Castillon v. United States of America

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARK W. CASTILLON CIVIL ACTION

VERSUS CASE NO. 23-650

THE UNITED STATES OF AMERICA, et al. SECTION: “G”(5)

ORDER AND REASONS

Before the Court is Plaintiff Mark Castillon’s (“Castillon”) Motion for Temporary

Restraining Order.1 Upon reviewing the Complaint, it has come to the Court’s attention that the

basis for this Court’s subject matter jurisdiction must be clarified. Having considered the motion,

the memorandum in support, and the arguments made by counsel at the February 23, 2023 hearing,

the Court orders Castillon to submit jurisdictional briefing on or before March 3, 2023. Defendants

may submit any response on or before March 10, 2023. Therefore, the Court denies the motion for

a temporary restraining order because Castillon has not established the Court’s jurisdiction over

this matter and because he failed to demonstrate that he will suffer irreparable harm if a temporary

restraining order does not issue.

I. Background

In this litigation, Castillon brings claims against Defendants the United States of America,

the U.S. Department of the Army, Acting Secretary of the Army Christine Wormuth in her official

capacity, Acting Assistant Secretary of the Army Agnes G. Schaefer in her official capacity, the

National Guard Bureau, Chief of the National Guard Bureau Daniel Hokanson in his official

1 Rec. Doc. 4.

capacity, Governor of Louisiana John B. Edwards in his official capacity, Acting Adjutant General

of the Louisiana National Guard D. Keith Waddell in his official capacity, Acting Director of the

Joint Staff of the Louisiana National Guard Thomas C. Friloux in his official capacity, Acting

Commander of the 256th Infantry Brigade Combat Team Johnathan Lloyd in his official capacity,

and Acting Director of Strategic Planning for the Louisiana Army National Guard John Doe in his

official capacity (collectively, “Defendants”).2 Castillon avers that he has served in the Louisiana

Army National Guard (“LAARNG”) for over eighteen years.3 Castillon alleges that he was

subjected to “false allegations and subsequent capricious investigations while stationed at Fort

Bliss” in Texas and upon assignment in Louisiana.4 Castillon brings claims alleging violations of

his procedural and substantive due process rights and the Administrative Procedure Act.5

Castillon avers that he was assigned to serve as an Executive Officer of a battalion in the

256th Infantry Brigade Combat Team (“ICBT”) of the LAARNG in November 2020.6 Castillon

asserts that the 256th ICBT was commanded by Colonel Scott Desormeaux (“Colonel

Desormeaux”) at that time.7 Castillon avers that Colonel Desormeaux appointed an investigating

officer to evaluate two allegations of misconduct against Castillon in Fort Bliss, Texas in

December 2020.8 Castillon argues that Colonel Desormeaux thought the investigation was based

2 Rec. Doc. 1 at 3–5.

3 Id. at 6.

4 Id. at 2.

5 Id. at 17–20.

6 Id.

7 Id.

8 Id. at 8; Rec. Doc. 4 at 3.

on unfounded facts, however the appointed investigating officer substantiated both of the

allegations.9 Castillon rebutted these findings and continued to deny the truth of the underlying

allegations.10 Castillon asserts that Defendants failed to provide any formal Board of Inquiry as

provided in the Army Regulations, or other opportunity to present evidence and witnesses, or

confront his accuser to determine their credibility in the Fort Bliss Investigation.11

Castillon asserts that he was ordered to return to full time duty in New Orleans, Louisiana

following the Fort Bliss Investigation’s findings and recommendations.12 Castillon avers that

Adjutant General of the LAARNG, Major General D. Keith Waddell “appointed a second

investigating officer . . . to investigate fourteen allegations of misconduct by Castillon” in

Louisiana.13 Castillon contends that the second investigating officer published findings

“substantiating eight of the fourteen allegations, partially substantiating three allegations, and

unsubstantiating three allegations (but one with caveat).”14 All of these allegations were for sexual

harassment.15 Castillon further avers that he was again not provided any board of inquiry into his

alleged sexual harassment following the Louisiana Investigation.16

Castillon avers that his superiors initiated and completed the process to involuntarily

9 Rec. Doc. 1 at 8–9; Rec. Doc. 4 at 3.

10 Rec. Doc. 1 at 9; Rec. Doc. 4 at 3.

11 Rec. Doc. 1 at 9; Rec. Doc. 4 at 3.

12 Rec. Doc. 1 at 9.

13 Id.

14 Id. at 10.

15 Rec. Doc. 1-6 at 2.

16 Rec. Doc. 1 at 10.

separate Castillon from active status in violation of the relevant law and regulations.17 Castillon

asserts that on October 28, 2021, Colonel Rob R. Billings issued a Notification of Involuntary

Release from the active guard reserve program to Castillon because of “substantiated sexual

harassment claims from ‘the AR 15-6 investigation.’”18 Castillon contends that he submitted his

rebuttal to the notice of separation on November 30, 2021.19 Castillon asserts that LAARNG Chief

of Military Justice, Major Gavin Routt issued a memorandum confirming that “Castillon’s packet

for involuntary removal from the [active guard reserve program] was legally sufficient,” and that

