Reinhard v. Johnson

UNITED STATES DISTRI'CT COURT

FOR THE DISTRICT OF COLUMBIA

.IOSHUA L. REINHARD,

Plaintilcl" Civil Aetion No. 16-l807 (CKK)

v.

TI~IE l~'lONORABLE .IEH JOHNSON, el ai'.,

Defendant

REDACTED MEM()RANDUM OPINI()N

(September 16, 20}6)

In this case, P'laintifiC l\/Iarine Science chhnician Chiel" (“MS']`C”) Joshua L. Reinhard

challenges the United States Coast Guard’s decision to involuntarily separate him for alleged

misconduct Before the Court is Plaintit`t’s [4] Motion for Preliminary injunction Plaintiff asks

the Court to enter an order causing the Coast Guard to stay Plaintifl”s involuntary separation

pending an investigation into the propriety ofthe investigation that resulted in his separation and

the convening of a new Administrative Separation Board (“Board”).

Upon consideration ol" the pleadings,‘ the relevant legal authorities, and the record t`or

purposes of this motion, the Court l)ENlES Plaintift"s [4] Motion for Preliminary lnjunction.

First, the Court concludes that Plaintitt` has not shown a likelihood of success on the merits.

Although couched in terms of procedural error, the gravamen of Plaintit"‘t" s claim is that a

particular piece ot` evidence used against him during the Board’s review should not be credited.

Plaintit`l" had full opportunity to challenge that evidence during the Coast Guard’s administrative

l Tlie Court’s consideration has focused on the following documents:

~ l)i.’s Mot. for Preiim. lnj. (“Pl.’S l\/lot.”), ECF No. 4;

* Det`s.’ Opp’n to Pl.’s l'\/lot. t"or Prelirn. Inj. (“Defs.’ Opp’n”), ECF No. ll;

~ Pl.’s Reply in Support ofl\/lot. for Preliin. lnj. (“Pl.’s Reply”), ECF No. 12;

~ Dets.’ Sur~Reply, ECF No. l?-l.

ln an exercise ot` its discretion, the Court ti nds that holding oral argument in this action would

not be ol" assistance in rendering a decision. See LCvR 7(l).

l

review of his case. Plaintift` has not demonstrated any fault with the procedures of that review,

and cannot succeed on his claim under the Administrative Procedures Act (“APA”) by now

attacking the Coast Guard’s decision with affidavits created after the fact. l\/loreover, even

assuming Plaintiff could succeed on his legal claims in this Court by showing that certain

testimony against him was not credible because it was fabricated, he has not shown a likelihood

of proving that fabrication Being generous, the record evidence on this point is in equipoise.

With respect to the other equitable factors the Court must consider in evaluating a motion for a

preliminary injunction, the Court concludes that Plaintiff has not demonstrated that he will suffer

irreparable harm absent injunctive relief. Plaintiff can be reinstated with back-pay if successful

_ Finally, Plaintiff has also not shown that the

equities tip in his favor, or that the issuance ofthe requested injunction would be in the public

interest Accordingly, the Court determines that Plaintiff has not met his burden of showing that

a preliminary injunction is warrantedl 2

I. BACKGROUND

The pleadings currently before the Court are not a model of clarity, and often present a

contradictory factual picture f'l`he Court provides only a brief review of the background as is

necessary to resolve the pending l\/Iotion for Preliminary lnjunction.

2 The Court GRANTS IN PART and DENlES lN PART Defendants’ [17] l\/lotion to Strike New

l\/laterials and for Leave to File a Sur~Reply. Defendants’ l\/lotion is granted in that the Court

will consider Defendants’ Sur~Reply because it is narrowly tailored to address new information

and evidence provided with Plaintiff’s Reply. The Court will not, liowever, strike the affidavits

attached to l)laintiff’ s Reply. 'l`he Couit does note that it has not relied on the affidavit of l\/ls.

Brittney Malin or the transcript she created of the September 12, 20l 6 conversation between l\/ls.

Lyndee Moore and i\/lr. Ronnie Wiggins because the audio recording Plaintiff provided is the

best evidence ofthat conversation The Court also GRANTS Plaintiff’s [l 8] l\/lotion for lseave

to File a Supplemental Affidavit.

A. The Coast Guard Separation Proceedings

Plaintiff has served on active duty with the Coast Guard forever l8 years. CGOOO()lZ.

On I-"`ebruary 16, 2015, l)laintiff was allegedly at a bar with a Mr. Ronnie Wiggins watching

another member of the Coast Guard, l\/larine Science Technician Second Class (“l\/ISTSC”)

Christopher l\/chibben’s, band play. CGOOOOQO; Compl. 1111 i5-l 7. Mr. l\/lcl<ibben is married to

yet another Coast Guard member, l\/ISTSC Brittany l\/Icl<ibben.3 Id. That night, Plaintiff

allegedly made a statement to l\/lr. Wiggins along the following lines: “l’m going to ensure the

Mcl<ibbens don’t get stationed together; l’m going to make her my wife.” CG000034;

CGOOOO90; Compi. ‘llfl 15-17.

This statement appears to have been reported to the Coast Guard and to have played a

role in the Coast Guard’s decision to initiate a Standard Investigation into Plaintiff’ s alleged

misconduct CGOOOOSQ. The investigation that followed was conducted by Preliminary ]nquiry

Officer (“Pl()”) lieutenant f“Lt.”) D.J. Newcomb. Id.

Lt. Newcomb issued a report on his investigation on May 5, 2015. ld. ”l` he report is

largely based on several interviews Lt. Newcomb conducted ld.; see also CGOOOl 01-122. Lt.

