Podolski v. United States of America Department of Defense

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

PETER PODOLSKI, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:20cv935-MHT

) (WO)

UNITED STATES OF AMERICA )

DEPARTMENT OF DEFENSE, et )

al., )

)

Defendants. )

OPINION

Plaintiff Peter Podolski has brought this lawsuit

against defendants United States Department of Defense,

United States Department of the Air Force, and United

States Air Force Officer Training School, claiming that

they removed him from the Training School without

following proper procedure, in violation of the

Administrative Procedure Act, 5 U.S.C. §§ 701 through

706, and the Due Process Clause of the Fifth Amendment

to the United States Constitution. He has invoked the

jurisdiction of the court pursuant to 28 U.S.C. § 1331

(federal question).1

This cause is now before the court on the

defendants’ motion to dismiss Podolski’s complaint for

lack of subject-matter jurisdiction and failure to

state a claim. For the reasons that follow, the motion

will be granted.

I. Standard on Motion to Dismiss

Lack of subject-matter jurisdiction may be asserted

by either party or by the court, on its own motion, at

any time during the pendency of an action. See Fed. R.

Civ. P. 12(b)(1). The burden of establishing a federal

court’s subject-matter jurisdiction, once challenged,

rests on the party asserting jurisdiction. See Thomson

v. Gaskill, 315 U.S. 442, 445 (1942).

1. Podolski also invokes the jurisdiction of the

court pursuant to 28 U.S.C. § 2201 (Declaratory

Judgment Act). The Declaratory Judgment Act, however,

is not a source of jurisdiction. See Skelly Oil Co. v.

Phillips Petroleum Co., 339 U.S. 667, 671 (1950).

2

As a general rule, a district court’s first duty is

to determine whether it enjoys subject-matter

jurisdiction, because that implicates the court’s “very

power to hear the case.” Bell v. Hood, 327 U.S. 678,

682-83 (1946). Accordingly, the court is permitted to

undertake a wide-ranging investigation and, in order to

ascertain whether subject-matter jurisdiction exists,

may look beyond the pleadings and may review or accept

any evidence submitted by the parties. See Lawrence v.

Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).

II. Factual Background

Podolski is a member of the Michigan Air Force

National Guard. He applied for and was accepted into

the United States Air Force Officer Training School at

Maxwell Air Force Base in Montgomery, Alabama. The

Training School is a nine-week course that enlisted

members of the Air Force must pass in order to become

officers. Throughout the course, trainees are

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periodically evaluated by their instructors and their

peers. A trainee who struggles to pass his evaluations

may receive individual counseling, or may be placed on

“Special Monitoring Status.” If a trainee on Special

Monitoring Status continues to struggle, his Squadron

Commander may decide to remove the trainee from the

course. Before such a decision is made, however, the

trainee must be notified verbally and in writing that

he is being placed on “Commander’s Review,” and he must

be afforded a certain amount of time to submit

materials to the Commander in an effort to convince him

or her that he should be allowed to complete the

course.

Podolski struggled to pass his evaluations,

received individual counseling to no avail, and was

placed on Special Monitoring Status. After he

continued to struggle, he was placed on Commander’s

Review. The Training School, however, did not at that

time notify Podolski in writing that he was being

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placed on Commander’s Review. The Commander decided to

remove Podolski from the course, but offered him the

opportunity to take the course again the following

year.

Approximately one month later, the Training School

realized that it had not notified Podolski in writing

that he was being placed on Commander’s Review. It

sent him the requisite notification, informed him that

the Commander would reconsider his decision, and gave

him his allotted amount of time to submit materials to

the Commander. Podolski submitted materials, but the

Commander ultimately stood by his decision to remove

him from the course. Podolski then emailed a

Lieutenant Colonel to ask whether the Commander’s

decision was final. The Lieutenant Colonel responded

that the decision was final, and not subject to further

review.

