The opinion of the court was delivered by: Paul L. Friedman United States District Judge
The plaintiff is challenging his removal from the United States Army's Active Guard and Reserve. He seeks to be reinstated to full active duty. This matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment and on plaintiff's motion for a declaratory judgment. After careful consideration of the parties' papers, attached exhibits, and the relevant case law, statutes and regulations, the Court will grant defendant's motion and will deny plaintiff's motion.
At all times relevant to this lawsuit, plaintiff Carl S. Lilly was a member of the District of Columbia Army National Guard ("DCNG"). See Motion to Dismiss or, in the Alternative for Summary Judgment ("Mot."), Statement of Material Facts as to Which There is No Genuine Dispute ("Def. Facts") ¶ 13. On May 12, 2009, plaintiff's commander, Colonel Arthur Hinaman, provided notice to plaintiff of his intent to recommend that plaintiff be involuntarily removed from the DCNG based on an investigation that showed that plaintiff [ ].
See id. ¶¶ 4, 8. Plaintiff was permitted to prepare a response to this notice, and he received the assistance of military counsel in doing so. See id. ¶ 9. Plaintiff was involuntarily separated from Active Guard and Reserve Duty in June 2009. See Plaintiff's Response to Defendant's Motion to Dismiss or, in the Alternative for Summary Judgment and Cross Motion for Declaratory Judgment ("Opp."), Ex. E. He has not yet appeared before the District of Columbia National Guard Administrative Separation Board, but currently is scheduled to do so on May 22, 2010. See Notice, Dkt. No. 26.
On November 9, 2009, plaintiff filed suit and also moved for a preliminary injunction against the defendant in the Superior Court of the District of Columbia. Defendant removed the case to this Court on November 16, 2009. Although the Court scheduled a hearing on plaintiff's motion for a preliminary injunction, plaintiff withdrew the motion prior to the hearing. See Opp. at 1. The parties instead appeared for a status conference at which they agreed to a briefing schedule. The matter is now ripe for adjudication.
The parties rely on materials outside the pleadings. Therefore defendant's motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is more appropriately treated as a motion for summary judgment. See FED. R. CIV. P. 12(d).*fn1 Summary judgment may be granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [his] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). He is required to provide evidence that would permit a reasonable jury to find in his favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380 ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Finally, because plaintiff is proceeding pro se, the Court has evaluated his filings under "less stringent standards than formal pleadings drafted by lawyers." Chandler v. W.E. Welch & Associates, Inc., 533 F. Supp. 2d 94, 102 (D.D.C. 2008) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Gray v. Poole, 275 F.3d 1113, 1115, (D.C. Cir. 2002).
Plaintiff's claims are essentially that he should not have been separated from the DCNG and that the procedures that led to his separation were inadequate. See Notice of Removal, Complaint at 1-6. Although the Court's review of military personnel decisions accords those decisions the "highest" deference, Bors v. Allen, 607 F. Supp. 2d 204, 211 (D.D.C. 2009) (quoting Housman v. Baratz, 916 F. Supp. 23, 28 (D.D.C. 1996)), judicial review of personnel decisions is appropriate when a plaintiff alleges a constitutional violation or a violation of applicable statutes or regulations. See Bors v. Allen, 607 F. Supp. 2d at 211 (for a court to intervene, the plaintiff must make "a very compelling case that he was denied process explicitly given him by statute [or regulation] or that the . . . decision was arbitrary or capricious"). Courts have shown "no hesitation to review cases in which a violation of the Constitution, statutes, or regulations is alleged." Dilley v. Alexander, 603 F.2d 914, 919-920 (D.C. Cir. 1979) (internal citations omitted); see also Larsen v. United States Navy, 486 F. Supp. 2d 11, 18 (D.D.C. 2007) (constitutional claims brought by military personnel concerning hiring or termination are "precisely within the ambit of the federal judiciary") (citing Chappell v. Wallace, 462 U.S. 296, 304 (1983)). The inquiry for the Court in such cases is whether the Constitution has been violated, "whether there has been substantial compliance with applicable statutes and regulations, whether the agency acted arbitrarily and capriciously, and whether there is substantial evidence to ...