Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

SSGT. JASON A. ADIOS, USAF, Plaintiff,

C.A. NO.: 04-1453 (JJF)

v.
DONALD RUMSFELD, H. Secretary of Defense; JAMES ROCHE, G. Secretary of the Air Force; GEN. JOHNW. HANDY,Commander Mobility) Air Command; COL. JOHN PRAY,JR., 436th Air I. Wing Commander, their official capacities, in Defendants.

) )

) )

DEFENDANTS' REPLYBRIEF IN FURTHER SUPPORT OF DEFENDANTS' MOTIONTO DISMISS

) )

)
)

Dated: April 22, 2005 Of Counsel: LT. COL. DONNA VERCHIO M. Staff Judge Advocate Dover Air Force Base

PETER D. I~ISLER Assistant Attorney General COLM F. CONNOLLY United States Attorney RUDOLPH CONTRERAS Assistant United States Attorney VINCENT M. GARVEY Deputy Branch Director JEFFREYD. KAHN (MI Bar # P65270) Trial Attorney, Federal ProgamsBranch Civil Division, U.S. Department Justice of P.O. Box883 Ben Franldin Station 20 Massachusetts Ave., N.W. Washington, D.C. 20044 Tel: (202) 514-3716 Fax: (202) 616-8470 ieffrev.kahn@usdoj. ~ov Attorneys for Defendants

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 2 of 26

TABLE OFCONTENTS

TABLE OF AUTHORITIES .............................................. INTRODUCTION ARGUMENT THE COMPLAINT SHOULD BE DISMISSED FOR FAILUR~ TO ESTABLISH AN ESSENTIAL ELEMENT OF PLAINTIFF'S CAUSE OF ACTION AND FOR LACK OF STANDING ................. THE COMPLAINT SHOULD BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES ...................... THE COMPLAINT SHOULD BE DISMISSED BECAUSE PLAINTIFF DID NOT ENGAGE IN PROTECTED SPEECH CONCLUSION ....................................................

ii

2

12

20

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 3 of 26

TABLE OF AUTHORITIES FEDERAL CASES Adair England, F. Supp. 31(D.D.C. ..................................................... v. 183 2d 2002) Ambrose Township Robinson, F.3d488(3d Cir. 2002) v. of 303 ..................................... Associated General Contractors of CaLv. California State Counsel of Ca~enters, U.S. (1983) 459 519 ................................................................................ Baldassare New v. Jersey,250F.3d188(3d Cir. 2001 ........................................... ) Bremtan Norton, F.3d (3dCir. 2003) v. 350 399 ...................................................... ht re CDNO~ v. Secto'ities Litigation, 138 F. Supp.2d624 (E.D. Pa. htc. 2001) ....................................................................................................................... Commonwealth PemtzT~aniae.r tel Zimmetvnanv. Pepsico, 836 F.2d of 173 Cir.1988) (3d ................................................................................................... Czurlanis Albanese, F.2d98(3dCir. 1983) v. 721 ......................................................... Downenl¢ea~Tter, F.2d (9thCir. 1973) v. 481 642 .......................................................... Eichenlaub Township Indiana,385F.3d274(3d Cir. 2004) v. of ................................... Feldman PhiladelphiaHousingAuthoriO~, F.3d 823 (3d Cir. 1994)..................... v. 43 Glh~es ~¢eade, F.2d (9thCir.1978) v. 586 675 ................................................................ Holder Ci of Allentown, F.2d188(3d Cir. 1993) v. O) 987 ............................................. Jalilv. Avdel Co~p., F.2d (3dCir. 1989) 873 701 ............................................................ Keenan Ci of Philadelphia, F.2d459(3d Cir. 1992) v. O) 983 ........................................ Mo~we LowerMerion District, 132F.3d902(3d Cir. 1997)........................... v. Sch. Nelson Miller, F.2d (3dCir. 1967) v. 373 474 ................................................................ O~onneHYanchulis, F.2d1059 Cir. 1989) v. 875 (3d .................................................. PapasanAllah,, U.S.265 v. 478 (1986) ......................................................................... -ii14 2

7 17, 18 15, 16

6, 7

2, 7 15 13 2 18 14 19 8 10 9, 10 13 19 11

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 4 of 26

Pickering Board Education, U.S.563(1968) v. of 391 .................................................. Robinson City of Pittsburgh, F.3d1286 Cir. 1997) v. 120 (3d ....................................... Rode Dellareiprete, F.2d1195 Cir. 1988) v. 845 (3d ..................................................... Roth U.S.,378F.3d (Fed.Cir. 2004) v. 1371 ................................................................. Scheidv. Faro Farmer CanclyShops,hzc., 859 F.2d 434(6th Cir. 1988).............. O, Springer v. Hemy, No. 00-885GMS, 2002 WL 389136 (D. Del. Mar. 11, 2002) ................................................................................................................... Tho~we Depa~vnent Defense,916F. Supp.1358(E.D. Va. 1996)......................... v. of Watters City of Philadelphia, F.3d886(3d Cir. 1995).............................. v. 55 WoodsonSeottPaper 109F.3d913(3d Cir. 1997) v. Co., ............................................... Zuk v. Eastern Penn. Psychiatric Institute of the MedicalColl. of Penn., 103 294 Cir.1996) F.3d (3d ......................................................................................

