McPherson v. Spencer ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN T. MCPHERSON,
Plaintiff,
Civil Action No. 18-cv-3082 (BAH)
v.
Chief Judge Beryl A. Howell
THOMAS W. HARKER, in his official
capacity as Acting Secretary of the Navy, et
al.,
Defendants.
MEMORANDUM OPINION
In 2012, plaintiff Stephen McPherson’s career as a Naval officer was derailed when he
was found to have engaged in an inappropriately flirtatious relationship with the wife of a
subordinate enlisted servicemember, a Chief Petty Officer in the same Navy command as
plaintiff. The relationship was discovered when the subordinate, suspecting his wife of having
an affair, found her Facebook messages with plaintiff and forwarded them to his chain of
command. Following an investigation and hearing, the Navy imposed nonjudicial punishment
(“NJP”), consisting of a $2,000 pay forfeiture and a letter of reprimand submitted to plaintiff’s
military personnel file, accompanied by a determination that separation was not required.
Plaintiff’s subsequent petition to the Board for Correction of Naval Records (“the Board”), a
civilian review body, to have the letter of reprimand removed from his file, due to alleged
illegality in use of the flirtatious Facebook messages and other procedural errors in the NJP
proceedings, was denied. Meanwhile, plaintiff had twice been passed over for promotion to
Lieutenant Commander, based on his misconduct with the subordinate’s wife, as memorialized
1
in the letter of reprimand in his military personnel file, resulting in his mandatory involuntary
discharge from the Navy.
Plaintiff now seeks review, pursuant to the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 551 et seq., and via a cross-motion for summary judgment, of the Board’s decision not
to expunge the reprimand letter from his file. Defendants, the Acting Secretary of the Navy, the
U.S. Navy, and the Board, urge in their motion for summary judgment that the Board’s decision
be upheld. For the reasons set out below, defendants’ motion for summary judgment is granted
and plaintiff’s cross-motion for summary judgment is denied.
I. BACKGROUND
A brief overview of the facts giving rise to the instant lawsuit is followed by discussion
of the almost decade-long procedural history of administrative adjudications, including the Board
decision that is the focus of plaintiff’s challenge.
A. Factual Background
Plaintiff joined the U.S. Navy in 2004 as a Naval Aviator, a commissioned officer, and
initially enjoyed a promising career trajectory, receiving top-ranking performance evaluations.
Am. Compl. ¶¶ 7–8, 10, ECF No. 9. On August 1, 2011, plaintiff, by then a Lieutenant, was
assigned to work as a Staff Action Protocol Officer for the Chief of Naval Forces Europe, Chief
of Naval Forces Africa, Commander Sixth Fleet, id. ¶ 11, where he occupied an office adjacent
to Nicole Thomas, who was a civilian Navy employee, id. ¶ 12; Admin. Record (“AR”) at 56,
ECF No. 21, and the spouse of a Chief Petty Officer junior in rank to plaintiff. AR at 131. This
Chief Petty Officer was, like plaintiff, a member of the Sixth Fleet command, although plaintiff
was not in his direct chain of command. See id. at 131, 198. According to plaintiff, Mrs.
Thomas “pursued [him]” romantically. Am. Compl. ¶ 12. Although plaintiff suggests that the
2
relationship was thus one-sided, he nevertheless exchanged mutually flirtatious messages with
Mrs. Thomas on Facebook. See AR at 2.
In January 2012, Mrs. Thomas’s spouse attempted to log into her Facebook account after
noticing suspicious items in the search history of their shared home computer, but was unable to
do so because he did not have the correct password for the account. Id. at 78. Without Mrs.
Thomas’s permission, her spouse initiated a password change email using their shared email
account that was associated with Mrs. Thomas’s Facebook account. Id. He then used that
password change email to reset her Facebook password, log into the account, and download Mrs.
Thomas’s private Facebook messages with plaintiff. See id. Mrs. Thomas’s spouse reported to
his chain of command that plaintiff was having an affair with Mrs. Thomas and “provided parts
of [Mrs. Thomas’s] Facebook profile to his chain of command.” Am. Compl. ¶ 43; see also AR
at 59.
