UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ MARC J. Millican, : : Plaintiff, : : v. : Civil Action No. 06-1582 (GK) : UNITED STATES, : : Defendant. : ______________________________:

MEMORANDUM OPINION

Plaintiff Major Marc J. Millican brings this action against

Defendant United States under the Administrative Procedure Act

(“APA”).

et seq. Plaintiff challenges the decision

of the Air Force Board for Correction of Military Records (“AFBCMR”

or the “Board”) denying Plaintiff’s request to correct his file,

and to void both his removal from the Lieutenant Colonel Air Force

Reserve Promotion List (the “Promotion List”) and his involuntary

transfer to the Retired Reserve as a Major. This matter is now

before the Court on Defendant’s Motion to Dismiss or, in the

Alternative, for Summary Judgment [Dkt. No. 18] and Plaintiff’s

Cross-Motion for Summary Judgment [Dkt. No. 23]. Upon consideration

of the motions, oppositions, replies and the entire record herein,

and for the reasons stated below, Defendant’s Motion to Dismiss is

denied in part and granted in part, Defendant’s Motion for Summary

Judgment is granted, and Plaintiff’s Cross-Motion for Summary

Judgment is denied. I. BACKGROUND

A. Factual History1

In February 1999, when the relevant events began, Plaintiff

Major Marc J. Millican (“Major Millican”) was serving in the Air

Force Reserve as a C-5 pilot in the 312th Airlift Squadron (the

“Squadron” or the “312th”) headquartered at Travis Air Force Base,

California. Def.’s Statement of Facts at ¶ 2. On February 22, Major

Millican’s Squadron leader, Lieutenant Colonel Frank J. Padilla

(“Lt. Col. Padilla”), sent all members of the 312th and their

families a letter directing Squadron members to receive an anthrax

vaccine before going on any airlift missions and in no case later

than July 1, 1999. Administrative Record (“AR”) [Dkt. No. 17] at

24-25.

Lt. Col. Padilla’s letter was sent pursuant to the Anthrax

Vaccination Immunization Program (“AVIP”) initiated by the

Department of Defense (“DOD”) in 1998. Def.’s Statement of Facts at

¶ 3. Lt. Col. Padilla’s letter acknowledged public controversy

regarding the adverse physiological side effects of the vaccine,

but stated that the vaccine had “virtually no known long-term side

effects.” AR at 24-25. Additionally, Lt. Col. Padilla encouraged

1 As explained below, Defendant advances purely legal arguments in its Motion to Dismiss. Therefore, unless otherwise noted and in order to resolve Parties’ Cross-Motions for Summary Judgment, the facts set forth herein are drawn from the Parties’ Statements of Material Facts Not in Dispute submitted pursuant to Local Rule 7(h) and from the Administrative Record (“AR”) [Dkt. No. 17].

-2- Squadron members to educate themselves about the vaccine by

conducting internet research.

In the Squadron’s May 1999 newsletter, Lt. Col. Padilla stated

that Squadron members should “talk to people [they] know and trust”

in deciding whether to receive the vaccine.

. He also

stated that if a member chose not to receive the vaccine, “we will

respect your decision.”

However, Lt. Col. Padilla pointed out

that “[n]o pay or points are allowed after” May 31, 1999 without

receipt of the anthrax vaccine and noted that “I don’t want to see

any of you go . . . not for this reason.”

In June 1999, Major Millican was considered for promotion to

Lieutenant Colonel and received the highest rating of “definitely

promote” from the 349th Wing commander, Colonel Gerard A. Black

(“Col. Black”).

. Accordingly, in July, Major Millican was

selected for promotion to Lieutenant Colonel by the Fiscal Year

2000 Reserve of the Air Force Lieutenant Colonel Board, to become

effective on June 22, 2000.

.

On July 26, 1999, Lt. Col. Padilla sent Major Millican a

memorandum informing him that Squadron members who had not begun

the anthrax vaccine regimen were no longer eligible to perform

drills known as Unit Training Assemblies (“UTAs”).2

. Lt.

2 Although neither the Administrative Record nor the parties’ papers fully explain the concept of a UTA, it appears that UTAs are training drills of which officers must perform a certain number each year to maintain good standing for retirement benefits. AR at 45.

-3- Col. Padilla’s memorandum warned that further failure to receive

the anthrax vaccine by August 20, 1999 could jeopardize Major

Millican’s status for retirement purposes, as subsequent UTA

periods would not be excused.

Major Millican refused to receive

the vaccine and was reassigned to the Standby Reserve on November

15, 1999.

.

During this time, Major Millican also urged other members of

the 312th to refuse the anthrax vaccine. Def.’s Statement of Facts

at ¶ 6. On December 19, 1999, Lt. Col. Padilla sent Major Millican

a Letter of Reprimand (“LOR”), which he would later place in Major

Millican’s Unfavorable Information File.

