Jackson v. Mabus
| Decision Date | 15 July 2014 |
| Docket Number | Civil Action No. 10–1861 BJR |
| Citation | 56 F.Supp.3d 1 |
| Parties | Walter J. Jackson, Jr., Plaintiff, v. Ray Mabus, Secretary of the Navy, Defendant. |
| Court | U.S. District Court — District of Columbia |
John B. Wells, Law Offices of John B. Wells, Slidell, LA, for Plaintiff.
Wynne Patrick Kelly, U.S. Attorney's Office, Washington, DC, for Defendant.
In this action, Walter J. Jackson (“Jackson”) challenges the Board of Correction of Naval Records' (“BCNR” or “the Board”) decision not to correct his records and the Board's denial of his request to reconsider its decision. Before the Court are Defendant's Motion to Dismiss, or in the alternative, for Summary Judgment (“Def.'s Mot. Dismiss/Summ. J.”) [Dkt. #35] and Plaintiff's Motion for Summary Judgment [Dkt. #39]. Having reviewed the parties' briefs together with the relevant materials, for the reasons set forth below, Defendant's Motion to Dismiss is DENIED IN PART and GRANTED IN PART ; Defendant's Motion for Summary Judgment is GRANTED ; and Plaintiff's Motion for Summary Judgment is DENIED .
Jackson enlisted in the United States Navy in 1989. Second Amended Complaint (“Second Am. Compl.”) [Dkt. #31] ¶ III. Jackson served in the Navy until 1999 when he was honorably discharged. Id. ¶ IV. He re-enlisted in 2000. Id. ¶ VII. In 2004, Jackson was transferred to United States Naval Computer and Telecommunications Stations Bahrain (“NCTS Bahrain”). Id. ¶ XVIII.
In February 2005 while serving at NCTS Bahrain, Jackson was counseled by his superior officer for checking out a day early for his scheduled leave. Def.'s Mot. Dismiss/Summ. J. at 3. Later that year, Jackson sought and received Funded Environmental and Morale Leave (“FEML”). Second Am. Compl. ¶ XXI. His ticket, organized and purchased by the government travel office, was for a flight departing Bahrain one day earlier than his FEML had been scheduled. Id. ¶¶ XXII, XXIII. According to Plaintiff, before leaving, Jackson checked out with his Command Duty Officer, who instructed Jackson to leave despite the discrepancy between the date on his leave orders and the date of his scheduled flight. Id. ¶ XXV. When Jackson returned to NCTS Bahrain and checked back in with a different Command Duty Officer, he was one day later than his scheduled leave. Def.'s Mot. Dismiss/Summ. J. at 3. Jackson was charged with unauthorized absence. Second Am. Compl. ¶ XXVIII. Given the choice, Jackson demanded a court martial rather than nonjudicial punishment, known as Captain's Mast. Id. ¶¶ XXIX, XXX, XXXI.
Shortly after Jackson requested a court martial, Hurricane Katrina struck Louisiana, where Jackson's family lived. Second Am. Compl. ¶ XXXIII. In response to Hurricane Katrina, the Chief of Naval Operations directed commanding officers to make every effort to support members of the Navy by granting leave to those with family members affected by the hurricane, notwithstanding a standing policy at NCTS Bahrain limiting members to thirty-two days of leave each year in order to ensure extensive leave was not taken during relatively short tours of duty. Def.'s Mot. Dismiss/Summ. J. at 5.
Jackson requested thirty days emergency leave to assist his family, but his request was denied due to his pending court martial. Second Am. Compl. ¶¶ XXVI, XXXVII. Jackson then accepted non judicial punishment. He received a suspended reduction to the next inferior pay grade (E–5) and was required to forfeit half of his pay for two months. Id. ¶¶ XXVII, XL. Jackson again requested emergency leave. Id. ¶ XLI. He was granted sixteen days leave, Id. ¶ XLV, and he left for New Orleans on November 30, 2005, Def.'s Mot. Dismiss/Summ. J. at 7. His leave was extended three times while he was in New Orleans—for seven days, two days, and another two days. Second Am. Compl. ¶ XLVI.
According to Defendant, in April 2006, Jackson disobeyed an order and engaged in a verbal altercation with a superior officer, violating the probation he was serving from his earlier non judicial punishment. Def.'s Mot. Dismiss/Summ. J. at 7. In response, his previously suspended reduction in rank was imposed, making his rank E–5 effective in May 2006. Id. at 8.