B. Procedural Background
Plaintiff’s involvement with the Chief Petty Officer’s spouse sparked a lengthy series of
interrelated administrative actions, which are described chronologically.
1. Plaintiff’s NJP Proceedings
In response to the Chief Petty Officer’s report, the Navy conducted an investigation into
the allegations that plaintiff was having an affair with a subordinate’s spouse. AR at 2. On
January 25, 2012, the Navy issued a Report of Preliminary Inquiry, which determined that
plaintiff had “engaged in inappropriate and flirtatious behavior” with the “wife . . . of an enlisted
member of [his] command.” Id. On February 1, 2012, plaintiff was notified by the Staff Judge
Advocate that he was being investigated for violation of the Uniform Code of Military Justice
(“UCMJ”), Am. Compl. ¶ 13, and was subsequently “removed from [his] office, reassigned
outside the command, and ordered not to have contact or communication with [Mrs. Thomas].”
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AR at 2. On February 15, 2012, plaintiff was informed that the Navy intended to pursue NJP to
address his potential misconduct with Mrs. Thomas. Id. at 28.1
On February 16, 2012, one day after plaintiff was notified that “he needed to decide
between NJP or court-martial,” id. at 53, NJP proceedings were conducted before Rear Admiral
Kenneth Norton (“RADM Norton”) and the Staff Judge Advocate, id. at 28, on charges that
plaintiff violated Articles 133 (“Conduct unbecoming an officer and gentleman”) and 134
(“General article”) of the UCMJ, for “engag[ing] in an inappropriate and unduly familiar
relationship involving online chats and physical contact (i.e., kissing and touching), with Mrs.
Nicole Thomas, the wife of a Chief Petty Officer assigned to his command,” id. at 149. During
the NJP proceedings, plaintiff “apologized for any part [he] had in letting [his] friendship with
Ms. Thomas go too far.” Id. at 28. In response to RADM Norton’s query whether plaintiff had
any witnesses to call, plaintiff indicated he had one witness, but after further discussion with
RADM Norton, plaintiff declined to call her, purportedly out of concern that her job security
would be negatively affected by her testifying at the NJP proceedings. See id. at 29. RADM
Norton found that plaintiff had violated UCMJ Articles 133 and 134 and imposed NJP consisting
of a Punitive Letter of Reprimand (“PLOR”) and forfeiture of $1,000 of his monthly pay for two
months, for a total of a $2,000 fine. Id. at 139.
Around the time of plaintiff’s NJP proceedings, he twice signed a Report and Disposition
of Offense(s) (“Report”) memorializing the NJP proceedings and the punishment imposed. Id. at
1
As defendants explain, NJP is an informal administrative punishment that “[c]ommanders may impose . . .
for acts or omissions that are minor offenses under the punitive articles of the UCMJ.” In many circumstances,
including plaintiff’s, a servicemember facing NJP may opt instead to face trial by court-martial, and “[w]hen an
accused elects NJP in lieu of a court-martial, he benefits from the relative informality of NJP proceedings and the
lessened severity of the potential punishments.” Defs.’ Mem. Supp. Mot. Summ. J. at 10, ECF No. 13-1; see also 10
U.S.C. § 815(b) (authorizing commanding officers to impose, for “minor offenses [and] without the intervention of a
court-martial,” certain non-judicial punishments, including, inter alia, arrest in quarters or correctional facility,
suspension from duty for up to thirty days, imposition of half pay for up to two months, or extra duties for up to
forty-five days); infra Part III.B.2.
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2. He signed the Report, on February 16, 2012, the date of the NJP proceedings, acknowledging
that he had the right to demand trial by court-martial in lieu of NJP, id., and again, on March 8,
2012, twenty days after NJP was imposed, but on a different line corresponding to a different
section of the Report acknowledging that he had been informed of the nature of the accusations
against him, that he did not have to make a statement, and that any statement he did make could
be used against him, id. Plaintiff alleges that when he signed the report the second time, on
March 8, 2012, he was asked to backdate his signature to February 16, 2012, but refused to do
so. Id.; Am. Compl. ¶ 56.
