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Wilson v. James

United States District Court, D. Columbia

October 13, 2015

Layne Wilson, Plaintiff,
Deborah Lee James [1], Secretary of the Air Force, et al., Defendants

          For LAYNE WILSON, Plaintiff: John B. Wells, LAW OFFICES OF JOHN B. WELLS, Slidell, LA.

         For ERIC FANNING, LT GEN STANLEY E. CLARKE, BGEN JEFFERSON BURTON, LT COL KEVIN TOBIAS, Defendants: Marina Utgoff Braswell, LEAD ATTORNEY, Jane M. Lyons, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.


         Amit P. Mehta, United States District Judge.


         On December 2, 2012, Plaintiff Layne Wilson, an enlisted member of the Utah Air National Guard, sent an email, using his military email account, to an official at the United States Military Academy at West Point objecting to a same-sex wedding held at the military academy's chapel. Plaintiff's Commanding Officer, Defendant Lt. Colonel Kevin Tobias, learned about the email and disciplined Plaintiff for it--first, rescinding his six-year reenlistment contract and offering in its place a one-year contract that Plaintiff later signed; and second, issuing Plaintiff a Letter of Reprimand. After Plaintiff challenged these disciplinary actions, Lt. Colonel Tobias acknowledged error in rescinding the six-year contract and reinstated it, but concluded that the Letter of Reprimand would remain. The next day, apparently dissatisfied with this outcome, Plaintiff posted on his Facebook page the following disparaging remarks about Lt. Colonel Tobias: " You embarrass me, our country, and our unit!!! . . . You are part [of] the problem with this country." That Facebook post, along with other such postings, instigated a second round of discipline, which included another Letter of Reprimand, the opening of a Security Information File, and the suspension of Plaintiff's security clearance.

         Believing that the various forms of discipline imposed violated his constitutionally and statutorily protected rights, Plaintiff brought this suit asserting a bevy of claims under the Religious Freedom Restoration Act, the First and Fifth Amendments, the Administrative Procedure Act, and the Privacy Act. Defendants Secretary of the Air Force Deborah Lee James, Lt. General Stanley E. Clarke, Brigadier General Jefferson Burton, and Lt. Colonel Tobias[2] counter, generally, that their actions were lawful, reasonable, and appropriate responses to a series of insubordinate acts.

         The manner in which Plaintiff has pled and argued his claims has presented serious challenges to the court. Throughout his Complaint and in subsequent briefing, Plaintiff indiscriminately connects various theories of liability--predicated on the Constitution, statutes, and military regulations--with the different disciplinary actions taken against him, creating a thicket of allegations and claims that are often difficult to discern. In his Complaint, for example, Plaintiff does not clearly identify claims; nor does he concisely link his claims to the specific disciplinary actions he challenges. His briefs are similarly abstruse. They treat each form of imposed discipline as an opportunity to raise multifarious arguments challenging the action's validity. The court has done its best to untangle Plaintiff's inartful pleadings and briefs.

         Before the court are Defendants' Motion to Dismiss and for Summary Judgment and Plaintiff's Motion for Summary Judgment. After considering the parties' arguments and the evidence presented, the court grants Defendants' Motion to Dismiss and for Summary Judgment in its entirety and denies Plaintiff's Motion for Summary Judgment in its entirety.


         A. The Email to West Point and Resulting Discipline

         At all times relevant to this action, Plaintiff was a member of The Church of Jesus Christ of Latter-day Saints (" LDS" ), Wilson Aff., ECF No. 17-3, ¶ 3, and an enlisted member of the Utah Air National Guard (" UTANG" ), Defs.' Statement of Material Facts, ECF No. 14, ¶ ¶ 1-2 [hereinafter Defs.' SOF]; Pl.'s Counter Statement of Facts, ECF No. 17-2, ¶ ¶ 1-2 [hereinafter Pl.'s Counter SOF].