Newcomb attached notes from his interviews to his report. ld. At the outset of the report, l;t.

Newcomb explained:

Exhibits l~l3 and 16 document interview notes taken by me in the

presence of the interviewee. At the conclusion of the discussion, the

interviewee reviewed the notes to ensure their accuracy and

completeness After agreement from each interviewee that the notes

accurately reflected the conversation, l saved the tile and did not

make any further changes to the text There are signatures on most

of these exhibits; liowever, MS”l`C Reinhard has been advised by his

legal counsel to not sign the notes from his interview. Additionally,

3 The record contains two different spellings of l\/ISTSC McKibben’s name. For the purposes of

this opinion, the Court has adopted the spelling used in the Action ofthe Final Reviewing

Authority of the Coast Guard. CGOOOOOZ.

l have contacted interviewees and l am still waiting on the signatures

from a few ofthem (Exhibits 7, lO, 12, and 15), which l will provide

upon receipt.

CG000089. Exhibit 7 to Lt. Newcomb’s report is a page of notes entitled “Ronnie Wiggins

(non-CG Civilian), l6 l\/larch 2()l 5, 1050~1057.” CGOO(}l l(}. The page states, in part,

“[c]onfirmed that on the night before l\/lardi Gras 2015 at the Drink House that l\/ISTC had said

to him, ‘l’m gonna make sure that those two leave here this summer going to different units . . .

l’m going to make her my wife.”’ Id. Based on this interview, Lt. Newcomb made the

following findings of fact:

Finding of Fact 3: On or about the evening of 16 February 20l5,

MSTC .loshua Reinhard was at a local drinking establishment . . . .

Finding of Fact 4: l\/lr. Ronnie Wiggins was speaking with l\/ISTC

Reinhard at some point during the evening. During this

conversation, l\/ISTC Reinhard purportedly made a statement

referencing two married military members of l\/lSU l\/lorgan City,

MSTZ Christopher l\/IcKibben and MST?. Brittany l\/chibben, who

were also at the drinking establishment MSTC Reinhard stated the

following, or words to this effect, “l am going to make sure that they

are not going to be stationed together following this summer’s

transfer. l’m going to make Brittany my wife.” (l§xhibit 7).

CGUOOOQO.

During the course ofthis investigation, Plaintiff denied making the statement about the

McKibbens to Lt. Newcomb. CG00009l. Because Lt. Newcomb found l\/Ir. Wiggins “more

believable” than Plaintiff, he determined that Plaintiff’s denial was false and that, by making this

false official statement, Plaintif'f` had violated Article 107, UCi\/ij (“Any person subject to this

chapter who, with intent to deceive . . . makes any [ ] false official statement knowing it to be

false, shall be punished as a court-martial may direct.”). CGOOOOQ?. lst. Newcomb also made

numerous other findings of fact regarding various inappropriate interactions between Plaintiff

and female officers, as well as several “alcohol incidents.” CG000090-99.

On August 6, 2015, Plaintiff was notified by Captain D.G. l\/lcClellan that an action to

involuntarily separate him from the Coast Guard was being initiated. CG000041-50. The

grounds upon which the action were initiated were alcohol abuse and the commission of a

serious offense. CG000041.

An Administrative Separation Board was convened to consider Plaintiff’ s alleged

misconduct on December 10 and l l, 20l 5. CG000021. The Board took evidence and heard

witnesses at a formal administrative hearing CG000021~32 (hearing record listing exhibits and

witnesses). Plaintiff testified before the Board. CG000002; CG000028. 'l`he Board also

considered 1.,t. Newcomb’s investigation report CG000026. Neither lit. Newcomb nor l\/lr.

Wiggins, however, testified in front of the Board. CG000021-32.

The Board subsequently issued a Report on December 17, 2015, listing its findings of

fact, opinions and recommendations CGOOOOl l»20. The Board found that “[e]nlisted members

involved in [three`j alcohol incidents shall be processed for separation from the Coast Guard.”

CG000012. The Board found that Plaintiff had been involved in three alcohol incidents

CG000012-13. The Board also found that a preponderance of the evidence proved that Plaintiff

violated Article 89, UCl\/l.l (“Any person subject to this chapter who behaves with disrespect

toward his superior commissioned officer shall be punished as a court~martial may direct.”),

when he “made unwelcome sexually suggestive remarks to LTj g Lloyd,” his superior officer.

CG000033~35. l

l?inally, the Board made the following findings of fact with regard to the alleged violation

ofArticle 107, UCMJ:

Finding of Fact 27: The Article 107, UCl\/l.l, single specification

violation found to have been committed in the Pl() report involved

Respondent making a false official statement to the preliminary

investigating officer. Respondent’s statement to the PlO

contradicted witness statements obtained in the course of the

preliminary investigation report.

Finding of Fact 28: l\/lr. Ronnie Wiggins indicated that Respondent

had made a statement to him concerning l\/ISTZ Brittany l\/chibben

and l\/lSTZ Christopher l\/lcl<ibben asserting, “I’m going to make

sure that those two leave here this summer going to different units .

. . l’m going to make her my wife.”

Finding of Fact 29: Respondent denied, to the PIO, LT D.

Newcomb, that he made the statement about the McKibben[s].

Finding of Fact 31: Several members noted that Respondent had

made other uncomfortable and suggestive comments about l\/ISTZ

Brittany l\/chibben.

CG000034.

