UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ MARC J. Millican, : : Plaintiff, : : v. : Civil Action No. 06-1582 (GK) : UNITED STATES, : : Defendant. : ______________________________:
MEMORANDUM OPINION
Plaintiff Major Marc J. Millican brings this action against
Defendant United States under the Administrative Procedure Act
(“APA”). 5 U.S.C. § 700 et seq. Plaintiff challenges the decision
of the Air Force Board for Correction of Military Records (“AFBCMR”
or the “Board”) denying Plaintiff’s request to correct his file,
and to void both his removal from the Lieutenant Colonel Air Force
Reserve Promotion List (the “Promotion List”) and his involuntary
transfer to the Retired Reserve as a Major. This matter is now
before the Court on Defendant’s Motion to Dismiss or, in the
Alternative, for Summary Judgment [Dkt. No. 18] and Plaintiff’s
Cross-Motion for Summary Judgment [Dkt. No. 23]. Upon consideration
of the motions, oppositions, replies and the entire record herein,
and for the reasons stated below, Defendant’s Motion to Dismiss is
denied in part and granted in part, Defendant’s Motion for Summary
Judgment is granted, and Plaintiff’s Cross-Motion for Summary
Judgment is denied. I. BACKGROUND
A. Factual History1
In February 1999, when the relevant events began, Plaintiff
Major Marc J. Millican (“Major Millican”) was serving in the Air
Force Reserve as a C-5 pilot in the 312th Airlift Squadron (the
“Squadron” or the “312th”) headquartered at Travis Air Force Base,
California. Def.’s Statement of Facts at ¶ 2. On February 22, Major
Millican’s Squadron leader, Lieutenant Colonel Frank J. Padilla
(“Lt. Col. Padilla”), sent all members of the 312th and their
families a letter directing Squadron members to receive an anthrax
vaccine before going on any airlift missions and in no case later
than July 1, 1999. Administrative Record (“AR”) [Dkt. No. 17] at
24-25.
Lt. Col. Padilla’s letter was sent pursuant to the Anthrax
Vaccination Immunization Program (“AVIP”) initiated by the
Department of Defense (“DOD”) in 1998. Def.’s Statement of Facts at
¶ 3. Lt. Col. Padilla’s letter acknowledged public controversy
regarding the adverse physiological side effects of the vaccine,
but stated that the vaccine had “virtually no known long-term side
effects.” AR at 24-25. Additionally, Lt. Col. Padilla encouraged
1 As explained below, Defendant advances purely legal arguments in its Motion to Dismiss. Therefore, unless otherwise noted and in order to resolve Parties’ Cross-Motions for Summary Judgment, the facts set forth herein are drawn from the Parties’ Statements of Material Facts Not in Dispute submitted pursuant to Local Rule 7(h) and from the Administrative Record (“AR”) [Dkt. No. 17].
-2- Squadron members to educate themselves about the vaccine by
conducting internet research. Id.
In the Squadron’s May 1999 newsletter, Lt. Col. Padilla stated
that Squadron members should “talk to people [they] know and trust”
in deciding whether to receive the vaccine. Id. at 28. He also
stated that if a member chose not to receive the vaccine, “we will
respect your decision.” Id. However, Lt. Col. Padilla pointed out
that “[n]o pay or points are allowed after” May 31, 1999 without
receipt of the anthrax vaccine and noted that “I don’t want to see
any of you go . . . not for this reason.” Id.
In June 1999, Major Millican was considered for promotion to
Lieutenant Colonel and received the highest rating of “definitely
promote” from the 349th Wing commander, Colonel Gerard A. Black
(“Col. Black”). Id. at 13. Accordingly, in July, Major Millican was
selected for promotion to Lieutenant Colonel by the Fiscal Year
2000 Reserve of the Air Force Lieutenant Colonel Board, to become
effective on June 22, 2000. Id. at 3, 13.
On July 26, 1999, Lt. Col. Padilla sent Major Millican a
memorandum informing him that Squadron members who had not begun
the anthrax vaccine regimen were no longer eligible to perform
drills known as Unit Training Assemblies (“UTAs”).2 Id. at 45. Lt.
2 Although neither the Administrative Record nor the parties’ papers fully explain the concept of a UTA, it appears that UTAs are training drills of which officers must perform a certain number each year to maintain good standing for retirement benefits. AR at 45.
-3- Col. Padilla’s memorandum warned that further failure to receive
the anthrax vaccine by August 20, 1999 could jeopardize Major
Millican’s status for retirement purposes, as subsequent UTA
periods would not be excused. Id. Major Millican refused to receive
the vaccine and was reassigned to the Standby Reserve on November
15, 1999. Id. at 46, 48-49.
During this time, Major Millican also urged other members of
the 312th to refuse the anthrax vaccine. Def.’s Statement of Facts
at ¶ 6. On December 19, 1999, Lt. Col. Padilla sent Major Millican
a Letter of Reprimand (“LOR”), which he would later place in Major
Millican’s Unfavorable Information File. Id. at ¶ 7; AR at 50-51,
131. In the LOR, Lt. Col. Padilla stated that Major Millican had:
engaged in acts of a nature to cause discontent and undermine military discipline within this squadron. Specifically, after the members of this squadron were notified of the requirement to undergo the anthrax immunization series, you sought out and spoke with members of this squadron advocating that they refuse to undergo the anthrax protocol. Further, you actively encouraged other pilots to persuade additional members of your peer group (e.g. the pilot section) to defy official Air Force policy and refuse to undergo the anthrax immunization series. . . . [Y]ou sent electronic mail to members of this squadron advising them that I do not care about them and encouraging them to disregard my advice and directives. On 2 September 1999 . . . you were disrespectful to me . . . [and] you also issued an implied threat against me.