         On November 3, 2012, Plaintiff signed a six-year reenlistment contract with both the UTANG and the Federal Air Force Reserve. Administrative R., ECF No. 7-1, at 27-33 [hereinafter AR].[3] On an unspecified prior date, Plaintiff had used his military email account to send " abusive and threatening emails" to his medical insurer, TriCare, about a coverage dispute concerning his wife's cancer treatment. Defs.' SOF ¶ 3; but see Pl.'s Counter SOF ¶ 3 (denying that Plaintiff's emails to TriCare were " abusive or threatening" ). In response, when Plaintiff signed his reenlistment contract, his superior, Defendant Lt. Colonel Tobias " verbally counseled [P]laintiff on his improper use of government email[.]" Defs.' SOF ¶ 3; see also AR at 46 (November 19, 2012, email from Tobias to TriCare employee in which Tobias writes, " I talked with Layne on 3 Nov 2012 and I've asked him to stop the inappropriate emails and to tone down his responses to your staff" ).

         One month later, on December 2, 2012, Plaintiff sent an email, using his military account, to Major Jeffery Higgins, whom he believed to be a chaplain at the United States Military Academy at West Point (the " Email" ). See Pl.'s Counter SOF ¶ 4. The Email's subject line was: " Homosexuality weddings at military institutions." AR at 48. It read as follows:

I just read an article that a homosexual wedding was performed at the Cadet Chapel at West Point. I need to let you [know], that this is wrong on so many levels. If they wanted to get married in a hotel, that is one thing. Our base chapels are a place of worship and this [is] a mockery to God and our military core values. I have proudly served for 27 years and this is a slap in the face to us who have put our lives on the line for this country. I hope sir that you will take appropriate action so this does not happen again.


         At the time he received the Email, Major Higgins was serving as the Executive Assistant to the Commandant of Cadets at West Point. Pl.'s Counter SOF ¶ 4. Brigadier General Ted Martin, West Point's Commandant of Cadets, received the Email and forwarded it to Brigadier General David Fountain, Utah's Assistant Adjutant General for Air and the highest-ranking officer in the UTANG, along with the following message:

I am writing to send you a message I received from one of your Airmen, TSGT L.E. Wilson, who apparently doesn't like the idea of two gay individuals getting married at an on-post facility (in this case, the Cadet Chapel at West Point). I am not sure why he wrote me--maybe he thinks I care about his opinion (which I don't), or that I am responsible for the policy (which I am not), or that I control the facility (which I don't), but in any event I believe he may have some problems with the lifting of " don't ask, don't tell" and thought that you or his immediate commander might want to further investigate. If I did control all of the above, he should know that I still don't care about his opinions, and that I am flabbergasted that he would think it is OK to question any of my orders or policies. I will just hit the delete key on his message and go about my business.
The funny thing about email is that anyone can hit the send key and totally bypass the chain of command. It is bad enough when a civilian does it, but doubly disappointing when someone in the military does it. I guess it is just a sign of the times. I am sure you are busy and have about as much time for this kind of nonsense as I do -- which is " zero" !

AR at 47-48. Brigadier General Fountain forwarded General Martin's email to Brigadier General Kenneth Gammon, who in turn forwarded the email to Tobias. Id. at 47.

         Three days after Plaintiff sent the Email, on December 5, 2012, UTANG officials decided to rescind Plaintiff's six-year reenlistment contract and offer in its place a one-year reenlistment contract. Id. at 42; Defs.' SOF ¶ 8. On December 12, 2012, Tobias met with Plaintiff to discuss the status of his reenlistment contract, the Email, and related matters. Tobias' notes reflect that, at the meeting, he and Plaintiff discussed a June 2011 " Don't Ask Don't Tell Training," about which Plaintiff " comment[ed] . . . how strongly he disagreed with it at that time and how he feels the same way today." AR at 43. Tobias' notes reflect that they also discussed: (1) Plaintiff's " [p]ossible loss of a stripe" and that " at a minimum he'll be getting a [Letter of Reprimand]" ; (2) Plaintiff's retirement, which Tobias " encouraged" him to begin in March or April 2013, " thus allowing him to retire with a clean slate" ; Plaintiff, however, stated that he " [w]ants to stay in for at least three more years," at least in part because " TriCare is critical to his wife's cancer" treatment; and (3) termination of Plaintiff's UTANG email account and internet access, which Tobias told Plaintiff should occur immediately, but Tobias decided to " hold for now" because Plaintiff would need his account to make " retirement requests." Id. Tobias noted that Plaintiff " seemed very adamant that what he did was not wrong [and that] he felt that his rights were being taken from him." Id. In response, Tobias explained that " we as military members must live under tighter rules/guidelines to have a strong force" and told Plaintiff that " he was basically ordered to not have that opinion in uniform and that he basically disobeyed this order." Id. Tobias told Plaintiff that if he " feels so strongly about it maybe it's a good time for him to move on." Id.

