                   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”). 5 U.S.C. § 700 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. Id.

     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. Id. at 28. He also

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

respect your decision.” Id. 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.” Id.

     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”). Id. at 13. 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. Id. at 3, 13.

     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 Id. at 45. 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. Id. Major Millican refused to receive

the vaccine and was reassigned to the Standby Reserve on November

15, 1999. Id. at 46, 48-49.

      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. Id. at ¶ 7; 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.” Id.

       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.” Id. 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.” Id.


                                       -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. Id. at 57. 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 10 U.S.C. § 14506, 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. 10 U.S.C. §

14501(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 10

U.S.C. § 14506. 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. Id. 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. Id.

       Pursuant to 32 C.F.R. § 865.2(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.”

Id. at ¶ 19. 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. Id. at ¶ 22.

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

request for relief. Id. at ¶ 24; 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. Id.

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

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

Doe v. Rumsfeld, 501 F. Supp. 2d 186 (D.D.C. 2007), which was on

remand from our Court of Appeals. Doe v. Rumsfeld, 172 F.App’x. 327


                                   -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., 531 F.3d 930, 932

(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, 273 F. Supp. 2d 119, 122 (D.D.C. 2003)

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

on its own resolution of disputed facts. Id.



      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, 333 F.3d 156, 160 (D.C.

Cir. 2003) (citing Camp v. Pitts, 411 U.S. 138, 142 (1973));

Richards v. Immigration & Naturalization Serv., 554 F.2d 1173, 1177

(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.” 5 U.S.C. §§ 702, 706; see

Chappell v. Wallace, 462 U.S. 296, 303 (1983); Frizell v. Slater,

111 F.3d 172, 177 (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, 401 U.S. 402, 416 (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, 348 F.3d 1060, 1070 (D.C. Cir. 2003) (internal


                               -10-
quotations omitted); see also United States v. Paddack, 825 F.2d

504, 514 (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, 866 F.2d

1508, 1514 (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, 866 F.2d at 1515.

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, 538 F. Supp. 2d 200, 204 (D.D.C. 2008)

(citing 10     U.S.C.   §    1552).    Hence,      the AFBCMR   constitutes       an

“agency” under the APA. See Levant v. Roche, 384 F. Supp. 2d 262,

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

a “presumption of judicial review.” Kreis, 866 F.2d at 1513 (citing

Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967)). This

presumption is overcome when an “agency action is committed to

agency    discretion    by    law.”    Id.    at    513   (citing   5    U.S.C.   §

701(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.” Id.


                                       -12-
       Defendant argues that 10 U.S.C. § 14310(a) is the relevant

statute and governs removal of officers from promotion lists.

Def.’s Mot. to Dismiss 18. Under 10 U.S.C. § 14310(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 10 U.S.C. § 14310(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 10 U.S.C. § 14310(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 10 U.S.C. § 14310(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 10

U.S.C. § 1552(a), which governs the correction of military records.

       Under   10   U.S.C.   §   1552(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., 473 F.3d 1356, 1361 (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., 369 F.3d 1303, 1315 (Fed. Cir.

2004) (“The Corrections Board statute, 10 U.S.C. § 1552, provides

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

the Board’s decision”); Chambers v. Green, 544 F. Supp. 2d 10, 13

(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, 384

F. Supp. 2d at 267 (“[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., 473 F.3d at 1361

(citing Dysart, 369 F.3d at 1315).

     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, 866 F.2d at

1511. 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, 107 F. Supp. 2d 37, 41 (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, 345 U.S. 83, 93-94 (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, 866 F.2d at 1511.

        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. 866 F.2d at 1511; see also Barnes, 473 F.3d at 1361 (“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, 866 F.2d at 1511. Therefore, as in Kreis, Plaintiff’s

request for retroactive promotion must be denied as nonjusticiable.

Kreis, 866 F.2d at 1516.

     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,

297 F. Supp. 2d 119 (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 5 U.S.C. §§ 702, 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, 297 F. Supp. 2d at 122-23. 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 id. at 122.

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

from inoculating military personnel absent informed consent or

Presidential      waiver.    Id.   at    135.   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, 172 F.App’x. 327, 327-328 (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, 538 F. Supp.

2d at 210.

     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,

341 F. Supp. 2d 1, 3. 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, 2006 WL 2687020, 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.” Id. at 19. 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, 417 U.S. 733, 759 (1974). Although

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

civilian community,” other considerations must be weighed in the


                                   -21-
military context. Id. 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, 389 F.

Supp. 331, 334 (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,

417 U.S. at 759.

       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,   417   U.S.    733,   at    759

(rejecting       First   Amendment     defense   where     military    physician

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

v. Sec’y of Defense, 553 F. Supp. 719, 724-25 (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, 329 F.Supp.2d 71, 82 (D.D.C. 2004); U.S. v.

Frankel, 739 F. Supp. 629, 632 (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, 1988 WL 13174, 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-
     10 U.S.C. § 14311(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. 10 U.S.C. § 14311(a)-(d). The Secretary of Defense may

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

date of promotion. Id. 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. Id.

     10 U.S.C. § 14310(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.” 10 U.S.C. § 14310(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, 476 U.S. 837, 843 (1984), the Court

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

an agency’s interpretation of its governing statute. See id. The

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

respect to the specific issue.” Id. at 842-43. 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.” Id. If the statute

     5
      The Navy and Army have interpreted the predecessor provision
to 10 U.S.C. § 14310(a) differently. Rolader v. U.S., 42 Fed. Cl.
782, 785-86 (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.” Id. at 843. If the

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

its interpretation. Id. at 843.

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

The simple fact is that 10 U.S.C. § 14310(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.   10 U.S.C. § 14310(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, 533 U.S. 167, 172 (2001); Mayer Brown LLP v. IRS, 562 F.3d

1190, 1194 (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, 479 F.2d 842, 855 (D.C. Cir. 1973).

     10 U.S.C. § 14310(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   10    U.S.C.   §§   14301-14317

(governing promotions), nor does any other provision of 10 U.S.C.

§§ 14301-14317 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 10 U.S.C. § 14310(a) is

silent as to its relationship to 10 U.S.C. § 14311(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, 536 F.3d 673, 679 (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., 464 U.S. 16, 23 (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,

375 F.3d 1169, 1177 (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-
