Millet v. U.S. Dept. of Army
Decision Date | 18 October 2002 |
Docket Number | Civil No. 02-2431 (DRD). |
Citation | 245 F.Supp.2d 344 |
Parties | Madeline MILLET, et. al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE ARMY, et. al., Defendants. |
Court | U.S. District Court — District of Puerto Rico |
Frank D. Inserni-Milam, San Juan, PR, for Plaintiffs.
Fidel A. Sevillano-Del-Rio, Torre Chardon, Hato Rey, PR, for Defendants.
Pending before the Court is a motion for temporary restraining order and preliminary injunction filed by plaintiffs, on September 20, 2002. Docket No. 2. For the reasons stated below, the motion is denied.
Plaintiff instituted this action for a declaratory judgment and injunctive relief against the United States1 pursuant to the Fifth Amendment of the United States Constitution, 28 U.S.C. § 1331, 28 U.S.C. 1346; the Administrative Procedure Act (APA), 5 U.S.C. § 702; the Rehabilitation Act of 1973, 29 U.S.C. 794; and Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq. Pending before the Court is defendant's motion to dismiss and plaintiffs opposition thereto. A Show Cause hearing was held before this court concerning this action on October 7 and 8, 2002. The Court received testimonial as well as documentary evidence from both parties to this action
The Plaintiff is a general schedule grade six (GS-6) civilian employee for the Department of the Army working at Fort Buchanan, Puerto Rico. Prior thereto Plaintiff was a non-commissioned officer for twenty-one years, voluntarily retiring as a Sergeant 1st Class, effective January 1, 2002. She brings this action on behalf of her minor children Fabien Neely and Madeline Millet. As a current civilian employee she prays that this Court order the re-enrollment of those children into the Antilles Consolidated School System operated by the defendant Department of Defense. The Antilles Consolidated School System (ACSS) is operated by the Department of Defense Domestic Dependent Elementary and Secondary Schools (DDESS), pursuant to 10 U.S.C. § 2164.2 The fundamental facts in this case as set forth in the pleadings and evidenced at the Show Cause hearing, are not in dispute. Rather, the issue to be decided by this Court is whether an inadvertent enrollment of the Plaintiffs minor children in ACSS of a few hours in a day creates a legal entitlement or a property interest to continued enrollment which the Defendants should be permanently enjoined from terminating. For the reasons set forth below, this Court declines to find that the accidental and temporary enrollment which occurred in this case created a legal entitlement or a protected property interest to continued enrollment enforceable by the Federal judiciary.
1. Plaintiff Madeline Millet served as an enlisted member of the United States Army for approximately 21 years. Her last assignment was to Fort Buchanan, Puerto Rico, in 1999. She retired voluntarily from active duty, effective January 1, 2002. In conjunction with her military assignment to Puerto Rico, she enrolled her dependant children in ACSS. That is, she enrolled her children in the Fort Buchanan base schools operated by DDESS. During 2001, her last year of active duty, Plaintiff requested that she be granted a waiver to the established student eligibility rules for ACSS so that her dependants could continue to attend school on Fort Buchanan after her retirement.
2. By letter dated November 16, 2001, Plaintiff was advised by the Department of Defense Education Activity that she had lost statutory eligibility to continue sponsorship of her dependents in ACSS. (Joint Exhibit III). She could enroll her children if she joined her husband who was serving in the military and stationed in Colorado. While Plaintiff did not receive the blanket exemption from eligibility requirements for ACSS that she requested, plaintiff was granted two limited waivers for her dependents pursuant to statutory and regulatory provisions set forth more fully further in this decision. That is, her eldest dependent, Yeleen, was granted a "Rising Senior" exception that permitted this student to continue enrollment for the 2002-2003 academic year and complete her final year of High School at ACSS. Likewise, a younger dependent, Fabien, was permitted to complete the 2001-2002 school year, even though her sponsor (plaintiff) had retired from active duty at the end of calendar year 2001, in the middle of the academic school year. (Joint Exhibit III).