2. Plaintiff’s NJP Appeal and Punitive Letter of Reprimand
On March 9, 2012, plaintiff submitted an appeal to RADM Norton of his decision to
impose NJP, pursuant to 10 U.S.C. § 815(e). Defs.’ Mem. Supp. Mot. Summ. J. (“Defs.’
Mem.”) at 4, ECF No. 13-1; see also AR at 141–43. In his appeal, plaintiff challenged only the
$2,000 fine that he was issued as part of his NJP, arguing that “the punishment was unjust and
disproportionate to the offense,” but not otherwise challenging the finding of misconduct or
alleging any procedural defects in the NJP proceedings. AR at 141. He admitted that
“inappropriate language” with Ms. Thomas was “mutual[] and reciprocated,” and although he
claimed that it “was initiated by” Ms. Thomas, id. at 142, he “sincerely apologize[d] to anyone
for any errors [he had] made, or if any of [his] conduct caused offense,” id. at 141. Plaintiff
further explained that his intent at the NJP proceedings had been to “apologize for flirtatious
posts with Mrs. Thomas as well as for allowing a friendship to grow too close.” Id.Norton found that plaintiff “admitted guilt to two specifications involving an unduly
familiar relationship with the spouse of a Chief Petty Officer assigned to his command,” and that
“[t]he results of the NJP were neither unjust nor disproportionate.” Id. at 151. He nevertheless
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decided to suspend plaintiff’s $2,000 pay forfeiture, on the condition he not engage in
misconduct for six months, see id., although he found that “[t]he remaining punishment, a
Punitive Letter of Reprimand, is wholly appropriate under these circumstances,” id.With plaintiff’s appeal resolved, his PLOR was issued on April 2, 2012, and plaintiff
acknowledged its receipt on April 4, 2012. Id. at 2–3. The PLOR explained plaintiff’s
misconduct and also noted that the NJP hearing had been conducted after plaintiff was
“appraised of [his] rights . . . to refuse [NJP] and demand trial by court-martial,” and that
plaintiff’s admissions to the misconduct with Mrs. Thomas were made “after being apprised of
[his] right against self-incrimination.” Id. at 3 (second alteration in original). On May 23, 2012,
a report on plaintiff’s NJP and PLOR was submitted for inclusion in his official military
personnel file (“OMPF”). Id. Plaintiff was afforded an opportunity to submit a statement on the
adverse report, but he did not do so. Id.Plaintiff’s subsequent performance evaluation, or fitness report (“FITREP”), for the
period February 1, 2012 to March 23, 2012, noted the NJP. Id. Plaintiff was afforded an
opportunity to acknowledge the FITREP and submit a statement and, after he did neither, the
FITREP was submitted for inclusion in plaintiff’s OMPF. Id. On April 3, 2012, plaintiff was
selected for the eligibility list for promotion to Lieutenant Commander, but on July 17, 2012, the
promotion consideration was withheld pending review of the misconduct that formed the basis of
plaintiff’s NJP. Id. In response, plaintiff submitted a statement expressing “deep regret” for his
conduct with Mrs. Thomas and “taking full responsibility for [his] actions.” Id.
3. Plaintiff’s Board of Inquiry Proceeding
On November 13, 2012, plaintiff was notified that a Board of Inquiry (“BOI”) would be
convened, based on his misconduct with Mrs. Thomas, to determine whether he should be
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retained in the Navy. Defs.’ Mem. at 4; AR at 13. Plaintiff submitted a letter to the BOI
requesting that the Facebook messages obtained by Mrs. Thomas’s husband not be considered in
deciding whether he would be retained in the Navy, arguing that they were illegally obtained in
violation of the Wiretap Act, 18 U.S.C. §§ 2510 et seq. AR at 78–83. The BOI considered live
testimony and written statements, including from Mrs. Thomas, who testified that she and
plaintiff “both will admit [their] mistake in that [they] got too flirty, and exchanged messages
with sexual innuendos and double entendres,” and that “[t]hese things escalated, and in a few
conversations, . . . [they] ended up escalating things for shock value and to see how far such
flirting would go.” Id. at 175. On February 14, 2013, the BOI determined, by a unanimous 3-0
vote, that plaintiff violated UCMJ Articles 133 and 134 stemming from his “inappropriate and
unduly familiar relationship” with Ms. Thomas. Id. at 139, 155–56. The BOI recommended,
however, “by a vote of two to one[,] that [plaintiff] be retained in the naval service,” id. at 155,
with one dissenting member of the view that plaintiff lacked the “moral capacity” for continued
service, id. at 158.