Based on these findings, the Board found that the bases for discharge for “alcohol abuse”

and “commission of serious offense” had been met. CG000014-15. With respect to the

“commission of serious offense,” the Board considered both the incident regarding the

McKibberis and the incident with L'fJG Lloyd. All Meinbers ofthe Board agreed that Plaintiff

should be separated from the Coast Guard. CG000016. All Members agreed that Plaintiff

should be separated if the basis for separation was his alcohol abuse. Id. All l\/lembers also

agreed that Plaintiff should be separated if the basis for separation was the commission of a

serious offense. Id. The l\/lembers only disagreed about “how many offenses support this [latter]

basis.” Icf. A majority of the Board (two of three members) found that the “commission of a

serious offense” basis was supported by Plaintist violation ofArticle 107 by falsely denying

having made the allegedly inappropriate statement regarding the l\/chibbens. Id. "l`he third

l\/Iember did not believe that this finding was supported by sufficient evidence Id.; see also

CG000037~40 (l\/linority Report finding that alcohol abuse and commission ofa serious offense

involving incident with female superior officer LTJG Lloyd both supported separation, but

finding that violation of Article 107 should not be used to support separation).

On l)ecember 3l, 201 5, Plaintiff submitted a rebuttal to the Board’s Report, arguing that

there was insufficient evidence to find a violation of Article 107, UCMJ by a preponderance of

the evidencel CG000008-10. Plaintiff argued that the finding was based solely on the “unsworn

and unsigned, interview summary” prepared by Lt. l\lewcomb’s regarding his interview ofl\/lr.

Wiggins “via telephone.” CGOOOOOS. Plaintiff listed ten separate reasons why “‘the Wiggins

evidence” was not credible, including that it was “based on a short phone conversation,” that

Wiggins “was never interviewed face»to-face,” that Wiggins was “not placed under oath,” and

that Wiggins’ “memory of the night in question is weak.” CG000009~10. Plaintiff did not argue

that Lt. l\lewcomb’s alleged interview with l\/lr. Wiggins never actually occurred CG000008~10.

The Board’s report and Plaintist rebuttal was forwarded to the Coast Guard Personnel

Service Center Command (“PSC”) for a final determination On August 17, 20l 6, Captain K.L.

Virkaitis, on behalf of the PSC, took action on the Board’s recommendations and decided to

involuntarily separate Plaintiff. CG00000l ~02. Captain Virkaitis wrote that he was “taking

action on the Recommendations that received the concurrence of a majority of the Board

Members.” CG000001. In describing the Board’s recommendations, Captain Virkaitis quoted

the Board’s report as stating:

“A majority of the members agree that a preponderance of the

evidence also proves a violation ofArticle 107, UCl\/l.l, and that this

violation in conjunction with the violation of Article 89, UCl\/ll, as

well as other information in the record support a recommendation

for separation.”

[a'. Captain Virkaitis also wrote that he had considered Plaintiff"s argument that there was

insufficient evidence to support the Board’s findings regarding his violation of Article 107, but

rejected it. He wrote:

l have reviewed the rebuttal comments from MS'fC Reinhard’s

counsel, which assert that the evidence regarding the violation of

Article l07, UCl\/IJ, was not supported by a preponderance of the

evidence liowever, the Board Report contains sufficient evidence

to support a finding, by a majority of the Board l\/Iembers, that

MSTC Reinhard made a false statement in violation of Article 107,

UCl\/l.l. The Board heard iestimonyfrom MSTC Reinhard and was

able to assess his credibility to determine if he should be believed

over other witnesses and evidence The Board also pointed to

multiple exhibits which they considered to determine whether or not

MSTC Reinhard violated Article 107, UCl\/i.l. ln addition to the

unsworn statement summary from i\/lr. Wiggins, the Board l\/lembers

also noted written statements from Coast Guard members with

information that led them to conclude that the statement from l\/lr.

Wiggins was accurate This is noted in Finding of Fact #31, which

points to Exhibits 17, 18, 21, 27, and 28. In finding ofFact #31, the

Board stated: “Several members noted that |:MSTC Reinhardj had

made other uncomfortable and suggestive comments about MSTZ

Brittany McKibbeii.” Finding of l?act #3l was highlighted in the

Recommendations of the majority of the Board l\/lembers that a

preponderance of the evidence supports separation, with a General

Discharge, without probation or the opportunity to retire.

CG000002 (emphasis added). Plaintiff”s attorney requested the Coast Guard stay Plaintiff’ s

discharge on September 2, 2016. CG000402. Plaintiff stated that “[t]he reason for this request is

that the sole piece of evidence used to separate l\/ISTC Reinhard is a falsely misleading exhibit.”

Id. The Coast Guard denied the request by letter dated September 9, 2016. CG000400.

Plaintiff’ s separation is scheduled for today, September 16, 2016. Id.

B. I’laintiff’s Aliegations in this Case

Plaintifffiled the pending l\/Iotion for Preliminary lnjunction at the end of the day on

Friday, September 9, 2016, and the Court held a telephonic hearing with the parties on

September 12, 2016. Although the filings from both parties contain various other tangential

allegations, Plaintiff clarified and honed his claims on the record Based in part on those

representations, the Court understands that the gravamen of Plaintifl"’s various causes of action is

the following:

Plaintiff alleges that, contrary to Lt. l\lewcomb’s report, Lt. Newcomb never actually

interviewed l\/lr. Wiggins. Compl. ‘ll 30. Plaintiff alleges that, “[o]n August 26 and 29, 2016,

l\/fs. Carol Thompson, Senior Associate with The Federal Practice Group, spoke with l’\/lr.

