The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Pro se plaintiff Debra L. Smith brought this suit against the Secretary of the United States Army, alleging deprivations of her property and liberty interests in violation of her due process rights under the Fifth Amendment, violations of her Sixth Amendment rights, and violations of the Administrative Procedure Act ("APA") in relation to the involuntary separation proceedings that have been initiated against her. The Secretary moved to dismiss Smith's APA and constitutional claims for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. Because Smith's APA claim is not ripe for judicial review, that claim will be dismissed. In addition, because Smith has not sufficiently alleged a deprivation of any constitutionally-protected liberty or property right under the Fifth Amendment, and because she is not being subjected to a criminal prosecution so as to render the Sixth Amendment applicable in this case, she has failed to state any constitutional claim upon which relief can be granted, and Smith's constitutional claims will also be dismissed. BACKGROUND
Smith is a major in the United States Army Reserves ("USAR"). (See Pl.'s 2d Am. Compl. ("2d Am. Compl.") at 2.) She is facing involuntary separation from the USAR under Army Regulation 135-175*fn1 because of alleged misconduct and conduct unbecoming an officer. (See Mem. in Supp. of Def.'s Mot. to Dismiss ("Mot. to Dismiss") at 3-4.) When the involuntary separation proceedings began, the USAR placed a suspension of favorable personnel action, also known as a flag, on Smith's personnel file.*fn2 (See id. at 4.) Although Smith was given notice that she was being considered for involuntary separation and was given the option of appearing before a separation board (see id. at 5), she has declined to appear before the separation board.*fn3 (See 2d Am. Compl. at 23.) Instead, Smith brought this action challenging the separation proceedings as violative of her due process rights under the Fifth Amendment, and violative of the Sixth Amendment and the APA. (See id. at 9.) The Secretary has moved to dismiss Smith's APA claim, arguing that it is not ripe and does not state a claim for which relief can be granted since no final agency decision has been rendered as is required before an action under the APA can be brought. Further, the Secretary asserts that Smith's due process claims should be dismissed for failure to state a claim because Smith has not alleged a deprivation of a constitutionally-protected interest, and that Smith's Sixth Amendment claims should be dismissed because she is not being subjected to a criminal prosecution.
"On a motion to dismiss for lack of subject-matter jurisdiction pursuant to [Federal] Rule [of Civil Procedure] 12(b)(1), the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction." Shuler v. United States, 448 F. Supp. 2d 13, 17 (D.D.C. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). In reviewing the motion, a court accepts as true all of the factual allegations contained in the complaint, Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998), and may also consider "undisputed facts evidenced in the record." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003); see also Tootle v. Sec'y of the Navy, 446 F.3d 167, 174 (D.C. Cir. 2006) (explaining that a court may look beyond the pleadings to resolve disputed jurisdictional facts when considering a motion to dismiss under Rule 12(b)(1)). The "nonmoving party is entitled to all reasonable inferences that can be drawn in her favor." Artis, 158 F.3d at 1306.
The Secretary argues that the court lacks subject-matter jurisdiction over Smith's APA claim because that claim is not ripe for judicial review as no final agency decision has been made concerning whether to involuntarily separate Smith from the USAR. (See Mot. to Dismiss at 7-8.) To determine whether a case is ripe for review, a court must "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). "[T]he fitness of an issue for judicial decision depends on whether it is purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency's action is sufficiently final." Devia v. Nuclear Regulatory Comm'n, 492 F.3d 421, 424 (D.C. Cir. 2007) (internal quotation omitted). Hardship is measured by considering "not whether [the parties] have suffered any direct hardship, but rather whether postponement will impose an undue burden on the claimant or would benefit the court." Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 440 F.3d 459, 464 (D.C. Cir. 2006).
The finality requirement is to be applied in a flexible and pragmatic manner. See Abbott Labs., 387 U.S. at 149-50. "The interest in postponing review is powerful when the agency position is tentative. Judicial review at that stage improperly intrudes into the agency's decision making process. It also squanders judicial resources since the challenging party still enjoys an opportunity to convince the agency to change its mind." Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 435-36 (D.C. Cir. 1986) (citations omitted). "An agency action is final if it is 'a consummation of the agency's decision making process,' not merely tentative or interlocutory, and it is 'one by which rights or obligations have been determined, or from which legal consequences flow.'" Isenbarger v. Farmer, 463 F. Supp. 2d 13, 20 (D.D.C. 2006) (quoting Harris v. FAA, 353 F.3d 1006, 1010 (D.C. Cir. 2004)).
Smith's APA claim is not sufficiently final to make it ripe for judicial review. Smith brought this claim after receiving notification that she was being considered for involuntary separation from the USAR. (See Mot. to Dismiss at 5.) However, the separation board which will ultimately decide whether to separate Smith from the USAR has not yet met or made a final decision. (See id.) This board will review the evidence against Smith at a hearing, where Smith will have the option of presenting her own defense and questioning any witnesses. (See id. at 23.) No final decision on Smith's separation has yet been made, and the separation board could well decide to retain her in the USAR, negating any need for judicial review.
To review Smith's APA claim at this stage would "squander judicial resources," because Smith "still enjoys an opportunity to convince the [USAR] to change its mind." Ciba-Geigy Corp., 801 F.2d at 435-36. The USAR's initiation of separation proceedings is a tentative action not fit for judicial review; one can only speculate as to the final outcome of any proceedings. Judicial review at this stage would inappropriately intrude upon an ongoing and incomplete agency decision-making process. Postponement of any decision here would not serve as a hardship to Smith given that a final decision in Smith's favor at the involuntary separation proceedings may render this action unnecessary. Because Smith's claim is not sufficiently final and because Smith has not shown that she has suffered hardship, her APA claim is not ripe for judicial review and will be dismissed.*fn4
II. CONSTITUTIONAL CLAIMS
The Secretary argues that Smith's constitutional claims under the Fifth and Sixth Amendments should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.*fn5 In considering a motion under Rule 12(b)(6), a court must take "the factual allegations of the complaint . . . as true, and any ambiguities or doubts concerning the sufficiency of the claim must be resolved in favor of the pleader." Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007) (internal citations and quotations omitted) (alteration in original). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true . . . ." Id.
A. Fifth Amendment Claims
Smith alleges that the flag placed on her personnel file deprived her of property and liberty interests without due process of law in violation of the Fifth Amendment. (See 2d Am. Compl. at 25.) She insists that 10 U.S.C. § 14902 "is unconstitutional as it violates a solider's [Fifth] [A]mendment due process rights" because the statute enables the initiation of an involuntary separation "at any time."*fn6 (2d Am. Compl. at 13.) Further, Smith generally claims that the Army's procedures for promulgating its ...