AR at 50. Padilla considered Major Millican’s “actions in
encouraging discontent within the unit as a very serious breach in
-4- judgment and leadership.” Id.
In a memorandum dated March 13, 2000, Lt. Col. Padilla
informed Major Millican that his Officer Performance Report (“OPR”)
cited his actions “to foment discord with this unit and undermine
the credibility of the squadron leadership.” Def.’s Statement of
Facts at ¶ 9; AR at 53. The OPR gave Major Millican a rating of
“Does Not Meet Standards” in the categories of (1) leadership, (2)
professional qualities, and (3) judgment and decisions. Def.’s
Statement of Facts at ¶ 9; AR at 54.
On the same date, March 13, 2000, Colonel Black sent Major
Millican a letter explaining that he was recommending removing
Major Millican’s name from the Lieutenant Colonel Promotion List.
Def.’s Statement of Facts at ¶ 11; AR at 56. Colonel Black referred
to Major Millican’s actions “to purposefully undermine the
credibility of squadron leadership” and “to disrupt the orderly
operation of this unit and Wing by encouraging other unit members
to disregard my directives.” AR at 56. Colonel Black also noted
that Major Millican “demonstrated a total lack of regard for Air
Force policies and procedures by failing to acknowledge no less
than three official written communications requiring your
response.” Id. Finally, Colonel Black stated, “your promotion is
delayed until the Secretary of the Air Force makes a decision on
this recommendation” and instructed, “[y]ou are not to assume a
higher grade even if your name appears on a promotion order.” Id.
-5- On May 12, 2000, Major Millican received notice from Colonel
Linda A. Martin (“Col. Martin”) that “by order of the Secretary of
the Air Force and direction of the President, you are promoted as
a reserve of the Air Force to the grade [of Lieutenant Colonel],”
effective June 22, 2000. Id. at 57. Pursuant to Colonel Black’s
March 13 letter, Major Millican did not assume the rank of
Lieutenant Colonel.
Nearly twenty-one months later, on January 7, 2002, the
Department of Defense submitted to then-President George W. Bush a
recommendation to remove Major Millican from the Fiscal Year 2000
Reserve of the Air Force Lieutenant Colonel Promotion List. The
recommendation explained that Major Millican “refused to undergo an
anthrax immunization,” “advised members of the squadron to refuse
their anthrax inoculations,” and “told members of the squadron, via
e-mail, that the Squadron Commander did not care about them and
that they should disregard his advice and directives.” AR at 59.
President Bush approved the recommendation on April 17, 2002.
Def.’s Statement of Facts at ¶ 13; AR at 59.
Under 10 U.S.C. § 14506, a Major in the Air Force Reserve who
has twice failed to be promoted to the next higher rank must be
removed from the reserve active-status list. Major Millican’s
removal from the Promotion List by President Bush was considered a
first-time statutory non-selection for promotion. 10 U.S.C. §
14501(b)(3)(A); Def.’s Statement of Facts at ¶ 13.
-6- In a memorandum dated October 2, 2002, Major Millican was
informed that an Air Force Selection Board had again declined to
select him for promotion. Def.’s Statement of Facts at ¶ 14; AR at
60. This decision was considered a second non-selection for
promotion and triggered the mandatory separation requirement of 10
U.S.C. § 14506. Def.’s Statement of Facts at ¶ 14; AR at 60. Major
Millican was therefore transferred to the Retired Reserves on April
1, 2003. Def.’s Statement of Facts at ¶ 15; AR at 60-61, 131.
B. Procedural History
In July of 2003, Major Millican filed a petition for
correction of military records with the AFBCMR. Def.’s Statement of
Facts at ¶ 16. Specifically, Major Millican requested that the
AFBCMR set aside the December 19, 1999 Letter of Reprimand and the
Officer Performance Report sent to Major Millican on March 13,
2000. AR at 11. Major Millican further asked the AFBCMR to set
aside his April 17, 2002 removal from the Promotion List as well as
his second deferral of promotion in October 2002. Id. Finally,
Major Millican requested that the AFBCMR set aside his April 1,
2003 transfer to the Retired Reserve, reinstate his application for
promotion to Lieutenant Colonel, and retire him as a Lieutenant
Colonel. Id.
Pursuant to 32 C.F.R. § 865.2(c), the AFBCMR solicited several
advisory opinions before making its decision. On or about September
5, 2003, the Air Reserve Personnel Center, Selection Board
-7- Secretariat (“ARPC/DPB”) issued an advisory opinion to the AFBCMR
recommending disapproval of Major Millican’s request. Def.’s
Statement of Facts at ¶ 17. On or about January 14, 2004, the
Administrative Law Division of the Office of the Judge Advocate
General of the Air Force (“USAF/JAA”) also issued an advisory
opinion to the AFBCMR recommending disapproval of Major Millican’s
request because he failed to “demonstrate the existence of any
error or present facts and circumstances supporting an injustice.”