In addition to the above instances, Jackson received several poor performance evaluations and was not recommended for reenlistment. Second Am. Compl. ¶¶ XLVIII, L, LIV. According to Plaintiff, Jackson filed two protective communications under the Military Whistle Blower Act—once before his non judicial punishment and once after his adverse performance evaluations. Plaintiff's Opposition to Defendant's Motion to Dismiss, or in the alternative, for Summary Judgment ( ”) [Dkt. #36] at 11–12. Jackson was honorably discharged from the army in July 2006 with the reenlistment code RE–4, which signifies that the individual is not recommended for reenlistment in any branch of service. Id. ¶¶ LV, LVI.
Jackson initially sought to modify his records through appeal to the BCNR in January 2007. Second Am. Compl. ¶ LVII. Jackson asked the BCNR to remove the non judicial punishment from his record; correct the reason for his discharge; change his separation and re-entry code to “KBK” and “RE–1”; and remove two evaluations from 2006. Id. In May 2007, the BCNR denied his application. Id. ¶ LVIII. The BCNR summarized the record and stated “the evidence was insufficient to establish the existence of probable material error or injustice.” Administrative Record (“AR”) at 40.
Jackson requested the BCNR reconsider his request in September 2007. Def.'s Mot. Dismiss/Summ. J. at 10. According to its governing regulations, the BCNR must approve a request for reconsideration if the applicant presents new and material evidence. 32 C.F.R. § 723.9. New evidence is “evidence not previously considered by the Board and not reasonably available to the applicant at the time of the previous application.” Id. Material evidence is “likely to have a substantial effect on the outcome.” Id. The BCNR denied Jackson's request for reconsideration that September, stating only that there was no new or material evidence submitted to the BNCR for review. AR at 5. Shortly after its denial of reconsideration, the BCNR received a binder of information in support of Jackson's request for reconsideration. Def.'s Mot. Dismiss/Summ. J. at 10–11. The Board did not change its decision and did not consider the material in the binder. Id.
Jackson filed this case in November 2010. Second Am. Compl. ¶ LIX. This Court remanded the case to the BCNR to consider the binder of evidence received after the first denial of reconsideration. Id. ¶ LX. The BCNR again denied Jackson's request in February 2011. Id. ¶ LXII. The denial was not communicated to Jackson until May 2011. Def.'s Mot. Dismiss/Summ. J. at 11. The BCNR's denial echoed its September 2007 denial, stating there was no new or material evidence for the board to consider. The same month, Jackson submitted results from a polygraph test and a report by an investigator. Second Am. Compl. ¶ LXV. In September 2011, after reviewing the additional evidence, the BCNR denied this request for reconsideration. Once again, the board sent a conclusory letter asserting no new or material evidence was provided by Jackson. AR at 633.
After an amended complaint and cross motions for summary judgment, this Court remanded this case to the BCNR, requesting its reasons for concluding that Jackson's most recent request did not include new and material evidence as required by 32 C.F.R. § 723.9. Second Am. Compl. ¶ LXVII. In its most recent review, the BCNR reviewed all of the evidence submitted by Jackson, including the polygraph and investigation report, and denied Johnson's request for reconsideration. Second Am. Compl. ¶ LXXII; Def.'s Mot. Dismiss/Summ. J. at 12. As to the polygraph, the BCNR explained that it “merely ... recit [ed] ... the facts as to why [Jackson] thought [he] had been on authorized leave” and confirmed the evidence already reviewed by the BCNR. AR at 607. Therefore, according to the BCNR, no new and material evidence was submitted and reconsideration was not justified. AR at 608. The BCNR also addressed Jackson's arguments concerning his unauthorized leave. The BCNR found that the leave extended longer than allowed and that Jackson did not have reason to believe that the Command Duty Officer had the authority to modify or approve changes to his leave. Id. Last, the BCNR said that Jackson did not have whistleblower status because no “protected communication ... resulted in reprisal.” Id.
Following the BCNR's most recent denial, Jackson filed a Second Amended Complaint. [Dkt. #31]. Jackson's Second Amended Complaint alleges his Commanding Officer and the BCNR made decisions that were arbitrary and capricious, unsupported by substantial evidence, and in contravention of law. Additionally, in his complaint Jackson claims his Commanding Officer and the BCNR violated his due process rights. The parties then filed the motions currently before the Court.
The justiciability of a case is properly raised and adjudicated upon a motion to dismiss for failure to state a claim upon which relief can be granted. See Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C.Cir.2009). On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12(b)(6), a court may dismiss a case if Plaintiff's complaint fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The court must view the factual allegations as true and consider them in the light most favorable to the non-moving party. See, e.g., Tr u deau v. Federal Trade Com'n, 456 F.3d 178, 193 (D.C.Cir.2006).
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