United States District Court, District of Columbia
JOSHUA L. REINHARD, Plaintiff
THE HONORABLE JEH JOHNSON, el al., Defendant
REDACTED MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY United States District Judge.
case, Plaintiff Marine Science Technician Chief
("MSTC") Joshua L. Reinhard challenges the United
States Coast Guard's decision to involuntarily separate
him for alleged misconduct. Before the Court is Plaintiffs
 Motion for Preliminary Injunction. Plaintiff asks the
Court to enter an order causing the Coast Guard to stay
Plaintiffs involuntary separation pending an investigation
into the propriety of the investigation that resulted in his
separation and the convening of a new Administrative
Separation Board ("Board").
consideration of the pleadings,  the relevant legal
authorities, and the record for purposes of this motion, the
Court DENIES Plaintiffs  Motion for Preliminary
Injunction. First, the Court concludes that Plaintiff has not
shown a likelihood of success on the merits. Although couched
in terms of procedural error, the gravamen of Plaintiff s
claim is that a particular piece of evidence used against him
during the Board's review should not be credited.
Plaintiff had full opportunity to challenge that evidence
during the Coast Guard's administrative review of his
case. Plaintiff has not demonstrated any fault with the
procedures of that review, and cannot succeed on his claim
under the Administrative Procedures Act ("APA") by
now attacking the Coast Guard's decision with affidavits
created after the fact. Moreover, even assuming Plaintiff
could succeed on his legal claims in this Court by showing
that certain testimony against him was not credible because
it was fabricated, he has not shown a likelihood of proving
that fabrication. Being generous, the record evidence on this
point is in equipoise. With respect to the other equitable
factors the Court must consider in evaluating a motion for a
preliminary injunction, the Court concludes that Plaintiff
has not demonstrated that he will suffer irreparable harm
absent injunctive relief. Plaintiff can be reinstated with
back-pay if successful on the merits, ___Finally, Plaintiff
has also equities tip in his favor, or that the issuance of
the requested injunction would be in the public interest.
Accordingly, the Court determines that Plaintiff has not met
his burden of showing that a preliminary injunction is
pleadings currently before the Court are not a model of
clarity, and often present a contradictory factual picture.
The Court provides only a brief review of the background as
is necessary to resolve the pending Motion for Preliminary
The Coast Guard Separation Proceedings
has served on active duty with the Coast Guard for over 18
years. CG000012. On February 16, 2015, Plaintiff was
allegedly at a bar with a Mr. Ronnie Wiggins watching another
member of the Coast Guard, Marine Science Technician Second
Class ("MSTSC") Christopher McKibben's, band
play. CG000090; Compl. ¶¶ 15-17. Mr. McKibben is
married to yet another Coast Guard member, MSTSC Brittany
McKibben. Id. That night, Plaintiff
allegedly made a statement to Mr. Wiggins along the following
lines: "I'm going to ensure the McKibbens don't
get stationed together; I'm going to make her my
wife." CG000034; CG000090; Compl. ¶¶ 15-17.
statement appears to have been reported to the Coast Guard
and to have played a role in the Coast Guard's decision
to initiate a Standard Investigation into Plaintiffs alleged
misconduct. CG000089. The investigation that followed was
conducted by Preliminary Inquiry Officer ("PIO")
Lieutenant ("Lt") D.J. Newcomb. Id.
Newcomb issued a report on his investigation on May 5, 2015.
Id. The report is largely based on several
interviews Lt. Newcomb conducted. Id.; see also
CGOOOlOl-122. Lt. Newcomb attached notes from his interviews
to his report. Id. At the outset of the report, Lt.
Exhibits 1-13 and 16 document interview notes taken by me in
the presence of the interviewee. At the conclusion of the
discussion, the interviewee reviewed the notes to ensure
their accuracy and completeness. After agreement from each
interviewee that the notes accurately reflected the
conversation, I saved the file and did not make any further
changes to the text. There are signatures on most of these
exhibits; however, MSTC Reinhard has been advised by his
legal counsel to not sign the notes from his interview.
