The opinion of the court was delivered by: Gladys Kessler United States District Judge
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.
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 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").*fn2 Id. at 45. Lt. 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 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.
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.
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.
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 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 (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.*fn3
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, ...