; AR at 50-51,

131. In the LOR, Lt. Col. Padilla stated that Major Millican had:

engaged in acts of a nature to cause discontent and undermine military discipline within this squadron. Specifically, after the members of this squadron were notified of the requirement to undergo the anthrax immunization series, you sought out and spoke with members of this squadron advocating that they refuse to undergo the anthrax protocol. Further, you actively encouraged other pilots to persuade additional members of your peer group (e.g. the pilot section) to defy official Air Force policy and refuse to undergo the anthrax immunization series. . . . [Y]ou sent electronic mail to members of this squadron advising them that I do not care about them and encouraging them to disregard my advice and directives. On 2 September 1999 . . . you were disrespectful to me . . . [and] you also issued an implied threat against me.

AR at 50. Padilla considered Major Millican’s “actions in

encouraging discontent within the unit as a very serious breach in

-4- judgment and leadership.”

In a memorandum dated March 13, 2000, Lt. Col. Padilla

informed Major Millican that his Officer Performance Report (“OPR”)

cited his actions “to foment discord with this unit and undermine

the credibility of the squadron leadership.” Def.’s Statement of

Facts at ¶ 9; AR at 53. The OPR gave Major Millican a rating of

“Does Not Meet Standards” in the categories of (1) leadership, (2)

professional qualities, and (3) judgment and decisions. Def.’s

Statement of Facts at ¶ 9; AR at 54.

On the same date, March 13, 2000, Colonel Black sent Major

Millican a letter explaining that he was recommending removing

Major Millican’s name from the Lieutenant Colonel Promotion List.

Def.’s Statement of Facts at ¶ 11; AR at 56. Colonel Black referred

to Major Millican’s actions “to purposefully undermine the

credibility of squadron leadership” and “to disrupt the orderly

operation of this unit and Wing by encouraging other unit members

to disregard my directives.” AR at 56. Colonel Black also noted

that Major Millican “demonstrated a total lack of regard for Air

Force policies and procedures by failing to acknowledge no less

than three official written communications requiring your

response.”

Finally, Colonel Black stated, “your promotion is

delayed until the Secretary of the Air Force makes a decision on

this recommendation” and instructed, “[y]ou are not to assume a

higher grade even if your name appears on a promotion order.”

-5- On May 12, 2000, Major Millican received notice from Colonel

Linda A. Martin (“Col. Martin”) that “by order of the Secretary of

the Air Force and direction of the President, you are promoted as

a reserve of the Air Force to the grade [of Lieutenant Colonel],”

effective June 22, 2000.

. Pursuant to Colonel Black’s

March 13 letter, Major Millican did not assume the rank of

Lieutenant Colonel.

Nearly twenty-one months later, on January 7, 2002, the

Department of Defense submitted to then-President George W. Bush a

recommendation to remove Major Millican from the Fiscal Year 2000

Reserve of the Air Force Lieutenant Colonel Promotion List. The

recommendation explained that Major Millican “refused to undergo an

anthrax immunization,” “advised members of the squadron to refuse

their anthrax inoculations,” and “told members of the squadron, via

e-mail, that the Squadron Commander did not care about them and

that they should disregard his advice and directives.” AR at 59.

President Bush approved the recommendation on April 17, 2002.

Def.’s Statement of Facts at ¶ 13; AR at 59.

Under

, a Major in the Air Force Reserve who

has twice failed to be promoted to the next higher rank must be

removed from the reserve active-status list. Major Millican’s

removal from the Promotion List by President Bush was considered a

first-time statutory non-selection for promotion.

(b)(3)(A); Def.’s Statement of Facts at ¶ 13.

-6- In a memorandum dated October 2, 2002, Major Millican was

informed that an Air Force Selection Board had again declined to

select him for promotion. Def.’s Statement of Facts at ¶ 14; AR at

60. This decision was considered a second non-selection for

promotion and triggered the mandatory separation requirement of

. Def.’s Statement of Facts at ¶ 14; AR at 60. Major

Millican was therefore transferred to the Retired Reserves on April

1, 2003. Def.’s Statement of Facts at ¶ 15; AR at 60-61, 131.

B. Procedural History

In July of 2003, Major Millican filed a petition for

correction of military records with the AFBCMR. Def.’s Statement of

Facts at ¶ 16. Specifically, Major Millican requested that the

AFBCMR set aside the December 19, 1999 Letter of Reprimand and the

Officer Performance Report sent to Major Millican on March 13,

2000. AR at 11. Major Millican further asked the AFBCMR to set

aside his April 17, 2002 removal from the Promotion List as well as

his second deferral of promotion in October 2002.

Finally,

Major Millican requested that the AFBCMR set aside his April 1,

2003 transfer to the Retired Reserve, reinstate his application for

promotion to Lieutenant Colonel, and retire him as a Lieutenant

Colonel.

