West v. United States
| Decision Date | 26 July 2019 |
| Docket Number | No. 17-2052C,17-2052C |
| Parties | LUKE T. WEST, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Military Pay; Motion For Summary Judgment; RCFC 56; Motion For Judgment Upon The Administrative Record; RCFC 52.1; Motion For Relief From Protective Order; Collateral Estoppel.
Claiborne W. Brown, Counsel of Record, Mandeville, LA, for plaintiff.
Daniel S. Herzfeld, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E. Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC; Lieutenant P. Tyson Marx, Of Counsel, Judge Advocate General Corps, United States Navy, for defendant.
In this Military Pay Action, plaintiff, Luke T. West, challenges his general court-martial sentence and conviction under Article 93 of the Uniform Code of Military Justice ("UCMJ") and subsequent discharge from the military. See generally Am. Compl. As relief, plaintiff seeks, among other things: (1) to vacate the findings and sentence of his general court-martial; (2)placement in retirement status; (3) the correction of his military records, back pay and other benefits; or, (4) alternatively, that the Court remand this motion to the Navy Office of the Judge Advocate General. Am. Compl. at Prayer for Relief; Pl. Mot. at 76.
The parties have filed cross-motions for judgment upon the administrative record on the issue of whether the United States Marine Corps committed errors during plaintiff's general court-martial and post-trial proceedings that would warrant vacating his general court-martial conviction. See generally Pl. Mot.; Def. Mot. The government has also moved for summary judgment on the issue of whether plaintiff is collaterally estopped from arguing that certain individuals colluded to falsely accuse him of sexual assault and sexual harassment during the general court-martial proceedings. Def. Mot. 18-22.
In addition, plaintiff has filed a motion for relief from the Protective Order entered in this matter on April 24, 2018. See generally Pl. Mot. for Relief. For the reasons set forth below, the Court: (1) GRANTS the government's motion for summary judgment; (2) GRANTS the government's motion for judgment upon the administrative record; (3) DENIES plaintiff's cross-motion for judgment upon the administrative record; (4) DENIES plaintiff's motion for relief from protective order; and (5) DISMISSES the amended complaint.
Plaintiff, Luke T. West, alleges that he was the victim of "a coordinated leveling of false allegations of sexual assault against" him while enlisted in the United States Marine Corps ("Marine Corps") and stationed at the Marine Forces Reserves located in New Orleans, LA. Am. Compl. at ¶ 17. Plaintiff also challenges his general court-martial conviction and sentence under Article 93 of the UCMJ and his subsequent discharge from the military. See generally id. As relief, plaintiff seeks, among other things: (1) to vacate the findings and sentence of his generalcourt-martial; (2) placement in retirement status; (3) the correction of his military records, back pay and other benefits; or, (4) alternatively, that the Court remand this motion to the Navy Office of the Judge Advocate General. Am. Compl. at Prayer for Relief; Pl. Mot. at 76.
As background, plaintiff enlisted in the Marine Corps on September 30, 1998. AR Tab 40 at 753. Prior to his general court-martial, which resulted in a reduction in rank to Lance Corporal, plaintiff rose to the rank of Gunnery Sergeant. AR Tab 1 at 6 ().
In June 2013, the Finance Office at Marine Forces Reserve received formal equal opportunity complaints and unrestricted sexual assault and prevention response ("SAPR") complaints against plaintiff from Sergeant ("Sgt.") E[* * *] P[* * *]; Staff Sgt. R[* * *] A[* * *]; Lance Corporal B[* * *] H[* * *]; and Staff Sgt. C[* * *] R[* * *]. AR Tabs 23-25, 34-35. These sexual assault and sexual harassment complaints were referred to the Naval Criminal Investigative Service ("NCIS") for investigation. AR Tab 85 at 1741; see generally AR Tabs 16-16.2.
After the Article 32 investigating officer found probable cause existed to send many of the charges against plaintiff to a general court-martial, the Marine Corps Convening Authority ("Convening Authority") referred plaintiff to a general court-martial on December 23, 2013, and charged plaintiff with, among other things, sexual assault and various violations based upon indecent language. AR Tab 16.1 at 341, 343-48; AR Tab 155.1 at 3459. On February 20, 2014, one of the witnesses against plaintiff, Staff Sgt. A[* * *], was approached by Master Gunnery Sgt. Thomas, who handed her 140-pages of text messages between Staff Sgt. A[* * *] and plaintiff and stated that she would be embarrassed if these text messages came out at trial. AR Tab 16 at 328. Staff Sgt. A[* * *] subsequently testified that she felt pressure was being put on her to testify in a specific manner in connection with plaintiff's general court-martial. Id. And so, the NCIS opened a new investigation into plaintiff for obstruction of justice on February 26, 2014. AR tab 155.1 at 3565-66; see also AR Tab 96 at 2298-99; AR Tab 155.1 at 3530.
On April 23, 2014, the Convening Authority withdrew and dismissed the initial charges brought against plaintiff without prejudice, based upon the new investigation. AR Tab 16.1 at349; AR Tab 155.1 at 3459-60. In July 2014, the Marine Corps conducted a second investigation of plaintiff's conduct, which resulted in new violations of Articles 81 and 134 involving obstruction of justice and conspiracy to obstruct justice. AR Tab 16 at 324-30 (); see also AR Tab 85 at 1498-1501. The investigating officer determined that there was probable cause to move forward on the new charges against plaintiff. AR Tab 16 at 325.
On August 21, 2014, the Convening Authority referred the new case against plaintiff to a general court-martial, charging plaintiff with five violations of the UCMJ, namely: (1) conspiring to obstruct justice regarding the testimony of Staff Sgt. A[* * *] in violation of UCMJ Article 81; (2) three specifications of failing to obey lawful regulations in violation of UCMJ Article 92; (3) four specifications of maltreating subordinate Marines in violation of UCMJ Article 93; (4) four specifications of assault in violation of UCMJ Article 128; and (5) three specifications of prejudicing good order and discipline and bringing discredit to the armed forces, including obstruction of justice, in violation of UCMJ Article 134. AR Tab 17 at 371-76; AR Tab 155.1 at 4261. Specifically relevant to this dispute, plaintiff raised several evidentiary and other objections prior to, and during, the general court-martial proceedings related to the investigation and those proceedings. Am. Compl. at ¶¶ 42-49.
First, prior to the general court-martial trial, plaintiff moved to dismiss the criminal charges filed against him based upon an actual or apparent unlawful command influence ("UCI"). See Am. Compl. at ¶ 42; see generally AR Tab 85. Specifically, plaintiff raised four "interrelated factors" that he argued demonstrated actual or apparent UCI, namely, that:
See AR Tab 85 at 1502, 1534-1545.
On September 26, 2014, the military judge held a pre-trial hearing regarding plaintiff's motion to dismiss for UCI. AR Tab 155.1 at 3519. During the hearing, the two NCIS investigators who investigated the criminal charges brought against plaintiff independently testified that they felt no pressure to conduct the investigation. Id. at 3530, 3535-36. And so, the military judge denied plaintiff's motion to dismiss. Id. at 3541-42.
Second, plaintiff unsuccessfully moved to suppress certain text messages between himself and Master Gunnery Sgt. Thomas upon the ground that NCIS had obtained the text messages based upon an unlawful search and seizure. See Am. Compl. at ¶ 48(a); see generally AR Tab 81. After holding oral argument on plaintiff's motion to suppress, the military judge concluded that the authorization that plaintiff gave to NCIS to search his cell phone "was limited by the agreement brokered between the parties and...
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