Saint-Fleur v. McHugh, Civil No. 1:13–cv–01019 APM

• Decision Date: 17 March 2015
• Docket Number: Civil No. 1:13–cv–01019 APM
• Parties: Pierre E. Saint–Fleur, Plaintiff, v. John M. McHugh, Secretary of the Army, Defendant.
• Court: U.S. District Court — District of Columbia

83 F.Supp.3d 149

Pierre E. Saint–Fleur, Plaintiff

v.John M. McHugh, Secretary of the Army, Defendant.

Civil No. 1:13–cv–01019 APM

United States District Court, District of Columbia.

Signed March 17, 2015

David Patrick Sheldon, Law Offices of David P. Sheldon, P.L.L.C., Washington, DC, for Plaintiff.

Wayne Holden Williams, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

Amit P. Mehta, United States District Judge

I. INTRODUCTION

In January 2011, Plaintiff Pierre E. Saint–Fleur, a black man of Haitian descent and a lieutenant colonel in the California Army National Guard, learned that he had not been promoted to the rank of colonel or appointed to the position of State Chaplain. Plaintiff Saint–Fleur sought redress from the Army Board for Correction of Military Records (“ABCMR” or “Board”), alleging that he was passed over for promotion because of his race and national origin. In October 2012, the ABCMR denied Plaintiff's requests for promotion and other relief. Plaintiff now challenges the ABCMR's decision on the ground that the Board allegedly failed to address two arguments: (1) his assertion that he was denied promotion in violation of Title VII of the Civil Rights Act of 1946, and (2) his contention that he was placed under the authority of a junior officer in violation of military regulations.

After reviewing the administrative record, the court concludes that the ABCMR sufficiently addressed Plaintiff's claim of discrimination and thus did not act arbitrarily or capriciously in denying him relief on that claim. On the other hand, the Board did act arbitrarily and capriciously as to Plaintiff's claim of improper subordination to a junior officer, because the Board neglected to address that claim altogether. The court remands Plaintiff's subordination claim to the ABCMR for further review.

II. BACKGROUND

A. Saint–Fleur's ABCMR Application

Plaintiff Pierre E. Saint–Fleur served his country with honor in various components of the U.S. Army for almost twenty-five years. After receiving an appointment in the U.S. Army Reserves as a commissioned officer in March 1988, Plaintiff spent most of his military career as a reserve chaplain in the California Army National Guard (“CAARNG”). Pl.'s Stmt. of Facts, ECF # 10–2 ¶ 2–11. In October 2004, Plaintiff entered active duty and, in 2005 and 2006, spent two tours in Iraq. Id. ¶ 4. Four years later, in October 2010, he returned to active duty service in Iraq and Kuwait. Id. ¶ 8. These tours earned him the distinction of the most deployed chaplain in California. J.A. of Certified Admin. R. (“AR”), ECF # 19, App. 1 at 29.¹ Throughout his career, Plaintiff received positive performance reviews and regular promotions, retiring with the rank of lieutenant colonel in December 2012. Pl.'s Stmt. of Facts ¶ 3–11.

In January 2011, Plaintiff learned that the CAARNG had denied him promotion to the rank of colonel and had not appointed him to the position of State Chaplain. Id. ¶ 13. The CAARNG instead selected a junior-ranking, white officer for the State Chaplain position. Id. Plaintiff submitted an application to the ABCMR in August 2011, asserting that his non-promotion resulted from discrimination based on race and national origin in violation of Title VII. AR, App. 1 at 2527. He also argued that he “was passed over for a promotion in contravention of the regulations for an officer that was his junior.” Id. at 29. Plaintiff requested that the ABCMR amend his official military personnel file, reinstate him “at the position he would have been placed in but for the illegal discrimination,” grant financial compensation to mitigate the consequences of the discrimination, and “grant any other relief as justice requires.” Id. at 26, 37.

To support his claims, Plaintiff offered a twelve-page memorandum prepared by counsel and fifty-six pages of supporting documents, including past academic transcripts, evaluations, and certificates; officer evaluation reports (OERs); and letters regarding military appointment and promotion eligibility. See generally AR, App. 1 at 26—App. 2 at 37. The ABCMR also obtained and considered Plaintiff's military personnel records, comprising an additional two hundred seventy pages of documents. See generally AR, App. 2 at 40—AR, App. 8 at 28.