Wiggins via telephone During these phone calls, l\/lr. Wiggins confirmed that he never spoke

with LT Newcomb or any other investigating officer in the course of any investigation lie

further confirmed that he was never asked to review any interview notes to verify their validity

nor was he asked to sign any interview notes.” Id. Accordingly, Plaintiff alleges that “lff

Newcomb’s report contains at least four false official statements . . . that he: (1) took notes in

front of l\/lr. Wiggins; (2) that he had Mr. Wiggins review the notes; (3) that he had l\/lr. Wiggins

verify the notes; and (4) that he reached bacl< out to l\/Ir. Wiggins to have him sign the verified

notes.” Id. 1[ 35. Plaintiff argues that because the Board relied on this false report to support its

recommendation to separate him, his separation is unlawful and must be overturned Id. 1133.

Plaintiff asserts causes of action pursuant to the APA, the Due Process Clause of the Fifth

Amendment to the United States Constitution, and other “USCG Regulations and Federal law.”

Compi. ‘|l‘li 33-58.

Il. LEGAL STANDARI)

“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelias, 644 F.3d 388, 392

(D.C. Cir. 201 l) (quoting Winier v. Naiaraf Res. Def. Couricii, Ine., 555 U.S. 7, 22 (2008)); see

also Maziirek v. Arii'isii~ong, 520 U.S. 968, 972 (1997) (“[Aj preliminary injunction is an

extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear

9

showing carries the burden of persuasion.” (emphasis in original; quotation marks omitted)). “A

plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the

merits, [2] that he is likely to stiffer irreparable harm in the absence of preliminary relief, [3] that

the balance of equities tips in his favor, and {4] that an injunction is in the public interest.”

Aan'ier v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting Siierfe,i), 644 F.3d at 392

(quoting Winier, 555 U.S. at 20) (alteration in original; quotation marks omitted)). “‘When

seeking a preliminary injunction, the movant has the burden to show that all four factors, taken

together, weigh in favor ofthe injunction.”’ Abdal!aii v. Oi)aina, 753 F.3d 193, 197 (D.C. Cir.

2014) (quoting Davis v. Peiision Bei?e]‘ii Guar. Coi'p., 571 F.3d 1288, l292 (D.C. Cir. 2009)).

“The four factors have typically been evaluated on a ‘sliding scale.”’ Davis, 571 li.3d at 1291

(citation omitted). Under this sliding-scale framework, “[i]fthe movant makes an unusually

strong showing on one of the factors, then it does not necessarily have to make as strong a

showing on another factor.” [a'. at 1291 -92.

The Court notes that it is not clear whether this Circuit’s sliding-scale approach to

assessing the four preliminary injunction factors survives the Supreme Court’s decision in

Wimer. See Save Jabs USA v. U.S. Dep’l. afflomelan.d Sec., l05 F. Supp. 3d 108, 112 (D.D.C.

20l 5). Several judges on the United States Court of Appeals for the D.C. Circuit have “read

Wiiiiei' at least to suggest if not to hold ‘that a likelihood of success is an independent, l`ree~

standing requirement for a preliminary injunction.”’ Sherfey, 644 F.3d at 393 (quoting Davis,

571 li.3d at 1296 (concurring opinion)). llowever, the Court of /-\ppeals has yet to hold

definitively that Winier has displaced the sliding-scale analysis See id.; see also Save Jobs USA,

105 F. Supp. 3d at 1 12. in any event, this Court need not resolve the viability ofthe sliding-scale

approach today as the Court determines that “a preliminary injunction is not appropriate even

under the less demanding sliding-scale analysis.” Sherley, 644 F.3d at 393.

III. DISCUSSI()N

A. Plaintiff Fails to Establish a Likelihood of Succcss on the Merits

Plaintiff has not established a likelihood of success on the merits of his claims. First,

Defendants appear to have a strong argument that, regardless of the perceived error about which

Plaintiff now complains, Plaintiff would still have been separated from the Coast Guard. As

discussed above, the gravamen oi" Plaintiff’s Complaint is that the Administrative Separation

Board that recommended Plaintist separation relied on Lt. Newcomb’s allegedly falsified

report of his interview with l\/lr. Wiggins in determining that Plaintiff"violated Article l07,

UCl\/l.l. Compl.1j33; l’l.’s Mot. at 14.

"fhis claim may falter at the threshold, however, because it is not at all clear that the

finding ofa violation of Article 107 was necessary to the Coast Guard’s decision to separate

Plaintiff Although Plaintiff argues that “without a finding ofa violation of Article 107, the

Separation Authority has stated that l\/IS”l`C Reinhard should not be separated,” Pl.’s Mot. at 14,

this is not a particularly accurate characterization of the record.4 A majority of the members of

4 Plaintiff appears to rely entirely on a statement of the Board, which was subsequently quoted

by Captain Virkaitis in his approval ofthe Board’s recommendation, that °‘[aj majority ofthe

members agree that a preponderance of the evidence also proves a violation of Article 107,

UCl\/IJ, and that this violation in conjunction with the violation of /-\rticle 89, UCl\/IJ, as well as

other information in the record support a recommendation for separation.” Pl.’s Mot. at 6

(emphasis added by Plaintiff). But in the immediately preceding sentence, Captain Virkaitis

noted that “all Board lvlembers agreed that l\/ISTC Reinhard should be separated if the basis for

separation is Misconduct, Commission of a Serious O'ffense.” C0000001. 'l`he Board' found that

separation was warranted for Commission of a Serious Offense based on Plaintiff’s violation of