19 10 19 12 3, 5, 7

16, 19 14 16, 17, 19 8

11

FEDERAL STATUTES, REGULATIONS, AND RULES 10U.S.C.1552 § ......................................................................................................... 32C.F.R. ............................................................................................................... §865 Fed.R. Civ.P. 11,Advisory Committee .............................................................. Notes 5, 12 12 11

- iii -

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 5 of 26

INTRODUCTION Senior Master Sergeant Mahoney disciplined plaintiff for a violation of standing orders that threw a scheduledflight into disarray. Plaintiffs questions to his doctor did not cause his discipline because neither Mahoney the nameddefendants knewthe nor content of plaintiffs speechwhenplaintiffwas disciplined. Becauseplaintiff has failed to set forth a primafacie case of retaliation, plaintiffs complaintshouldbe dismissedfor failure to state a claim. Similarly, becauseplaintiff camaot demonstrate that he has suffered an injury fairly traceable to defendants'conduct,he lacks standingto bring suit. Plaintiffs retreat to a r~ondeat superior theory of retaliation does not save his cause of action. Thebald inferences and legal conclusions in plaintiffs complaint, alleging that the highest level military officials in Washington, Illinois mad Delaware later approvedthe "retaliation" are unworthy credence and do nothing to revive plaintiffs of deficient pleadings. Plaintiffs refusal to seek reviewby the civilian authority responsible for investigating and conectingclaims of error or injustice in military records did not create a legal duty for the Secretary of Defenseand other high-rankingofficials across the country to countermand discipline plaintiff received on the basis of second-hand the references in local newspaper articles. This Court should dismiss plaintiffs complaintfor failure to exhaustthis remedy. Finally, as a matter of law, plaintiffs questions about his personal symptoms to his doctor in the confines of a closed-door examinationroomare not matters of public concern. Plaintiffs repeated mantra that he "spoke out" does nothing to obscure the fact that plaintiffs speechwasprivate mad personal in its content (his symptoms), context its (his medicalexamination),and its form(his questions).

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 6 of 26

ARGUMENT I. THE COMPLAINTSHOULDBE DISMISSED FOR FAILURE TO ESTABLISH AN ESSENTIAL ELEMENT PLAINTIFF'S OF CAUSE OF ACTION AND FOR LACK OF STANDING As plaintiff concedes,he mustplead a primafacie case of retaliation to survive defendants' motionto dismiss. See Plaintiffs Answering Brief in Opposition to Defendants' Motionto Dismiss(hereafter "Pl.'s Opp.") at 11-12. Plaintiff has failed to so becausethe essential elementof causation is missing fromhis claim of First Amendment retaliation. See Eichenlaub v. Townshipof Indiana, 385 F.3d 274, 282 (3d

Cir. 2004). Becausethe deciding official wasunaware plaintiffs protected activity, his of "First Amendment retaliation claim wouldnecessarily fail." Robinson, 303 F.3d 488, 493 (3d Cir. 2002). Plaintiff claims that his "short, plain statementsof the elementsof the retaliation claim are all that are required by Fed. R. Civ. P. 8(a)(2) to survive a motionto dismiss." See Pl.'s Opp. at 13, 26. Plaintiffis wrong."Evengiven the teachings of Conley_~. Gibson,, whichwemustfollow in all events, the plaintiff mustallege sufficient facts in the complaint to survive a Rule 12(b)(6) motion." Commonwealth Pennsylvania ex of rel. Zimmerman Pepsico, 836 F.2d 173, 179 (3d Cir. 1988). "[T]he foma and v. sufficiency of a statement of a claim for relief under Rule8(a)(2) maybe tested motionto dismiss for failure to state a claim uponwhichrelief can be granted, Rule 12(b)(6), ... [T]he motionpractice under Rule12 mayaffect the practical operation of Rule 8 pleading standard." 5 Wright& Miller, Federal Practice and Procedure: Civil 3d, § 1202(2004). Rule 8 does not eXcuseplaintiff from the burden of establishing aprima -2Ambrose Townshipof v.

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 7 of 26

facie case. "We not holding the pleader to an impossiblyhigh standard; we recognize are the policies behindrule 8 mad conceptof notice pleading .... But when a complaint the omits facts that, if they existed, would clearly dominate case, it seemsfair to assume the that those facts do not exist." Scheid v. FannyFamaerCandyShops. Inc., 859 F.2d 434, 437 (6tb Cir. 1988) (quoting with approval O'Brienv. DiGrazia, 544 F.2d 543, 546, (lst Cir. 1976)). In any event, the "short, plain statements"that plaintiff asserts must"end[] the matter" providehimno traction towardestablishing this essential elementof his case. Sere Pl.'s Opp.at 25. Plaintiff can only refer the Courtto his allegations in his complaint that assert defendants' l~nowledge plaintiffs speechat someunspecified time, or of knowledge post-discipline mediareports. Se_~ePl.'s Opp.at 25-26(citing Compl. of ']t']11013, 77, 79-81). Viewed together and in the light most favorable to plaintiff, these assertions advance nothing morethan the claim that defendants mayhave read about plaintiffs discipline in their newspapers.None these allegations claim that any of the of defendants knew about plaintiffs speech before the discipline occurred, let alone that Secretary of Defense Rumsfeld Secretary of the Air Force Roche(both located at the and Pentagon),GeneralHmady four star general located at Scott AFB Illinois), (a in Colonel Pray (Commander Dover AFB)knewthat one of the 4,000 airmen at Dover of had been issued a letter of reprimand. In fact, the only individual whose l~mowledge is relevant - Mahoney, disciplining official - has not even been named defendant to the a this lawsuit.

