United States District Court, District of Columbia
COLONEL JENNIFER A. HISGEN Plaintiff,
ERIC K. FANNING, Acting Secretary of the Army, Defendant.
ROSEMARY M. COLLYER United States District Judge.
(Ret.) Jennifer A. Hisgen, U.S. Army, sues Erik K. Fanning,
Acting Secretary of the Army, in his official capacity. Col.
Hisgen served with distinction for 30 years, mostly in the
Judge Advocate General Corps. She has brought suit to
overturn a decision of the Army Board for Correction of
Military Records (Board) confirming that she violated the
Military Whistleblower Protection Act by reprising against a
service member who made a protected communication. Col.
Hisgen disagrees with the decision and alleges that the Board
violated the standards set forth in the Administrative
Procedure Act (APA), 5 U.S.C. § 706(2). The parties have
cross-moved for summary judgment. For the reasons that
follow, the Court will grant Secretary Fanning's Motion
for Summary Judgment and deny Col. Hisgen's Cross Motion
for Summary Judgment.
Hisgen spent most of her Army career on active duty as a
commissioned officer in the U.S. Army Reserve Active Guard
Reserve program, specifically in the Judge Advocate General
Corps. See Admin Record [Dkt. 19] at AR
In 2012, Col. Hisgen was selected to serve as the Command
Inspector General for the U.S. Army Reserve Command, which is
a non-Judge Advocate position. See AR 066, 096, 097.
An Inspector General (IG) is tasked with protecting the
rights of individuals, as well as the interests of the Army,
in accordance with applicable laws and regulations. AR 103.
Her performance as Command IG was rated as outstanding by her
superior officer. AR 102, 242-43.
Reserve Command consists of over 200, 000 personnel,
including 10, 000 full-time Soldiers and 3, 000 Army civilian
employees. Id. As Command IG, Col. Hisgen was a
member of the personal staff of the Commanding General. She
was responsible for leading, mentoring, and training a
directorate of 27 IGs and for the technical supervision of
more than 300 Army Reserve IGs supporting over 45 Major
Subordinate Commands. AR 102. Col. Hisgen served as Command
IG from April 30, 2012 to February 19, 2013. AR 048-49, 247.
She did not receive any adverse markings on her performance
evaluation. AR 099-100.
Command IG, Col. Hisgen was responsible for reviewing and
making recommendations on whether to extend tours of duty for
the 300 IGs in the Army Reserve Command. AR 005, 102-03.
Normally a three-year appointment, an IG can request a
fourth, and even a fifth, year extension. Id. While
the Command IG is solely responsible for approving
fourth-year extension requests, the Command IG must forward
all fifth-year extension requests that he or she supports to
the Department of the Army Inspector General (Army IG),
Operations and Support Division for final approval by The
Inspector General (TIG). Id. In other words, the
Command IG has denial authority over such extension requests
because he or she only forwards those with a favorable
weeks into her new position as Command IG, on June 10, 2012,
Col. Hisgen forwarded her favorable recommendation of
Lieutenant Colonel (LTC) MF's fifth-year extension
request to the Army IG for final approval. She noted that
“LTC [MF's] performance with the 79th [(Sustainment
Support Command)] SSC was remarkable” and that
“[a]pproval of a 5th Year Extension will allow [Central
Command] to retain a highly skilled IG who will greatly
contribute to mission success by providing quality IG support
and leadership in a deployed environment.” AR 137.
79th SSC, to which LTC MF was assigned, has authority over
several units, including the 311th Expeditionary Sustainment
Command (ESC). AR 029, 043. As a result, LTC MF would often
interact as part of his normal duties with Judge Advocates in
the 311th ESC, such as Captain (CPT) TC. AR 018. LTC MF
communicated his concerns about CPT TC's performance and
work as a Judge Advocate to Colonel (COL) JS, who was
assigned to the 79th SSC. AR 017-18, 141. COL JS was also the
chief legal officer, known as the Staff Judge Advocate, for
the 311th SSC. COL JS requested that LTC MF provide his
concerns in writing. Id.