Article 89 (incident with LT.IG Lloyd), independent of his violation of Article 107. CG000016

(“All members agree that a preponderance of the evidence proves a violation of Article 89,

llCl\/ll, and that this violation in conjunction with other information in the record support a

recommendation for separation.”). At this point at least, the Court is reluctant to conclude that

ll

Plaintiff’s Board concluded that there were three separate bases for separating Plaintiff: alcohol

abuse, commission ofa serious offense by violating Article 89 (incident with female superior

officer LT.lB Lloyd), and commission ofa serious offense by violating A1ticle 107. CG0000 l 4-

15. Plaintist claims in this lawsuit address only the violation of Article l07. l\/foreover,

Defendants have provided a sworn affidavit from Captain Virkaitis, who had the ultimate

authority to decide whether to separate Plaintiff, attesting that even if the “Board had been

unanimous in the opinion that l\/lSTC Reinhard did not violate Aiticle 107 of the UCl\/ll, l would

have taken action contrary to the recommendation of the Board and ordered that l\/ISTC Reinhard

be separated from the Coast Guard.” Defs.’ Opp’n, Ex. 3 (Decl. of Captain Kurtis L. Virkaitis,

United States Coast Guard) atil 8. Although, going forward, the parties will likely continue to

dispute the degree to which Plaintifl”s separation was dependent on the finding that he violated

Article 107, at this stage it is sufficient to say that the other bases for separation and Captain

Virkaitis’ affidavit appear to present a significant roadblock for Plaintiff’s claims.

Even assuming that Plaintiff’s separation would not have occurred but for the Article 107

finding, Plaintiff claims will still likely fail. Plaintiff appears to bring his claims primarily under

the APA. Compl, 1111 5~6. Under the APA, the Court’s “task is to determine whether the

agency’s decision was made ‘without observance of procedure required by Iaw,’ or whether it

was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.""

Union Neighhors Uniled, Inc. v. Jeweli, No. 15~5147, 2016 WL 4151237, at *6 (D.C. Cir. Atig,

5, 2016) (quoting 5 U.S.C. § 706(2)(A) & (D)). Accordingly, Plaintiff attempts to couch his

the Captain’s incorporation of the Board’s use of the word “conjunction” was meant to indicate

that his determination to separate Plaintiff was dependent on the finding that Plaintiff violated

Article 107.

l2

Complaint and l\/lotion for Preliminary injunction in terms of alleged procedural error and denial

of due process

l~lowever, the record before the Qourt strongly suggests that no such denial of due process

has occurred. As Defi`endants point out and Plaintiff does not contest, “[s]everal procedures

occurred between LT l\lewcomb’s investigation and the Coast Guard’s final decision to separate

Plaintiff."` Defs.’ Opp’n at 3. After the investigation, a Board was convened to hear evidence

regarding the allegations against Plaintiff. CG000021. Plaintiff had the opportunity at that time

to present evidence and call witnesses CG000021~32. The Board heard testimony from

Plaintiff and was able to consider his credibility CG000028. The Board then prepared a report

making factual findings and recommending a disposition for Plaintiff. CG000011-20. Plaintiff

had the opportunity to review and contest that report. C6000008-10. Only after considering the

Board’s report, Plaintiff s rebuttal to that report, and the entire record of evidence did Captain

Virkaitis, on behalf ofa “Final Reviewing Authority,” decide to separate Plaintiff. CG000001~

02. Even now, Plaintiff may still petition the Board for Correction of l\/lilitary Records to request

relief. CG000400.

Further, Plaintiff had a full opportunity to, and did, exercise his procedural rights to

challenge the 1very evidence al issue in this cane5 Plaintiff argued to the Coast Guard that Lt.

5 For this reason, the cases cited by Plaintiff are significantly distinguishable ln both Wade v.

Uniled Stale.s', 126 Fed. Cl. 638 (20l6) and Rogers v. UnitedSlaies, 124 Fed. Cl. 757 (2016),

plaintif"fs’ discharges were overturned because the record demonstrated that they had been

“denied important procedural protections” or a “material error” had occurred in their

administrative proceedings Rogers, l24 Fed. Cl. at 768; Wade, 126 lied. Cl. at 645. Fol'

example, in Wade, plaintiff was discharged from the Navy for wrongful use of cocaine even

though the l\lavy failed to produce any evidence of a necessary element of wrongful drug use.

Wade, 126 Fed. Cl. at 645. ln Rogers, plaintiff was “denied important procedural protections

granted him under the Coast Guard’s regulations” when he was separated from the Coast Guard

for alcohol abuse based on a Captain’s recommendation that referred to various alleged incidents

and statements that were not made part of the record before plaintiffs Board. Rogers, 124 lied.

13

Newcornb’s notes were not sufficient evidence upon which to base a finding that he violated

Ai‘ticle 107. CGOOOOl(). This argument was rejected. CGOOOOOZ. Plaintiff did not argue to the

Board, or in response to the Board’s Report, that the evidence of Lt. Newcomb’s interview with

l\/lr. Wiggins was false, as he does here. Pl.’s i\/lot. at 5 n.5. However, Plaintiff does not suggest

he was denied the opportunity to do so. ld. (noting that Plaintist counsel “did not address the

issue with the PlO’s report that is being addressed in this correspondence; arguably, this was due

to ineffective assistance of counsel as the prior civilian counsel did not interview Mr. Wiggins

prior to the Board hearing”). Moreover, Defendants argue and Plaintiff does not contest that

Plaintiff had the opportunity to call i\/ir. Wiggins as a witness at the Board but did not do so.

