Taylor v. Def. Fin. & Accounting Serv.

• Decision Date: 02 January 2014
• Docket Number: NO. CIV. 2:12-2466 WBS DAD,CIV. 2:12-2466 WBS DAD
• Citation: Taylor v. Def. Fin. & Accounting Serv., NO. CIV. 2:12-2466 WBS DAD (E.D. Cal. Jan 02, 2014)
• Court: U.S. District Court — Eastern District of California
• Parties: GARY TAYLOR, Plaintiff, v. DEFENSE FINANCE & ACCOUNTING SERVICE; UNITED STATES OF AMERICA; DAVID S. BALDWIN; HARRY M. WYATT III; MARK GROVES; TERESA MCKAY; DOES ONE through TEN, Defendants.

GARY TAYLOR, Plaintiff, v. DEFENSE FINANCE & ACCOUNTING SERVICE; UNITED STATESOF AMERICA; DAVID S. BALDWIN; HARRY M. WYATT III;MARK GROVES; TERESA MCKAY; DOES ONE through TEN, Defendants.

NO. CIV. 2:12-2466 WBS DAD

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: January 2, 2014

MEMORANDUM AND ORDER RE: MOTIONS

FOR SUMMARY JUDGMENT

These motions for summary judgment come before the court on the following four claims: (1) a claim against defendant Defense Finance and Accounting Service ("DFAS") for violations of the Privacy Act, 5 U.S.C. § 552a; (2) a claim against defendants Major General David S. Baldwin, Lieutenant General Harry M. Wyatt III, Lieutenant Colonel Mark Groves, and Teresa McKay, the director of DFAS, for deprivation of due process in violation of42 U.S.C. § 1983; (3) a Bivens claim against Wyatt and McKay; and (4) a claim against the United States of America for intentional infliction of emotional distress. Each of these claims arises from plaintiff Gary Taylor's allegations that defendants attempted to recoup over $140,000 in pay ("the overpay debt") that plaintiff lawfully earned as a colonel in the California Air National Guard ("CANG"). Although the court for the following reasons grants defendants' motions for summary judgment on the four claims at issue, it expresses no opinion with regard to the validity of the overpay debt itself, and enters this Order without prejudice to any subsequent claims, not disposed of in this Order, properly seeking an adjudication of the validity of the overpay debt.

I. Factual & Procedural History

In 2003, plaintiff took a leave of absence from his job as an airline pilot to serve as a full-time military technician for CANG. (First Amended Complaint ("FAC" ¶ 15 (Docket No. 21).) In 2009, plaintiff was promoted to Commander of the 144th Fighter Wing of the Fresno Air National Guard ("FANG"). (Id.) The Air Force required the 144th Fighter Wing to provide pilots to serve 4380 individual eight-hour alert duty periods each year. (Id. ¶ 29.) The 144th Fighter Wing attempted to fulfill this obligation by permitting aircraft technicians - including plaintiff - to serve alert duty periods and to collect dual compensation for doing so. (See id. ¶¶ 30-32.)

In May 2010, an audit team from the National Guard Bureau audited the 144th Fighter Wing and noted that some pilots "may have received pay twice in one day." (Pl.'s Ex. 16 (DocketNo. 48-4).) Plaintiff then requested a legal review from CANG to determine whether the 144th Fighter Wing's practice of dual compensation had violated any military regulations. (Pl.'s Statement of Undisputed Facts ("PSUF") ¶ 10 (Docket No. 48-2).) Although Colonel Greg Strickland, the CANG Staff Judge Advocate, concluded that FANG had acted "reasonably and within their proper authority," (Pl.'s Ex. 10 (Docket No. 48-4)), plaintiff was removed from his position as the commander of the 144th Fighter Wing on July 28, 2 010. (FAC ¶ 36.)

In June 2010, Lieutenant General Harry M. Wyatt III, the director of the Air National Guard, attended a conference in Dallas, Texas at which plaintiff was present. (See Pl.'s Exs. 12, 12A (Docket No. 48-4).) Wyatt told an audience at the conference "that the pilots in Fresno were under investigation, that they were guilty, and that they would be court-martialed." (See PSUF ¶ 14.) A confidential informant averred that Wyatt also walked into a conference room at that event and stated that "one of you . . . made three times more than me and I'm a three star general" while staring directly at plaintiff. (Pl.'s Ex. 12.) Wyatt then told the audience that plaintiff had made approximately $350,000 and that "this guy might want to get a lawyer." (Pl.'s Ex. 12A.)

On August 31, 2010, the National Guard Bureau issued a preliminary draft report of its findings during the audit of the 144th Fighter Wing. (Pl.'s Ex. 16 (Docket No. 48-4).) Derrick E. Miller, the author of the report, stated in an attached memorandum that Wyatt had ordered the audit. (Id.) The report concluded that the 144th Fighter Wing had paid approximately$2,475,000 in improper dual compensation over the prior six years, and that "due to ineffective and inadequate internal controls . . . dual compensation risks could not be properly mitigated." (Id.) The report also recommended that the California National Guard "instate recoupment actions" for the money that was overpaid. (Id.)

