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Hisgen v. Fanning

United States District Court, District of Columbia

September 20, 2016

ERIC K. FANNING, Acting Secretary of the Army, Defendant.


          ROSEMARY M. COLLYER United States District Judge.

         Colonel (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.

         I. BACKGROUND

         Col. 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 016.[1] 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.

         Army 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.

         As 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 recommendation.

         A few 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.

         The 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.

         On June 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 allegations:

(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 committing adultery;
(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 SCC).

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, 119-20.

         On July 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.

         The 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.

         On 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.

         Col. 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 215-29.

         On July 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. AR 045.

         Col. 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].

         II. ...

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