Defs.’ Opp’n at 9; CG000480»81 (Enlisted Personnel Administrative Boards l\/ianual).

In sum, Plaintiff does not give the Court any reason to doubt that, based on the record

before it, the Coast Guard made a reasoned decision to separate Plaintiff lnstead, Plaintiff

attacks the credibility of testimonial evidence in that record based on events that occurred after

the Coast Guard made its decision to separate Plaintiff. But not only does “an agency’s

credibility decision normally enjoy[ ] almost overwhelming deference,” Sa.s'ol N. Am. ]nc. v.

NLRB, 275 F.3d 1 106, 1 112 (D.C. Cir. 2002), in an APA case, courts must “base their review of

an agency’s actions on the materials that were before the agency at the time its decision was

made,” IMS, P.C. v. Alvcn‘ez, 129 13.3d 618, 623 (D.C. Cir. 1997). Plaintiff acknowledges that he

did not argue to the Board that Lt. Newcomb’s interview notes were falsified That evidence was

not in the record In fact, the evidence with which Piaintiff seeks to discredit Lt. Newcomb’s

Cl. at 768. No such error has been demonstrated in this matter at this time. Plaintiff does not

claim that the Coast Guard separated him without any evidence of a required element of his

violations, or after considering evidence which he did not have the opportunity to rebut. Plaintiff

simply asks this Court to review, post hoc, the credibility determination the Coast Guard made

with respect to a piece of evidence used against him during his separation proceedings

ill

investigation notes only came into existence q]i'er the Board and Captain Virkaitis made their

decisions in this matter. Because Plaintiff cannot rely on such evidence from outside of the

record under the APA, his claims are likely to fail.

Finally, even to the extent that Plaintiff could succeed in this Court by now discrediting

Lt. Newcoinb’s description ofhis interview with l\/lr. Wiggins, the Court finds that Plaintiff Still

has not met his burden. Plaintiff alleges that Lt. Newcomb lied when he stated “that he: (l) took

notes in front of l\/lr. Wiggins; (2) that he had Mr. Wiggins review the notes; (3) that he had l\/lr.

nggins verify the notes; and (4) that he reached back out to l\/ir. Wiggins to have him sign the

verified notes.” Compl. ‘ll 35. The record before the Court does not demonstrate that Plaintiff is

likely to prove that Lt. Newcomb made these false statements Pl.’s Reply at 2. Being generous,

the evidence is currently in equipoise.

in support of his allegations, Plaintiff submitted the affidavit of lvls. Carol Thompson, a

Senior Associate at The Federal Practice Group, which represents Plaintiff in this matter l\/ls.

'l`hoinpson states that she spoke with l\/lr. Wiggins on two separate phone calls. Compl., Ex. 10

(Affldavit of l\/ls, Thompson). During the first phone call, on August 26, 2016, Ms. Thompson

states that l‘vlr. Wiggins said that “[h]e has never spoken to an investigator or anyone from the

Coast Guard (CG) regarding an investigation into potential wrongdoing of MSTC Reinhard.” ]a'.

at 11 1. During her second phone call with l\/lr. Wiggins, on August 29, 2016, l\/ls. Thompson

states that she “asked i\/lr. Wiggins if he was ever contacted by the investigating officer to review

interview notes and sign his name to them. He adamantly said that he was not.” Id. at ‘ll 4.

in response, Defendants provide the declarations of Lt. Newcornb and Lt. Gretal G.

Kinney. Lt. Newcomb disputes the statements l\/lr. nggins allegedly made to l\/Is. ’l`hompson.

Lt. Newcornb states that “on March 16, 2015, l conducted a teie honic interview ofl\/ir. Ronnie

P

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Wiggins regarding statements l\/ISTC Reinhard may have made to him.” Defs.’ Opp’n, Ex. 2

(Declaration of Lieutenant David Newcomb, United States Coast Guard) at ii 3. “The phone call

lasted approximately 7 minutes.” Id. “During the phone call,” Lt. l\lewcomb states, “l\/lr.

Wiggins stated that l\/lSTC Reinhard made several comments to him about Coast Guard member,

l\/larine Science Technician Second Class l ] Brittany Mcl§ibbeii.” !d. at ll 5. Lt. l\lewcomb

states that he “took notes during this phone call,” and attaches a copy of his notes. Id. at il 4. lst.

Newcomb further states that “[p]rior to concluding my phone conversation with l\/lr. Wiggins, l

reviewed with him all of the notes that l took and confirmed that the notes were complete and

accurate.” Id.

lmportantly, Lt. Newcomb offers an explanation for why l\/ir. Wiggins may be

prevaricating with Plaintiff and his representatives about whether he spoke to Lt. Newcomb. He

states that he had a second phone conversation with l\/lr. Wiggins on August 22, 2016, and that

“[d]uring this phone conversation, Mr. Wiggins affirmed to [him] what he had previously told

me during my investigation about l\/lSTC Reinhard’s statements to him concerning MSTZ

Brittany l\/chibben,” but stated that, due to recent confrontations in which Plaintiff urged him to

recant, and with a desire to “stay out ofthe situation,” “he was considering changing his story.”

Id. at 1111 l3-l4.

Lt. Newcomb’s declaration is corroborated in substantial pait by an apparently

uninterested witness, Lt. Kinney, who avers in a declaration that, having spoken with l\/ir.

Wiggins, l\/lr. Wiggins “confirmed the underlying misconduct he witnessed by MSTC Reinhard.”