In October 2010, Charles Piller, an investigative reporter for the Sacramento Bee, began to write a series of articles about alleged corruption in the California National Guard. (Pl.'s Ex. 54 (Docket No. 48-3).) On December 19, 2010, The Bee published a piece in which it was alleged that the pilots of the 144th Fighter Wing were "dozing for dollars" and improperly receiving dual compensation. (Pl.'s Ex. 55 (Docket No. 48-3).) The article noted that Taylor was relieved of his command of the 144th Fighter Wing, that he was "on pace to earn $316,000," and that "[a]uditors estimated that more than 40 percent of his recent income was improper." (Id.) The article quoted John Crocker, a Colonel in the California National Guard, who stated that "[t]here is a minimum an appearance that (commanders) self-enriched" and that Brigadier General Mary J. Kight, the Adjudant General of the California National Guard, "had lost full faith and confidence in Taylor's leadership skills." (Id.)

On March 10, 2011, The Bee published another piece which criticized the promotion of four of the accused pilots in the 144th Fighter Wing to command positions. (Pl.'s Ex. 57 (Docket No. 48-3).) This article quoted Wyatt, who commented that he had "great faith and confidence in the men and women ofthe 144th Fighter Wing" and that it was "unfortunate that the alleged actions of a few have brought discredit to those men and women." (Id.) During that month, Colonel Larry McKoane, a former commander of the 144th Fighter Wing, attended an Air National Guard Core Values Conference in Portland, OR, where he avers that Wyatt spent the majority of his presentations describing the alleged misconduct by the 144th Fighter Wing. (Pl.'s Ex. 69 (Docket No. 48-3).) Sabrella Bacon, an attendee at a May 2011 Executive Safety Summit in Orlando, FL, states that Wyatt devoted almost all of his presentation on "Ethics and Leadership" to discussing the alleged dual compensation violations. (Pl.'s Ex. 68 (Docket No. 48-3).) Bacon states that when she told another attendee that she was "embarrassed" by Wyatt's statements, that person responded that she "had heard it all before at a previous conference." (Id.)

On November 18, 2011, plaintiff retired from military service and received an honorable discharge. (See FAC ¶ 66; U.S. & DFAS Statement of Undisputed Facts ¶ 66 (Docket No. 40-1).) On December 12, 2011, Colonel Mark Groves, the Comptroller of the 144th Fighter Wing, informed plaintiff that he would submit the debt that plaintiff was allegedly overpaid (the "overpay debt") to DFAS for recoupment and provided him with a sample letter of indebtedness. (Pl.'s Ex. 30 (Docket No. 48-4).) That letter informed plaintiff that if he disagreed with the overpay debt, he could appeal the validity of the debt, request a waiver of the debt, or apply to the Air Force Board for Correction of Military Records, which was authorized to correct the record of the debt. (Id.) Plaintiff's attorney then attempted to obtain his militaryrecords from Groves, who instructed him that he would need to contact DFAS in order to obtain those records. (See Pl.'s Exs. 31-32 (Docket No. 48-4).)

On May 17, 2012, plaintiff received a letter from DFAS informing him that the overpay debt amounted to $142,698.58 and instructing him to repay the debt by June 16, 2012. (Pl.'s Ex. 33 (Docket No. 48-4).) On June 6, 2012, plaintiff's wife was denied credit while shopping for a refrigerator at Sears. (See Pl.'s Ex. 35 (Docket No. 48-4).) Plaintiff then obtained a copy of his credit report from Experian, which stated that plaintiff was past due on the overpay debt, that the account had been closed and referred for collection, and that plaintiff was more than 120 days past due on the account. (See Pl.'s Ex. 36 (Docket No. 48-4).) On July 12, 2012, the Treasury Department contacted plaintiff's mother, sought to ascertain his whereabouts, and asked for his phone number. (See Pl.'s Ex. 39 (Docket No. 484).) On July 24, 2012, plaintiff received a letter from the Treasury Department stating that his account had been referred for collection, that he now owed $182,956.29, and that he would incur additional penalties if he did not repay the debt within ten days. (Pl.'s Ex. 40 (Docket No. 48-4).)

After DFAS instructed him to repay the overpay debt, plaintiff's attorney wrote a series of letters to DFAS (Pl.'s Ex. 38 (Docket No. 48-4)), to the Treasury Department, (Pl.'s Ex. 41 (Docket No. 48-4)), and to Baldwin, McKay, and Colonel Sami Said, the commander of the 144th Fighter Wing, (Pl.'s Ex. 42 (Docket No. 48-4)), requesting plaintiff's records and an administrative hearing. The National Guard Bureau responded on September 20,2012, and stated that it had forwarded plaintiff's requests for processing by the appropriate agencies. (Pl.'s Ex. 43 (Docket No. 48-4).)

In December 2010, DFAS determined that it had erroneously referred plaintiff's debt for collection and ordered the Treasury Department to stop collections and recall the account. (Pl.'s Ex. 45 (Docket No. 48-4). DFAS then contacted Taylor and informed him that his debt was prematurely forwarded to the Treasury Department for collections, that it had requested removal of his debt account from the credit bureaus, and that it had removed all interest and fees associated with the overpay debt. (Pl.'s Exs. 46-47 (Docket No. 48-4.) Although DFAS maintained that the overpay debt remained valid, it assured plaintiff that it would suspend collection efforts until plaintiff's legal challenges to the validity of the debt were...