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 8 of 26

Plaintiff argues in the alternative that his complaintnevertheless does allege that Mahoney kaae~v whatplaintiff askedhis doctor before he disciplined plaintiff. Se__~e Pl.'s Opp.at 26 (citing Compl. 60). Plaintiff misrepresents the content of his complaint, ¶ whichpresents no allegations that plaintiff told anyoneabout his then-private questions to his doctor. Plaintiff alleged that he "described his debilitating symptoms" his doctor to and "discussed with and told the Flight Surgeonthat he associated his headachesand current medicalcondition with the tainted matl~raxvaccine." Sere Compl. 55, 57. ¶¶ Plaintiff states that the doctor "downplayed" concernsabout his inoculations, his see Compl.¶ 58, and then prescribed medication for his headachesand ordered that plaintiff be gounded (i.e. classified "DNIF," "Duties Notto IncludeFlying"). Se.__~e or Compl. 59. Plaintiff relies on the next allegation to assert that his speechmusthave ¶ been madeknownto SMSgt.Mahoney through a subordinate, Teclmical Sergeant Miller: Plaintiff notified Miller [the flight scheduler] immediately and was required to turn in his beeper because he had been DNIF'd by the Flight Surgeon. Compl. 60. It is clear fromplaintiffs Complaint ¶ that plaintiff"notified" Miller of his newstatus, Duties Notto la~clude Flying, and wastherefore required to return his beeper. Plaintiffs standing orders called for no more,and plaintiffs ownresponseto his letter of reprimand,written five days after he wasdisciplined, corroborates this plain meaning. Se___e.e Def.'sEx. 1 at ¶¶ 3.6.6 and 4.4; see also Def.'sEx. 2] Plaintiffis not entitled to an

~Plaintiff urges this Court to disregard these exhibits as matters outside of plaintiffs complaint.Se__~e Pl.'s Opp.at 13-15.Plaintiff claimsthat "It]his is not a case where plaintiff is a relying upon a document support a claim and the defendant merely is seeking consideration of to omitted portions of that document." Pl.'s Opp.at 14. But, in essence, this is precisely what See he has done. Although plaintiffinsists that his letter of reprimandwasretaliatory, he presents -4-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 9 of 26

inference based on a fact that he did not allege. Se_~eScheid, 859 F.2d at 437; see also 5B Wright & Miller, Federal Practice aud Procedure: Civil 3d ~ 1357 ("[T]he pleader must set forth sufficient infomaation outline the legal elemeutsof a viable claimfor relief or to to permit inferences to be drawnfrom the complaintthat indicate that these elements exist."). Readin the light mostfavorableto plaintiff, "notified" cannotbe interpreted to lnean that plaintiff shared with Miller the conversation he had with his doctor. Had plaintiff actually told Miller any portion of that conversation,it is inexplicablethat plaintiff wouldnot haveclearly alleged that he did Ratherthan accept this sentenceon its face, plaintiff insists that this Court should infer that (1) Plaintiff not only notified Miller that he had beeu"DNIF'd", also shared but with himthe substanceof his private conversationwith his doctor; (2) that this

only one half of the relevant documentation.Exhibit A to plaintiffs complaintindicates, above plaintiffs ownsignature, his intent to submitmatters in responseto the letter of reprimand. Exhibit Aalso indicates that such a response"will become part of the record" of his discipline. Se_._~e Pl.'s Ex. Aat ¶ 4. Plaintiff did submita writteu response,whichtogether with the letter of reprimandconstitute the military record of discipline that wouldbe consideredby the Air Force Boardfor the Correction of Military Records. Se_~e10 U.S.C. § 1552(g). Plaintiffs response no~vhere references his speechto his doctor or alleges retaliation for "speakingout" on anything at all. Because plaintiff alleges that his discipline wasretaliatory, and his contemporaneous written responsecompletesthe record of plaintiffs discipline, that responseis integal to plaintiffs complaintand appropriately before the Court. Likewise, the standing orders submitted as defendants' exhibit 1 are also appropriately before the Court. Plaintiff makes repeated references to various military regulations, policies, and "written rules ofprogessive[military] discipline." See Compl. ¶'~164,68-69, 73, 82(c); see also Pl.'s Opp.at 2, 7-11, 23, 28. Plaintiffs selective quotation of military orders and practices makes clear that the standing orders that were the basis of plaintiffs discipline are equally integal to plaintiffs complaint. '-Plaintiff also seemsto assert that his telephonecall to Miller before plaintiffmet with his doctor somehow permits the inference that Miller must have known what plaintiff told his doctor after they met. See Pt.'s Opp.at 26 (citing Compl. 53). It is not reasonableto infer that Miller ¶ knewthe contents of plaintiffs conversationwith his doctor fromplaintiffs telephone call to Miller indicating nothingmorethan plaintiffs intent to see his doctor. -5-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 10 of 26

conversation, contrary to his pleading, centered on a critique of the Air Force's anthrax program,not plaintiff's questions about his ownsymptoms, that Miller then relayed (3) Mahoney samesubstantive informatinn; (4) that all of this occurred before Mahoney the disciplined plaintiff, and finally that (5) Mahoney retaliated against plaintiff for this conversation with the doctor by disciplining him. Althoughplaintiff easily could have set forth each of these allegations in his complaint, he chose to allege noneof them. Instead, he ~lusively suggests that the Court infer that "plaintiff may very well have discussed the specifics of his condition and his beliefs that he had beenused as a guineapig by the Pentagon duringthat telephonecall to Miller." Se__~e Pl.'s Opp.at 26. Plaintiff should certainly be required to plead with morespecificity as to actions he himself allegedly took. Plaintiffhas not done so because he cannot do so. According to plaintiffs owncontemporaneous response to his discipline, plaintiff only notified Miller "of mycondition whenI learned of the [scheduled flight] launch, and did likewise when learned I wasDNIF." I Se___~e Def.'s Ex. 2 at ¶ 3. Plaintiffs preferencefor inferences whenhis ownknowledgeof the facts would suffice smacks of gamesmanship.Plaintiff presents this Court with no case for his proposition that facts entirely within his possession, and essential to a well-pied complaint, should be inferred by this Court when deliberately omitted from the complaint. To the contrary, his post-pleading hypotheticals and interpretive glosses should be rejected by this Court. See, e._~., In re CDNOW, v. Inc. Securities Litigation, 138 F.Supp.2d624, 633 (E.D. Pa. 2001) ([F]actual allegations must be true to provide a basis for a cause of action, ... hyperboleand speculation cam~ot give rise to a claimof securities fraud."). "It is onething to set forth theories in a brief; it is -6-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 11 of 26