Id. at ¶ 19. Finally, on or about May 15, 2004, USAF/JAA issued a
second advisory opinion to the AFBCMR, again recommending
disapproval of Major Millican’s request for the reasons previously
stated. Id. at ¶ 22.
On or about August 4, 2004, the AFBCMR denied Major Millican’s
request for relief. Id. at ¶ 24; AR at 9. On December 19, 2005,
Plaintiff filed a Complaint in the United States Court of Federal
Claims seeking review of the AFBCMR’s decision. See Transfer Order
[Dkt. No. 1]. On August 24, 2006, the Court of Federal Claims
granted Plaintiff’s Unopposed Motion to Transfer to the U.S.
District Court for the District of Columbia, and the case was
randomly assigned to this Judge. Id.
On October 30, 2006, this Court granted Plaintiff’s Unopposed
Motion to Stay Proceedings pending the outcome of the related case,
Doe v. Rumsfeld, 501 F. Supp. 2d 186 (D.D.C. 2007), which was on
remand from our Court of Appeals. Doe v. Rumsfeld, 172 F.App’x. 327
-8- (D.C. Cir. 2006); see Pl.’s Unopposed Mot. to Stay Proceedings
[Dkt. No. 6]. This case was reopened on November 15, 2007.
Defendant filed its Motion to Dismiss, or in the Alternative,
for Summary Judgment [Dkt. No. 18] (“Defendant’s Motion to
Dismiss”) on December 19, 2007. Plaintiff filed his opposition and
Cross-Motion for Summary Judgment [Dkt. No. 23] on March 8, 2008.
Defendant filed an opposition and reply [Dkt. No. 26] on April 18,
2008. Finally, Plaintiff filed a reply [Dkt. No. 29] on May 16,
2008.3
II. STANDARD OF REVIEW
Defendant asks the Court to dismiss Plaintiff’s claims under
Rule 12(b)(1). Under that Rule, Plaintiff bears the burden of
proving by a preponderance of the evidence that the Court has
subject matter jurisdiction. See Shuler v. U.S., 531 F.3d 930, 932
(D.C. Cir. 2008). In reviewing a motion to dismiss for lack of
subject matter jurisdiction, the Court must accept as true all of
the factual allegations set forth in the Complaint; however, such
allegations “will bear closer scrutiny in resolving a 12(b)(1)
motion than in resolving a 12(b)(6) motion for failure to state a
claim.” Wilbur v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C. 2003)
(citations and quotations omitted). The Court may rest its decision
on its own resolution of disputed facts. Id.
3 The Court regrets that so much time has passed between the Motions becoming ripe and the issuance of this decision.
-9- Both parties also seek summary judgment. Summary judgment will
be granted when there is no genuine issue as to any material fact.
See Fed. R. Civ. P. 56(c). Since this case involves a challenge to
a final administrative agency decision, the Court’s review on
summary judgment is limited to the administrative record. Holy Land
Found. for Relief and Dev. v. Ashcroft, 333 F.3d 156, 160 (D.C.
Cir. 2003) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973));
Richards v. Immigration & Naturalization Serv., 554 F.2d 1173, 1177
(D.C. Cir. 1977)) (“Summary judgment is an appropriate procedure
for resolving a challenge to a federal agency’s administrative
decision when review is based upon the administrative record.”).
The decision of a military records corrections board must be
set aside if it is “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C. §§ 702, 706; see
Chappell v. Wallace, 462 U.S. 296, 303 (1983); Frizell v. Slater,
111 F.3d 172, 177 (D.C. Cir. 1997). “The arbitrary and capricious
standard [of the APA] is a narrow standard of review.” Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
Moreover, it is well established in our Circuit that “[t]his
court's review is . . . highly deferential” and “we are not to
substitute [our] judgment for that of the agency but must consider
whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment.”
Bloch v. Powell, 348 F.3d 1060, 1070 (D.C. Cir. 2003) (internal
-10- quotations omitted); see also United States v. Paddack, 825 F.2d
504, 514 (D.C. Cir. 1987).
Further, the decisions of a military board of correction are
to be afforded an “‘unusually deferential’ version of the ‘arbitary
or capricious standard.’” Appleby v. Geren, 330 F.App’x 196, 198
(D.C. Cir. 2009) (quoting Kreis v. Secretary of Air Force, 866 F.2d
1508, 1514 (D.C. Cir. 1989)). “[I]n reconciling the needs of
military management with Congress’s mandate for judicial review,”
“[p]erhaps only the most egregious decisions may be prevented under
such a deferential standard of review.” Kreis, 866 F.2d at 1515.
