Reilly v. The United States
| Decision Date | 09 July 2010 |
| Docket Number | No. 09-506C,09-506C |
| Parties | RICHARD J. REILLY,Plaintiff, v. THE UNITED STATES,Defendant. |
| Court | U.S. Claims Court |
RICHARD J. REILLY, Plaintiff,
v.
THE UNITED STATES, Defendant.
United States Claims Court.
Filed: July 9, 2010
Dale F. Saran, West Greenwich, RI, for plaintiff.
John S. Groat, Civil Division, United States Department of Justice, Washington, D.C., with whom was Assistant Attorney General Tony West, for defendant.
ALLEGRA Judge:
Richard Reilly (plaintiff) seeks, inter alia, restoration of rank, as well as all emoluments and pay to which he is entitled following his involuntary separation from the U.S. Marine Corps (the Corps), for twice failing selection for promotion to Major. He alleges that he was selected for promotion but that his name was improperly removed from the promotion list. And he asserts that the Board for Correction of Naval Records (BCNR) improperly failed to correct this error. Defendant has moved to dismiss plaintiff's complaint, claiming, pursuant to RCFC 12(b)(1), that this court lacks jurisdiction, or, alternatively, pursuant to RCFC 12(b)(6), that the complaint fails to state a claim upon which relief can be granted.
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A brief recitation of the facts provides necessary context.1
In 1993, plaintiff was commissioned as an officer in the Corps. In 1998, while deployed in Norway, plaintiff became inebriated while on liberty and inappropriately touched a female enlisted Marine while traveling back to base on the liberty bus. Plaintiff accepted nonjudicial punishment pursuant to 10 U.S.C. § 815, and was found guilty of violating Article 133 of the Uniform Code of Military Justice, 10 U.S.C. § 933, for engaging in conduct unbecoming an officer and a gentleman. He was issued a letter of reprimand, and forfeited $500.00 of his monthly pay for two months. On August 19, 1998, a board of inquiry determined that he had demonstrated substandard performance of duty and committed misconduct, but, nevertheless, recommended that he be retained in the Corps. Further administrative action on this matter was later dropped.
Plaintiff continued to serve on active duty until 2001, when he resigned and accepted a commission with the U.S. Marine Corps Reserve (USMCR). Plaintiff was first considered for promotion to Major in 2002 by the FY03 Reserve Major's Selection Board. Indeed, he was selected for promotion by that Board and scheduled to be promoted on October 1, 2002. That promotion, however, was delayed pending further consideration of the incident described above.
From January 14, 2003, to August 6, 2003, plaintiff was recalled to active duty and deployed to Iraq as part of Operation Enduring Freedom. While plaintiff was in the midst of this tour, on June 9, 2003, the Commandant of the Marine Corps (the Commandant) submitted a threepage memorandum to the Secretary of the Navy, recommending that plaintiff remain on the FY03 Major USMCR Promotion List (the 2003 promotion list), despite his prior discipline.2 It is
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somewhat unclear what happened next. As described in greater detail below, an affidavit supplied by a Marine officer in 2005 averred that the Commandant, after discussing the matter with the Secretary of the Navy, changed his recommendation. But, there is no communication from the Commandant to that effect in plaintiff's records. Those records instead show that on February 17, 2004, the Secretary of Navy disapproved the Commandant's promotion recommendation. Yet, consistent with the view that the Commandant had changed his mind, on May 31, 2004, the Deputy Undersecretary of Defense submitted a memorandum to the President recommending that plaintiff's name be removed from the 2003 promotion list, citing, as support for his decision, the Commandant's loss of confidence in plaintiff's abilities as an officer. On June 21, 2004, the President approved the Deputy Undersecretary's recommendation.
Plaintiff could not pursue promotion through the FY04 and FY05 Selection Boards while still being considered by the FY03 Board. Following resolution of his FY03 selection, in 2005, he resubmitted his promotion package, but was rejected by the FY06 Selection Board. This second nonpromotion decision automatically triggered plaintiff's discharge from the USMCR.