Pursuant to

(c), the AFBCMR solicited several

advisory opinions before making its decision. On or about September

5, 2003, the Air Reserve Personnel Center, Selection Board

-7- Secretariat (“ARPC/DPB”) issued an advisory opinion to the AFBCMR

recommending disapproval of Major Millican’s request. Def.’s

Statement of Facts at ¶ 17. On or about January 14, 2004, the

Administrative Law Division of the Office of the Judge Advocate

General of the Air Force (“USAF/JAA”) also issued an advisory

opinion to the AFBCMR recommending disapproval of Major Millican’s

request because he failed to “demonstrate the existence of any

error or present facts and circumstances supporting an injustice.”

. Finally, on or about May 15, 2004, USAF/JAA issued a

second advisory opinion to the AFBCMR, again recommending

disapproval of Major Millican’s request for the reasons previously

stated.

.

On or about August 4, 2004, the AFBCMR denied Major Millican’s

request for relief.

; AR at 9. On December 19, 2005,

Plaintiff filed a Complaint in the United States Court of Federal

Claims seeking review of the AFBCMR’s decision. See Transfer Order

[Dkt. No. 1]. On August 24, 2006, the Court of Federal Claims

granted Plaintiff’s Unopposed Motion to Transfer to the U.S.

District Court for the District of Columbia, and the case was

randomly assigned to this Judge.

On October 30, 2006, this Court granted Plaintiff’s Unopposed

Motion to Stay Proceedings pending the outcome of the related case,

Doe v. Rumsfeld,

(D.D.C. 2007), which was on

remand from our Court of Appeals. Doe v. Rumsfeld,

-8- (D.C. Cir. 2006); see Pl.’s Unopposed Mot. to Stay Proceedings

[Dkt. No. 6]. This case was reopened on November 15, 2007.

Defendant filed its Motion to Dismiss, or in the Alternative,

for Summary Judgment [Dkt. No. 18] (“Defendant’s Motion to

Dismiss”) on December 19, 2007. Plaintiff filed his opposition and

Cross-Motion for Summary Judgment [Dkt. No. 23] on March 8, 2008.

Defendant filed an opposition and reply [Dkt. No. 26] on April 18,

2008. Finally, Plaintiff filed a reply [Dkt. No. 29] on May 16,

2008.3

II. STANDARD OF REVIEW

Defendant asks the Court to dismiss Plaintiff’s claims under

Rule 12(b)(1). Under that Rule, Plaintiff bears the burden of

proving by a preponderance of the evidence that the Court has

subject matter jurisdiction. See Shuler v. U.S.,

(D.C. Cir. 2008). In reviewing a motion to dismiss for lack of

subject matter jurisdiction, the Court must accept as true all of

the factual allegations set forth in the Complaint; however, such

allegations “will bear closer scrutiny in resolving a 12(b)(1)

motion than in resolving a 12(b)(6) motion for failure to state a

claim.” Wilbur v. CIA,

(D.D.C. 2003)

(citations and quotations omitted). The Court may rest its decision

on its own resolution of disputed facts.

3 The Court regrets that so much time has passed between the Motions becoming ripe and the issuance of this decision.

-9- Both parties also seek summary judgment. Summary judgment will

be granted when there is no genuine issue as to any material fact.

See Fed. R. Civ. P. 56(c). Since this case involves a challenge to

a final administrative agency decision, the Court’s review on

summary judgment is limited to the administrative record. Holy Land

Found. for Relief and Dev. v. Ashcroft,

(D.C.

Cir. 2003) (citing Camp v. Pitts,

(1973));

Richards v. Immigration & Naturalization Serv.,

(D.C. Cir. 1977)) (“Summary judgment is an appropriate procedure

for resolving a challenge to a federal agency’s administrative

decision when review is based upon the administrative record.”).

The decision of a military records corrections board must be

set aside if it is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.”

, 706; see

Chappell v. Wallace,

(1983); Frizell v. Slater,

(D.C. Cir. 1997). “The arbitrary and capricious

standard [of the APA] is a narrow standard of review.” Citizens to

Preserve Overton Park, Inc. v. Volpe,

(1971).

Moreover, it is well established in our Circuit that “[t]his

court's review is . . . highly deferential” and “we are not to

substitute [our] judgment for that of the agency but must consider

whether the decision was based on a consideration of the relevant

factors and whether there has been a clear error of judgment.”

Bloch v. Powell,

(D.C. Cir. 2003) (internal

-10- quotations omitted); see also United States v. Paddack,

(D.C. Cir. 1987).

Further, the decisions of a military board of correction are

to be afforded an “‘unusually deferential’ version of the ‘arbitary

or capricious standard.’” Appleby v. Geren, 330 F.App’x 196, 198

(D.C. Cir. 2009) (quoting Kreis v. Secretary of Air Force,

(D.C. Cir. 1989)). “[I]n reconciling the needs of

military management with Congress’s mandate for judicial review,”

“[p]erhaps only the most egregious decisions may be prevented under

such a deferential standard of review.” Kreis,

.