         On December 13, 2012, Plaintiff signed the one-year reenlistment contract. Id. at 45. Before signing the contract, Plaintiff informed Tobias that his healthcare coverage had ceased when his six-year reenlistment contract was rescinded. Id. at 44. Plaintiff also acknowledged his missteps: " My National Guard military benefits are being taken away over a human error on my part . . . . I didn't intend to create this red tape mess for you. Again, I'm sincerely sorry I created this situation and ask for your forgiveness. I wish[ ] I could undo the past [two] months, but I can't." Id. Plaintiff also asked Tobias to reinstate his six-year contract: " I wish[ ] there was some way for us to come to a compromise on reinstating my [six-]year enlistment." Id.

         On February 10, 2013, Tobias issued Plaintiff a Letter of Reprimand (the " First LOR" ), in which he wrote:

On 3 November 2012, I sat down with you to discuss the use of your government provided email system and how some emails that you have sent have violated the base email policy that is agreed to every time you log into your computer. During this meeting I verbally counseled you and made it clear that you are not to send personal emails from your work computer under a [UTANG] signature block. I also stressed during this conversation that if the behavior continued there would be repercussions. . . . [The Email] was in violation of the rules and regulations discussed, and [wa]s in direct opposition to the conversation that you and I had on 3 November 2012, just the month prior, during which I mentioned that we as military members must live under tighter rules and guidelines. To have a strong force, when we raise our arm to the square to support and defend the constitution and the leaders appointed over us, while in uniform our opinions and feelings are second to following the laws, regulations and decisions of our elected and military leaders. If you have such a strong aversion to those rules and regulations in uniform, you have the choice to depart our ranks and live as you please, but while in uniform this behavior is not tolerated. This expectation was reviewed, reinforced and you were ordered to stop this behavior, however, you disobeyed this order. You are hereby reprimanded! As a noncommissioned officer, you are expected to maintain a standard or professional and personal behavior that is above reproach. You have failed!

Id. at 8.

         Plaintiff was given 30 calendar days to respond to the First LOR, and he did so on March 5, 2013. Plaintiff explained that he had reviewed the Air Force's policy that " outlines proper use of government communications" and noted that, " [s]ince 4 November 2012," he has " refrained from using government email for TriCare to prevent further misunderstandings." Id. at 10. He added: " I believe that I complied with your verbal orders as I understood them on 4 November 2012." Id. With regard to the Email, Plaintiff wrote:

The one and only email I sent on 2 December 2012 to head Chaplain -- Major Jeffrey Higgins addressed the blasphemous desecration of a military chapel. My email was short, clear, and to the point; having nothing to do with DADT. . . . No one should ever have to check their moral values or religious convictions at the door when they put on the uniform. I must be true [to] myself and to my God above anyone else. My concern now is that I'm no longer allowed to have an opinion and that I must follow unlawful orders to keep my opinions to myself. I am not asking anyone to agree with my opinion nor am I asking anyone to change the current policy. I only ask for respect of my rights of conscience.

Id. at 11.