quiet another to make proper allegations in a complaint.... It is axiomatic that the complaint maynot be amended the briefs in opposition to a motionto dismiss." by Commonwealth Pennsylvania ex rel. Zimmerman Pepsico, 836 F.2d 173, 181 (3d of v. Cir. 1988). Althoughthis Court maydraw reasonable inferences from plaintiffs Complaint, those inferences are only appropriately drawnfrom the well-pied factual allegations in the Complaint,whichare taken to be trae. See Scheid., 859 F.2d at 437; _see also 5B Wright & Miller, Federal Practice and Procedure: Civil 3d § 1357. Plaintiffs omission of facts essential to state a claim, therefore, preclude the bare inferences fromthemthat he invites the Court to make.In any event, it is not reasonable to infer knowledge plaintiffs of private conversationwith his doctor fi'omplaintiff's allegations that he notified Miller abouthis flight status. 3 "[I]t is not proper to assume that [a plaintiff] can provefacts that it has not alleged." AssociatedGen.Contractors of Cal. v. California State Counselof Camenters, 459 U.S. 519, 526 (1983); see also, e_~%In re CDNOW, F.Supp.2d 138 633 (dismissing complaintbecause plaintiffs' "conclusory allegations" about defendants' knowledge "simply do not providea sufficient factual basis to support this allegation."). Plaintiffs parade of"substm~tialadditional inferences" likewise fails to cure plaintiffs deliberate omissionof this elementessential to the survival of his causeof

3Similarly, it is not reasonableto infer that plaintiffs speech"wasimmediately sent up through the chain of command both the Flight Surgeonand Miller, either by wordof mouth, by or by written report," when plaintiff has made such allegations in his complaint.Se__~e no Pl.'s Opp.at 26. In any event, as plaintiffs newtheory appearsfor the first time in his opposition brief, rather than in his complaint,it is not appropriately before the Court. Se_~ePepsico, 836 F.2d at 181 ("It is axiomatic that the complaintmaynot be amended the briefs in opposition to by a lnotion to dismiss."). -7-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 12 of 26

action. See Pl.'s Opp. at 27-29. Each of these sweepinggeneralizations maybe dispatched quickly. First, plaintiff asks the Court to infer causation from "temporal proximity." Both cases cited for this proposition, however,involved defendants who knew plaintiffs protectedactivity before they werealleged to haveretaliated. Se___~e of Woodson Scott Paper Co., 109 F.3d 913,920 (3d Cir. 1997) (defendant aware v. plaintiffs EEOC complaintprior to plaintiffs discharge); see also Jalil v. AvdelCorp., 873 F.2d 701,708 (3d Cir. 1989) (defendant acknowledged receipt of plaintiffs complaintprior to his discharge). Thosecases stand for the principle that where defendant's knowledge the protected activity already has been established, temporal of proximitymaysupport an inference of causation. In this case, it is defendants' very knowledge plaintiffs protected activity that plai~ntiff has failed to allege and that he of now invites the Court to infer. Second, plaintiff asserts that an intervening pattern ofantagomsm and defendants' "falsehoods and other pretextual reasons" should lead the Court to infer causation. Sere Pl.'s Opp.at 27-28. Plaintiffs argument circular. Plaintiff wouldhave is this Courtinfer that plaintiffs discipline wasretaliatory fiomthe simplefact that plaintiff wasdisciplined.4 Theseare precisely the sort of legal conclusionsthat this Court will not infer or acceptas true in resolvinga motion dismissfor failure to state a claim. Se.._~e to Morsev. LowerMerionSch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). EEOC

4Plaintiffrelies on Woodson Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997), for the v. proposition that the Court can infer causation from defendants' "pattern of antagonism."In Woodson, however,this "pattern" took shape over the course of two years and involved at least five separate instances of antagonistic behavior. In the present case, however,there is clearly no "pattern" of antagonism be foundin the single instance of discipline at issue. to -8-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 13 of 26

Third, plaintiff argues tbat an inference of causality is suppliedby his allegation that "the Air Force policy of progressivediscipline wasnot applied." Sere Pl.'s Opp.at 28. Plaintiffs assertion that the Air Forceviolated its established procedures a legal is 5 conclusion, from whichno inference can or should be drawn. Finally, plaintiff retreats to a re__~pondeat superiortheoryof retaliation. Se__~e Pl.'s Opp.at 25. This reconfiguration also mustfail. Plaintiff alleged in his complaintthat SMSgt.Mahoney disciplined himin retaliation for his questions to his doctor. Sere Compl. 3. Unableto establish causation for this alleged retaliation, plaintiff nowseeks ¶ to reconfigurehis claimto assert that the retaliation consistednot in the actnal discipline plaintiff received, but in the failure of the Secretary of Defenseand the other defendants to countermand SMSgt.Mahoney's letter of reprimand, on the theory that the Secretary of Defenseand others at the Pentagonwantedto punish plaintiff for speakingto his doctor. Plaintiff concedesthat evenunder this theory the law requires himto produce"sufficient evidence... to demonstrate that the defendantsknewof the protected activity," and that to establish supervisor liability he mustallege "personal direction or actual ka~owledge and acquiescence" "proof of direct discriminationby the supervisor." Se._~ePl.'s Opp.at 25. or