III. ANALYSIS

In cross-motions, the parties seek either dismissal or

judgment as a matter of law. Defendant seeks dismissal on two

grounds. First, Defendant argues that the Complaint should be

dismissed for lack of jurisdiction. Second, Defendant contends that

Plaintiff’s request for an order for retroactive promotion should

be dismissed for lack of jurisdiction as well as failure to state

a claim upon which relief can be granted. Alternatively, Defendant

seeks summary judgment on the ground that the AFBCMR’s decision was

not arbitrary or capricious. Plaintiff seeks summary judgment on

the ground that the AFBCMR’s decision was arbitrary and capricious

because: (1) a subsequent judicial ruling by another judge of this

District Court that the anthrax vaccine was experimental renders

his conduct non-punishable; (2) Plaintiff’s conduct was protected

-11- speech; and (3) Plaintiff’s removal from the Promotion List was

time-barred.

A. This Court Has Jurisdiction to Review the AFBCMR’s Decision to Affirm Plaintiff’s Removal From the Promotion List

Defendant argues that the Complaint should be dismissed

because this Court lacks jurisdiction to review the President’s

decision to remove Major Millican from the Promotion List and Major

Millican’s subsequent non-selection for promotion. Def.’s Mot. to

Dismiss 17. Defendant states that promotion decisions are committed

to agency discretion by law and are therefore nonjusticiable by a

District Court. See id. at 17-22.

The Secretary of Defense has empowered the AFBCMR to amend

military records. See Rempfer v. U.S. Dep't of Air Force Bd. for

Corr. of Military Records,

(D.D.C. 2008)

(citing

). Hence, the AFBCMR constitutes an

“agency” under the APA. See Levant v. Roche,

(D.D.C. 2005). Under the APA, challenged agency actions carry

a “presumption of judicial review.” Kreis,

(citing

Abbott Laboratories v. Gardner,

(1967)). This

presumption is overcome when an “agency action is committed to

agency discretion by law.”

at 513 (citing

(a)(2)). An agency action is unreviewable by the courts if the

statute authorizing it is “drawn in such broad terms that in a

given case there is no law to apply.”

-12- Defendant argues that

(a) is the relevant

statute and governs removal of officers from promotion lists.

Def.’s Mot. to Dismiss 18. Under

(a), “[t]he

President may remove the name of any officer from a promotion list

at any time before the date on which the officer is promoted.”

Defendant argues that

(a) satisfies the exception

to presumptive judicial review because it is “drawn in such broad

terms that in a given case there is no law to apply.” Def.’s Mot.

to Dismiss 18.

Determining whether

(a) renders Plaintiff's

claim nonjusticiable is unnecessary. The agency action Plaintiff

challenges is not, as Defendant claims, the President’s removal of

his name from the Promotion List under

(a).

Rather, Plaintiff is challenging the denial by the Board of a

corrections request to void his removal from the Promotion List.

Am. Compl. 13. Therefore, the relevant statute to consider is

(a), which governs the correction of military records.

Under

(a), the Secretary of a military

department or authorized board “may correct any military record of

the Secretary’s department when the Secretary considers it

necessary to correct an error or remove an injustice.” Courts in

this jurisdiction have repeatedly held that the procedures

applicable to AFBCMR actions are subject to judicial review. See

Barnes v. U.S.,

(Fed. Cir. 2007) (“a challenge

-13- to the particular procedure followed in rendering a military

decision may present a justiciable controversy”) (internal

quotations omitted); Dysart v. U.S.,

(Fed. Cir.

2004) (“The Corrections Board statute,

, provides

for correction of military records . . . and for judicial review of

the Board’s decision”); Chambers v. Green,

(D.D.C. 2008) (“Decisions of military records board can be set

aside if they are arbitrary, capricious, or not based on

substantial evidence.”) (internal quotations omitted); Levant,

(“[T]his Court does have jurisdiction to

evaluate the reasonableness of the AFBCMR’s decision not to take

corrective action”). While the merits of promotion decisions may be

nonjusticiable, “courts can evaluate whether the military follows

the procedures mandated by statute or by its own regulations when

making promotion decisions.” Barnes v. U.S.,

(citing Dysart,

).

Consequently, the Court concludes that Plaintiff’s claims are

justiciable under the APA.

B. This Court Lacks Jurisdiction to Award a Retroactive Promotion

Plaintiff asks, among other forms of relief, this Court to

award him the promotion to Lieutenant Colonel he claims was

wrongfully denied. Pl.’s Cross-Mot. for Summ. J. 30-33. Defendant

argues that “[p]romotion actions are nonjusticiable” and “this

Court is without authority to order plaintiff’s promotion.” Def.’s

-14- Mot. to Dismiss 21-22.

Our Court of Appeals has explained that a “request for

retroactive promotion falls squarely within the realm of

nonjusticiable military personnel decisions.” Kreis,

. Allowing a court to order a promotion would require the

judiciary to “second-guess the Secretary's decision about how best

to allocate military personnel in order to serve the security needs

of the nation.” Nation v. Dalton,

(D.D.C.

