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Fourte v. Spencer

United States District Court, District of Columbia

January 28, 2019

MICHAEL FOURTE, Petitioner,
v.
RICHARD V. SPENCER, in his official capacity as Secretary of the Navy and his successors in office, Respondent.

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE.

         The pro se petitioner, Michael Fourte, is a Reserve Naval Officer with 20 years of service in the United States Navy, including over 16 years of active duty service. Pet. for Writ of Habeas Corpus and Compl. for Declaratory and Injunctive Relief (“Pet.”) ¶ 11, ECF No. 1. Currently deployed in Africa on active duty orders, id. ¶¶ 39, 44, Fourte seeks a writ of habeas corpus requiring the respondent, Richard V. Spencer, the Secretary of the Navy, to demobilize him, id. at 31, and restore him to his previous active duty assignment in Washington, D.C., see Civil Case Form for Habeas Petitions Under 28 U.S.C. § 2241 (“Habeas Form”) at 8 (Request for Relief), ECF No. 1. According to Fourte, he is entitled to this reassignment because he has been unlawfully ordered to duty in Africa, in violation of a Navy “directive . . . mandat[ing] that the Navy will not involuntarily mobilize reservists with over 16 years of active service without justification and a . . . waiver.” Pet. at 1. For the reasons discussed below, the pending habeas petition seeking a judicial order to countermand a military deployment order and to reassign an active duty Naval officer to a duty station in Washington, D.C., crosses the boundaries of justiciability and is therefore dismissed.

         I. BACKGROUND

         Fourte previously filed a habeas petition, in the form of a complaint, in this Court challenging the same allegedly illegal military deployment order, and that petition was transferred to the United States District Court for the District of South Carolina (“D.S.C.”). See Fourte v. Spencer, No. 18-cv-1847, Mem. & Order at 1- 6 (D.D.C. Aug. 10, 2018) (D.D.C. order transferring first habeas petition to D.S.C. (“D.D.C. 2018 Transfer Order”)). The petition was ultimately dismissed without prejudice after the transfer. See Fourte v. Spencer, No. 18-cv-2212, 2018 WL 3845136, at *1 (D.S.C. Aug. 12, 2018) (D.S.C. Magistrate Judge's report recommending dismissal of Fourte's first habeas petition (“D.S.C. Magistrate's 2018 R&R”)); Fourte v. Spencer, No. 18-cv-2212, 2018 WL 3829232, at *1-3 (D.S.C. Aug. 13, 2018) (D.S.C. Order and Opinion dismissing Fourte's first habeas petition (“D.S.C. 2018 Dismissal Order”)). The relevant facts and procedural history are set out below as context for resolution of the pending petition.

         A. Fourte's Deployment to Active Duty in Africa

         Fourte is a Navy reservist, who has “over 16 years of total active duty service.” Pet'r's Decl. Supp. Writ of Habeas Corpus (“Pet'r's Decl.”) (Aug. 27, 2018) ¶ 3, ECF No. 1. On May 31, 2018, while stationed on “active duty” at the Washington Navy Yard in Washington, D.C., he was “ordered to active duty” at a different “assignment in Africa” to serve as an Officer in Charge of a military base for one year. Id. ¶¶ 4, 6-7; Pet. ¶¶ 15-16, 22. Within a week, on June 5, 2018, Fourte “contacted the regional Judge Advocate General for Region Mid-Atlantic Reserve Component Command” to explain that “the [respondent] . . . needed a waiver and justification in order to mobilize” him for the Africa assignment because he would have over 16 years of active duty service by the time of the assignment. Pet'r's Decl. ¶¶ 8, 17. The next day, Fourte was informed that the respondent planned to seek such a waiver. Id. ¶ 9.

         Through his chain of command, Fourte learned, on June 15, 2018, that a “waiver had been approved, ” id. ¶ 12, and approximately one week later, he obtained a copy of the waiver, id. ¶ 14; Pet. ¶ 30, which had been issued on June 7, 2018, Pet., Ex. A, Department of the Navy, Navy Personnel Command Waiver for Partial Mobilization Orders for Michael Fourte (June 7, 2018), ECF No. 1-1. In compliance with “the Africa orders, ” Fourte was “mobilized to active duty involuntarily” on July 20, 2018, and he reported to Fort Jackson in South Carolina for training. Pet. ¶¶ 39, 41.

