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Delano v. Roche

September 6, 2005

KENNETH J. DELANO, PLAINTIFF,
v.
JAMES G. ROCHE, SECRETARY OF THE AIR FORCE DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

On May 6, 2004, the plaintiff, Major Kenneth Delano, filed a complaint in this Court for declaratory relief, seeking to set aside a decision of the Air Force Board for Corrections of Military Records and the decision of the Air Force Evaluation Reports Appeal Board which had denied the plaintiff's request to remove his Education and Training Report, his non-judicial punishment, and related records from his personnel file. Complaint for Declaratory Relief ("Compl.") at 1, 15. The plaintiff also seeks monetary relief. Id. In his initial complaint, the plaintiff asserted that this Court had jurisdiction over his claims pursuant to the Little Tucker Act, 28 U.S.C. § 1346(a)(2) (2002), and the Administrative Procedure Act ("APA") 5 U.S.C. §§ 702, 706(2)(A) (2002), and that venue in this Court was proper because the defendant was "found" in the District of Columbia. Id. at 1. On May 25, 2004, the plaintiff submitted a motion for leave to file an amended complaint, which this Court granted, and the amended complaint was then filed on July 29, 2005. Thereafter, the parties filed cross-motions for summary judgment.*fn1 Before those motions became ripe, the plaintiff filed a Motion for Leave to Correct Amended Complaint ("Pl.'s Mot. to Am.")*fn2 and a Motion to Supplement the Administrative Record, and Memorandum in Support ("Pl.'s Mot. to Supp. Rec.").*fn3 For the following reasons, the Court will grant both motions.

I. Background

The plaintiff, Air Force Major Kenneth Delano, completed a 14 week Advanced Program Management Course at the Defense Systems Management College at Fort Belvior, Virginia in April 1998. Compl. ¶ 2. On April 17 of that year, the plaintiff received a Training Report ("TR") indicating that his training commenced on January 12, 1998, and was completed on April 17, 1998. Id. ¶ 3. He subsequently attended a 42 week Air Command and Staff College ("ACSC") course at the Maxwell Air Force Base ("Maxwell A.F.B.") in Alabama, from which he graduated on June 14, 1999. Id. ¶ 2. According to the plaintiff, he was scheduled to receive a "final" TR on June 14, the same day he graduated from the ACSC. Id. ¶ 6. However, shortly after the plaintiff completed the ACSC course, he was placed on administrative hold, while the Air Force investigated allegations of misconduct that had been made against him. Id. ¶ 7. Thus, Brigadier General John Rossa ("General Rossa"), the school Commandant, did not issue the plaintiff's TR on June 14. Id. ¶ 10. The plaintiff contends that General Rossa failed to follow Air Force's procedures for extending the deadline for issuing a TR, having failed to file for a 59 day extension or complete the TR along with a separate Letter of Evaluation informing subsequent evaluators that there was adverse action pending against him. Id. ¶ 9. While on administrative hold, the plaintiff's status was changed from "student" to college "staff member," and on September 3, 1999, formal charges alleging misconduct unbecoming an officer were filed against him. Id. ¶¶ 12-13. Specifically, the plaintiff was charged with "knowingly and dishonorably purchasing Army Exchange Service merchandise and then re-selling it for personal gain to persons not authorized to purchase the merchandise." Id. ¶ 13. Rather than demanding a trial by court-martial, the plaintiff chose to adjudicate the charges through an Article 15 Non-Judicial Proceeding ("NJP") hearing. Id. ¶ 14. On September 15, 1999, General Rossa "adjudicated Delano's guilt," and the plaintiff was forced to relinquish one-half of two months' pay. Id. ¶ 19. That same day, General Rossa issued the plaintiff's TR, which reflected a "close-out date" of September 14. Id. ¶ 20. The TR documented the outcome of the NJP hearing, noting that the plaintiff had committed an Article 133 offense. Id. ¶ 19. On September 20, the plaintiff gave notice of his intent to appeal the NJP. Id. ¶ 25. The appeal was denied on October 7, 1999, and the NJP was considered a "completed action" on October 21. Id. ¶ 29.

As a result of this negative TR, the plaintiff contends that the management level review board at Randolph Air Force Base assigned to his Promotion Recommendation Form ("PFR") a "do not promote" status. Id. ¶¶ 26-27. The plaintiff was subsequently denied a promotion to the next rank of Lieutenant Colonel in November 1999. Id. ¶ 31. In January 2000, the plaintiff submitted an appeal to the Evaluation Reports Appeal Board ("ERAB") for the removal of his negative TR, contending, among other things, that the NJP hearing and Article 15 punishment, which did not occur until September 1999, were "outside [the plaintiff's] rating period," because the proper "close out date" was June 14, 1999. Id. ¶ 32. The ERAB denied the plaintiff's appeal on January 20, 2000, concluding that because the plaintiff was on administrative hold, the close out date of June 14 was properly extended to reflect the additional time he remained at Maxwell A.F.B. Id. ¶ 33. The plaintiff appealed this denial to the Air Force Board for Correction of Military Records ("AFBCMR"), arguing that the NJP proceedings should not be included in his TR because (1) the proper close out date of June 14, 1999, came before the NJP hearing; (2) his guilt was determined on September 15, 1999, the day after General Rossa issued his TR; and (3) the NJP process was a "farce . . . used as a screen to document a predetermined guilt." Id. ¶¶ 34, 40-41. The AFBCMR denied this appeal on June 23, 2000, and that following August, the plaintiff entered the Wisconsin Air National Guard. Id. ¶¶ 44-45. In January 2002, the plaintiff again submitted an appeal to ERAB to remove the adverse TR, and on February 27, 2002, this request was again denied. Id. ¶ 47. Later, in 2002, the plaintiff was selected for promotion to Lieutenant Colonel by the Air Force Reserve Promotion Board, despite his adverse TR. Id. ¶ 49. In May 2005, the plaintiff filed this action seeking judicial review of the AFBMCR's and ERAB's denials of his appeals to remove the adverse TR, the NJP finding and sanction, and the 1999 PFR "do not promote" recommendation from his personnel record. Id. ¶ 50. He also seeks to recover his previously forfeited pay. Id. ¶ 50.