While the BOI proceedings were ongoing, plaintiff was again selected for consideration
for promotion to Lieutenant Commander. Defs.’ Mem. at 5. On January 1, 2014, however, the
Chief of Naval Operations recommended against promoting plaintiff, based on his misconduct
with Mrs. Thomas. AR at 139–40. The Secretary of the Navy acted on this recommendation
and, in May 2014, declined to promote plaintiff because his “conduct with the spouse of a chief
petty officer was contrary to accepted standards of personal conduct for a naval officer.” AR at
4, 140.
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4. Plaintiff’s Petition to the Board and Discharge from the Navy
On September 16, 2014, plaintiff petitioned the Board to correct his naval records,
pursuant to 10 U.S.C. § 1552, seeking “expungement” of his PLOR from his OMPF and the
promotion that he did not receive in May 2014. AR at 133.2 In support of his petition, plaintiff
alleged that (1) Mrs. Thomas had sexually harassed him, (2) Mrs. Thomas’s husband obtained
and reported the Facebook messages to Navy leadership because plaintiff and plaintiff’s wife
would not engage in “a multi-partner sexual relationship”; (3) plaintiff was subjected to a hostile
work environment caused by Mrs. Thomas’s repeated attempts to contact him; (4) insufficient
evidence was presented at the NJP hearing to support a finding that plaintiff had violated the
UCMJ; (5) plaintiff was not apprised of his NJP rights and did not sign an acknowledgement of
those rights prior to his NJP; and (6) the Facebook messages had been obtained in violation of
the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701 et seq. AR at 131–33.
On September 16, 2015, the Board denied plaintiff's petition. See id. at 115–16. The
Board informed plaintiff that “[a]fter careful and conscientious consideration of the entire record,
[it] found the evidence submitted was insufficient to establish the existence of probable material
error or injustice.” Id. at 115. The Board rejected plaintiff’s contention that he and Mrs. Thomas
had a “purely platonic relationship,” citing Mrs. Thomas’s “own statement, [which] . . .
referenced that . . . both [she and plaintiff] crossed the line and had physical contact, and
[plaintiff himself] had owned up to both the physical and flirtatious behavior.” Id. The Board
also “carefully weighed all potentially mitigating factors, such as [plaintiff’s] period of
2
The Board is a civilian review body empowered, acting on behalf of the Secretary of the Navy, to “correct
any military record . . . when . . . necessary to correct an error or remove an injustice.” Roberts v. United States, 741
F.3d 152, 158 (D.C. Cir. 2014) (quoting 10 U.S.C. § 1552(a)(1)). “The person seeking to correct a record must
provide ‘substantial evidence’ in order to overcome the Board’s presumption that ‘public officers,’ including
military officers, ‘have properly discharged their official duties.’” Id. (quoting 32 C.F.R. § 723.3(e)(2)). “The Board
may deny an application ‘if it determines that the evidence of record fails to demonstrate the existence of probable
material error or injustice.’” Id. (quoting 32 C.F.R. § 723.3(e)(2)).
8
satisfactory service and assertion that [he] did not commit any misconduct.” Id. at 116.
“Nevertheless, the Board concluded that these factors were not sufficient to remove the punitive
letter of reprimand” from plaintiff’s OMPF, “or have [his] promotion . . . reinstated.” Id.Accordingly, plaintiff’s application was denied. Id.Meanwhile, on May 18, 2015, while plaintiff’s Board petition was still under
consideration and before the Board reached its decision, plaintiff was again considered for
promotion to Lieutenant Commander, and again, in October 2015, was not selected. Id. at 4.
