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Rodriguez v. U.S. Department of The Air Force

United States District Court, District of Columbia

July 8, 2019

OSCAR RODRIGUEZ et al., Plaintiffs,
v.
U.S. DEPARTMENT OF THE AIR FORCE et al., Defendants.

          MEMORANDUM OPINION

          TREVOR N. McFADDEN, U.S.D.J.

         Charles 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.

         The Air 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.

         I. BACKGROUND

         Rodriguez 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. ¶ 22.[1] 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. ¶ 21.

         But in 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.

         After 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.

         But 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. Id.

         In 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.

         Still, 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.

         Against 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.

         The Air 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 Minute Entry.[2]

         II. LEGAL STANDARDS

         A 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 ...


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