         The Navy has explained that that the position for which Fourte was chosen, Officer in Charge, is “[r]esponsible for the overall safety, security, and well-being of the [base] and all troops therein.” Resp't's Resp. to Order to Show Cause (“Resp't's Resp.”) at 5, ECF No. 9. The Navy advertised this position, but when no volunteers applied, the Navy ran a search within its database and Fourte was the only Reservist who satisfied each of the position's requirements. See id., Ex. E., Decl. of Quinton S. Packard, Commander, Navy Reserve Forces Command (“Packard Decl.”) (Aug. 10, 2018) ¶¶ 4, 5, 8, ECF No. 9-5. Specifically, Fourte was the “first fully-qualified Sailor on the list of the top 10 qualified Sailors to fill this position, ” and the only officer who satisfied the “command experience requirement” and held the required security clearance. Id. ¶ 8.

         Fourte believes that the waiver paperwork for the Africa deployment was “non-compliant” because the Navy “did not . . . conform to the [Navy's] own procedures for waivers” in Chief of Naval Operations Instruction 1001.27.[1] Pet. ¶¶ 25-26. For example, in his view, the Navy originated the waiver in the wrong office, id. ¶¶ 56-64, did not include a justification in the waiver for selecting Fourte as the “only qualified” reserve member for the Africa assignment, id. ¶ 66, included an incorrect endorsement, id. ¶¶ 80-84, failed to obtain Fourte's signature to verify his total active duty service time, id. ¶¶ 56-64, 85-90, and prepared the waiver in the wrong format, id. ¶¶ 91-98.

         The Navy offered Fourte an “opportunity to present his objections” to the waiver paperwork to a Special Cases Board, but he rejected this offer. Resp't's Resp. at 6; Packard Decl. ¶ 9. Instead, Fourte “attempted to resolve this matter with the [respondent] by utilizing [his] chain-of-command and separately by filing a formal Complaint of Wrongs under Article 1150 of the Navy Regulations.” Pet'r's Decl. ¶ 18. Fourte, who has a law degree, retained counsel for his Article 1150 complaint, which was filed on July 16, 2018. Pet. ¶¶ 14, 38.

         B. Fourte's First Habeas Petition

         While Fourte's Article 1150 complaint was pending, id. ¶ 42, and before his deployment to Africa, Pet'r's Decl. ¶ 26, he filed his first habeas petition in this Court on August 7, 2018. Compl. for Declaratory and Injunctive Relief (“First Habeas Petition”) at 1, Fourte v. Spencer, No. 18-cv-1847 (D.D.C. Aug. 7, 2018), ECF No. 1. This First Habeas Petition sought a declaration of his mobilization as unlawful, arguing that the Navy violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, because the waiver “did not comply with [the Navy's] own directives and decision processes and did not justify why [Fourte] is the only qualified candidate.” Id. On the same day, he also filed a motion for a preliminary injunction to enjoin the Navy from enforcing its mobilization orders. Mot. for Prelim. Inj. at 1, 3, Fourte v. Spencer, No. 18-cv-1847 (D.D.C. Aug. 7, 2018), ECF No. 2. The action was transferred, sua sponte, because at that time, Fourte was stationed at Fort Jackson in South Carolina, and as a result, jurisdiction over the petition was appropriately placed in the District of South Carolina. See D.D.C. 2018 Transfer Order at 4-6 (citing Rooney v. Sec'y of the Army, 405 F.3d 1029, 1032 (D.C. Cir. 2005)).

         C. D.S.C.'s Dismissal of Fourte's First Habeas Petition

         After the action was transferred, a magistrate judge in South Carolina recommended, on August 12, 2018, that the district court dismiss Fourte's action. See D.S.C. Magistrate's 2018 R&R, at *1. This recommendation was adopted, and the district court denied Fourte's motion for a preliminary injunction and dismissed his habeas action without prejudice. See D.S.C. 2018 Dismissal Order, at *1. Specifically, the D.S.C. 2018 Dismissal Order concluded that Fourte's claim was not justiciable because “a civilian court is not permitted to review an internal military decision unless a service member demonstrates . . . (1) ‘an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations,' and (2) an ‘exhaustion of available intraservice corrective measures, '” id. at *2 (quoting Williams v. Wilson, 762 F.2d 357, 359 (4th Cir. 1985)). That court concluded that ...


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