5Plaintiff appears to have assembledhis parade of inferences from cases analyzing evidence under tbe burden-shifting framework the summary at judgmentstage of a retaliation case. Thus, plaintiffs assertion that "evidenceof disparate treatment can demonstratecausation," while theoretically true, is meaningless the context of a motionto dismiss. See Pl.'s Opp.at in 28. In any event, plaintiff produces no evidence of similarly-situated individuals whowere treated differently than plaintiff, the standardtest of disparate treatment. Likewise,plaintiffs entreaty to examine "Big Picture" presented by the "totality of the evidence"presents nothing the newfor this Court's reviewbecausethe well-pied factual allegations in plaintiffs complaintare already assumed be true for purposes of defendant's motionto dismiss. Viewed their to in totality, these bare allegations and legal conclusions still fail to meetplaintiffs burdento plead the essential elementsof his action. -9-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 14 of 26

Noneof the defendantswere plaintiff's immediate supervisor; in any event, plaintiff has not alleged any direct discrimination by them. Norhas plaintiff offered anything beyond bare allegations of personal direction or knowledge any of these individuals. by Thet~vo cases plaintiff cites in support of this theory, Keenan City of v. Philadelphia, 983 F.2d 459 (3d Cir. 1992), and Robinsonv. City of Pittsburgh, t20 F.3d 1286(3d Cir. 1997), are factually distinguishable. In both cases, plaintiffs presented direct evidenceof havingpersonally brought their complaintsto the knowledge their of supervisors. Se_~eRobins, 120 F.3d at 1291 (sexual harassment); Keenan983 F.2d 463(retaliation). In the present case, plaintiff makes clear that he chosenot to give defendants any notice of his grievanceby availing himself of the administrative process through whichdefendants are presented with the opportunity to correct "errors or injustice" alleged to exist in military records, the Air Force Boardfor the Correctionof Militm'y Records.Se__~e Pl.'s Opp.at 32-36.Further, plaintiff's allegations are nothing morethan disguised legal conclusions that defendants Pray, Handy,and Rochebecame awareof "the retaliation" via unspecified "e-mails and telephone calls," emanating not from plaintiff, but from"[t]he media." Sere Compl. ~f~177,79-80. As for Secretary at Rumsfeld, plaintiff can only assert "[o]n informationand belief" that the Secretary of Defensehad knowledge of"the retaliation." Se_~eCompl. 81. It is hornbooklaw that "a ¶t complaint's bald assertions or legal conclusions" are unworthyof credit. Se_~eMor132 F.3d at 906. TheCourt should disregard plaintiff's legal conclusion that defendants knew about "the retaliation." Se.__~ePapasanv. Allain, 478 U.S. 265,286(1986) ("Although the purposesof this motionto dismiss wemusttake all the factual allegations in the -10-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 15 of 26

complaintas true, weare not boundto accept as true a legal conclusioncouchedas a factual allegation."). Plaintiffs insistent reliance on inferences to cover his mnissionsfrom his complaint should not be countenanced. Consistent with Rule 11 of the Federal Rules of Civil Procedure,plaintiff must possess somefactual basis for these allegations. Se_~eFed. R. Civ. P. 11, AdvisoryCommitteeNotes to the 1993 Amendments ("Tolerance of factual contentions in initial pleadingsby plaintiffs or defendantswhen specifically identified as madeon information and belief does not relieve litigants from the obligation to conduct an appropriateinvestigation into the facts that is reasonableunder the circumstances;it is not a license to join parties, make claims, or present defenses withoutany factual basis or justification."); see also Zukv. Eastern Penn. Psychiatric Inst. of the Med.Coll. of Penn., 103F.3d 294, 299 (3d Cir. 1996)(plaintiff is not entitled to file his "speculative pleading of a case first and then pursu[e] discoveryto support it; the plaintiff musthavesomebasis in fact for the action."). Plaintiff has not alleged timely knowledge the part of any on individual in plaintiffs chain of command because he cannot do so. Becauseplaintiff cannot allege knowledge plaintiffs speech by Mahoney any defendants before of or plaintiff's discipline, plaintiff cannotestablish causation, an essential elementofbis cause 6 of action and this Court should dismiss plaintiff's complaint.

6Plaintiff presents no direct opposition to defendants' standing argumentsunder Rule 12(b)(1), appearing instead to rely on his arguments regarding his prima facie case. TheCourt respectfully referred to defendants' memorandumlaw for analysis of plaintiffs failure to of demonstrate injury in fact fairly traceable to defendants'actions. Se__~e an Def.'s Mere.at 10-11. -11-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 16 of 26

II.