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III. Discussion

Podolski claims that the defendants acted

arbitrarily and capriciously, in violation of the APA,

and deprived him of procedural and substantive due

process, in violation of the Fifth Amendment, by

failing to notify him in writing that he was being

placed on Commander’s Review, failing to inform him why

he was being removed from the course, improperly

altering certain of his evaluations, and improperly

relying on hearsay statements by his peers in deciding

to remove him from the course. He seeks compensatory

and punitive damages, a declaration that the defendants

acted illegally in removing him from the course, and an

order requiring the defendants to reinstate him in the

course or, in the alternative, to permit him to

personally appeal the decision to remove him.

The defendants argue that the court lacks

subject-matter jurisdiction over Podolski’s claims

because he did not appeal the Commander’s decision to

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the Air Force Board for Correction of Military Records

and therefore failed to exhaust his administrative

remedies.2 Podolski responds that he was not required

2. The defendants also argue that Podolski cannot

recover damages for any of his claims, and that his

procedural and substantive due-process claims must be

dismissed under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim.

For the following reasons, the court agrees with

the defendants on each of these points. First,

Podolski cannot recover damages, because, to the extent

that the government has waived sovereign immunity to

his claims, it has done so only with regard to claims

“seeking relief other than money damages.” See 5

U.S.C. § 702; see also F.D.I.C. v. Meyer, 510 U.S. 471,

486 (1994).

Second, Podolski has failed to state a claim of

deprivation of procedural due process. “Procedural due

process imposes constraints on governmental decisions

which deprive individuals of ‘liberty’ or ‘property’

interests within the meaning of the Due Process Clause

of the Fifth or Fourteenth Amendment.” Mathews v.

Eldridge, 424 U.S. 319, 332 (1976). Podolski has

failed to allege the deprivation of either such

interest. “It is well established that a military

officer’s expectation of continued military employment

does not rise to the level of a property interest

unless it is rooted in some statute, regulation, or

contract.” Doe v. Garrett, 903 F.2d 1455, 1462 (11th

Cir. 1990). By extension, the court finds that

Podolski’s expectation of continued enrollment in the

Training School, which was not rooted in any statute,

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regulation, or contract, does not rise to the level of

a property interest. And Podolski has not alleged the

deprivation of a liberty interest. Although he argues

that the defendants deprived him of his liberty by

including false, derogatory information in his military

records, the former Fifth Circuit has held in nearly

identical circumstances that the mere presence of

allegedly false, derogatory information in a

servicemember’s military records does not amount to the

deprivation of a liberty interest. See Walker v.

Alexander, 569 F.2d 291, 294 (5th Cir. 1978); see also

Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th

Cir. 1981) (en banc) (adopting as binding precedent all

decisions of the former Fifth Circuit rendered prior to

October 1, 1981).

Third, Podolski has failed to state a claim of

deprivation of substantive due process. The

substantive due-process guarantee protects against the

arbitrary and oppressive exercise of government power.

See Daniels v. Williams, 474 U.S. 327, 331 (1986).

However, “only the most egregious official conduct will

be the sort of abusive executive action that can be

sufficiently arbitrary for constitutional recognition

as a potentially viable substantive due process claim.”

Carr v. Tatangelo, 338 F.3d 1259, 1271 (11th Cir.

2003); see also County of Sacramento v. Lewis, 523 U.S.

883, 846 (1998) (“[F]or half a century now we have

spoken of the cognizable level of executive abuse of

power as that which shocks the conscience.”).

Podolski’s allegations fall far short of that mark.

Cf. Tinker v. Beasley, 429 F.3d 1324, 1328 (11th Cir.

2005) (citing approvingly Livsey v. Salt Lake County,

275 F.3d 952, 957-58 (10th Cir. 2001) (concluding that

publication by police of erroneous statement regarding

private sexual proclivities of murder victim, coupled

with county’s refusal to grant a name-clearing hearing,

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to exhaust his administrative remedies because a

Lieutenant Colonel informed him that the Commander’s

decision was final, and not subject to further review.

The court finds that it lacks subject-matter

jurisdiction over Podolski’s claims, but for a

different reason from that offered by the defendants,

namely, that they are barred by Feres v. United States,

340 U.S. 135 (1950), and its progeny. In Feres, the

Supreme Court held that “the Government is not liable

under the Federal Tort Claims Act for injuries to

servicemen where the injuries arise out of or are in

the course of duty incident to service.” 340 U.S. at

146. The Court has since expanded the doctrine

announced in Feres to apply to all service-related

“however ill-advised, inappropriate, or ill-considered

it might have been, does not shock the conscience”)).