6, 2016, LTC MF sent an e-mail to COL JS describing his
concerns and complaints about CPT TC's alleged
mishandling of legal matters. The e-mail contained five
(1) CPT TC provided incorrect legal advice concerning the
standard of proof required in an administrative separation or
non-judicial punishment case against a sergeant accused of
(2) CPT TC provided incorrect legal advice concerning what
claims had to be investigated and failed to identify various
deficiencies (i.e., unsigned sworn statements and
unsupported conclusions without proper fact finding) in his
legal review of the investigations;
(3) CPT TC failed to pay enough attention to detail in his
legal review of an Equal Opportunity investigation report and
allowed an incomplete report to go forward to the decision
maker for signature;
(4) CPT TC was “very late” in reviewing,
redacting, and providing documents to Army Reserve Command in
response to a Freedom of Information Act (FOIA) request; and
(5) CPT TC lacks professionalism based on the fact that he
withdrew without permission from a conference call with
senior officers and his higher command (i.e., 79th
AR 131-32. Upon receipt of the e-mail, COL JS contacted the
Office of The Judge Advocate General and Army Reserve
Command's Staff Judge Advocate to examine the
allegations. AR 145. They determined that sufficient evidence
existed to initiate a preliminary screening inquiry into CPT
TC. Id. On June 21, 2012, COL JS authorized the
inquiry; once completed, it determined that CPT TC did not
commit any professional responsibility violations. AR 117,
16-17, 2012, Sergeant Major (SGM) VJ, an Assistant IG
assigned to the Army Reserve Command, visited the 311th ESC
and learned about tension between the IG offices of the 311th
ESC and the 79th SSC. AR 108-09. SGM VJ reported his findings
to Col. Hisgen and gave her a hard copy of LTC MF's
e-mail concerning CPT TC's performance. AR 016, 138, 143,
146. On July 25, 2012, Col. Hisgen received another copy of
the e-mail when CPT TC submitted an IG complaint against LTC
MF. AR 006-7, 013, 104, 193. On August 1, 2012, Col. Hisgen
signed a memorandum disapproving LTC MF's fifth-year
extension. AR 019, 139.
following day, on August 2, 2012, Col. Hisgen contacted COL
RJ, her technical supervisor and Command IG of the Forces
Command, to ask for his opinion about LTC MF's extension
request. AR 143, 153. Col. Hisgen showed COL RJ a copy of the
e-mail, as well as the appointment memorandum for CPT
TC's preliminary screening inquiry, to which COL RJ
replied that he concurred with Col. Hisgen that LTC MF's
request should be denied. AR 006, 104, 143. Col. Hisgen
proceeded to contact LTC MF to inform him that she denied his
extension request and that he should return to service in his
basic branch, Military Police. AR 105, 139.
September 5, 2012, LTC MF filed a complaint against Col.
Hisgen alleging a violation of Department of Defense (DoD)
Directive 7050.06, which provides implementation instructions
for the Military Whistleblower Protection Act (MWPA), 10
U.S.C. § 1034. Specifically, LTC MF alleged that Col.
Hisgen retaliated against him by taking an unfavorable
personnel action on the basis of a protected communication.
AR 136, 144. On October 25, 2012, the Army IG initiated an
investigation of the complaint from which the investigator
concluded that Col. Hisgen “recommended approval of the
personnel action, received the protected communication, and
then reversed her decision regarding [LTC MF'S] personnel
action.” AR 152. The investigator's report was
forwarded to DoD-IG for final approval. The report was
approved and Col. Hisgen was so informed in a memorandum
dated February 13, 2013. AR 024.
Hisgen appealed the Army IG's findings and, on March 26,
2013, DoD-IG denied her appeal because “she had not
provided any new or compelling information or evidence to
warrant overturning” the findings. Id. In
response, Col. Hisgen then applied to the Army Board for
Correction of Military Records (ABCMR) in accordance with 10
U.S.C. § 1552 and 32 C.F.R. § 581.3 to correct the
finding of reprisal and remove any document reflecting a
violation of the MWPA. AR 230. The ABCMR is authorized to
“consider applications . . . for the purpose of
determining the existence of error or injustice in the army
records of current and former members of the Army, to make
recommendations to the Secretary [of the Army] or take
corrective action on the Secretary's behalf when
authorized.” 32 C.F.R. § 581.3. Specifically, Col.
Hisgen argued before ABCMR that the Army IG had incorrectly
concluded that LTC MF's e-mail was a protected
communication for purposes of the MWPA. AR 205-07. On October
22, 2013, ABCMR denied Col. Hisgen's application. AR
17, 2014, Col. Hisgen filed the instant action seeking
judicial review of the ABCMR Decision pursuant to the APA.
See Compl. [Dkt. 1]. Defendant was unable to provide
a certified copy of the administrative record so that, on
December 18, 2014, the Court granted a motion for voluntary
remand. On remand, a new panel of ABCMR reviewed Col.
Hisgen's case and denied her supplemented Application for
Correction of her military record on June 6, 2015. AR 003-46.
ABCMR specifically noted that “there is no evidence of
any derogatory information related to this investigation or
any IG investigation in her OMPF [(official military
personnel file)].” AR 046. Since there was no evidence
that the Army IG's investigation report was unjust or
untrue, ABCMR concluded that there was no legal basis to
order the removal of records from the Army IG's database.
Hisgen filed an Amended Complaint in this Court on August 7,
2015, alleging that ABCMR's denial of her supplemented
Application for Correction was arbitrary, capricious, an
abuse of discretion, or otherwise contrary to law and
regulations in violation of the APA. See Am. Compl.
[Dkt. 10]. The parties cross-moved for summary judgment and
the merits are fully briefed and ripe for resolution.
See Def. Mot. for Summ. J. [Dkt. 12] (Def. Mot.);
Pl. Opp'n & Cross-Mot. for Summ. J. [Dkts. 14 &
16] (Pl. Mot.); Def. Opp'n & Reply [Dkt. 15] (Def.
Opp'n); Pl. Reply [Dkt. 18].