III. ANALYSIS
In cross-motions, the parties seek either dismissal or
judgment as a matter of law. Defendant seeks dismissal on two
grounds. First, Defendant argues that the Complaint should be
dismissed for lack of jurisdiction. Second, Defendant contends that
Plaintiff’s request for an order for retroactive promotion should
be dismissed for lack of jurisdiction as well as failure to state
a claim upon which relief can be granted. Alternatively, Defendant
seeks summary judgment on the ground that the AFBCMR’s decision was
not arbitrary or capricious. Plaintiff seeks summary judgment on
the ground that the AFBCMR’s decision was arbitrary and capricious
because: (1) a subsequent judicial ruling by another judge of this
District Court that the anthrax vaccine was experimental renders
his conduct non-punishable; (2) Plaintiff’s conduct was protected
-11- speech; and (3) Plaintiff’s removal from the Promotion List was
time-barred.
A. This Court Has Jurisdiction to Review the AFBCMR’s Decision to Affirm Plaintiff’s Removal From the Promotion List
Defendant argues that the Complaint should be dismissed
because this Court lacks jurisdiction to review the President’s
decision to remove Major Millican from the Promotion List and Major
Millican’s subsequent non-selection for promotion. Def.’s Mot. to
Dismiss 17. Defendant states that promotion decisions are committed
to agency discretion by law and are therefore nonjusticiable by a
District Court. See id. at 17-22.
The Secretary of Defense has empowered the AFBCMR to amend
military records. See Rempfer v. U.S. Dep't of Air Force Bd. for
Corr. of Military Records, 538 F. Supp. 2d 200, 204 (D.D.C. 2008)
(citing 10 U.S.C. § 1552). Hence, the AFBCMR constitutes an
“agency” under the APA. See Levant v. Roche, 384 F. Supp. 2d 262,
267 (D.D.C. 2005). Under the APA, challenged agency actions carry
a “presumption of judicial review.” Kreis, 866 F.2d at 1513 (citing
Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967)). This
presumption is overcome when an “agency action is committed to
agency discretion by law.” Id. at 513 (citing 5 U.S.C. §
701(a)(2)). An agency action is unreviewable by the courts if the
statute authorizing it is “drawn in such broad terms that in a
given case there is no law to apply.” Id.
-12- Defendant argues that 10 U.S.C. § 14310(a) is the relevant
statute and governs removal of officers from promotion lists.
Def.’s Mot. to Dismiss 18. Under 10 U.S.C. § 14310(a), “[t]he
President may remove the name of any officer from a promotion list
at any time before the date on which the officer is promoted.”
Defendant argues that 10 U.S.C. § 14310(a) satisfies the exception
to presumptive judicial review because it is “drawn in such broad
terms that in a given case there is no law to apply.” Def.’s Mot.
to Dismiss 18.
Determining whether 10 U.S.C. § 14310(a) renders Plaintiff's
claim nonjusticiable is unnecessary. The agency action Plaintiff
challenges is not, as Defendant claims, the President’s removal of
his name from the Promotion List under 10 U.S.C. § 14310(a).
Rather, Plaintiff is challenging the denial by the Board of a
corrections request to void his removal from the Promotion List.
Am. Compl. 13. Therefore, the relevant statute to consider is 10
U.S.C. § 1552(a), which governs the correction of military records.
Under 10 U.S.C. § 1552(a), the Secretary of a military
department or authorized board “may correct any military record of
the Secretary’s department when the Secretary considers it
necessary to correct an error or remove an injustice.” Courts in
this jurisdiction have repeatedly held that the procedures
applicable to AFBCMR actions are subject to judicial review. See
Barnes v. U.S., 473 F.3d 1356, 1361 (Fed. Cir. 2007) (“a challenge
-13- to the particular procedure followed in rendering a military
decision may present a justiciable controversy”) (internal
quotations omitted); Dysart v. U.S., 369 F.3d 1303, 1315 (Fed. Cir.
2004) (“The Corrections Board statute, 10 U.S.C. § 1552, provides
for correction of military records . . . and for judicial review of
the Board’s decision”); Chambers v. Green, 544 F. Supp. 2d 10, 13
(D.D.C. 2008) (“Decisions of military records board can be set
aside if they are arbitrary, capricious, or not based on
substantial evidence.”) (internal quotations omitted); Levant, 384
F. Supp. 2d at 267 (“[T]his Court does have jurisdiction to
evaluate the reasonableness of the AFBCMR’s decision not to take
corrective action”). While the merits of promotion decisions may be
nonjusticiable, “courts can evaluate whether the military follows
the procedures mandated by statute or by its own regulations when
making promotion decisions.” Barnes v. U.S., 473 F.3d at 1361
(citing Dysart, 369 F.3d at 1315).
Consequently, the Court concludes that Plaintiff’s claims are
justiciable under the APA.
B. This Court Lacks Jurisdiction to Award a Retroactive Promotion
Plaintiff asks, among other forms of relief, this Court to
award him the promotion to Lieutenant Colonel he claims was
wrongfully denied. Pl.’s Cross-Mot. for Summ. J. 30-33. Defendant
argues that “[p]romotion actions are nonjusticiable” and “this
Court is without authority to order plaintiff’s promotion.” Def.’s
-14- Mot. to Dismiss 21-22.
Our Court of Appeals has explained that a “request for
retroactive promotion falls squarely within the realm of
nonjusticiable military personnel decisions.” Kreis, 866 F.2d at
1511. Allowing a court to order a promotion would require the
judiciary to “second-guess the Secretary's decision about how best
to allocate military personnel in order to serve the security needs
of the nation.” Nation v. Dalton, 107 F. Supp. 2d 37, 41 (D.D.C.
