Wilson v. United States Air Force
| Decision Date | 28 January 2011 |
| Docket Number | Civil Action No. 5:08-324-JMH |
| Parties | ANTHONY D. WILSON, Plaintiff, v. UNITED STATES AIR FORCE, Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is before the Court on Defendant's Motion for Summary Judgment1 [Record No. 33]. Plaintiff filed a Response to the Motion for Summary Judgment [Record No. 46], and Defendant filed a timely Reply [Record No. 47]. Plaintiff also filed a Motion for Pretrial Conference [Record No. 48]. Defendant filed a Response [Record No. 50] and Plaintiff replied [Record No. 51]. These matters have been fully briefed and are now ripe for review. Plaintiff also filed a "Motion for (Partial) Summary Judgment" and Memorandum in Support thereof [Record No. 91] on January 20, 2011, as the undersigned was completing his review of Defendant's Motion for Summary Judgment. Despite the fact that Defendant has not had an opportunity to respond to Plaintiff's "Motion for (Partial) Summary Judgment, " the Court is adequately advised and will reviewthis Motion, as well.
Plaintiff, pursuant to 10 U.S.C. § 1552 and the Administrative Procedures Act, appeals decisions rendered by the Air Force Board for Correction of Military Records ("AFBCMR" or the "Board") on May 6, 2006, and April 21, 2009.2 Plaintiff argues that the AFBCMR's April 21, 2009, opinion, which was a reconsideration of it's May 6, 2006, opinion, was arbitrary and capricious because the AFBCMR failed to consider the Plaintiff's arguments regarding the removal of an Officer Performance Review ("OPR") from his record, as well as allegations of misconduct against his supervisors. Plaintiff has, however, failed to identify any procedural error that would require this Court to remand the matter to the AFBCMR nor has he identified any grounds upon which this Court could conclude that the decisions of the AFBCMR were not supported by substantial evidence and were, thus, arbitrary and capricious.
Primarily, Plaintiff argues that the "failure to even consider" the contents or filing of the referral or the OPR in the AFBCMR's April 21, 2009, decision on Plaintiff's second applicationmake it arbitrary and capricious. As the Court explains in this Memorandum Opinion and Order, the AFBCMR clearly considered these issues as it reviewed the entire record, including the decision of the Evaluation Reports Appeal Board ("ERAB") and the administrative record before the ERAB, which dealt explicitly with these concerns, and declined to provide him relief. When Plaintiff's filings are read in their entirety, it is clear that he is asking this Court to revisit his case wholesale and to undermine the decisionmaking authority of the AFBCMR. This is not the errand before this Court, and the Court declines to pursue it. For the reasons which follow, Defendant's Motion for Summary Judgment [Record No. 33] shall be granted, and Plaintiff's Motion for Partial Summary Judgment [Record No. 91] shall be denied.
The parties have laid out the full relevant history of Plaintiff's employment with the Connecticut Air National Guard, as well as his subsequent requests for relief to various entities, for this Court's consideration. The Court has been fully apprised of and has considered the relevant history presented by the parties, as well as the administrative record submitted to this Court.
Plaintiff became a Judge Advocate in the Connecticut Air National Guard in June 2001. He was assigned as a first lieutenant for the 103rd Fighter Wing, Bradley Air National Guard Base, East Granby, Connecticut. As of September 1, 2001, Plaintiff held theposition of deputy staff judge advocate for the unit. As deputy staff judge advocate, Plaintiff served as legal advisor to commanders, briefing legal aspects of deployments outside of the United States, preparing wills and powers of attorney, advising personnel concerning veterans' and reservists' legal rights, providing briefings to unit members and representing members of the Connecticut Air National Guard ("CTANG") in administrative discharge actions. (AR-I 22).
Between June of 2000 and March 2002, Plaintiff had several performance issues. First, he was unable to maintain his weight within required standards, which led to his participation in the Weight and Body Fat Measurement Program. (AR-II, 295-299; AR-I, 3). Based on compliance with the standards, he was removed from the weight program in 2002. (AR-II, 295-299; AR-I, 3). Second, Plaintiff's government credit card was suspended because he failed to pay an outstanding bill for more than ninety days. (AR-II 345). The bill was paid promptly upon receipt of payment on Plaintiff's travel voucher. (AR-II 30, 34-5). Third, Plaintiff asserted that an illness caused him to miss a mandatory diversity training session. (AR-II 30, 34-5). Plaintiff's Supervisor, Staff Judge Advocate, Major ("Maj.") Robert Statchen3, did not deem Plaintiff to have a reasonable excuse for his absence. (AR-II, 30).