Defs.’ Opp’n, Ex. 1 (Decl. of lieutenant Gretal G. Kinney, United States Coast Guard) at ll 8._

Lt. Kinney’s declaration also corroborates Lt. Newcomb’s testimony regarding a potential reason

why l\/lr. Wiggins told Plaintiff and his representatives that he had never spoken with Lt.

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Newcomb. According to lst. Kinney, Mr. Wiggins confirmed that “on all occasions that MSTC

Reinhard confronted him about this matter, he denied ever giving a statement to Lt. Newcomb.”

Id. at ii 9. However, according to lst. Kinney, l\/lr. Wiggins stated that he did so because “he was

not comfortable with the situation and did not want to be involved any further and so he had told

l\/ISTC Reinhard he hadn’t made any statement.” Id. Lt. Kinney states that “lvlr. Wiggins

described a couple of occasions in the months preceding our phone call where l\/ISTC Reinhard

approached him to discuss l\/lr. Wiggins’s involvement in the USCG investigation” and “MSTC

Reinhard had apparently told l\/lr. Wiggins that he was fired and that he had lost his pension.” Id.

at 'il 10. According to lst. Kinney, however, l\/lr. Wiggins admitted that “he told MST2

l\/lcl<ibben about the {February 16, 2015] comment at that time and then later, when he was

contacted by l,t. Newcomb, he repeated his statement of what l\/lSrl`C Reinhard had said.” Id. at

ii 8.

In reply, Plaintiff offered a tape recorded discussion between a private investigator and

ivlr. Wiggins that occurred earlier this week, on September 12, 2016. Mr. Wiggins purportedly

told the private investigator that “[n]obody came and interviewed” him about Reinhard’s

statement, but then later stated that “l guess you could say they were interviewed by me because,

uhm, my buddy Chris was in the Coast Guard, and W he called me from the coast guard station

and asked me what he had said and l told him.” Pl.’s Reply, Ex. l (Recording of Conversation

Between i\/ls. Lyndee l\/loore and l\/Ir. Ronnie Wiggins l~leld On September 12, 2016). When

asked whether it was “l`j]ust Chris” who called him, l\/lr. Wiggins acknowledged that “there could

have been somebody else in the room listening.” Id. l\/lr. Wiggins also confirmed his underlying

account of what he heard Plaintiff say on February 16, 2015. l-le told the private investigator that

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“all l did was tell a' friend of mine one night. l»le said something derogatory about his wife and l

didn’t even know who this guy was.” ld.

r`f`he Court will not conduct credibility determinations or otherwise weigh this evidence at

this time. lt is sufficient to say that there is evidence in the record to support both Plaintiff’s and

Defendants’ descriptions of whether and how Lt. Newcomb interviewed l\/lr. `\lv'iggins.6 What is

undisputed is that l\/lr. Wiggins continues to claim that Plaintiff made the initial statement

regarding the McKibbens which Plaintiff was found to have falsely denied making and which is

the underlying basis ofthe Article 107 violation. Although Plaintiff disputes Lt. Newcomb’s

statements regarding how the Coast Guard came to acquire i\/lr. Wiggins’ testimony regarding

Plaintiff’s alleged statement, it appears undisputed that l\/ir. Wiggins continues to consistently

state that Plaintiff did in fact make that statement While perhaps not dispositive of Plaintiff’s

claims, this fact would appear to cut against a finding that Plaintiff was wrongfully terminated

in sum, Plaintiff has, at best, demonstrated that the evidence regarding his claims is currently in

equipoise. He has certainly not met his burden by a preponderance of the evidence that he is

likely to succeed

6 The only alleged falsehood the Court can discern that is not the subject of competing evidence

is Plaintiffs claim that Lt. Newcomb falsely stated that he “took notes in front of l\/lr. Wiggins.”

Compl. 11 35. However, Plaintiff somewhat overstates Lt. Newcomb’s description of his

interview Lt. Newcomb stated in his report that “Exhibits l~l 3 and 16 document interview

notes taken by me in the presence of the interviewee.” C(3000089. Exhibit 7 contains Lt.

Newcomb’s notes from his interview with l\/lr. Wiggins. CG000010. Therefore, Plaintiff argues,

l.st. Newcomb stated that he “took notes in front of l\/lr. Wiggins.” Compl. 11 35. lit. Newcomb’s

use of the phrase “in the presence oi"’ may not have been precise in that he referred to a number

of interviews, some of which may have been in person and others conducted by telephone, but

the Court finds it unlikely that Plaintiff would succeed by parsing Lt. Newcomb’s language in

this manner. l\/loreover, this claim is unlikely to succeed because the fact that lst. Newcomb’s

investigation of lvlr. Wiggins occurred over the telephone was known to the l?inal Separation

Authority when it made its decision to separate Plaintiff CGOOOOOS (arguing in rebuttal to the

Board’s Report that “the investigator called a witness named Ronnie Wiggins, via telephone”

and that the interview notes were “never reviewed, verified, or swor[n]”).

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B. Plaintiff Fails to Show Irreparable Injury

Plaintiff has also not made a sufficient showing that he will suffer irreparable injury if an

injunction is not issued To show that a preliminary injunction is warranted, Plaintiff must

demonstrate that there is a likelihood of irreparable harm. See Chcn)laincy c)_/`Full Gospei

Churches v. Englcma', 454 F.3d 290, 297 (D.C. Cir. 2006) (“A movant’s failure to show any

irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the

other three factors entering the calculus merit such relief.”). The Court of Appeals for the D.C.