3. After her retirement from active military service, plaintiff gained employment as a general schedule, grade four, civil service employee, with the Department of the Army, at Fort Buchanan, in July of 2002. (Plaintiffs Exhibit 6, p. 3.) Plaintiff testified that she petitioned the Department of the Army, Headquarters, United States Army South, to designate her position as being one subject to a policy and practice of transfer. Because plaintiff was no longer an active duty military member, this determination of "transferability" was pivotal to her regulatory eligibility to sponsor dependants for enrollment in ACSS as a civilian employee. By decision dated August 21, 2002, the Army denied this request (plaintiffs Exhibit 1).3
4. By letter dated 21 August 2002, the Plaintiff submitted an application to Dr. Elaine B. Hinman, the Director of DDESS, seeking once again to be granted a waiver of established eligibility rules on behalf of all of her dependent children, eligibility that she had lost when she retired from active duty military service. In her request for reconsideration, the Plaintiff asserted she had regained eligibility for her dependents to attend ACSS as she had obtained Federal civilian employment with the Department of the Army. Plaintiffs request for reconsideration included a letter of from her senior level supervisor, Colonel Alcides Velez, Jr., which unequivocal declared that "Ms Millet's position is subject by policy and practices to transfer or reassignment to a location where the English language is the language of instruction in schools normally attended by dependant children of Federal personnel."
5. Plaintiff testified that she was verbally advised, on August 27, 2002, by Mr. Philip Deavel, Assistant General Counsel for the Department of Defense Education Activity, that if in fact the Army had certified her position as being "subject by policy and practices to transfer or reassignment," she would regain eligibility for ACSS. The Plaintiff testified that based upon this information she thus enrolled her children in ACSS, on August 28, 2002.
6. However, Mr Deavel testified that on August 28, 2002, Major General Alfred Valenzuela, the Commander of United States Army South (USARSO), advised representatives of ACSS and DDESS of the following facts: First, that Colonel Velez had no authority to designate which civilian positions within his command were "transferable." Secondly, in accordance with written command directives, Colonel Velez should have addressed his memorandum to duly-delegated Army officials, for consideration only, and not directly to DDESS as an official Army decision. Lastly, Mr. Deavel testified that General Valenzuela advised him that Plaintiffs position had not in fact been designated as "transferable."4
7. Colonel Velez testified at the hearing, and acknowledged that he had not been delegated authority to make civilian transferability decisions on behalf of the Army. Colonel Velez also testified that he had intended his letter only as a personal recommendation that Plaintiffs position should be designated as transferable, not as an official pronouncement by the Army: "I strongly recommend approval of Ms. Madelline Millet's request to enroll her daughters ... in the Antilles Consolidated School System." See Joint Exhibit I, H 1.
8. The Director of Personnel for USARSO, Colonel Simmons, testified at the Show Cause hearing and confirmed that Colonel Velez, as a logistics officer, had no authority to make official certifications of transferability on behalf of the Army.
9. Mr. Deavel also testified that he informed the Plaintiff on the same date that he spoke with Gen Valenzuela, advising her that the Army "certification" of transferability submitted with her request for reconsideration was made by an officer with no authority to make those determinations on behalf of the Army, and was therefore a nullity. Plaintiff accepted that she was advised on the same date by Mr. Deavel that Colonel Velez had no authority to grant a certificate of transferability and, hence, the prior action taken that same date was rescinded and null. Based upon the testimony of both the Plaintiff and Mr Deavel, there is no question that plaintiff was advised, on the same date of August 28, 2002, that she must obtain valid certification of her position as "transferable" from the Army, if she was to continue the enrollment of her dependents in ACSS on the basis of her Federal civilian employment.5 Her eldest daughter, Yeleen, remained "grand-fathered" to graduate under the "Rising Senior" exception authorized under the regulations.
10. By letter dated 5 September 2002, Dr. Elaine B. Hinman, the Director of DDESS, advised Plaintiff that as no valid certification of her position from the Department of the Army had been received, Plaintiff lacked eligibility to continue enrollment of her dependents, Fabien Neely and Anna Millet, in ACSS. (Joint Exhibit III). However, Plaintiffs dependents were not immediately disenrolled from ACSS. By letter dated 10 September 2002, the Assistant Superintendent of ACSS advised the Plaintiff that enrollment of her dependents would end effective 20 September 20002. Plaintiffs dependents Fabien Neely and Madeline Millet were in fact disenrolled, on 20 September 2002.
It is clear from the petition before the Court that the Plaintiff is attacking both the decision of the Army not to certify her position...
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Rodriguez-Pedraza v. U.S. Dept. of Defense
...federal agencies, are amenable to suit under the IDEA. In fact, a case previously decided by this Court, Millet v. United States Department of the Army, 245 F.Supp.2d 344 (D.P.R.2002), greatly undermines the plaintiffs' position. In Millet, the Court held that the IDEA was not applicable to......