Therefore, although the court resolves the motion

to dismiss under the Feres doctrine, it would grant the

motion with regard to Podolski’s due-process claims

and, to the extent that they are for money damages, his

claims under the APA, even if the Feres doctrine did

not apply.

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claims for damages on the basis that the availability

of such claims would disrupt the “peculiar and special

relationship of the soldier to his superiors,” and

impede discipline. See Chappell v. Wallace, 462 U.S.

296, 299 (1983) (quoting United States v. Muniz, 374

U.S. 150, 162 (163)); United States v. Shearer, 473

U.S. 52, 57 (1985). On that same basis, the Eleventh

Circuit Court of Appeals has further expanded the

doctrine to apply to all service-related claims for

declaratory and injunctive relief. See Speigner v.

Alexander, 248 F.3d 1292, 1294, 1298 (11th Cir. 2001).3

A service-member’s challenge to a decision by the

military regarding his competency to perform a certain

task, or his eligibility for a promotion, is, by

definition, a service-related claim. See id. at 1298

(“Military promotion is one of the most obvious

examples of a personnel decision that is integrally

3. The Feres doctrine, however, does not bar facial

challenges to military regulations. See Speigner, 248

F.3d at 1298.

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related to the military’s structure.” (quoting Mier v.

Owens, 57 F.3d 747, 751 (9th Cir. 1995)); see also id.

(“To dictate to the military which officers should be

considered competent would be to interfere in just the

way that Feres and its progeny preclude.”); Chappell,

462 U.S. at 302 (“The complex, subtle, and professional

decisions as to the composition, training, equipping,

and control of a military force are essentially

professional military judgments, subject always to

civilian control of the Legislative and Executive

Branches.” (quoting Gilligan v. Morgan, 413 U.S. 1, 10

(1973)). Therefore, because Podolski’s claims concern

the defendants’ determination that he was not competent

to complete the Training School, they are barred.4

4. Podolski contends that he is, “in effect,

seeking to avoid further military service in enlisted

status,” and that therefore he is akin to a plaintiff

seeking to be discharged from military service, to

whom, according to Podolski, ordinary jurisdictional

rules do not apply. Pls.’ Brief in Opposition (Doc.

14) at 5. The court rejects this contention as an

all-too-clever attempt to evade the rule that courts

should defer “to the superior experience of the

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Podolski is not completely without redress: he can

still seek review of the Commander’s decision to remove

him from the Training School from the Air Force Board

for Correction of Military Records. See 10 U.S.C. §

1552(a); see also id. at § 1552(b) (providing that

review must be sought “within three years after

discovering the error or injustice”); Hanson v. Wyatt,

552 F.3d 1148, 1152 (10th Cir. 2008) (“The language

‘correction of military records’ may be somewhat

misleading, because the authority of BCMRs goes well

beyond correcting paperwork.”); Chappell, 462 U.S. at

303 (“The Board is empowered to order retroactive back

pay and retroactive promotion.”).5 Moreover, the Feres

military in matters of duty orders, promotions,

demotions, and retentions.” Speigner, 248 F.3d at 1298

(quoting Knutson v. Wisconsin Air Nat. Guard, 995 F.2d

765, 771 (7th Cir. 1993)). This case therefore does

not present the question whether the Feres doctrine

bars claims by plaintiffs seeking to be discharged from

military service.

5. Thus, Podolski may “personally appeal the

decision to remove him,” as he requests, absent any

order from the court. Complaint (Doc. 1) at 10.