After twice failing to be selected for a given promotion—a circumstance requiring separation
from active duty—plaintiff was involuntarily discharged from the Navy, pursuant to 10 U.S.C. §
632, on March 31, 2016. Id.
5. The Instant Lawsuit and the Board’s February 2020 Decision on
Remand
Plaintiff commenced the instant lawsuit on December 26, 2018, seeking review of the
Board’s September 2015 decision, under the APA. See Compl., ECF No. 1. Specifically,
plaintiff contended that he had not been properly advised of his rights at the NJP and that the
Navy had impermissibly relied on plaintiff’s communications with Mrs. Thomas in the NJP
proceedings, all of which errors rendered the Board’s decision not to correct his Naval records
arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, and otherwise
unlawful. Id. ¶¶ 38, 41. On March 4, 2019, before defendants filed an answer, the parties jointly
requested that the matter be remanded to the Board, in order to address plaintiff’s arguments that
his messages with Mrs. Thomas constituted unlawfully obtained evidence, see Joint Mot. for
Voluntary Remand & Stay of Proceedings, ECF No. 5, which motion was granted, see Min.
Order (Mar. 5, 2019).
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On remand, plaintiff renewed his argument that his social media messages with Mrs.
Thomas used against him in the NJP proceedings had been obtained in violation of the Wiretap
Act and the SCA, and that the consideration of those messages in the NJP proceedings
constituted probable material error warranting revocation of his NJP and removal of the PLOR
from his OMPF. See AR at 4. Plaintiff sought reinstatement into the Navy, a promotion to
Lieutenant Commander, and removal of the February–March 2012 FITREP referencing his
misconduct with Mrs. Thomas. Id.On February 18, 2020, the Board issued its decision on remand. Joint Status Report at 1,
ECF No. 8. The Board rejected plaintiff’s SCA argument, reasoning that the Act protects
“information that an internet or e-mail provider stores to its servers, information stored with a
telephone company, and information maintained by an electronic bulletin board operator—if
such information is stored temporarily pending delivery or for purposes of backup protection.”
AR at 4–5 (emphasis in original). Since “there is no evidence in the record, and [plaintiff]
provided none, that would indicate the information that [Mrs. Thomas’s husband] accessed was
‘stored temporarily pending delivery,’” the Board determined that “the SCA does not apply to
the circumstances of [plaintiff’s] case.” Id. at 5. Instead, the Board determined that “only a
properly raised claim under the Fourth Amendment could possibly provide a remedy for a
violation of [plaintiff’s] rights.” Id.3
3
The Board further rejected the possibility that the Fourth Amendment applied to her husband’s
unauthorized access to Mrs. Thomas’s emails or social media messages, based on the private search doctrine, which
“reflects the well-established principle that the Fourth Amendment, and its case-law-derived search and seizure
rules, do not apply to searches conducted by private parties.” AR at 5. As such, the Board reasoned, “[i]n order to
run afoul of the Fourth Amendment, . . . the Government must do more than passively accept or acquiesce in a
private party’s search efforts,” and instead, to establish a Fourth Amendment violation, plaintiff needed to show that
“the private individual intended to assist law enforcement” rather than harboring “some other independent
motivation.” Id. Plaintiff, however, had “failed to show that [Mrs. Thomas’s husband] was acting in anything other
than his own personal capacity,” and in fact, “[t]he record shows that he had an ‘independent motivation’ to
investigate ‘romantic phrases’ from internet searches on the iPad he shared with his wife, and there is no evidence
that the Navy or any official instructed [the husband] to conduct these services.” Id. As such, “the Fourth
10
The Board also rejected plaintiff’s argument that Mrs. Thomas’s husband’s acquisition of
his wife’s Facebook messages violated the Wiretap Act. See id. The Board reasoned that he had
not “intercepted” his wife’s Facebook messages, as proscribed by the Wiretap Act, because “the
act of ‘intercepting’ must be contemporaneous with the communication, and the Board found no
evidence that [Mrs. Thomas’s husband] had e-mails on ‘auto-forward’ or installed any programs
to contemporaneously intercept the e-mails messages at the same time they were sent.” Id.4
Next, the Board addressed plaintiff’s host of procedural objections to his NJP, including
that he was not advised of the charges against him or his right to proceed via court-martial
instead of NJP, he was not asked to enter a plea to the charges against him, the NJP was
conducted only one day after he was told he needed to decide between a court-martial and an
NJP, giving him insufficient time to prepare, and the commander conducting the NJP
proceedings showed “blatant contempt” for plaintiff’s requests to call witnesses and be
accompanied by counsel. Id. at 6.