2000). The courts have recognized that the judiciary is not
competent to make such decisions, and that Congress vested the
Secretary alone with the power to promote officers. See Orloff v.
Willoughby, 345 U.S. 83, 93-94 (1953) (“Orderly government requires
that the judiciary be as scrupulous not to interfere with
legitimate Army matters as the Army must be scrupulous not to
intervene in judicial matters.”); Kreis, 866 F.2d at 1511.
Accordingly, Kreis distinguished between claims that “require
the district court merely to evaluate, in light of familiar
principles of administrative law, the reasonableness of the
Secretary’s decision not to take certain action with respect to .
. . [a] military record” and claims that seek retroactive
promotion. 866 F.2d at 1511; see also Barnes, 473 F.3d at 1361 (“It
is well-established that although the merits of military promotion
decisions are nonjusticiable, a challenge to the particular
procedure followed in rendering a military decision may present a
-15- justiciable controversy.”) (internal quotations omitted).
As in Kreis, Major Millican both has challenged the
reasonableness of the Defendant’s decision and has sought
retroactive promotion. See Pl.’s Cross-Mot. for Summ. J. 30-33;
Kreis, 866 F.2d at 1511. Therefore, as in Kreis, Plaintiff’s
request for retroactive promotion must be denied as nonjusticiable.
Kreis, 866 F.2d at 1516.
Because the Court lacks jurisdiction over Plaintiff’s claim
for retroactive promotion, it need not reach Defendant’s contention
that under Federal Rule of Civil Procedure 12(b)(6), this claim
should also be dismissed for lack of failure to state a claim.
C. The AFBCMR Decision Was Not Arbitrary, Capricious, or Contrary to Law
In challenging the AFBCMR’s decision, Plaintiff advances three
arguments for overcoming the “unusually deferential version of the
arbitary or capricious standard.” Appleby, 330 F.App’x at 198
(internal quotations omitted). First, Plaintiff contends that a
subsequent judicial decision that the anthrax vaccine was
experimental renders his refusal to receive the vaccine non-
punishable. Pl.’s Cross-Mot. for Summ. J. 2-19. Second, Plaintiff
argues that his conduct in encouraging Squadron members not to take
the vaccine was protected speech. Id. at 19-21. Third, Plaintiff
argues that his removal from the Promotion List by the President
was time-barred. Id. at 21-31. Plaintiff maintains that, for these
reasons, the AFBCMR must be ordered to remove negative material in
-16- his file, set aside his removal from the Promotion List and
subsequent deferral of promotion, and reverse his transfer to the
Retired Reserve. Id. at 31-33.
1. Doe #1 v. Rumsfeld Does Not Require the AFBCMR to Correct Plaintiff’s Record
Plaintiff argues at some length that under Doe #1 v. Rumsfeld,
297 F. Supp. 2d 119 (D.D.C. 2003), his personal refusal to take the
anthrax vaccine is not a basis for discipline as a matter of law.
Therefore, in Plaintiff’s view, the AFBCMR’s refusal to set aside
his LOR and OPR was arbitrary, capricious, and not in accordance
with law under 5 U.S.C. §§ 702, 706. See Pl.’s Cross-Mot. for Summ.
J. 2-19.
In December 2003, Doe #1 concluded that the AVIP, as
administered by the Air Force Reserve in 1999, was illegal because
the FDA had not approved the vaccine against inhalation anthrax.
Doe #1, 297 F. Supp. 2d at 122-23. The nub of Plaintiff’s argument
is that Doe #1’s injunction against the AVIP retroactively
validated his conduct. Therefore, the AFBCMR should have removed
all negative reviews in his file and reversed all adverse personnel
decisions.
Doe #1, as this case, concerned members of the armed forces
who were ordered to receive the anthrax vaccine. See id. at 122.
The district court in Doe #1 enjoined the Department of Defense
from inoculating military personnel absent informed consent or
Presidential waiver. Id. at 135. The injunction eventually
-17- dissolved by its own terms in 2005 when the FDA declared the
anthrax vaccine safe and effective for its intended use. Doe v.
Rumsfeld, 172 F.App’x. 327, 327-328 (D.C. Cir. 2006). Courts in
this jurisdiction have interpreted the Doe litigation, taken as a
whole, as establishing that, prior to 2005, military orders to
receive the anthrax vaccine were illegal. See Rempfer, 538 F. Supp.
2d at 210.
Nonetheless, Doe #1’s proscriptions do not control here.
Plaintiffs in that case were threatened with discipline for their
individual refusal to receive the vaccine. See Doe #1 v. Rumsfeld,
341 F. Supp. 2d 1, 3. The Administrative Record in this case makes
clear that Major Millican was not disciplined for his individual
refusal to receive the vaccine, but rather for his actions
encouraging dissent among his peers and undermining his leaders.
See AR at 3 (“applicant received an LOR for engaging in acts of
nature [sic] to cause discontent and undermine military
discipline”); AR at 50 (LOR sent by Lt. Col. Padilla because it
“has come to my attention that you have engaged in acts of a nature
to cause discontent and undermine military discipline within this
squadron”); AR at 53 (OPR contains negative reviews because of
Major Millican’s actions “to foment discord . . . and undermine the
credibility of squadron leadership”); AR at 56 (“The specific
reason for [recommending removal from the Promotion List] is your
inappropriate actions . . . to foment discord . . . and to
-18- purposefully undermine the credibility of squadron leadership”).