II. The Plaintiff's Motion to Amend

A. Standard of Review

Under Federal Rule of Civil Procedure 15(a), "[l]eave to amend a complaint should be freely given in the absence of undue delay, bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility." Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). However, a court may deny a motion to amend when the amended pleading could be defeated by a motion for summary judgment or a motion to dismiss, thereby rendering the amended complaint futile. See, e.g., Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 n.21 (D.C. Cir. 1983) (holding that a court is under no obligation under Rule 15 to permit filing of second amended complaint when the amendments "constitute futile gestures"); Collyard v. Wash. Capitals, 477 F. Supp. 1247, 1249 (D. Minn. 1979) (denying proposed amended claims as they would be subject to dismissal under Rule 12(b)(6)).

Under Rule 12(b)(1), which governs motions to dismiss for lack of subject matter jurisdiction, "[t]he plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence." Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). In reviewing such a motion, this Court must accept as true all the factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Additionally, in deciding a Rule 12(b)(1) motion, it is well established in this Circuit that a court is not limited to the allegations in the complaint, but may also consider material outside of the pleadings in its effort to determine whether it has jurisdiction in the case. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001).

B. The Parties' Argument

The plaintiff now requests leave to correct his amended complaint. While continuing to assert jurisdiction under the APA, the plaintiff seeks to substitute as a basis for this Court's jurisdiction and venue 28 U.S.C. §§ 1355(b)(1)(B), 1395(a) and 1391(e) (2002) for jurisdiction previously asserted under the Little Tucker Act, 28 U.S.C. § 1346(a)(2). Pl.'s Mot. to Am. at 1. The plaintiff also appears to assert 28 U.S.C. § 1355(a) as grounds for this Court's jurisdiction in regards to the monetary relief he is seeking.*fn4 In opposition to the plaintiff's motion, the defendant argues that the plaintiff's motion fails to satisfy the requirements of Rule 15(a). Def.'s Opp'n to Mot. to Am. at 1. In support of his position, the defendant advances three arguments. First the defendant posits that 28 U.S.C. §§ 1355(b)(1)(B) and 1395(a) apply only to civil proceedings where forfeiture against property obtained through criminal activity is sought, and not to civil proceedings where monetary relief is sought to recover fines or forfeiture imposed as punishment for engaging in criminal activity. Id. at 4. Therefore, the defendant reasons that the amendment proposed by the plaintiff would be futile because the claim to which it applies would not withstand a dismissal motion. Id. Moreover, the defendant argues that the proposed amendment would be futile because it "does not meet the venue requirements of the Little Tucker Act upon which jurisdiction lies." Id. at 3. Second, the defendant opines that because the plaintiff failed to raise his claims regarding his performance recommendation form and the Article 15 hearing before the AFBCMR, he has waived his right to raise these claims in this Court. Id. at 6. Finally, the defendant contends that allowing the plaintiff to correct the amended complaint would be unduly prejudicial to the defendant's case, as he has already "formulated his strategy and response" to the plaintiff's complaint.*fn5 Id. at 7.

In response, the plaintiff argues that the amended complaint would not be futile because it would survive any dispositive motion filed by the defendant. As support of his position, the plaintiff first opines that § 1355's broad language applies to the forfeiture of pay imposed pursuant to a NJP, and therefore confers jurisdiction on this Court and makes this Court the appropriate venue for the litigation of this action. Pl.'s Reply at 1-3. In the alternative, the plaintiff contends that the amended complaint brings this action "squarely within" the parameters of the APA because his waiver of the NJP fine transforms the claim into one that is seeking primarily equitable relief. Pl.'s Mot. to Am. at 8-9. Further, the plaintiff argues that he raised the NJP and TR claims with the AFBCMR, and that this Court should exercise its discretionary power to review the administrative ruling. Id. at 6-7. Finally, because the defendant will have the opportunity to "adjust its strategy" to respond to the plaintiff's amended complaint, the plaintiff posits that the defendant will not be unduly prejudiced if the Court grants his motion to correct the amended complaint. Id. at 10.

C. Analysis

As previously noted, the defendant offers three arguments in opposition to the plaintiff's motion to correct the amended complaint. ...


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