2000). The courts have recognized that the judiciary is not

competent to make such decisions, and that Congress vested the

Secretary alone with the power to promote officers. See Orloff v.

Willoughby,

(1953) (“Orderly government requires

that the judiciary be as scrupulous not to interfere with

legitimate Army matters as the Army must be scrupulous not to

intervene in judicial matters.”); Kreis,

.

Accordingly, Kreis distinguished between claims that “require

the district court merely to evaluate, in light of familiar

principles of administrative law, the reasonableness of the

Secretary’s decision not to take certain action with respect to .

. . [a] military record” and claims that seek retroactive

promotion.

; see also Barnes,

(“It

is well-established that although the merits of military promotion

decisions are nonjusticiable, a challenge to the particular

procedure followed in rendering a military decision may present a

-15- justiciable controversy.”) (internal quotations omitted).

As in Kreis, Major Millican both has challenged the

reasonableness of the Defendant’s decision and has sought

retroactive promotion. See Pl.’s Cross-Mot. for Summ. J. 30-33;

Kreis,

. Therefore, as in Kreis, Plaintiff’s

request for retroactive promotion must be denied as nonjusticiable.

Kreis,

.

Because the Court lacks jurisdiction over Plaintiff’s claim

for retroactive promotion, it need not reach Defendant’s contention

that under Federal Rule of Civil Procedure 12(b)(6), this claim

should also be dismissed for lack of failure to state a claim.

C. The AFBCMR Decision Was Not Arbitrary, Capricious, or Contrary to Law

In challenging the AFBCMR’s decision, Plaintiff advances three

arguments for overcoming the “unusually deferential version of the

arbitary or capricious standard.” Appleby, 330 F.App’x at 198

(internal quotations omitted). First, Plaintiff contends that a

subsequent judicial decision that the anthrax vaccine was

experimental renders his refusal to receive the vaccine non-

punishable. Pl.’s Cross-Mot. for Summ. J. 2-19. Second, Plaintiff

argues that his conduct in encouraging Squadron members not to take

the vaccine was protected speech. Id. at 19-21. Third, Plaintiff

argues that his removal from the Promotion List by the President

was time-barred. Id. at 21-31. Plaintiff maintains that, for these

reasons, the AFBCMR must be ordered to remove negative material in

-16- his file, set aside his removal from the Promotion List and

subsequent deferral of promotion, and reverse his transfer to the

Retired Reserve. Id. at 31-33.

1. Doe #1 v. Rumsfeld Does Not Require the AFBCMR to Correct Plaintiff’s Record

Plaintiff argues at some length that under Doe #1 v. Rumsfeld,

(D.D.C. 2003), his personal refusal to take the

anthrax vaccine is not a basis for discipline as a matter of law.

Therefore, in Plaintiff’s view, the AFBCMR’s refusal to set aside

his LOR and OPR was arbitrary, capricious, and not in accordance

with law under

, 706. See Pl.’s Cross-Mot. for Summ.

J. 2-19.

In December 2003, Doe #1 concluded that the AVIP, as

administered by the Air Force Reserve in 1999, was illegal because

the FDA had not approved the vaccine against inhalation anthrax.

Doe #1,

. The nub of Plaintiff’s argument

is that Doe #1’s injunction against the AVIP retroactively

validated his conduct. Therefore, the AFBCMR should have removed

all negative reviews in his file and reversed all adverse personnel

decisions.

Doe #1, as this case, concerned members of the armed forces

who were ordered to receive the anthrax vaccine. See

.

The district court in Doe #1 enjoined the Department of Defense

from inoculating military personnel absent informed consent or

Presidential waiver.

. The injunction eventually

-17- dissolved by its own terms in 2005 when the FDA declared the

anthrax vaccine safe and effective for its intended use. Doe v.

Rumsfeld,

(D.C. Cir. 2006). Courts in

this jurisdiction have interpreted the Doe litigation, taken as a

whole, as establishing that, prior to 2005, military orders to

receive the anthrax vaccine were illegal. See Rempfer,

.

Nonetheless, Doe #1’s proscriptions do not control here.

Plaintiffs in that case were threatened with discipline for their

individual refusal to receive the vaccine. See Doe #1 v. Rumsfeld,

. The Administrative Record in this case makes

clear that Major Millican was not disciplined for his individual

refusal to receive the vaccine, but rather for his actions

encouraging dissent among his peers and undermining his leaders.

See AR at 3 (“applicant received an LOR for engaging in acts of

nature [sic] to cause discontent and undermine military

discipline”); AR at 50 (LOR sent by Lt. Col. Padilla because it

“has come to my attention that you have engaged in acts of a nature

to cause discontent and undermine military discipline within this

squadron”); AR at 53 (OPR contains negative reviews because of

Major Millican’s actions “to foment discord . . . and undermine the

credibility of squadron leadership”); AR at 56 (“The specific

reason for [recommending removal from the Promotion List] is your

inappropriate actions . . . to foment discord . . . and to

-18- purposefully undermine the credibility of squadron leadership”).