In reaching its decision, the AFBCMR considered the plain
language of the LOR that attributed Plaintiff’s reprimand to his
attempts to cause discontent and undermine military discipline. AR
at 3. The LOR detailed instances where Plaintiff urged his Squadron
members to refuse participation in the AVIP, telling them that Lt.
Col. Padilla did not care about them. Similarly, Major Millican’s
OPR cited his actions “to foment discord with this unit and
undermine the credibility of the squadron leadership.” AR at 53.
When Colonel Black informed Major Millican that he would recommend
his removal from the Promotion List, he also cited Major Millican’s
conduct “to purposefully undermine the credibility of squadron
leadership” and “to disrupt the orderly operation of this unit and
Wing by encouraging other unit members to disregard my directives.”
AR at 56. In short, the Administrative Record is replete with
evidence that the LOR, OPR, and two non-selections for promotion
were based on concern over Major Millican’s spreading of discord
among his Squadron members.4
4 Although Deputy Secretary of Defense Paul Wolfowitz’s recommendation to President Bush to remove Major Millican’s name from the Promotion List does contain a one-sentence reference to Major Millican’s individual refusal to receive the vaccine, there is no indication that the AFBCMR relied on that fact in its decision. See AR at 59. Further, it is significant that Plaintiff does not deny that he urged members of his unit to refuse the vaccine and that he fomented discontent and undermined military discipline.
-19- The AFBCMR also reviewed advisory opinions solicited from the
APRC/DPB and the USAF/JAA. AR at 4-7. These opinions made clear
that Plaintiff was free to refuse the vaccine for himself, but “did
not have the right to create the documented discord and undermine
military discipline within his unit.” AR at 66. The AFBCMR
concluded that Plaintiff’s LOR and OPR were a result of his
attempts to encourage Squadron members to refuse compliance with
the AVIP and were unrelated to Plaintiff’s personal refusal of the
vaccine. AR at 6 (“There was no evidence indicating the applicant
was singled out due to his personal views on the anthrax program”).
Doe #1 therefore does not govern the AFBCMR’s decision in this
case on this set of facts. Here, the Board fully examined the
relevant evidence of Major Millican’s conduct relating to his peers
and drew a rational conclusion from that evidence. Moreover,
Plaintiff did not produce any evidence demonstrating that he was
disciplined for his individual refusal of the vaccine. See Delano
v. Roche, No. 04-0830, 2006 WL 2687020, at *6 (D.D.C. Sept. 19,
2006) (finding that AFBCMR’s denial of plaintiff’s records
correction request was not arbitrary or capricious because
plaintiff produced no evidence supporting his theory that an
injustice had occurred).
In sum, the Board’s decision not to correct Major Millican’s
file was not arbitrary, capricious, or contrary to law, even in
light of Doe #1. As the Board found, Major Millican “failed to
-20- sustain his burden of establishing that he has suffered either an
error or an injustice” resulting from discipline based on his
encouraging of dissent and undermining of command. AR at 8.
2. Plaintiff’s Encouragement of Others to Refuse the Anthrax Vaccine Was Not Protected Speech
Plaintiff next argues that, even if he was disciplined for
urging others to refuse the anthrax vaccine, this speech was
legally protected. Pl.’s Cross-Mot. for Summ. J. 19-20.
Consequently, he reasons that any punishment for encouraging
Squadron members to disobey orders was illegal and that the AFBCMR
erred in not correcting his record. Plaintiff argues first that the
LOR, OPR, and adverse personnel decisions violated his First
Amendment right to free speech and association to “encourage others
to uphold the law, and to prevent a crime.” Id. at 19. Second,
Plaintiff contends that his conduct was protected by the doctrine
of necessity.
i. Disciplinary Actions Against Plaintiff Did Not Violate his First Amendment Rights
The Supreme Court has ruled that “[w]hile the members of the
military are not excluded from the protection granted by the First
Amendment, the different character of the military community and of
the military mission requires a different application of those
protections.” Parker v. Levy, 417 U.S. 733, 759 (1974). Although
“[d]isrespectful and contemptuous speech . . . is tolerable in the
civilian community,” other considerations must be weighed in the
-21- military context. Id. Specifically, in military contexts, speech
that “undermine[s] the effectiveness of the response to command” is
unprotected. Id.; see also Culver v. Sec’y of Air Force, 389 F.
Supp. 331, 334 (D.D.C. 1975).
