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Reinhard v. Johnson

United States District Court, District of Columbia

September 16, 2016



          COLLEEN KOLLAR-KOTELLY United States District Judge.

         In this 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 [4] 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").

         Upon consideration of the pleadings, [1] the relevant legal authorities, and the record for purposes of this motion, the Court DENIES Plaintiffs [4] 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 warranted.[2]

         I. BACKGROUND

         The 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 Injunction.

         A. The Coast Guard Separation Proceedings

         Plaintiff 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.[3] 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.

         This 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.

         Lt. 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. Newcomb explained:

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).


         During 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.

         On 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.

         An 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. CG000021-32.

         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 officer. CG000033-35.

         Finally, 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 investigation report.
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 McKibben[s],
Finding of Fact 31: Several members noted that Respondent had made other uncomfortable and suggestive comments about ...

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