Circuit “has set a high standard for irreparable injury.” Ia'. “First, the injury ‘must be both

certain and great; it must be actual and not theoretical.”’ Id. (citation omitted). “Second, the

injury must be beyond remediation.” Ia'.

Plaintiff argues that he will suffer irreparable injury in the absence of injunctive relief as

a result of losing his position as an l\/IS'l`C. Pi.’s ivlot. at 14-l 5. He argues that the basis for, and

circumstances of, his separation will result in a stigma and negatively affect his future

empi@ym@m,_ tim

a violation of his “right to Due Process is per se irreparable” and that the ability to hold a new

Board, should he be successful in his lawsuit, will be “severely hindered as the passing of time

will erode witness memories.” Ia'. at 15.

The Court finds that Plaintiff has not met his burden of demonstrating that any of these

injuries are “certain,” “actual,” or “beyond remediation.” Chcrpiaincy, 454 F.3d at 29'/'. First, the

Court has already found that Plaintiff’s claim does not raise due process issues, and accordingly

finds that the alleged violation of Plaintiff s right to due process does not constitute irreparable

injury.

'l`o the extent Plaintiff claims his loss of employment will constitute an irreparable injury,

that argument also fails because such an injury is not irreparable As Defendant argues and

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Plaintiff does not dispute, if successful on the merits of his claims Plaintiff could be reinstated in

the Coast Guard and receive back pay. See Son'.r])son v. Mw‘ray, 4 l 5 U.S. 6l , 91 (l 974) (where

plaintiff sought preliminary injunction to enjoin discharge, holding that “loss of income . . . falls

far short of the type of irreparable injury which is a necessary predicate to the issuance of a

temporary injunction”); Bors v. Al[en, 607 F. Supp. 2d 204, 211 (D.D.C. 2009) (tinding no

irreparable injury where plaintiff, “if he were to be successful on the merits, would be reinstated

and receive back pay”).

Plaintiff also fails to demonstrate that he will suffer irreparable injury by arguing that his

discharge will create a “stigma,” or otherwise “unfairly paint” Plaintiff such that he will be

unable to obtain future employment This claim is speculative and not supported by any facts.

Although “reputational injury can be used to establish irreparable harm in certain circumstances

. as with all other forms of irreparable harm, the showing of reputational harm must be

concrete and corroborated not merely speculative.” Trudeau v. F ederal Trade Comm ’n, 384 F.

Supp. 2d 281, 297 (D.D.C. 2005), qff’d, 456 F.Bd 128 (D.C. Cir. 2006). The Court will not

credit Plaintiff’ s bald assertions regarding reputational harm and employment consequences

without any support. Also too speculative and unfounded is Plaintiff”s argument regarding

“erod[ingj witness memories.” Pl.’s l\/lot. at 15. Plaintiff does not explain what witness’

testimony he is concerned about, nor does he provide any evidence suggesting that any particular

witness would not be able to adequately testify in front ofa new Administrative Separation

Board . 7

7 lndeed, it seems to the Court that the only relevant witness regarding the disputed Article l07

violation is Mr. Wiggins, who has consistently confirmed his account that Plaintiff made the

allegedly inappropriate comment about the McKibbens. Pl.’s Reply, Ex, 1 (recording of l\/lr.

Wiggins on September 12, 2016, provided by Plaintiff, stating that “all l did was tell a friend of

mine one night. l~le said something derogatory about his wife . . .”).

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_l ln suin_, the Court finds that Plaintiff has not

met his burden of demonstrating that he would suffer any irreparable injuries absent injtuictive

relief

C. Pul)lic luterest and the Balance of Hardships

Finally_. the Coult finds that Plaintiff has not shown that the public interest or the balance

of hardships weigh in favor of granting injunctive relief. Plaintiff argues that an injunction is in

the public interest because it will “sewe the statutory due process requirements Which are of

dramatic consequence,” and “[i]t is always of interest to National Security and the public that

service members . . . are accorded due process.” Pl.’s Mot. at 16. Plaintiff also argues that he

will suffer a hardship if he “is forced to endure a several year process with the likelihood of

prevailing” because it will harm "his potential career progression.” Id.

The Court acknowledges that Plaintiff will suffer a hardship by being discharged pending

the resolution of this case. However, as the Court has already found, Plaintiff can be made

whole by being reinstated and receiving back pay if he eventually prevails on his claims

The

Court also agrees that it is in the public interest to ensure the process by which service members

are discharged is fair. However, the Court has already dctennined that Plaintiff is unlikely to

succeed on a claim that he was denied any due process with regard to his separation As

explained above, although couched in terms ot` procedural error, Plaintiff is actually asking the

Court to reassess the credibility of a piece of evidence after the determinations of the

Administrative Scparation Board and Captain Virkaitis. Moreover, balanced against this

procedural interest and Plaintift"s hardship is the public’s interest in the proper functioning ot` the

military, which includes its ability to discharge personnel as it deems necessary without

unnecessary intrusion See D.r`[ley v, Alexander, 603 F.Zd 914, 920 (D.C. Cir. 1979) (the

.ludiciary’s deference to the l\/lilitary “is at its highest when the military, pursuant to its own

regulations, effects personnel changes through the promotion or discharge process”). ln this

instance, the Court finds that neither the public interest nor the balance oi" hardships favor a

preliminary injunction

IV. CONCLUS]ON

For the foregoing reasons, it is hereby ORDERED that Plaintist [4] l\/lotion for

Preliminary lnjunction is DENIED.

Dated: September l6, 2016

/s/

COLLEEN KOLLAR»KOTELLY

United States District _ludge

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