In reaching its decision, the AFBCMR considered the plain

language of the LOR that attributed Plaintiff’s reprimand to his

attempts to cause discontent and undermine military discipline. AR

at 3. The LOR detailed instances where Plaintiff urged his Squadron

members to refuse participation in the AVIP, telling them that Lt.

Col. Padilla did not care about them. Similarly, Major Millican’s

OPR cited his actions “to foment discord with this unit and

undermine the credibility of the squadron leadership.” AR at 53.

When Colonel Black informed Major Millican that he would recommend

his removal from the Promotion List, he also cited Major Millican’s

conduct “to purposefully undermine the credibility of squadron

leadership” and “to disrupt the orderly operation of this unit and

Wing by encouraging other unit members to disregard my directives.”

AR at 56. In short, the Administrative Record is replete with

evidence that the LOR, OPR, and two non-selections for promotion

were based on concern over Major Millican’s spreading of discord

among his Squadron members.4

4 Although Deputy Secretary of Defense Paul Wolfowitz’s recommendation to President Bush to remove Major Millican’s name from the Promotion List does contain a one-sentence reference to Major Millican’s individual refusal to receive the vaccine, there is no indication that the AFBCMR relied on that fact in its decision. See AR at 59. Further, it is significant that Plaintiff does not deny that he urged members of his unit to refuse the vaccine and that he fomented discontent and undermined military discipline.

-19- The AFBCMR also reviewed advisory opinions solicited from the

APRC/DPB and the USAF/JAA. AR at 4-7. These opinions made clear

that Plaintiff was free to refuse the vaccine for himself, but “did

not have the right to create the documented discord and undermine

military discipline within his unit.” AR at 66. The AFBCMR

concluded that Plaintiff’s LOR and OPR were a result of his

attempts to encourage Squadron members to refuse compliance with

the AVIP and were unrelated to Plaintiff’s personal refusal of the

vaccine. AR at 6 (“There was no evidence indicating the applicant

was singled out due to his personal views on the anthrax program”).

Doe #1 therefore does not govern the AFBCMR’s decision in this

case on this set of facts. Here, the Board fully examined the

relevant evidence of Major Millican’s conduct relating to his peers

and drew a rational conclusion from that evidence. Moreover,

Plaintiff did not produce any evidence demonstrating that he was

disciplined for his individual refusal of the vaccine. See Delano

v. Roche, No. 04-0830,

, at *6 (D.D.C. Sept. 19,

2006) (finding that AFBCMR’s denial of plaintiff’s records

correction request was not arbitrary or capricious because

plaintiff produced no evidence supporting his theory that an

injustice had occurred).

In sum, the Board’s decision not to correct Major Millican’s

file was not arbitrary, capricious, or contrary to law, even in

light of Doe #1. As the Board found, Major Millican “failed to

-20- sustain his burden of establishing that he has suffered either an

error or an injustice” resulting from discipline based on his

encouraging of dissent and undermining of command. AR at 8.

2. Plaintiff’s Encouragement of Others to Refuse the Anthrax Vaccine Was Not Protected Speech

Plaintiff next argues that, even if he was disciplined for

urging others to refuse the anthrax vaccine, this speech was

legally protected. Pl.’s Cross-Mot. for Summ. J. 19-20.

Consequently, he reasons that any punishment for encouraging

Squadron members to disobey orders was illegal and that the AFBCMR

erred in not correcting his record. Plaintiff argues first that the

LOR, OPR, and adverse personnel decisions violated his First

Amendment right to free speech and association to “encourage others

to uphold the law, and to prevent a crime.”

. Second,

Plaintiff contends that his conduct was protected by the doctrine

of necessity.

i. Disciplinary Actions Against Plaintiff Did Not Violate his First Amendment Rights

The Supreme Court has ruled that “[w]hile the members of the

military are not excluded from the protection granted by the First

Amendment, the different character of the military community and of

the military mission requires a different application of those

protections.” Parker v. Levy,

(1974). Although

“[d]isrespectful and contemptuous speech . . . is tolerable in the

civilian community,” other considerations must be weighed in the

-21- military context.

Specifically, in military contexts, speech

that “undermine[s] the effectiveness of the response to command” is

unprotected. Id.; see also Culver v. Sec’y of Air Force,

(D.D.C. 1975).

Here, Plaintiff’s conduct encouraging his Squadron members to

disobey orders falls squarely within the realm of unprotected

speech. Urging Squadron members to disregard orders and calling

into question a commander’s credibility and concern for his

Squadron members “is constitutionally unprotected” because it “may

. . . undermine the effectiveness of response to command.” Parker,

.