Additionally, I have contacted interviewees and I am still
waiting on the signatures from a few ofthem (Exhibits 7, 10,
12, and 15), which I will provide upon receipt.
CG000089. Exhibit 7 to Lt. Newcomb's report is a page of
notes entitled "Ronnie Wiggins (non-CG Civilian), 16
March 2015, 1050-1057." CG000110. The page states, in
part, "[c]onfirmed that on the night before Mardi Gras
2015 at the Drink House that MSTC had said to him,
'I'm gonna make sure that those two leave here this
summer going to different units ... I'm going to make her
my wife.'" Id. Based on this interview, Lt.
Newcomb made the following findings of fact:
Finding of Fact 3: On or
about the evening of 16 February 2015, MSTC Joshua Reinhard
was at a local drinking establishment. . . .
Finding of Fact 4: Mr. Ronnie Wiggins was
speaking with MSTC Reinhard at some point during the evening.
During this conversation, MSTC Reinhard purportedly made a
statement referencing two married military members of MSU
Morgan City, MST2 Christopher McKibben and MST2 Brittany
McKibben, who were also at the drinking establishment. MSTC
Reinhard stated the following, or words to this effect,
"I am going to make sure that they are not going to be
stationed together following this summer's transfer.
I'm going to make Brittany my wife." (Exhibit 7).
the course of this investigation, Plaintiff denied making the
statement about the McKibbens to Lt. Newcomb. CG000091.
Because Lt. Newcomb found Mr. Wiggins "more
believable" than Plaintiff, he determined that
Plaintiffs denial was false and that, by making this false
official statement, Plaintiff had violated Article 107, UCMJ
("Any person subject to this chapter who, with intent to
deceive .. . makes any [ ] false official statement knowing
it to be false, shall be punished as a court-martial may
direct."). CG000097. Lt. Newcomb also made numerous
other findings of fact regarding various inappropriate
interactions between Plaintiff and female officers, as well
as several "alcohol incidents." CG000090-99.
August 6, 2015, Plaintiff was notified by Captain D.G.
McClellan that an action to involuntarily separate him from
the Coast Guard was being initiated, CG000041-50. The grounds
upon which the action were initiated were alcohol abuse and
the commission of a serious offense. CG000041.
Administrative Separation Board was convened to consider
Plaintiffs alleged misconduct on December 10 and 11, 2015.
CG000021. The Board took evidence and heard witnesses at a
formal administrative hearing. CG000021 -32 (hearing record
listing exhibits and witnesses). Plaintiff testified before
the Board. CG000002; CG000028. The Board also considered Lt.
Newcomb's investigation report. CG000026. Neither Lt.
Newcomb nor Mr. Wiggins, however, testified in front of the
Board subsequently issued a Report on December 17, 2015,
listing its findings of fact, opinions and recommendations.
CG000011-20. The Board found that "[e]nlisted members
involved in [three] alcohol incidents shall be processed for
separation from the Coast Guard." CG000012. The Board
found that Plaintiff had been involved in three alcohol
incidents. CG000012-13. The Board also found that a
preponderance of the evidence proved that Plaintiff violated
Article 89, UCMJ ("Any person subject to this chapter
who behaves with disrespect toward his superior commissioned
officer shall be punished as a court-martial may
direct."), when he "made unwelcome sexually
suggestive remarks to LT jg Lloyd, " his superior
the Board made the following findings of fact with regard to
the alleged violation of Article 107, UCMJ:
Finding of Fact 27: The Article 107, UCMJ,
single specification violation found to have been committed
in the PIO report involved Respondent making a false official
statement to the preliminary investigating officer.
Respondent's statement to the PIO contradicted witness
statements obtained in the course of the preliminary
Finding of Fact 28: Mr. Ronnie Wiggins
indicated that Respondent had made a statement to him
concerning MST2 Brittany McKibben and MST2 Christopher
McKibben asserting, "I'm going to make sure that
those two leave here this summer going to different units . .
. I'm going to make her my wife."
Finding of Fact 29: Respondent denied, to
the PIO, LT D. Newcomb, that he made the statement about the
Finding of Fact 31: Several members noted
that Respondent had made other uncomfortable and suggestive
comments about ...