Plaintiff submitted no concrete evidence to support his claim of discrimination; he did not even submit his own sworn affidavit. Instead, through his counsel's assertions, Plaintiff related several anecdotes of alleged discrimination. Plaintiff asserted that he was “subjected to harassment and disparate treatment by State Chaplain, Colonel Robert A. Johnson,” who “[o]n numerous occasions ... yelled, cursed at and made fun of LTC Saint–Fleur's accent and national origin, on at least one occasion shaking his finger at LTC Saint-[Fleur], which is a universal act of aggression.” AR, App. 1 at 30. Plaintiff also claimed that Colonel Johnson said that Plaintiff should never have been in the U.S. military. Id. Most damagingly, according to Plaintiff, Colonel Johnson placed Saint–Fleur under the control of a lower-ranking chaplain and then made a reference to this arrangement in Saint–Fleur's military personnel records. Id. Plaintiff alleged that several commanding officers knew of this discrimination, but did nothing to stop it, even after Plaintiff complained to one of them. Id. at 31. However, apart from a single statement written by Colonel Johnson in one of Plaintiff's OERs—remarking that “CH Saint–Fleur ... worked well under coordination and supervision of ... CH (MAJ) Stephen Forsythe”—Plaintiff provided no other documentation to support his allegations of harassment or inappropriate action by commanding officers. Id. at 30–31; AR, App. 2 at 20.

B. The ABCMR's Decision

In October 2012 the ABCMR denied Plaintiff's application on grounds of insufficient evidence. AR, App. 1 at 4. The Board observed that Plaintiff's military personnel file did not contain any “negative reviews, derogatory information, negative and/or race-motivated comments, or promotion passover memoranda.” Id. at 13. It also noted the absence of any “email, memorandum, [or] telephone conversation” to support his discrimination claim. Id . After “a comprehensive review of this case,” the Board concluded that there was “insufficient evidence in the applicant's records and/or provide[d] by the applicant or his counsel to support any of the issues he raised in his application.” Id.

C. Procedural History of this Case

Plaintiff filed his complaint on July 5, 2013, challenging the Board's decision under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.See Compl. Because the court's review under the APA is generally limited to the administrative record,² the parties conducted no discovery and filed cross-motions for summary judgment. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (finding that judicial review of the APA's “arbitrary and capricious” standard should focus on “the administrative record already in existence, not some new record made initially in the reviewing court”); Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C.Cir.1981) (noting that “it is well settled that judicial review of agency action is normally confined to the full administrative record before the agency at the time the decision was made”).

Defendant McHugh also moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction and for failure to state a claim, respectively. Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J., ECF # 7–1 at 4–7. As grounds for dismissal under both rules, Defendant argued that the court cannot resolve Plaintiff's claim because it would require review of a non-justiciable military personnel decision. See id. at 15–18. Although Defendant asserted non-justiciability as the reason to dismiss under both Rules 12(b)(1) and 12(b)(6), “there is a significant difference between determining whether a federal court has ‘jurisdiction of the subject matter’ and determining whether a cause over which a court has subject matter is ‘justiciable.’ ” Powell v. McCormack, 395 U.S. 486, 512, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (quoting Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ). The court has subject-matter jurisdiction over Plaintiff's APA claim under the “federal question” statute, 28 U.S.C. § 1331. See Oryszak v. Sullivan, 576 F.3d 522, 524–25 (D.C.Cir.2009).³ Whether or not his claim is a non-justiciable military personnel decision is an argument under Rule 12(b)(6) for failure to state a claim. See id. The court turns now to that issue.

III. LEGAL ANALYSIS

A. Defendant's Motion to Dismiss

Defendant contends that “to the extent that Plaintiff seeks to have this Court review the CAARNG's decision to select ... the CAARNG State Chaplain, Plaintiff presents a claim that is ‘clearly non[-]justiciable because consideration of these claims would require this Court to intrude upon military personnel decisions committed exclusively to the legislative and executive branches.’ ” Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. at 15 (quoting Assoc. of Civilian Technicians, Inc. v. United States, 601 F.Supp.2d 146, 160 (D.D.C.2009) ). Defendant further asserts that Plaintiff's challenge would require “the Court to review military decision[s] regarding how to best allocate military personnel” and “second guess military leaders' decisions with respect to the Army's procedures for membership, assignments, and promotions.” Id. at 16–17.

But Plaintiff does not seek the far-reaching relief that Defendant argues is non-justiciable. He does not, for instance, ask the court to order his retroactive promotion—relief that the court plainly could not grant. See Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (D.C.Cir.1989) (holding that a request for retroactive promotion “falls squarely within the realm of non[-] justiciable military personnel decisions”...