Plaintiff's problems continued in March, 2002, when Plaintiff was assigned to defend two clients regarding adverse administrative actions. Maj. Statchen acted as opposing counsel in the adverse administrative actions based on Air Force policy and custom. Both clients requested new counsel during the early stages of the proceedings. These two clients were the first to whom Plaintiff had been assigned. Clients in this situation rarely ask for new counsel (AR-II, 29), and the basis for clients requests and Plaintiff's reactions were a source of concern for Maj. Statchen.
When asked why she was requesting new counsel, the first client told Maj. Statchen that Plaintiff impressed upon her that his position was very important to him because he did not have a civilian job and that he felt that his "pay was being delayed because the 'Command' was not pleased" that Plaintiff was representing a "negative or unpopular cause." (AR-II, 29, as stated in "Letter of Counseling"). The client requested new counsel because she felt that Plaintiff's concern for his pay and job security would negatively impact his ability to represent her. (AR-II, 29).
The second client requested new counsel because she did not feel that Plaintiff was adequately representing her interests and Plaintiff had not met with her in person. (AR-II, 29). Afterrequesting new counsel, this client saw Plaintiff and recognized him. Plaintiff and his friend had come in to her place of employment when she was working as an exotic dancer. (AR-II, 29). According to the client, Plaintiff's friend heckled her and made statements that indicated to Maj. Statchen that Plaintiff may have revealed confidential information learned during the course of his representation to a third party. (AR-II, 29). Plaintiff denies going to his client's place of employment with a friend (AR-II, 33).
Plaintiff refused to answer Maj. Statchen's questions regarding the former clients' statements, citing client confidentiality.4 Plaintiff stated that he "would not lose sleep" over the loss of the clients, which indicated to Maj. Statchen that Plaintiff lacked "concern, compassion and professional responsibility." (AR-II, 29). Maj. Statchen considered
Plaintiff's conduct unacceptable and stated that Plaintiff's actions were "tantamount to destroying the fabric of this unit." (AR-II, 30). Maj. Statchen issued a Letter of Counseling to Plaintiff, and Plaintiff responded, taking issue with Maj. Statchen's characterizations and conclusions. (AR-I 31-36). Plaintiff challenged, and continues to challenge, inter alia, the propriety of the Air Force's practice of a requiring supervising officers to act as opposing counsel in administrative hearings and whether it was proper for Maj. Statchen to request that Plaintiff respond to his former clients' allegations regarding Plaintiff's representation. Plaintiff filed an ethics complaint with the Connecticut Bar Association regarding the client confidentiality issue.
Subsequently, Plaintiff alleges he reached an agreement on May 8, 2002, with the Wing Commander, Colonel ("Col.") Daniel Scace, the next officer in Plaintiff's chain of command (AR-I 22, 26), requiring Plaintiff's attendance at the Judge Advocate Staff Officer Course at Maxwell Air Force Base as well as the withdrawal of a pending ethics complaint with the Connecticut Bar Association and an action pending with the Air National Guard Inspector General. Plaintiff's unverified memorandum, dated May 8, 2002, which purports to memorialize the agreement, states that:
withdrawal of these matters should in no way be construed as an admission on my part; but rather a belief that even if I prove certain matters, there is little chance a harmonious work situation will ever be realized (and that the time and effort expended could be better utilized).
(AR-II 40). In exchange Plaintiff alleges that, with the approval of Col. Scace, Maj. Statchen agreed not to provide a poor OPR for Plaintiff, not to pursue Plaintiff's administrative discharge, and that Plaintiff would meet with the next scheduled promotion board. (AR-I 3, AR-II 45, 52). However, there is no evidence of thisagreement in the record beyond Plaintiff's conclusory assertions in his memorandum.
Plaintiff did not meet with the next scheduled promotion board, as allegedly agreed. Maj. Statchen issued a Record of Individual Counseling on October 19, 2002, which described three separate unacceptable demonstrations of disrespect toward Maj. Statchen. (AR-II 48). First, Plaintiff left a required Unit Training Assembly 1 hour early without seeking approval from Maj. Statchen as required. (AR-II 48). Second, when Maj. Scace extended his hand for a handshake to welcome Plaintiff back after the Judge Advocate Staff Officer Course, Plaintiff refused to shake his hand in front of another officer and two enlisted paralegals. (AR-II 48). Additionally, Plaintiff walked into an office where Maj. Statchen was involved in a...
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