Here, Plaintiff’s conduct encouraging his Squadron members to
disobey orders falls squarely within the realm of unprotected
speech. Urging Squadron members to disregard orders and calling
into question a commander’s credibility and concern for his
Squadron members “is constitutionally unprotected” because it “may
. . . undermine the effectiveness of response to command.” Parker,
417 U.S. at 759.
Plaintiff also argues that the Air Force lacks a legitimate
interest in punishing him for his conduct, but provides no
justification for this assertion and only refers back to the
illegality of the AVIP. Pl.’s Cross-Mot. for Summ. J. 20. However,
the relevant question is not the legality of the AVIP but rather
the military’s ability to censure an officer for protesting a
policy he believes to be illegal by encouraging others to disobey
orders. It is clear that the Air Force has a legitimate interest in
prohibiting Plaintiff’s conduct to promote discipline and uphold
order among its members. See Parker, 417 U.S. 733, at 759
(rejecting First Amendment defense where military physician
encouraged soldiers to refuse orders to go to Vietnam); Bitterman
v. Sec’y of Defense, 553 F. Supp. 719, 724-25 (D.D.C. 1982)
-22- (finding no Constitutional violation where Air Force forbid officer
from wearing a yarmulke while in uniform because adherence to dress
code promoted discipline).
ii. Plaintiff’s Conduct Was Not Justified by Necessity
Plaintiff argues that his attempts to encourage Squadron
members to refuse the anthrax vaccine should not have been punished
because he acted out of necessity. Pl.’s Cross-Mot. for Summ. J.
20-21.
Even assuming that necessity is an available defense, to
invoke it, Major Millican must establish that: (1) he was faced
with a choice of evils; (2) he acted to prevent imminent harm; (3)
he reasonably anticipated a causal relationship between the conduct
and the harm to be avoided; and (4) there were no legal
alternatives to violating the law. Office of Foreign Assets Control
v. Voice in Wilderness, 329 F.Supp.2d 71, 82 (D.D.C. 2004); U.S. v.
Frankel, 739 F. Supp. 629, 632 (D.D.C. 1990).
First, the harm that Plaintiff was trying to prevent--the
suffering of his Squadron members from adverse physical side
effects--was not imminent. Nothing in the record suggests that the
anthrax vaccine presented imminent harm to Plaintiff’s Squadron
members, particularly as the other members of the Squadron could
have chosen to withdraw from the reserves and refuse the vaccine.
Moreover, Plaintiff could only speculate that harm would occur
-23- based on evidence he had gathered suggesting that the anthrax
vaccine posed certain risks of adverse physical side effects.
Second, Plaintiff had a legal alternative to violating the
law. The necessity defense is only available where “no reasonable,
lawful alternative could prevent” imminent harm. U.S. v. Barton,
No. 87-0259-OG, 1988 WL 13174, at *5 (D.D.C. Feb. 11, 1988). Major
Millican could have challenged the legality of the AVIP directly.
Indeed, that was the course adopted by the plaintiffs in Doe #1,
who filed suit to enjoin the military from mandating the vaccine
when they believed that the applicable order was unlawful. See Doe
#1, 297 F. Supp. at 122.
For these reasons, Plaintiff’s conduct was not justified and
therefore the AFBCMR did not act contrary to law in refusing to
change Major Millican’s records.
3. Plaintiff’s Removal from the Promotion List Was Not Untimely
Plaintiff contends that the AFBCMR's refusal to void his
removal from the Promotion List was contrary to law because the
removal was untimely. Pl.’s Cross-Mot. for Summ. J. 21-31.
Plaintiff’s name was removed from the Promotion List on April 17,
2002. Plaintiff's promotion date was June 22, 2000. Hence,
Plaintiff's removal from the Promotion List occurred twenty-two
months after his promotion date.
-24- 10 U.S.C. § 14311(d) governs the permissible length of delay
for promotions due to investigation or lack of qualifications. It
specifies that a promotion may be delayed for six months after the
date of promotion if there are any ongoing investigations or
proceedings or any cause to believe that the officer is not
qualified. 10 U.S.C. § 14311(a)-(d). The Secretary of Defense may
extend the period of delay to a maximum of eighteen months from the
date of promotion. Id. If disciplinary or other action is not taken
at the conclusion of the eighteen-month delay period, the officer
receives the promotion as of the original promotion date. Id.
10 U.S.C. § 14310(a) governs removal from a promotion list by
the President. That provision does not provide any time limit, but
clearly states that the “President may remove the name of any
officer from a promotion list at any time before the date on which
the officer is promoted.” 10 U.S.C. § 14310(a) (emphasis added).
Plaintiff argues that the provisions must be read together, and
that the President may not remove an officer from the Promotion
List once the eighteen month delay period has run. Defendant
contends that the provision governing removals, 10 U.S.C §
14310(a), imposes no time limit, should not be read in tandem with
the promotion delay statue, and permits the President to remove a
name from the Promotion List “at any time.”
The Air Force has previously interpreted these provisions to
permit the President to remove a name from the Promotion List at
-25- any time. AFI 36-2504, ¶ 7.8, Officer Promotion, Continuation and
Selective Early Removal in the Reserve of the Air Force, Jan. 3,
2003, available at http://www.e-publishing.af.mil/shared/media
/epubs/AFI36-2504.pdf.5
Major Millican’s promotion was delayed pursuant to AFI 36-
2504, ¶ 7.8 on March 13, 2000, when Col. Black sent a letter
explaining that he was recommending removing Major Millican’s name
from the Lieutenant Colonel Promotion List, and directing Major
Millican “not to assume a higher grade even if your name appears on
a promotion order.” AR at 56. Major Millican’s removal was then
consummated by order of the President on April 17, 2002. AR at 59.
i. Chevron Step One Applies
Parties dispute the degree of deference this Court should
afford the Air Force’s interpretation of these two provisions.