THE COMPLAINTSHOULD BE DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Plaintiff concedesthat the Air Force Boardfor the Correction of Military Records

(the "Board") "maybe an appropriate remedyfor service members [sic] claims in run-ofthe-mill cases challengingmilitary discipline." Sere Pk's Opp.at 33. Plaintiffs objections notwithstanding,that is precisely this case. Plaintiffseeks to havehis letter of reprimand rescinded and argues that the Air Force's "progressive system of discipline" should be applied in his case. see Compl. 64, 68-69, 73, 82(c); see also Pl.'s Opp.at 2, 7-11, 23, ¶¶ 28; se__~e als__.9_oDef.'s Ex. 2 at ¶ 5. TheBoard broadauthority mad has operatesunderan "abiding moralsanction" to grant relief fromany "error or injustice" that may exist in plaintiffs records. See 32 C.F.R.§ 865.4(1)(4);se__~e als___9.oRothv. U.S., 378F.3d1371, 1381(Fed. Cir. 2004). konically, plaintiffhas sued defendantsfor their alleged failure correct his military records but refuses to employ process established by the Air Force the 7 to reviewsuch a request and provide appropriate relief. Plaintiff claims that defendantshave arguedthat plaintiff is "barred fromseeking redress for a Constitutional violation in the federal courts" and that this Court is somehow "disabledfromacting" until plaintiff exhaustshis remedies before the Board.Se___~e Pl'.s

Plaintiffs unsubstantiated assertion that the Board s review is somehow compromised by a "conflict of interest" causedby Secretary Rumsfeld's position at the apex of the military hierarchy deserves no credit by this Court. This conclusoryallegation, like plaintiffs allegation on information and belier ~ that the Secretary kaaewabout plaintiffs retaliation and was "angered"by it, see Compl. 10, 81, provides no basis to believe that the Secretary would ~1¶ disregard the intent of Congress expressedin statute, judicial precedent, or the Defense as Department's regulation of his delegation of authority to the Boardfor a fair hearing of own plaintiffs appeal.Se__~e U.S.C. 1552(a)(1); 10 § se_.~e als___9_o Rot_.__~.h, F.3dat 1381; also 378 see C.F.R. § 865. -12-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 17 of 26

Opp.at 1, 33. Defendants'argumentis neither so broad nor so simplistic. As defendants arguedin their openingbrief, the Third Circuit has adopteda flexible doctrine of exhaustion. Andthere are good reasons whythis Court should exercise its discretion underthat doctrine to require plaintifffirst to seek relief fromthe Board.Se__~e Def.'s Mere. at 15-18. TheBoard'saction could entirely mootplaintiffs claims, alter the issues presentedfor adjudicatinn, or render this Court'saction a mereadvisoryopinion.Id.__~. Plaintiff has not arguedthat any special circumstancesexist that wouldcounsel against requiring Board review and cmmot so because such review wouldneither be futile nor do irreparably injure plaintiff tba'oughdelay, and mayavoid the unnecessary resolution of a constitutional question. Nelsonv. Miller, 373 F.2d 474, 480 (3d Cir. 1967). It is to this last issue that plaintiff clings, arguingthat because has pled a First he Amendment violation this Court has no interest in the Board'sdevelopment a full of factual record, its exercise of administrativeexpertise and discretion in plaintiffs individualized circumstances,and the opportunitythis provides for judicial efficiency. Se__~e Pl.'s Opp.at 33 ("Thoseinterests are not at stake ..."). However, cases plaintiff the cites offer no support for this proposition. Unlikethe present case, in whichBoard reviewcouldresult in the eliminationof someor all of plaintiffs claims for relief, the need for Boardreview in the cases cited by plaintiff waswholly absent either becauseno factual record neededto be developedor because those plaintiffs madeclaims against service-wide polices or practices. Se___~e Downen Warner,481 F.2d 642 (9th Cir. 1973) v. (claim based solely on constitutional question of regulatory interpretation did not require development a factual record by the Board); Glines v. Wade,586 F.2d 675,678 (9th of -13-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 18 of 26

Cir. 1978) (Board lacked authority to declare invalid an Air Force-wideregulation prohibiting the circulation of petitions on its bases); Thome Dep't of Defense, 916 v. F.Supp. 1358, 1363-64(E.D. Va. 1996) (constitutional challenge to statutory regulatory "Don'tAsk, Don't Tell" plan did not require Board's expertise and the Board arguablylacked authority to strike down service-wide regulation as unconstitutional); a Adair v. England, 183 F.Supp.2d31, 55 (D.D.C. 2002) (constitutional claims against Navy-wide policies and practices concerningits chaplaincy did not require exhaustion becausethe Board"is a clemency-oriented body, with authority to correct an error or remove injustice, not to declare the law") (internal citations omitted). an Plaintiff does not challengethe constitutionality of a statute, regulation, or policy. Heasks this Court to reviewan individualized decision by his military superior to discipline him, alleging that it constitutes retaliation. Byplaintiffs own admission,if he has pled a t~rima facie case, "plaintiff intends to conductvigorousdiscovery"to build the voluminousfactual record demanded his burden of proof for each element. See Pl.'s by Opp.at 26. It is precisely the needfor such a factual record, and the Board'sunique expertise and ability to mootthe core of plaintiffs grievanceby rescinding his letter of reprimand, that makes Boardthe recognizedappropriate first step in cases presenting the individualized claims of error or injustice concerninga military record. This Courtshould exercise its discretion to dismiss plaintiff's complaintfor failure to exhaust his administrative remedy.

-t4-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 19 of 26

III.