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doctrine does not bar Podolski from seeking judicial

review of the Board’s decision. See Chappell, 462 U.S.

at 303 (“Board decisions are subject to judicial review

and can be set aside if they are arbitrary, capricious

or not based on substantial evidence.”).6 Under no

circumstances, however, can the court award Podolski

damages for his removal from the Training School, or

order his reinstatement, as he requests. See Speigner,

248 F.3d at 1298; see also Kreis v. Secretary of Air

Force, 866 F.2d 1508, 1512 (D.C. Cir. 1989) (in

reviewing a decision of the Air Force Board of

Correction of Military Records, a court may not

“substitute its judgment for that of the [Board],” but

may “only require the [Board], on remand, to explain

6. There is perhaps some tension between the

Eleventh Circuit’s rule that all service-related claims

for declaratory and injunctive relief are

nonjusticiable, see Speigner, 248 F.3d at 1298, and the

rule that a court may review decisions by the Air Force

Board for Correction of Military Records, including

those concerning a servicemember’s eligibility for

promotion, see Chappell, 462 U.S. at 303.

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more fully the reasoning behind [its] decision and

... apply the appropriate legal standard”).

The court notes that, although the defendants did

not invoke the Feres doctrine in their motion to

dismiss, the court is not barred from considering it,

for it goes to the court’s subject-matter jurisdiction,

and courts “have an independent obligation to determine

whether subject-matter jurisdiction exists, even in the

absence of a challenge from any party.” Arbaugh v. Y&H

Corp., 546 U.S. 500, 514 (2006).7 Nevertheless, if any

7. The court declines to decide whether Podolski

was required to exhaust his administrative remedies

because it is unnecessary to do so. However, it notes

that there is a colorable argument that Podolski was

not required to exhaust his claims under the APA. In

Darby v. Cisneros, 509 U.S. 137 (1993), the Supreme

Court held that where a party challenges an agency

action under the APA and “the initial decisionmaker has

arrived at a definitive position on the issue that

inflicts an actual, concrete injury,” id. at 144, “an

appeal to ‘superior agency authority’ is a prerequisite

to judicial review only when expressly required by

statute or when an agency rule requires appeal before

review and the administrative action is made

inoperative pending that review,” id. at 154. Here,

the Training School has arrived at a definitive

position on Podolski’s eligibility to complete the

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party disagrees with the court’s application of the

doctrine, it may file a motion for reconsideration.

course that has inflicted an actual, concrete injury,

and the statute that empowers the Air Force Board for

Correction of Military Records to correct military

records does not make appeal to the Board a mandatory

precursor to judicial review. See 10 U.S.C. § 1552.

Accordingly, as several other courts have found in

similar circumstances, Darby would seem to preclude the

court from requiring Podolski to seek review from the

Board before bringing suit in federal court. See,

e.g., Crane v. Secretary of the Army, 92 F.Supp.2d 155,

161 (W.D.N.Y. 2000) (“Almost without exception, federal

courts throughout this country have ... declined to

create a military exception to the Court’s decision in

Darby.”); Standage v. Braithwaite, 526 F.Supp.3d 56,

83-84 (D. Md. 2021) (holding that pursuant to Darby,

the plaintiff was not required to resort to the

Military Board of Correction prior to filing suit in

federal court); Manker v. Spencer, 2019 WL 5846828,

*6-7 (D. Conn. 2019) (same); Roe v. Shanahan, 359

F.Supp.3d 382, 401 n.20 (E.D. Va. 2019) (same); Brezler

v. Mills, 220 F.Supp.3d 303, 322-24 (E.D.N.Y. 2016)

(same); O’Grady v. Nyvold, 2001 WL 34382039, *3 (W.D.

Wis. 2001) (same); Nation v. Dalton, 107 F.Supp.2d 37,

42 n.4 (D.D.C. 2000) (same); St. Clair v. Secretary of

the Navy, 970 F.Supp.675, 647-48 (C.D. Ill. 1997)

(same); Watson v. Perry, 918 F.Supp.1403, 1411 (W.D.

Wash. 1996) (same); Ostrow v. Secretary of Air Force,

48 F.3d 562 (Table), 1995 WL 66752, *2 (D.C. Cir. 1995)

(same); Perez v. United States, 850 F.Supp.1354,

1359-61 (N.D. Ill. 1994) (same). But see Saad v.

Dalton, 846 F.Supp.889, 891 (S.D. Cal. 1994) (finding

that Darby does not apply to claims by servicemembers

challenging military personnel actions).

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Accordingly, the court will grant the defendants’

motion to dismiss.

***

An appropriate judgment will be entered.

DONE, this the 29th day of March, 2022.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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