Plaintiff also argues that the Air Force lacks a legitimate

interest in punishing him for his conduct, but provides no

justification for this assertion and only refers back to the

illegality of the AVIP. Pl.’s Cross-Mot. for Summ. J. 20. However,

the relevant question is not the legality of the AVIP but rather

the military’s ability to censure an officer for protesting a

policy he believes to be illegal by encouraging others to disobey

orders. It is clear that the Air Force has a legitimate interest in

prohibiting Plaintiff’s conduct to promote discipline and uphold

order among its members. See Parker,

(rejecting First Amendment defense where military physician

encouraged soldiers to refuse orders to go to Vietnam); Bitterman

v. Sec’y of Defense,

(D.D.C. 1982)

-22- (finding no Constitutional violation where Air Force forbid officer

from wearing a yarmulke while in uniform because adherence to dress

code promoted discipline).

ii. Plaintiff’s Conduct Was Not Justified by Necessity

Plaintiff argues that his attempts to encourage Squadron

members to refuse the anthrax vaccine should not have been punished

because he acted out of necessity. Pl.’s Cross-Mot. for Summ. J.

20-21.

Even assuming that necessity is an available defense, to

invoke it, Major Millican must establish that: (1) he was faced

with a choice of evils; (2) he acted to prevent imminent harm; (3)

he reasonably anticipated a causal relationship between the conduct

and the harm to be avoided; and (4) there were no legal

alternatives to violating the law. Office of Foreign Assets Control

v. Voice in Wilderness,

(D.D.C. 2004); U.S. v.

Frankel,

(D.D.C. 1990).

First, the harm that Plaintiff was trying to prevent--the

suffering of his Squadron members from adverse physical side

effects--was not imminent. Nothing in the record suggests that the

anthrax vaccine presented imminent harm to Plaintiff’s Squadron

members, particularly as the other members of the Squadron could

have chosen to withdraw from the reserves and refuse the vaccine.

Moreover, Plaintiff could only speculate that harm would occur

-23- based on evidence he had gathered suggesting that the anthrax

vaccine posed certain risks of adverse physical side effects.

Second, Plaintiff had a legal alternative to violating the

law. The necessity defense is only available where “no reasonable,

lawful alternative could prevent” imminent harm. U.S. v. Barton,

No. 87-0259-OG,

, at *5 (D.D.C. Feb. 11, 1988). Major

Millican could have challenged the legality of the AVIP directly.

Indeed, that was the course adopted by the plaintiffs in Doe #1,

who filed suit to enjoin the military from mandating the vaccine

when they believed that the applicable order was unlawful. See Doe

#1, 297 F. Supp. at 122.

For these reasons, Plaintiff’s conduct was not justified and

therefore the AFBCMR did not act contrary to law in refusing to

change Major Millican’s records.

3. Plaintiff’s Removal from the Promotion List Was Not Untimely

Plaintiff contends that the AFBCMR's refusal to void his

removal from the Promotion List was contrary to law because the

removal was untimely. Pl.’s Cross-Mot. for Summ. J. 21-31.

Plaintiff’s name was removed from the Promotion List on April 17,

2002. Plaintiff's promotion date was June 22, 2000. Hence,

Plaintiff's removal from the Promotion List occurred twenty-two

months after his promotion date.

-24-

(d) governs the permissible length of delay

for promotions due to investigation or lack of qualifications. It

specifies that a promotion may be delayed for six months after the

date of promotion if there are any ongoing investigations or

proceedings or any cause to believe that the officer is not

qualified.

(a)-(d). The Secretary of Defense may

extend the period of delay to a maximum of eighteen months from the

date of promotion.

If disciplinary or other action is not taken

at the conclusion of the eighteen-month delay period, the officer

receives the promotion as of the original promotion date.

(a) governs removal from a promotion list by

the President. That provision does not provide any time limit, but

clearly states that the “President may remove the name of any

officer from a promotion list at any time before the date on which

the officer is promoted.”

(a) (emphasis added).

Plaintiff argues that the provisions must be read together, and

that the President may not remove an officer from the Promotion

List once the eighteen month delay period has run. Defendant

contends that the provision governing removals, 10 U.S.C §

14310(a), imposes no time limit, should not be read in tandem with

the promotion delay statue, and permits the President to remove a

name from the Promotion List “at any time.”

The Air Force has previously interpreted these provisions to

permit the President to remove a name from the Promotion List at

-25- any time. AFI 36-2504, ¶ 7.8, Officer Promotion, Continuation and

Selective Early Removal in the Reserve of the Air Force, Jan. 3,

2003, available at http://www.e-publishing.af.mil/shared/media

/epubs/AFI36-2504.pdf.5

Major Millican’s promotion was delayed pursuant to AFI 36-

2504, ¶ 7.8 on March 13, 2000, when Col. Black sent a letter

explaining that he was recommending removing Major Millican’s name

from the Lieutenant Colonel Promotion List, and directing Major

Millican “not to assume a higher grade even if your name appears on

a promotion order.” AR at 56. Major Millican’s removal was then

consummated by order of the President on April 17, 2002. AR at 59.

i. Chevron Step One Applies

Parties dispute the degree of deference this Court should

afford the Air Force’s interpretation of these two provisions.