On June 8, 2005, plaintiff petitioned the BCNR to correct the records pertaining to his removal from the FY03 Promotion List and failure to be selected for the FY06 list, requesting that he be returned to the FY03 Promotion List and that his selection failures be rescinded. He claimed that the President had been misled to believe that the Commandant had recommended that his name be withdrawn from the promotion list, when, in fact, the Commandant had supported his promotion. In response, Captain Matthew Spurlock, a lawyer in the Judge Advocate General Division of the Corps, submitted an affidavit to the BCNR in which he reported a conversation with Major Pete Gillis, who had worked in the Corps' Office of Promotions during the relevant period. Captain Spurlock averred that Major Gillis had "personal knowledge" that, after a conversation with the Secretary of the Navy, the Commandant had "changed his mind" and ultimately decided not to support the promotion. When plaintiff's counsel objected to this affidavit as being "triple" hearsay, Captain Spurlock produced an affidavit by Major Gillis, in which the latter backed up Captain Spurlock's prior claims and, indeed, identified himself as the source of the information contained in the aforementioned May 31, 2004, memorandum from the Deputy Undersecretary referenced above. Neither affidavit submitted to the BCNR explained how Major
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Gillis had come by "personal knowledge" of the Commandant's conversation with the Secretary of the Navy or why there is no contemporaneous evidence of the Commandant's changed position in plaintiff's records.
Nevertheless, apparently without a hearing on the matter, on October 14, 2005, the BCNR denied plaintiff's application, rejecting his contention that there had been material error or injustice in the recommendation reported to the President. In so concluding, the BCNR relied squarely on Major Gillis' affidavit. It declined to find any inaccuracies in the recommendation sent to the President, relying on the "presumption of regularity" that accompanies the acts of government officials. On November 1, 2005, plaintiff was involuntarily discharged from USMCR, despite having more than seventeen years of service.
On August 3, 2009, plaintiff filed a complaint in this court, invoking, inter alia, the Administrative Procedures Act, 5 U.S.C. § 702 et seq., and the Tucker Act, 28 U.S.C. § 1491, and seeking: (i) constructive service from the time he was removed from the promotion list to date; and (ii) back pay, allowances, restoration of date and rank and lineal precedence, and any other emoluments to which he was entitled as a result of his allegedly improper removal from the promotion list, from the date he should have been promoted in 2003 to the present, plus interest. Plaintiff also asserted that the BCNR abused its discretion in basing its decision upon the "hearsay statements" of an officer. On October 23, 2009, defendant filed a motion to dismiss the complaint under RCFC 12(b)(1) and 12(b)(6). That motion has been fully briefed and was argued on February 25, 2010.
Deciding a motion to dismiss "starts with the complaint, which must be well-pleaded in that it must state the necessary elements of the plaintiff's claim, independent of any defense that may be interposed." Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997) (citations omitted); see also Bell Atl. Corp., 550 U.S. at 555. The plaintiff must establish that the court has subject matter jurisdiction over its claims. Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); Hansen v. United States, 65 Fed. Cl. 76, 94 (2005).
In addition, to survive a motion to dismiss for failure to state a claim under RCFC 12(b)(6), the complaint must have sufficient "facial plausibility" to "allow [] the court to draw the reasonable inference that the defendant is liable." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see also Colida v. Nokia, Inc., 347 Fed. Appx. 568, 569-70 (Fed. Cir. 2009). The plaintiff's factual allegations must "raise a right to relief above the speculative level" and cross "the line from conceivable to plausible." Bell Atl. Corp., 550 U.S. at 555; see also Dobyns v. United States, 91 Fed. Cl. 412, 422-28 (2010) (examining this pleading standard). Nevertheless, the Federal Circuit has recently reiterated that "[i]n ruling on a 12(b)(6) motion to dismiss, the court must accept as true the complaint's undisputed factual allegations and should construe them in a light most favorable to the plaintiff." Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009), cert. denied, 2010 WL 1024020 (U.S. June 21, 2010); see also Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir. 2009); Petro-Hunt, L.L.C. v. United States, 90 Fed. Cl. 51, 68 (2009).
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Plaintiff's monetary claims allegedly are rooted in the Tucker Act, 28 U.S.C. § 1491. That statute affords this court jurisdiction over "any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). "[B]ecause the Tucker Act itself does not create a substantive cause of action," the Federal Circuit...
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