-martialed on charges relating to the sexual assault of a sailor. Subsequently, he resigned from the Navy. After the filing of this case, investigations revealed that the DNA evidence used to convict plaintiff was faulty (and perhaps fraudulent), leading the Navy Judge Advocate General to set aside plaintiff's conviction. At issue is whether plaintiff's resignation from the Navy prevents him from receiving compensation under the Military Back Pay Act. For the reasons that follow, the court concludes that it does.
Roger A. House (plaintiff) enlisted in the United States Navy on September 26, 1983. On November 1, 1992, he was commissioned as an officer in the United States Navy Medical Service Corps. Lieutenant House eventually was chosen by the Surgeon General of the Navy to be his Executive Assistant. But before he could assume that position, he and two fellow officers (Lieutenants Williams and Harris) were charged with various crimes stemming from the alleged rape of a junior enlisted female. Dr. Phillip Mills, a forensic biologist for the U.S. Army Criminal Investigation Laboratory (USACIL), presented key evidence at the court-martial of the three officers. Dr. Mills testified that DNA (skin cells) taken from a condom found in the trash at Lieutenant Harris' house linked plaintiff to the assault.1 Concerned with the accuracy of the DNA results, plaintiff's counsel unsuccessfully sought to have this evidence independently tested. On January 31, 2002, plaintiff was acquitted of most of the crimes for which he was charged, including the charge of forcible rape, but was convicted of three charges: conduct unbecoming of an officer, conspiracy to make a false statement, and providing a false statement under oath.2
Two months later, in March of 2002, the Navy Staff Lieutenant Commander Selection Board recommended that plaintiff be promoted to Lieutenant Commander. Because of the prior conviction, however, the Navy, in an August 2002, letter, informed plaintiff that while he would "be included in the selection board report," his name would be withheld from the "All Navy" (ALNAV) message that promulgated the board results because of adverse information. The letter further explained that Department of Defense Instruction 1320.4 required the Secretary of the Navy to consider any adverse information concerning officers selected for promotion. It went on to state that "no final decision ha[s] been made" with respect to plaintiff's promotion and that he had the opportunity "to present the Secretary of the Navy with as much information as possible." Lieutenant House responded to this letter with two letters of his own, dated September 10, 2002, and January 13, 2003, respectively. In those letters, he took "full responsibility for violations of the Uniformed Code of Military Justice for which a guilty finding . . . was adjudged," requested an opportunity to stay with the Navy, and asked the Navy to act upon the Board's promotion recommendation.
On December 13, 2002, the convening authority approved the court-martial sentence and ordered plaintiff to pay a $1,000 fine. The convening authority also issued a letter of reprimand. Because of the court martial, the Navy initiated a procedure under SECNAVINST 1920.6Brequiring plaintiff to show cause why the Navy should retain him. Based on the information it received, the board found that Lieutenant House had committed misconduct, but by a split vote of 2-1 recommended that the Navy retain him. Following this ruling, Lieutenant House was no longer subject to administrative separation processing, pursuant to both Navy regulations and statute. See SECNAVINST 1920.6B (Dec. 13, 1999); see also 10 U.S.C. § 1182. Thereafter, he was counseled by several peers and superiors that his career was finished and that he should seek retirement. In June 2003, Lieutenant House submitted a retirement request. The Navy approved this request and plaintiff retired at his current rank of Lieutenant, effective October 1, 2003.
After retiring, plaintiff filed an Article 69 review challenging his court-martial conviction. In December of 2004, the Navy Judge Advocate General (the Navy JAG) set aside his conviction for false swearing. On July 27, 2005, Lieutenant House then filed a petition for extraordinary relief in the nature of a writ of mandamus and a petition for review under Uniform Code of Military Justice, Article 69(d), 10 U.S.C. § 869(d), with the United States Navy-Marine Corps Court of Criminal Appeals. The petition was denied on August 18, 2005. On September 6, 2005, he filed a writ of appeal in the United States Court of Appeals for the Armed Forces (CAAF); this appeal was denied on December 12, 2005. Lieutenant House then filed a petition for certiorari, which the Supreme Court denied on April 17, 2006. See House v. United States, 547 U.S. 1072 (2006).
On or about September 29, 2005 - after Lieutenant House filed his appeal with CAAF, but before the Supreme Court denied his petition for certiorari - plaintiff learned that Dr. Mills, the DNA expert who had testified at his court-martial, was being investigated by the USACIL for contaminating samples during his testing procedures and falsifying DNA entries. Armed with this information, on October 4, 2005, plaintiff filed a petition for a new trial. 3 On August 31, 2006, the Navy JAG denied the petition as untimely. Attempts to overturn this decision proved unsuccessful. Unbeknownst to plaintiff, in October of 2006, as a result of the misconduct investigation being conducted on Dr. Mills, the USACIL retested the DNA used to obtain his conviction. The retesting results, which were summarized in a November 17, 2006, report, excluded plaintiff and his codefendants as being the sources of the DNA that was used earlier to link them to the sexual assault. For reasons unexplained, this exculpatory information was provided neither to plaintiff nor to his counsel at or around the time it was discovered.
On October 28, 2008, plaintiff filed a complaint in this court attacking his court-martial conviction and requesting the return of the $1,000 fine. On April 8, 2009, the court granted the parties' joint motion to remand the case to the Office of the Navy JAG. On May 6, 2009, plaintiff was finally notified of the DNA retesting results; this same information was forwarded to the Navy JAG. On June 4, 2009, the Navy JAG issued an order setting aside Lieutenant House's conviction on all remaining charges and granting his request for a new trial.4 After this decision, on June 6, 2009, plaintiff filed an amended complaint, in which he prayed the court to: (i) restore the $1,000 fine; (ii) order his promotion to Lieutenant Commander on his scheduled promotion date along with corresponding back pay and allowances; (iii) order that his retirement grade be adjusted to Lieutenant Commander and that his retirement pay be adjusted accordingly, retroactive to his date of retirement; (iv) in the alternative, remand this case to the Board for Correction of Naval Records (BCNR) to correct his record in an appropriate manner; and (v) provide plaintiff with costs and any other relief deemed to be just and equitable.
On June 19, 2009, the court granted defendant's unopposed motion to remand the case to the BCNR. The court ordered the BCNR to consider three matters: (i) plaintiff's claim that he was selected for a promotion by the selection board; (ii) plaintiff's claim that he was forced to retire; and (iii) any matters that plaintiff presented in writing to the BCNR regarding his separation. In response, the BCNR, on December 16, 2009, decided to remove from plaintiff's Naval records all fitness reports referencing the court-martial conviction and to correct all references in those same records to the conviction. The BCNR, however, denied plaintiff's request for a retroactive promotion to the rank of Lieutenant Commander and found that Lieutenant House had voluntarily requested his retirement.
Following the receipt of the BCNR decision, on February 23, 2010, defendant filed a motion to dismiss or, in the alternative, a motion for judgment on the administrative record. On May 24, 2010, plaintiff filed a cross-motion for judgment on the administrative record. After briefing on the motions was completed, oral argument was held on February 1, 2011. Later,plaintiff conceded that the Navy had returned the $1,000 fine and that this portion of his case was moot.
As just recounted, Lieutenant House has been partially successful in this matter. Defendant has moved to dismiss the remaining counts in this case under RCFC 12(b)(1) and 12(b)(6). It has, alternatively, moved for judgment on the administrative record under RCFC 52.1, asserting that plaintiff is not entitled to any of the remaining relief requested. For his part, plaintiff has filed a cross-motion for judgment on the administrative record, claiming that his retirement from the Navy was involuntary and that he is...
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