THE COMPLAINTSHOULD BE DISMISSED BECAUSE PLAINTIFF DID NOT ENGAGEIN PROTECTEDSPEECH Plaintiffs questions about his physical symptoms his doctor in the confines of a to

private, closed-door medical exmninationdo not present this court with speech on a matter of public concern. Becauseplaintiff spoke to his doctor about "matters only of personal interest," his speech is not protected by the First Amendment. Czurlanis v. See Albane, 721 F.2d 98, 103 (3d Cir. 1983). Plaintiffwould recast the content of plaintiff's speechto be "speechabout illegal experimentation on members our armed forces and the exposure of servicemen and of women a tainted anthraxvaccinewith severe and debilitating side effects." Se_._~ePl.'s to Opp.at 18. Plaintiffmisrepresents the allegations he originally presented in his complaint, wherehe did not allege that he spoke to his doctor about experimentation (illegal or other~vise) or about other servicemen women. and Ptaintiffasked hi__~s doctor about his headache whetherit mightbe related to his inoculation against anthrax. Se___e and Compl. 55, 57. And,as plaintiffappears to concede, plaintiffdid so in the isolation of ¶¶ a private medicalconsultation. Thecases cited in plaintiff,s oppositionbrief do not support his argument that, its personal content and private context notwithstanding, plaintiff's speech wasa matter of public concern. First, plaintiffcites Brennan Norton, 350 F.3d 399, 415 (3d Cir. 2003), v. for the proposition that speechaddressing the health of government employees a matter is of,public concern.Se___~ Pl.'s Opp.at 18.8 Theplaintiffin Brennar~,unlike plaintiffin the

SPlaintiffs argument here also contradicts the opinionexpressedin the first case that he attached to his oppositionbrief, in whichJudgeSleet of this court foundit "clearly establish[ed] -15-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 20 of 26

present case, spokeout on matters of public concernthat included proposedfire station closures and various employment policies at the local fire depaI~ment.Sere Brenna~n,350 F.3d 406-07. Hedid so by erecting signs, distributing leaflets, placing an advertisement in a local newspaper,giving interviews to a local repoi~er, appearingon television, mad organizinga public rally aboutthese and other related issues. Id__~. In addition, plaintiff sent a formal complaintto the state health departmentabout the presence of asbestos in a fire station. Id_~. at 408. Plaintiff, by contrast, askedhis doctor aboutbi_~s own symptoms, and did so in the most private of settings. Comparison with the Bremaan plaintiff makes clear that neither the content nor the context nor the forna of plaintiffs speechmarksit as a matter of public concern. Plaintiffnext cites Watters v. Cit7 of Pbiladelphia, 55 F.3d 886, 895 (3d Cir. 1995), for the propositionthat the "public has a significant interest in learning about problemswhich mayhave impaired the effective functioning of the [the program]and which,in turn, couldhaveaffected the delivery of police services." Se_._~e Pl.'s Opp.at I8 (bracketed insertion in plaintiffs quotation). As noted above, however,plaintiff did not "speak out" against the United States military's then-existing inoculation program. Plaintiff's complaintclearly alleges that plaintiff asked his doctor singularly abouthis personal symptoms their relationship to his past inoculations. Althoughthe and complaintis rife with editorial comment about the military's policy of inoculating its

that health care issues are matters of public concernwhenaddressed by medicalprofessionals." See Springer v. Henry, No. 00-885GMS, 2002 WL 389136, at *3 (D. Del. Mar. 11, 2002) (emphasisadded). Pursuant to Local Civil Rule 7.1.3(a)(G), this unreported case has already beenattached to plaintiffs Answering brief, whereit wasfirst cited. -16-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 21 of 26

members against anthrax, the complaint does not allege that plaintiff madeany comments about that policy as it operated nationwide, in the Air Force, or at DoverAir Force Base. This omissionis bolstered by plaintiffs ownresponse to bis discipline, whichwasalso focused solely on his ownmedical concerns and makesno mention of any military policy, let alone any mentionof policies concerninganthrax inoculations. Se_~eDef.'s Ex. 2. In Watteby contrast, that plaintiff was terminated after publication by the Philadelphia ~__q.uirerof critical connnents made a journalist aboutinstitutional deficiencies in a he to police department substance abuse pro~amthat he supervised. See Watter~, 55 F.3d at 890, 892. The Watters court specifically noted that the speech in question "arguably went to the fundamental existence and efficacy" of the program. Id_._~. at 893. Plaintiff's speech, in contrast, wasturned entirely inward. As plaintiff himself wrote in response to his discipline, "what mysituation did constitute wasa legitimate medicalcondition." Sere Def.'s Ex. 2 at ¶ 4. Third, plaintiff drawsthe Court's attention to Baldassarev. New Jersey, 250 F.3d 188, 196(3d Cir. 2001), for the proposition that plaintiff's speecbis protectedbecause exposedcorruption, fraud and illegality in a government agency. See Pl.'s Opp. at 19. As noted above, the complaintdoes not allege that plaintiff spoketo his doctor about Air Force corruption, fraud, or illegality. Thecomplaintalleges that plaintiffdescribed his symptoms his doctor and linked them with his past inoculations. And,unlike to Baldassare, whodrafted and submittedto his superiors a written internal investigative report that "attempted to expose specific wrongsand abuses within the county government,"plaintifftold no one about his speech nor madeany allegations in his -17-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 22 of 26