“the Adjutant General was the final separation authority.”20

Castillon alleges that the Adjutant General of the Louisiana National Guard D. Keith

Waddell signed a memorandum approving the involuntary separation of Castillon from the active

guard reserve program of the LAARNG.21 Castillon alleges that the Adjutant General was

informed that he did not have final approval authority to release Castillon from the active guard

reserve program because “Castillon was in sanctuary status (meaning he completed 18 years of

active federal service).”22 Castillon avers that, on November 30, 2022, then-Acting Assistant

Secretary of the Army Yvette K. Bourcicot signed a memorandum approving the request to

involuntarily release Castillon from the active guard reserve program and directed that Castillon’s

17 Rec. Doc. 1 at 12; Rec. Doc. 4 at 5.

18 Rec. Doc. 1 at 12 (alteration omitted); see also Rec. Doc. 1-6 at 2.

19 Rec. Doc. 1 at 12.

20 Id. at 13.

21 Id.; Rec. Doc. 4 at 7.

22 Rec. Doc. 1 at 13.

release from active service be characterized as General Under Honorable Conditions.23

Castillon filed the complaint in this matter on February 22, 2023.24 Castillon filed the

instant motion that same day.25 The Court set the motion for hearing on February 23, 2023 at 9:00

AM.26

II. Law and Analysis

Castillon asserts that this Court has jurisdiction over this case pursuant to 28 U.S.C.

§§ 1331 and 1343, 42 U.S.C. § 1983, and the Administrative Procedure Act (“APA”).27 “Final

decisions made by boards for the correction of military records . . . are subject to judicial review

under the APA and can be set aside if they are arbitrary, capricious, or not supported by substantial

evidence.”28 The Fifth Circuit has recognized that a federal district court does not have jurisdiction

to “review internal military affairs in the absence of (A) 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 (B) exhaustion of available intraservice corrective measures.”29

Castillon clearly alleges a deprivation of a constitutional right, but during the hearing on the motion

for a temporary restraining order, he conceded that he has not exhausted the available

administrative remedies.

23 Id. at 14.

24 Id.

25 See generally Rec. Doc. 4.

26 Rec. Doc. 5.

27 Rec. Doc. 1 at 2–3.

28 Williams v. Wynne, 533 F.3d 360, 368 (5th Cir. 2008).

29 Hodges v. Callaway, 499 F.2d 417, 419–20 (5th Cir. 1974) (raising the jurisdictional issue sua sponte).

“Notwithstanding the strong policies favoring the exhaustion of administrative remedies in

military cases,” the Fifth Circuit has recognized several established exceptions to the exhaustion

doctrine in military discharge actions.30 “First, only those remedies which provide a genuine

opportunity for adequate relief need be exhausted.”31 “Second, exhaustion is not required when

the petitioner may suffer irreparable injury if he is compelled to pursue his administrative

remedies.”32 “Third, the doctrine will not apply when administrative appeal would be futile (the

futility exception).”33 “Finally, exhaustion may not be required, under some precedents, if the

plaintiff has raised a substantial constitutional question.”34

Castillon has not briefed these issues. “Federal courts are duty-bound to examine the basis

of subject matter jurisdiction sua sponte.”35 Considering the limited information available, the

Court questions whether it has jurisdiction over this matter and will require Plaintiff to submit

jurisdictional briefing. Nevertheless, considering the exigent nature of the pending motion and the

recognized exceptions to the exhaustion requirements,36 the Court proceeds to address the

requirements for a temporary restraining order.

In his motion for a temporary restraining order, Castillon requests that the Court enjoin

Defendants from involuntarily separating Castillon from the Active Guard Reserve program “to

30 Von Hoffburg v. Alexander, 615 F.2d 633, 638 (5th Cir. 1980).

31 Id. (citing Hodges, 499 F.2d at 420–21).

32 Id. (citing Rhodes v. United States, 574 F.2d 1179, 1181 (5th Cir. 1978)).

33 Id. (citing 5 B. Mezines, J. Stein, J. Gruff, Administrative Law § 49.02(4) (1979)).

34 Id. (citing Downen v. Warner, 481 F.2d 642, 643 (9th Cir. 1973)).

35 Union Planters Bank Nat. Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004).

36 The irreparable harm exception to the exhaustion requirement overlaps with the irreparable harm

requirement for a temporary restraining order.

avoid imminent harm and maintain the status quo.”37 Castillon argues that he is entitled to the

requested relief because: (1) there is a substantial likelihood it will succeed on the merits that

Defendants violated the Administrative Procedure Act and violated Castillon’s right to procedural

and substantive due process; (2) there is a substantial threat of irreparable harm because his

“separation is detrimental to his ability to receive retirement pay . . . and his ability to obtain gainful

employment”; (3) balance of the equities favors issuance of an injunction because a temporary

restraining order will not harm Defendants; and (4) the requested injunctive relief is in the public

interest of preventing the misappropriation of funds by illegal means.38

Federal Rule of Civil Procedure 65 governs injunctions and restraining orders, and Rule

65(b) sets forth the procedural rules governing the issuance of temporary restraining orders. In

order to obtain a temporary restraining order, a plaintiff must establish the following essential

elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure

to grant the injunction will result in irreparable injury; (3) the threatened injury outweighs any

damage that the injunction will cause to the adverse party; and (4) the injunction will not do

disservice to the public interest.39 Because such relief is an extraordinary remedy, to justify entry

of a temporary restraining order or preliminary injunction,40 the petitioner must “clearly carr[y]

the burden of persuasion on all four elements.”41 If a plaintiff fails to carry its burden as to any

37 Rec. Doc. 4 at 2.

38 Id. at 10–17.

39 Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011).

