Layne Wilson, Appellant v. Deborah James, et al., Appellees
Upon consideration of the motion for summary affirmance, the opposition thereto, and the reply; and the motion for summary reversal, the opposition thereto, and the reply, it is
ORDERED that the motion for summary reversal be denied and the motion for summary affirmance be granted for the reasons stated in the memorandum accompanying this order. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.
In response to the motion for summary affirmance or in the motion for summary reversal, appellant did not challenge the dismissal as moot of claims predicated on the initial decision to rescind his six-year re-enlistment contract, the grant of summary judgment on his claims under the Fifth Amendment, or the disposition of his Privacy Act claims. Accordingly, appellant has forfeited any challenge to the disposition of those claims. See U.S. ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004) (“Ordinarily, arguments that parties do not make on appeal are deemed to have been waived.”).
On de novo review, it is clear that the district court properly granted summary judgment for the appellees on all the remaining claims. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (a party is entitled to summary judgment if the evidence, viewed in the light most favorable to the nonmoving party, shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law). In the first disciplinary action, appellant was reprimanded for sending a personal email to a senior officer outside his chain of command, using a Utah Air National Guard computer and his government email account under the Guard's signature block, in violation of rules and regulations and in disobedience of a prior order. Appellant has failed to show this letter of reprimand substantially burdened any religious action or practice so as to violate his rights under the Constitution or the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1. See Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008) (“Religious exercise necessarily involves an action or practice.”); Mahoney v. Doe, 642 F.3d 1112, 1120-21 (D.C. Cir. 2011) (plaintiff had ample alternative means of spreading his religious message besides chalking the sidewalk in front of the White House).
The second disciplinary action reprimanded appellant for failing to give his superior commissioned officer and commander the dignity and respect due his office. Appellant has failed to refute the district court's determination that his claims challenging the reprimands under the Administrative Procedure Act are nonjusticiable under the principle that such military personnel decisions are not reviewable by this court. See Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989). Insofar as appellant raised whistleblowing claims, the district court correctly determined appellant was required to exhaust the administrative remedies provided by the Military Whistleblower Protection Act and Department of Defense Directive 7050.06, which appellant concedes he did not do. Moreover, the district court properly ruled appellant lacked standing to challenge the constitutionality of Air Force Instruction 1-1, because he has not shown it formed the basis for either letter of reprimand.
With respect to appellant's challenges to the initiation of a Security Information File and suspension of access to classified information, the district court properly held the claims are nonjusticiable under Department of the Navy v. Egan, 484 U.S. 518 (1988). Like the final revocation of a security clearance, the initiation of a Security Information File and suspension of an employee's security clearance are decisions that require “a sensitive and inherently discretionary judgment call [that] is committed by law to the appropriate agency of the Executive Branch.” 484 U.S. at 527-30.