Under Chevron, U.S.A. v. NRDC, 476 U.S. 837, 843 (1984), the Court
employs a two-step test to determine whether it owes deference to
an agency’s interpretation of its governing statute. See id. The
first step asks whether the statute is “silent or ambiguous with
respect to the specific issue.” Id. at 842-43. If the statute is
not ambiguous and Congress has “directly spoken to the precise
question at issue,” then the Court and agency “must give effect to
the unambiguously expressed intent of Congress.” Id. If the statute
5 The Navy and Army have interpreted the predecessor provision to 10 U.S.C. § 14310(a) differently. Rolader v. U.S., 42 Fed. Cl. 782, 785-86 (1999).
-26- is silent or ambiguous, then the Court must ask, at the second
stage, whether the agency’s interpretation is based on a
“permissible construction of the statute.” Id. at 843. If the
agency’s construction is permissible, then the Court must defer to
its interpretation. Id. at 843.
In this case, we may stop our analysis at step one of Chevron.
The simple fact is that 10 U.S.C. § 14310(a) is not ambiguous.
Indeed, the language could not be clearer: the President may “at
any time” remove the name of an officer from a promotion list.
There are no exceptions or limitations set forth in Section
14310(a).
ii. 10 U.S.C. § 14310(a) Has No Time Limit
When engaging in statutory interpretation, the Court’s inquiry
must always begin with the language of the statute. Duncan v.
Walker, 533 U.S. 167, 172 (2001); Mayer Brown LLP v. IRS, 562 F.3d
1190, 1194 (D.C. Cir. 2009) (“In matters of statutory construction,
the text is our primary guide”). If the text does not provide
guidance on the issue, courts should avoid interpreting a statute
in a way that renders it ineffective. See Wilderness Soc’y, Envtl.
Def. Fund v. Morton, 479 F.2d 842, 855 (D.C. Cir. 1973).
10 U.S.C. § 14310(a), in its entirety, reads:
Removal by President.--The President may remove the name of any officer from a promotion list at any time before the date on which the officer is promoted.
-27- As already noted, Section 14310(a) does not contain any
limitation on the timing of the President’s power to remove a name
from the Promotion List short of the date on which the officer is
actually promoted. Section 14310(a) makes no reference to Section
14311(d) or any other provision of 10 U.S.C. §§ 14301-14317
(governing promotions), nor does any other provision of 10 U.S.C.
§§ 14301-14317 purport to impose a limitation on Section 14310(a).
Nothing in the briefly worded removal provision evinces any design
to limit the President’s authority to remove the name of an officer
currently on a promotion list, but not yet promoted.
Plaintiff argues that the fact that 10 U.S.C. § 14310(a) is
silent as to its relationship to 10 U.S.C. § 14311(d) demonstrates
that Section 14310(a) is ambiguous as to time limits. Pl.’s Cross-
Mot. for Summ. J. 26. Plaintiff’s reasoning is unpersuasive.
The absence of any reference to Section 14311(d) is not an
invitation to read Section 14311(d)’s proscriptions into the
President’s removal powers. “Appeals to the design and policy of a
statute are unavailing in the face of clear statutory text.” Sierra
Club v. EPA, 536 F.3d 673, 679 (D.C. Cir. 2008). The lack of a
specific time limit in Section 14310(a) simply represents
Congress’s choice not to apply any time bar to the President’s
ability to remove a name from the Promotion List prior to the date
on which the officer is promoted. Indeed, Congress could easily
have included similarly precise limits on removal under Section
-28- 14310(a) as it did on promotional delay under Section 14311(d). It
did not. See Russello v. U.S., 464 U.S. 16, 23 (1983) (“[W]here
Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.”).
Congress’s decision to distinguish between removal and
promotional delay is supported by a clear rationale. As the
USAF/JAA explained in its supporting opinion to the AFBCMR:
A promotion removal action [unlike a promotion delay for investigation] . . . requires a different decision making process. At this point, the commander has already determined that by a preponderance of the evidence (often through the information obtained through the promotion delay), the officer is unfit to assume the higher grade and is recommending to the President through the chain of command that the promotion be canceled.
AR at 189.
Even if the legislation’s rationale were not so sensible,
“when the statute’s language is plain, the sole function of the
courts--at least where the disposition required by the text is not
absurd--is to enforce it according to its terms.” In re England,
375 F.3d 1169, 1177 (D.C. Cir. 2004)(internal quotations omitted).
Here, Plaintiff was removed from the Promotion List by the
President pursuant to Section 14310(a) and not pursuant to the
separate provisions of Section 14311. Section 14310(a) plainly
-29- places no time limit on the President’s removal power prior to the
date of promotion.
Because removal of Plaintiff’s name from the Promotion List
was not subject to any time restriction, the AFBCMR did not act
contrary to law in denying Plaintiff’s request to correct his
record.
IV. CONCLUSION
Defendant’s Motion to Dismiss is denied in part and granted in
part, Defendant’s Motion for Summary Judgment is granted, and
Plaintiff’s Cross-Motion for Summary Judgment is denied.
/s/ October 13, 2010 Gladys Kessler United States District Judge
Copies to: attorneys on record via ECF
-30-