United States District Court, D. Columbia
LAYNE WILSON, Plaintiff: John B. Wells, LAW OFFICES OF JOHN
B. WELLS, Slidell, LA.
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.
Mehta, United States District Judge.
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.
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 counter, generally, that
their actions were lawful, reasonable, and appropriate
responses to a series of insubordinate acts.
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.
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
The Email to West Point and Resulting Discipline
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].
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]. 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
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.
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
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 "
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.
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.
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.
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.
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.
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 ¶
The Facebook Post and Resulting Discipline
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.
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.
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
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
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.