         Over the next several months, Plaintiff and his lawyers--John B. Wells and Major Ezra T. Glanzer--communicated with Tobias, other Air Force personnel, and members of Congress, regarding Plaintiff's situation. Id. at 52-66, 73-79, 85-90. On July 16, 2013, Tobias sent a letter to Plaintiff's counsel informing them that he had " determined there were procedural irregularities in the executing and processing of the [one-year] enlistment agreement" and that Plaintiff's " six year re-enlistment [contract] executed on 3 November 2012 will be reinstated." Id. at 111. Tobias also informed Plaintiff's counsel that the First LOR would remain in Plaintiff's file, stating that Plaintiff " was not reprimanded for his personal opinion" --which " [m]embers of [the UTANG] have the right to express . . . subject to [the] Code of Conduct and Air Force Standards" --" but rather for communicating his personal opinion using official government email together with his military unit and organization, rank, position, and military contact information." Id. at 111-12. Plaintiffs six-year contract was reinstated on November 13, 2013. Defs.' SOF ¶ 10; Pl.'s Counter SOF ¶ 9.

         B. The Facebook Post and Resulting Discipline

         On July 14, 2013, two days before he would inform Plaintiff that his six-year reenlistment contract would be reinstated, Tobias filed a " Memorandum for Record" in support of the establishment of a Security Information File on Plaintiff (the " SIF" ). AR at 118-22. Tobias sought to open the SIF " based on [Plaintiff's] conduct in relation to his Facebook postings," id. at 119, which were brought to Tobias' attention by other Air Force personnel, id. at 119-20. In the month before filing the Memorandum, Tobias personally had accessed and had reviewed Plaintiff's Facebook page--on which Plaintiff listed his place of work as the UTANG, id. at 130--and had become " concerned with his tone, subjects and . . . mental state," id. at 121. On July 15, 2015, Tobias formally requested the establishment of the SIF, which caused Plaintiff to " be placed in a non-sensitive position and [withdrew his] access to classified information and[/]or unescorted entry to restricted areas," id. at 128--in other words, Plaintiff's security clearance was suspended.

         On July 16, 2013, upon learning from Tobias that his six-year reenlistment contract would be reinstated but that the First LOR would remain in his file, Plaintiff posted on his Facebook page an article about himself, titled " Military Punishes 27 year Veteran Over Personal Beliefs." Id. at 22. The following statement, written by Plaintiff, accompanied the article (the " Facebook Post" ):

I only want to say one thing to you Kevin Tobias!!! Sir!!! You are way out of line!!! You embarrass me, our country, and our unit!!! I have done nothing but try to support our constitution and our religious freedoms. You are part [of] the problem with this country. I have tried reason with you, use[d] diplomacy with you, but that doesn't seem to work. Shame on you sir!!!!

Id. According to Plaintiff, he put up the Facebook Post " inadvertently" --" When I wrote these words I was venting and I did not intend for the matter to be posted" --and " immediately deleted it." Wilson Aff. ¶ 15.

         Evidently, Plaintiff did not take the Facebook Post down fast enough. Another UTANG member read it and sent a screenshot of Plaintiff's critical comments to Tobias. AR at 18. On August 3, 2013, Brigadier General Gammon, UTANG's Commander, issued Plaintiff a second Letter of Reprimand (the " Second LOR" ). Id. at 20. The Second LOR quoted the Facebook Post and stated:

You are hereby reprimanded for failing to give your superior commissioned officer and Commander the dignity and respect due his office. You have embarrassed yourself, your unit and the [UTANG]. Your language was patently disrespectful and your conduct demonstrably prejudicial to good order and discipline. You have failed to exemplify the high professional standards expected of Non-Commissioned Officers in the [UTANG]. This conduct cannot and will not be tolerated.

Id. The same day the Second LOR issued, Plaintiff's counsel were informed about the SIF and were provided with the materials that supported its opening, including screenshots of 74 Facebook posts. Id. at 127.

         On September 14, 2013, after the instant suit was filed, Plaintiff's counsel responded to the Second LOR, asserting numerous procedural and substantive challenges and requesting that it " be withdrawn and destroyed" or " filed locally." Id. at 25-26. On November 4, 2013, Plaintiff's counsel responded to the SIF, arguing that Plaintiff's Facebook posts were " innocuous" and addressing each post individually. See Wells Letter, ECF No. 13-5. Neither Plaintiff nor Defendants have represented that the Second LOR was removed from Plaintiff's file or that his security clearance was reinstated.

         III. ...

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