40 The legal standard for issuance of a temporary restraining order and for a preliminary injunction are the

same. See Gregory v. Miller, No. 04-3017, 2007 WL 891878, at *2 (E.D. La. Mar. 21, 2007) (Engelhardt, J.).

41 PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005) (internal quotation marks

and citations omitted).

one of these factors, injunctive relief cannot be granted.42 Regardless of whether the temporary

restraining order is granted, Federal Rule of Civil Procedure 52(a) requires the Court to “state the

findings of fact and conclusions of law that support its action.”43

As to the second factor, Castillon contends that there is a substantial threat of irreparable

harm because without injunctive relief, Castillon’s separation from the active guard reserve

program poses a substantial detriment to his ability to receive retirement pay and obtain gainful

employment.44 Castillon asserts that an order enjoining Defendants from removing him from

active guard reserve status in this case is warranted to prevent a violation of Castillon’s sanctuary

status under 10 U.S.C. § 12686, which provides that:

[A] member of a reserve component who is on active duty . . . and is within two

years of becoming eligible for retired pay or retainer pay under a purely military

retirement system . . . may not be involuntarily released from that active duty before

he becomes eligible for that pay, unless the release is approved by the Secretary.45

Castillon argues that “[u]pon release from active duty on February 23, 2023, Castillon will

not be able to complete 20 years of active-duty service to receive the active duty retirement that

his sanctuary status is supposed to protect.”46

“Federal courts have long recognized that, when ‘the threatened harm is more than de

minimis, it is not so much the magnitude but the irreparability that counts for purposes of a

42 See Enterprise Int’l Inc. v. Corp. Estatal Petrolera Ecautoriana, 762 F.2d 464, 472 (5th Cir. 1985).

43 Fed. R. Civ. P. 52(a)(1), (2). Again, the Court questions whether it has jurisdiction over this matter.

Nevertheless, to the extent necessary, this order constitutes the Court’s findings of fact and conclusions of law pursuant

to Federal Rule of Civil Procedure 52(a).

44 Id.

45 Rec. Doc. 2-1 at 1, 5–6.

46 Rec. Doc. 4 at 15.

preliminary injunction.’”47 “It is thus well-established that an injury is irreparable only ‘if it cannot

be undone through monetary remedies.’”48 “‘The possibility that adequate compensatory or other

corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily

against a claim of irreparable harm.’”49

While the harm Castillon will suffer is imminent, he has not shown that the harm is

irreparable. In support of his request for injunctive relief, Castillon cites no authority instructive

on the issue of whether money damages would not fully repair the harm alleged here.50 Castillon

recites boilerplate language restating the requirement of the second step of the inquiry; however,

he makes no assertions as to whether reinstatement or money damages would be an inadequate

remedy for a purported wrongful release from active guard reserve status. Therefore, the Court

finds that Castillon has failed to demonstrate to the Court that he will suffer irreparable harm if a

temporary restraining order does not issue. Accordingly, having failed to satisfy the second prong

of the test for a temporary restraining order to issue, the Court finds that Castillon has not carried

his burden. Additionally, as discussed in more detail above, Castillon has not pled sufficient facts

to establish the Court’s jurisdiction over this matter.

Accordingly,

47 Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 2012) (quoting Enter. Int’l, Inc.

v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir. 1985)).

48 Id. (quoting Interox Am. v. PPG Indus., Inc., 736 F.2d 194, 202 (5th Cir. 1984)).

49 Id. (quoting Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir. 1975)).

50 See Rec. Doc. 4 at 14–15.

IT IS HEREBY ORDERED that Plaintiff Mark W. Castillon’s Motion for Temporary

Restraining Order?! is DENIED. Castillon has not established the Court’s jurisdiction over this

matter, and he has failed to demonstrate that he will suffer irreparable harm if a temporary

restraining order does not issue.

IT FURTHER ORDERED that Plaintiff Mark W. Castillon must submit jurisdictional

briefing to the Court on or before March 3, 2023. Defendants may file any response on or before

March 10, 2023.

IT IS FURTHER ORDER that the Clerk of Court shall serve a copy of this Order on the

United States Attorney’s Office for the Eastern District of Louisiana and counsel for Castillon.

NEW ORLEANS, LOUISIANA, this 23rd day of February, 2023.

O+nnelte (28

Darcie) abucitt. □□□

CHIEF JUDGE

UNITED STATES DISTRICT COURT

>! Rec. Doc. 4.

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