Under Chevron, U.S.A. v. NRDC,

(1984), the Court

employs a two-step test to determine whether it owes deference to

an agency’s interpretation of its governing statute. See

The

first step asks whether the statute is “silent or ambiguous with

respect to the specific issue.”

. If the statute is

not ambiguous and Congress has “directly spoken to the precise

question at issue,” then the Court and agency “must give effect to

the unambiguously expressed intent of Congress.”

If the statute

5 The Navy and Army have interpreted the predecessor provision to

(a) differently. Rolader v. U.S.,

(1999).

-26- is silent or ambiguous, then the Court must ask, at the second

stage, whether the agency’s interpretation is based on a

“permissible construction of the statute.”

. If the

agency’s construction is permissible, then the Court must defer to

its interpretation.

.

In this case, we may stop our analysis at step one of Chevron.

The simple fact is that

(a) is not ambiguous.

Indeed, the language could not be clearer: the President may “at

any time” remove the name of an officer from a promotion list.

There are no exceptions or limitations set forth in Section

14310(a).

ii.

(a) Has No Time Limit

When engaging in statutory interpretation, the Court’s inquiry

must always begin with the language of the statute. Duncan v.

Walker,

, 172 (2001); Mayer Brown LLP v. IRS,

(D.C. Cir. 2009) (“In matters of statutory construction,

the text is our primary guide”). If the text does not provide

guidance on the issue, courts should avoid interpreting a statute

in a way that renders it ineffective. See Wilderness Soc’y, Envtl.

Def. Fund v. Morton,

(D.C. Cir. 1973).

(a), in its entirety, reads:

Removal by President.--The President may remove the name of any officer from a promotion list at any time before the date on which the officer is promoted.

-27- As already noted, Section 14310(a) does not contain any

limitation on the timing of the President’s power to remove a name

from the Promotion List short of the date on which the officer is

actually promoted. Section 14310(a) makes no reference to Section

14311(d) or any other provision of

(governing promotions), nor does any other provision of

purport to impose a limitation on Section 14310(a).

Nothing in the briefly worded removal provision evinces any design

to limit the President’s authority to remove the name of an officer

currently on a promotion list, but not yet promoted.

Plaintiff argues that the fact that

(a) is

silent as to its relationship to

(d) demonstrates

that Section 14310(a) is ambiguous as to time limits. Pl.’s Cross-

Mot. for Summ. J. 26. Plaintiff’s reasoning is unpersuasive.

The absence of any reference to Section 14311(d) is not an

invitation to read Section 14311(d)’s proscriptions into the

President’s removal powers. “Appeals to the design and policy of a

statute are unavailing in the face of clear statutory text.” Sierra

Club v. EPA,

(D.C. Cir. 2008). The lack of a

specific time limit in Section 14310(a) simply represents

Congress’s choice not to apply any time bar to the President’s

ability to remove a name from the Promotion List prior to the date

on which the officer is promoted. Indeed, Congress could easily

have included similarly precise limits on removal under Section

-28- 14310(a) as it did on promotional delay under Section 14311(d). It

did not. See Russello v. U.S.,

(1983) (“[W]here

Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.”).

Congress’s decision to distinguish between removal and

promotional delay is supported by a clear rationale. As the

USAF/JAA explained in its supporting opinion to the AFBCMR:

A promotion removal action [unlike a promotion delay for investigation] . . . requires a different decision making process. At this point, the commander has already determined that by a preponderance of the evidence (often through the information obtained through the promotion delay), the officer is unfit to assume the higher grade and is recommending to the President through the chain of command that the promotion be canceled.

AR at 189.

Even if the legislation’s rationale were not so sensible,

“when the statute’s language is plain, the sole function of the

courts--at least where the disposition required by the text is not

absurd--is to enforce it according to its terms.” In re England,

(D.C. Cir. 2004)(internal quotations omitted).

Here, Plaintiff was removed from the Promotion List by the

President pursuant to Section 14310(a) and not pursuant to the

separate provisions of Section 14311. Section 14310(a) plainly

-29- places no time limit on the President’s removal power prior to the

date of promotion.

Because removal of Plaintiff’s name from the Promotion List

was not subject to any time restriction, the AFBCMR did not act

contrary to law in denying Plaintiff’s request to correct his

record.

IV. CONCLUSION

Defendant’s Motion to Dismiss is denied in part and granted in

part, Defendant’s Motion for Summary Judgment is granted, and

Plaintiff’s Cross-Motion for Summary Judgment is denied.

/s/ October 13, 2010 Gladys Kessler United States District Judge

Copies to: attorneys on record via ECF

-30-