United States District Court, District of Columbia
N. McFADDEN, U.S.D.J.
Roberson invited Oscar Rodriguez to perform a
then-controversial flag-folding speech at his Air Force
retirement ceremony. Because of its religious content,
Rodriguez sometimes referred to his flag-folding speech as
“the God speech.” During the ceremony, when
Rodriguez began to speak, a group of airmen-apparently acting
at the behest of the commanding officer-grabbed and
physically ejected him from the room.
Force later changed its policy on such speeches but refused
to apologize for the incident. So Roberson and Rodriguez (the
“Retirees”) sued the Department of the Air Force
and five of its service members (collectively “the Air
Force”) for declaratory relief, injunctive relief, and
damages. The Air Force moved to dismiss the Complaint. The
Court finds that the Retirees lack standing for the
prospective relief they seek, and the Court lacks personal
jurisdiction over the individual defendants. It, therefore,
will grant the Air Force's Motions to Dismiss.
served in the U.S. Air Force from 1980 to 2013, retiring as a
Senior Master Sergeant. Compl. ¶ 4, ECF No. 1. In 2001,
he began participating in Air Force flag-folding ceremonies
as a member of the Travis Air Force Base Honor Guard.
Id. ¶ 20. He “was inspired and began to
develop his own flag-folding speech to capture his personal
sentiments toward the flag.” Id. ¶
For example, he said, “[l]et us pray that God will
reflect with admiration the willingness of one nation in her
attempt to rid the world of tyranny, oppression, and
misery.” Id. At the time, the Air Force
provided no set script for these ceremonies. Id.
2005, the Air Force promulgated Air Force Instruction
34-1201, which provided a specific flag-folding script.
Id. ¶ 15. It required that “when a flag
folding ceremony is desired and conducted by Air Force
personnel at any location, on or off an installation, this
script is the only one that may be used.” Id.
Nonetheless, Roberson continued performing his own
flag-folding speech at various events, including retirement
ceremonies at the request of individual Air Force retirees.
Id. ¶ 24. After he retired, he continued to
perform this speech upon request. Id. ¶ 33.
hearing Rodriguez's speech, Master Sergeant Roberson
invited Rodriguez to perform at his own upcoming retirement
ceremony. Id. ¶ 36. Roberson's retirement
coordinator told him that Rodriguez might be barred from
attending his retirement ceremony and told Roberson to
contact Senior Master Sergeant Joe Bruno. Id. ¶
38. Bruno, in turn, advised Roberson that then-Lieutenant
Colonel Michael Sovitsky, commander of the 749th Aircraft
Maintenance Squadron, “had banned” Rodriguez from
the ceremony. Id. ¶ 40. Rodriguez had heard in
the past that Sovitsky “did not appreciate” his
unique flag-folding speech and its religious overtones.
Id. ¶ 31.
Roberson told Rodriguez to proceed as planned. Id.
¶ 46-47. Family members, friends, and co-workers
gathered for his retirement ceremony. Id. ¶ 52.
After a slideshow celebrating Roberson's career,
patriotic music played, and Rodriguez stepped onto the stage
to begin his speech. Id. ¶ 54. While he was
speaking, an Air Force service member approached Rodriguez
and told him to sit down. Id. ¶ 55. He refused.
Id. Then, a group of uniformed airmen grabbed him,
while he was still speaking, and forcibly removed him from
the stage. Id. Eventually, additional service
members physically removed Rodriguez from the building.
response to this incident, the Air Force reversed its policy
about flag-folding speeches at retirement ceremonies.
Id. at 18-19. It explained, by official statement,
that “Air Force personnel may use a flag folding
ceremony script that is religious for retirement
ceremonies.” Id. at 18.
the Air Force refused to issue a written admission of
wrongdoing or an apology for incident. See Compl. So
the Retirees sued the Air Force and five Air Force service
members: Sovitsky, Bruno, and three others allegedly involved
in the incident, both in their individual and official
capacities. See Id. at 4-5.
the Air Force, the Retirees brought claims under the
Administrative Procedure Act (“APA”), alleging
violations of the First, Fourth, and Fifth Amendments.
Id. at 21-24. They also brought a Religious Freedom
Restoration Act (“RFRA”) claim against both the
Air Force and the individual Air Force servicemen.
Id. at 24-26. And they brought First, Fourth, and
Fifth Amendment claims against the individual servicemen.
Id. at 26-36.
Force has now moved to dismiss the Retirees' Complaint
under Federal Rule of Civil Procedure 12. See
Defs.' Mot., ECF No. 20; Air Force Mot., ECF No. 21. The
Retirees have opposed. Pls.' Mem., ECF No. 23. The Court
also held a motions hearing. See April 3, 2019
motion under Federal Rule of Civil Procedure 12(b)(1)
“presents a threshold challenge to the court's
jurisdiction.” Haase v. Sessions, 835 F.2d
902, 906 (D.C. Cir. 1987). Article III of the U.S.
Constitution limits this Court's jurisdiction to
“actual cases or controversies.” Clapper v.
Amnesty Int'l USA, 568 U.S. 398, 408 (2013).
“No principle is more fundamental to the
judiciary's proper role in our system of government than
the constitutional limitation of federal-court jurisdiction
to actual cases or controversies, ” and the
“concept of standing is part of this limitation.”
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37
(1976) (citation omitted). To show standing, the plaintiffs
bear the burden of alleging ...