Westcott v. McHugh
Decision Date | 16 April 2014 |
Docket Number | Civil Action No. 09–0401 RBW |
Citation | 39 F.Supp.3d 21 |
Court | U.S. District Court — District of Columbia |
Parties | Malcolm Bruce Westcott, Plaintiff, v. The Honorable John M. McHugh, Secretary of the Army, Defendant. |
Raymond J. Toney, The Law Office of Raymond J. Toney, Woodland, CA, for Plaintiff.
Kathryn Ann Donnelly, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.
The plaintiff, Malcolm B. Westcott, asserts claims under the Privacy Act, 5 U.S.C. § 552a(g)(1) (2006), and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (2006), against John M. McHugh, in his official capacity as Secretary of the Army, seeking the removal or revision of a General Officer Memorandum of Reprimand contained in his official military records. Second Amended Complaint (“Am. Compl.”) at ¶¶ 198, 206, 217. The defendant's motion to dismiss, or in the alternative, for summary judgment, and the plaintiff's cross-motion for summary judgment are currently before the Court. After carefully considering the parties' submissions,1 the Court concludes for the reasons that follow that it must deny the defendant's motion to dismiss, grant in part and deny in part the defendant's motion for summary judgment, and deny the plaintiff's motion for summary judgment.
The plaintiff served thirty-five years in the United States Army, retiring in 2003 at the rank of Colonel. Pl.'s Facts ¶ A1; Def.'s Facts at 1 ¶ 1. From 1997 until his retirement, he served in the Office of the Chief of Army Reserve. Pl.'s Facts ¶ A2; Def.'s Facts at 1 ¶ 2. In February 2001, the Department of the Army Inspector General (“Inspector General”) initiated an investigation into allegations regarding the plaintiff's role in securing and monitoring “a $100,000 ‘task order’ addition to an existing contract between the Army and SY Technologies, Inc. (“SY Tech”), a private defense contractor.” Pl.'s Facts ¶¶ A3, 135; Def.'s Facts at 1–2 ¶ 3; Def.'s Reply Facts ¶ 5. The Inspector General subsequently issued a report “substantiat[ing] the allegation that [Colonel] Westcott had negligently performed his duties as a contracting officer's technical representative [ (“Technical Representative”) ]” with respect to the $100,000 task order addition to the SY Tech contract with the Army. Pl.'s Facts ¶ 138; Def.'s Reply Facts ¶ 8.
On October 19, 2001, General John M. Keane, then Vice Chief of Staff of the Army Reserve, issued a General Officer Memorandum of Reprimand (“Reprimand”) to the plaintiff. A.R. at 000019–20; see also Pl.'s Facts ¶ 4; Def.'s Facts at 2 ¶ 4. The Reprimand stated in pertinent part:
A.R. at 000019. The Reprimand indicated that General Keane “intend[ed] to file this reprimand permanently in [the plaintiff's] official military personnel file” and advised the plaintiff that he would consider any materials the plaintiff wished to submit in response before making a final decision. A.R. at 000020.
The plaintiff submitted a rebuttal to General Keane which included affidavits from various individuals involved in the underlying events. See A.R. at 000021–49; see also Def.'s Facts at 6 ¶ 17. On May 31, 2002, after “carefully consider[ing] the nature of [the plaintiff's] misconduct and [his] rebuttal to the [Reprimand],” General Keane approved the placement of the Reprimand in the plaintiff's personnel file. A.R. at 000050; see also Def.'s Facts at 6 ¶ 18; Pl.'s Facts ¶ B25.
The plaintiff subsequently filed appeals with the Department of the Army Suitability Evaluation Board and the Army Board for the Correction of Military Records (“ABCMR”) seeking the removal of the Reprimand, both of which were denied. Def.'s Facts at 7 ¶ 23, 8 ¶¶ 26–27; see also Pl.'s Facts ¶ B26; Am. Compl. ¶¶ 7–8. The plaintiff then commenced the current litigation. After the ABCMR again denied the plaintiff's appeal upon remand by this Court, Pl.'s Facts ¶¶ A5–6; Def.'s Facts at 2 ¶¶ 5–6, the parties filed cross-motions for summary judgment. The Court rejected the defendant's argument that de novo review of the plaintiff's Privacy Act claim was inappropriate, ECF No. 32 at 4 n.2, and held that numerous disputes of material fact precluded entry of summary judgment on the plaintiff's Privacy Act claim, id. at 6–7. In the interest of judicial economy, the Court held the plaintiff's APA claim in abeyance pending resolution of the Privacy Act claim. Id. at 7.
The defendant moved for reconsideration of the Court's decision, arguing that the plaintiff could not seek to challenge his Reprimand through the Privacy Act and that even if he could, he had failed to exhaust his administrative remedies as to this claim. See ECF No. 45 at 3–4, 5–6. The Court reiterated its belief that “the Privacy Act is an appropriate vehicle for the plaintiff to pursue his claims for the amendment of the Memorandum of Reprimand” but found that the plaintiff had not exhausted his administrative remedies. Id. at 4–6. The Court again held the plaintiff's APA claim in abeyance while the plaintiff returned to the Department of the Army to pursue his administrative remedies. Id. at 7.
Pursuant to the Court's order, the plaintiff filed a request with the Army Human Resources Command (“Command”) for amendment or removal of the Reprimand pursuant to the Privacy Act. Pl.'s Reply Facts ¶ 1; Def.'s Supp. Facts ¶ 1; 3d Supp. A.R. at 000005–06. Following the Command's denial of his request, the plaintiff appealed the decision to the Department of the Army Privacy Review Board (“Privacy Review Board”), which also denied his appeal. Pl.'s Reply Facts ¶¶ 5–6; Def.'s Supp. Facts ¶¶ 5–6; 3d A.R. Supp. at 000001.
Asserting that he had now exhausted his administrative remedies, the plaintiff filed an amended complaint. See Am. Compl. ¶¶ 15–19. The defendant now moves to dismiss the amended complaint for lack of subject matter jurisdiction and for failure to state a claim under the Privacy Act, and in the alternative, for summary judgment on the plaintiff's claims, and the plaintiff also moves for summary judgment.
Rule 12(b)(1) allows a party to move to dismiss “for lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). When a defendant moves to dismiss under Rule 12(b)(1), “the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction.” Biton v. Palestinian Interim Self–Gov't Auth., 310 F.Supp.2d 172, 176 (D.D.C.2004) ; see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A court considering a Rule 12(b)(1) motion must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.’ ” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011) (citation omitted). “Although ‘the District Court may in appropriate cases dispose of a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) on the complaint standing alone,’ ‘where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.’ ” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003) (citations omitted).
A Rule 12(b)(6) motion tests whether the complaint “state[s] a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6)....
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