complaint that his doctor did so with any attribution to him. Se_~eBaldassa 250 F.3d at 196. Finally, plaintiff also refers to Feldman Philadelphia Housin~ v. Authority, 43 F.3d 823,829(3d Cir. 1994), for the sameunexceptional proposition that the exposure corruption, fraud and illegality in a govenmaent agencyis a matter of public concern. Se_~e Pl.'s Opp.at 19. Again,tbe juxtaposition of plaintiffs complaintwith the facts in Feldmanexposes only howprivate plaintiffs speech was in comparisonto a genuine matter of public concern. Theplaintiff in Feldman, director of an internal audit the department,wasfired for circulating written internal auditing reports to a board of commissionersthat oversawthe Philadelphia Public HousingAuthority. Sere Feldm, 43 F.3d at 827-28. Unlike plaintiffs medical questions, "Feldman'sspeech was not related in any wayto personal grievances; on the contrary, it clearly pertained to matters of important public concern. Thevery purpose of his auditing reports was to ferret out and highlight any improprieties that he foundat [the Housing Authority]." Id_~. at 829. Plaintiff also tries to deflect attention fromtbe private nature of his medical inquiries by linking his speech to mediacoverageof the military's nationwideanthrax inoculation progam. Se._..~eCompl. '~l']120-42; se__~e als___qo Pl.'s Opp. 19-22.These at links are irrelevant. Plaintiff makes allegations that he wasever involved in any of the events no describedin this portion of his complaint;indeed, plaintiff does not appear in any meaningful in the complaint'sallegations until ¶ 43. Plaintiff is not alleged to have way been involved in an unrelated lawsuit filed in Washington D.C. See Compl.¶¶ 40-42. Heis not alleged to have participated in (nor evincedany interest in) congaessional -18-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 23 of 26

involvement that matter. See Compl. in '~l']f 38-39. Heis not alleged to havebeeneither quotedor otherwise referenced in newspaper articles on the subject. Se_~eCompl.7¶ 3037. And is not alleged to havebeen involvedin any wayin the resigaaation of pilots he protesting the vaccine or the response of the base's wingcommander the program.Se__.~e to Compl.¶¶ 20-29. Nevertheless,plaintiff refers to all of these peripheral events and cites a variety of cases for the proposition that "newscoverageis relevant to determiningwhetherspeech addresses a matter of public concern."Se__~e Pt.'s Opp.at 19. However, each of the in cases cited by plaintiff, the newscoveragewasitself the very speechthat plaintiff claimed to be the cause of retaliation by the defendant. See Watters_,55 F.3d at 890, 892(plaintiff fired after critical comments published in newspaper);Pickering v. Bd. of Educ., 391 U.S. 563, 564(1968)(plaintiff fired after publication of critical letter in newspaper); O'Donnellv. Yanchulis, 875 F.2d 1059, 1060(3d Cir. 1989) (plaintiff fired after he made allegations against employer local television station); Holderv. City of Allentown,987 to F.2d 188, 191(3d Cir. 1993)(plaintiff forced to resign after publicationof critical letter in newspaper);Rodev. Dellarciprete, 845 F.2d 1195, 1201-02(3d Cir. 1988) (public employee suspendedafter her critical comments published in newspaper)?In this case,

9Plaintiff also cites Springer v. Henry,2002WL 389136,at *5, as support for this proposition. The ~ plaintiff, the director of a psychiatric hospital, had raised his concerns about suicides, security lapses, poor care and other issues at his hospital in a memorandumthe to Governor Delaware,the governingboard of the hospital, and a supervisory official. In dicta, of the Court noted that "[a]dditionally, several News Journal articles had also addressed the issues Springerraised." Id_.~. In the present case, however, plaintiff neither addressedhis private concernsto any public officials nor is their any overlap between newscoverageof the military's nationwideinoculation program plaintiff's questions to his doctor about his symptoms. and -19-

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 24 of 26

however,plaintiff does not plead in his complaint, and his contemporaneous written responseto his discipline omitsentirely, an___y_ reference to anymilitary program all, to at the coverageof these issues in the newsmedia, or to any claims of retaliation for speech on a matter of public concern. Althoughplaintiffwould like to link his personal speech with what he alleges to be somethingof nationwideinterest, none of the subjects he references wereremotelythe subject of plaintiffs speech. This Court should dismiss plaintiffs complaint because plaintiffs speech wasnot protected by the First Amendment. CONCLUSION For the reasons set forth above, the Court should dismiss the complaintfor lack of subject matter jurisdiction and for failure to state a claimuponwhichrelief can be granted. Dated: April 22, 2005 Respectfully submitted, PETERD. Ic~ISLER Assistant Attorney General COLM F. CONNOLLY United States Attorney RUDOLPH CONTRERAS Assistant United States Attorney VINCENT M. GARVEY Deputy Branch Director

Of Counsel: LT. COL. DONNA VERCHIO M. Staff Judge Advocate Dover Air Force Base

JEFffREY/f~. gd(~qN(MI Bar # P65270) Trial Attorney, Federal ProgramsBranch Civil Division, U.S. Department Justice of - 20 -

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 25 of 26

P.O. Box883 Ben Franklin Station 20 Massachusetts Ave., N.W. Washington, D.C. 20044 Tel: (202) 514-3716 Fax: (202) 616-8470 ieffrev.kalm(g~,usdoi. ~ov Attor~eys for Defe~tdants

-21 -

Case 1:04-cv-01453-JJF

Document 17

Filed 04/22/2005

Page 26 of 26

CERTIFICATE OF SERVICE I herebycertify that on April 22, 2005, I electronically filed the foregoingDefendants' ReplyBrief in Further Support of Defendants'Motionto Dismisswith the Clerk of the Court using CM/ECF, which will send notification of such filing to the following:

ThomasS. Neuberger, Esq. The Neuberger F!ma, P.A. 2 East SeventhStreet, Suite 302 Wilmington, DE 19801-3707

JF~R~YgD~ (MI # P65270) U.S. Depar'tment Justice of P.O. Box883 Ben Franklin Station 20 Massachusetts Ave., N.W. Washington, D.C. 20044 Tel: (202) 514-3716 ieffrev.kabn@usdoi. ~ov

- 22 -