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Dibble v. Penimore

May 15, 2006

DONALD J. DIBBLE, PLAINTIFF,
v.
JOHN H. FENIMORE, V, MAJOR GENERAL, NEW YORK AIR NATIONAL GUARD *FN1 ; SECRETARY OF THE AIR FORCE, F. WHITTEN PETERS, DEFENDANTS.



MEMORANDUM-DECISION AND ORDER*fn2

I. Background

Plaintiff Donald J. Dibble ("Dibble" or "Plaintiff") commenced this action against Secretary of the Air Force F. Whitten Peters ("Peters" or "Defendant" or "Secretary") pursuant to 10 U.S.C. § 1552. Plaintiff seeks a declaration that the denial of relief by the Air Force Board of Correction of Military Records ("Board" or "AFBCMR"), and its finding of insufficient evidence of error or injustice, is arbitrary and capricious, contrary to law, and unsupported by substantial evidence. Currently before the Court is Defendant's motion to dismiss, and cross-motions for summary judgment by Plaintiff and Defendant.

II. Facts

Dibble was employed as a federal excepted service technician by the New York Air National Guard ("Air Guard"). Second Amended Complaint (Dkt. No. 79) at ¶¶ 10-11. He was also a union steward for the Association of Civilian Technicians at the Stewart Air National Guard Base, which has a collective bargaining agreement with the Air Guard. Id. at ¶¶ 13-14. 32 U.S.C. § 709(b) required that he remain a member of the Air Guard in order to be employed as a technician. Id. at ¶¶ 11-12. Therefore, when the Air Guard denied Dibble's 1994 request to re-enlist, he was honorably discharged on October 8, 1994, and automatically terminated from his position as a technician. Id. at ¶ 2. Plaintiff contends that the reason for the Air Guard's refusal to re-enlist him is retaliation for his union activities, in violation of statutory and constitutional rights. Plntf's Resp. Affid. (Dkt. No. 40) at 2. However, the Air Guard contends that he was not reenlisted because of incidents of misconduct. Deft's Mem. of Law (Dkt. No. 37) at 13-14.

After an investigation conducted at Dibble's request, the Inspector General upheld the denial of enlistment in April of 1995. Second Amended Complaint (Dkt. No. 79) at ¶¶ 3-4. In December of 1995, in response to Dibble's request to reconsider his decision, the Inspector General told him that he could apply to the AFBCMR for a correction of his military records, which Dibble did. Id. at ¶ 5. The Board denied his application on October 28, 1997. Affid. of AUSA Woods (Dkt. No. 37, Attach. 1) at 1-2. Plaintiff thereafter commenced this action. In a January 19, 2000 Memorandum-Decision and Order ("January 2000 MDO"), the Court granted Dibble's motion for partial summary judgment, and remanded the case to the Board with instructions to make certain information available to the Plaintiff, as well as to answer specific questions posed by the Court.

First, the Court ordered the Board to "obtain, and make available to Plaintiff, any evidence relevant to assertions that plaintiff's Air Guard superiors were hostile toward him because of his union activities or that they desired to retaliate against him because he defeated their attempt to suspend him." January 2000 MDO (Dkt. No. 59) at 13. Second, the Board was ordered to "obtain and make available to Plaintiff records of members of his Air Guard unit who have in a relevant time period been granted or denied reenlistment, with respect to (1) their 'performance in a military capacity,' (2) the bases for the decisions to grant or deny them reenlistment, and (3) in each case whether the Air Guard member was also employed as a technician and had ever served as a union official." Id. The Court also directed the Board to address five issues:

(1) [w]hether Plaintiff's Air Guard superiors were hostile toward him because of his past union activities; (2) [w]hether Plaintiff's Air Guard superiors punished Plaintiff, but not other Air Guard members, for minor transgressions; (3) [w]hether Plaintiff's Air Guard superiors sought to suspend Plaintiff for purported misconduct that was far less serious than misconduct by other Air Guard members that they ignored; (4)

[w]hether Plaintiff's Air Guard superiors desired to retaliate against Plaintiff because he defeated their attempt to suspend him; and (5) [w]hether Plaintiff's Air Guard superiors denied Plaintiff reenlistment in the Air Guard, and thus terminated his employment, for pretextual reasons that would apply to many Air Guard members who were not denied reenlistment -- pretextual reasons that were "far less significant than misconduct by others" who were not barred from reenlistment.

Id. at 14. The Board was further directed "to make specific and numbered findings of fact, and conclusions of law based on such factual findings, on each of Plaintiff's claims". The Board was ordered to give reasoning for its decision that was not contrary to the evidence before it, especially the evidence that the Air Guard found Plaintiff eligible*fn3 to re-enlist. Id. at 14-15.

Pursuant to the January 2000 MDO, the Board issued a decision on October 2, 2001, concluding that Dibble did not demonstrate the existence of probable material error or injustice. Board Decision (Dkt. No. 74) at 4. Therefore, the Board again recommended to the Secretary that Dibble's application for correction of his records be denied, which was accepted by the Secretary's designee Joe G. Lineberger. Id. Thereafter, on July 24, 2002, Dibble filed his second supplemental complaint, claiming that the decision of the Board on remand, and thus the Secretary's adoption of it, was "arbitrary and capricious, contrary to law, and unsupported by substantial evidence." Second Amended Complaint (Dkt. No. 79) at ¶ 105. In his complaint, Dibble seeks, inter alia, a declaration that the Board's findings and conclusions are arbitrary and capricious, contrary to law, and unsupported by substantial evidence. Id. at ¶ 125. Further, Plaintiff seeks equitable relief in the form of a correction of his military records to indicate that he was not denied reenlistment and was therefore not separated effective October 8, 1994, but rather was reenlisted and did not suffer a break in service time. Id.

Currently before the Court is Defendant's Motion to dismiss, or in the alternative, for summary judgment. Deft's Motion (Dkt. No. 87). Also before the Court is Plaintiff's Cross-Motion for partial summary judgment. Plntf's Cross-Motion (Dkt. No. 90).

III. Discussion

A. Applicable Standards of Law

i. Rule 12(b)(6) Standard

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure must be denied "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In assessing the sufficiency of a pleading, the Court must "assume all well-pleaded factual allegations to be true, and... view all reasonable inferences that can be drawn from such allegations in the light most favorable to the plaintiff." Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). Consideration is limited to the complaint, written instruments that are attached to the complaint as exhibits, statements or documents that are incorporated in the complaint by reference, and documents on which the complaint heavily relies. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (citations omitted).

ii. Summary Judgment Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying this standard, courts must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party ...


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