The Board agreed with plaintiff that the record reflected that he “did not acknowledge all
of [his] rights in writing until” March 8, 2021, twenty days after the NJP hearing was conducted
on February 16, 2021. Id. (emphasis in original). The Board nevertheless determined that his
“untimely written acknowledgement . . . of [plaintiff’s] procedural rights d[id] not constitute
probable material error or injustice warranting removal of the NJP from [his] record,” as the
Board found that plaintiff was advised of his rights “prior to the imposition of the NJP” even
Amendment [did] not apply to [the husband’s] unauthorized access and disclosure of the private messages to the”
Navy. Id. Plaintiff does not argue in the instant lawsuit that the Facebook messages were obtained in violation of
the Fourth Amendment or that the Board erred in concluding that the Fourth Amendment did not apply to Mrs.
Thomas’s husband’s acquisition of the Facebook messages at issue.
4
Further, the Board found substantial evidence supporting the finding of plaintiff’s misconduct other than
the objected-to Facebook messages, pointing to plaintiff’s admission to the misconduct, including his statement in
his NJP appeal that he “allow[ed] a friendship to grow too close” and used “inappropriate language” in
communicating with Mrs. Thomas. AR at 7.
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though his written acknowledgement did not occur until March 8, 2012. Id. Plaintiff’s own
allegation that he received only one day’s notice about “need[ing] to decide between NJP or
court-martial” was cited by the Board as indicating that he must have been aware of his right to
proceed via court-martial instead of via NJP. Id. The Board also noted that plaintiff had an
opportunity to challenge the validity of the NJP based on this alleged procedural violation on
March 8, 2012, when he eventually signed the Report, and yet made no challenge. Id. Then,
when he appealed the NJP, he “did not allege any violations of [his] NJP rights or [his] right to
due process, and . . . did not identify any prejudice resulting from [his] later memorialized
written acknowledgment of [his] rights at NJP,” instead arguing only that the penalty [reduction
in salary] was disproportionate to his offense. Id. at 7. Further, plaintiff’s PLOR “clearly
reference[d] that [he] was apprised of [his] rights prior to the imposition of NJP,” yet plaintiff
“elected not to submit a statement disputing this fact or any of the claims made in the PLOR”
even though he had been provided an opportunity to do so. Id. at 6. Finally, the Board observed
that plaintiff is “a law school graduate and [was] an attorney before [he] entered the Navy,”
further undermining his claim that he was unaware of his right to a court-martial. Id.Considering this evidence together, in particular plaintiff’s repeated failure to object to
statements memorializing that plaintiff had been advised of his rights, the Board determined that
plaintiff had in fact been so advised. See id.The Board also rejected plaintiff’s arguments that he had not been asked to enter a plea
and that he was given only a day’s notice to decide between proceeding via court-martial or NJP,
as no law or regulation either required that plaintiff enter a plea or imposed a waiting period
before an NJP could be imposed. Id. at 8. Finally, the Board rejected plaintiff’s argument that
he had been “dissuaded” from calling witnesses in his defense or being accompanied by counsel,
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since the record contained no evidence that plaintiff in fact asked or sought to call witnesses or
be accompanied by counsel, and thus no evidence that any such requests were denied. Id.In sum, then, the Board determined that plaintiff had “not overcome the presumption of
regularity with substantial evidence to the contrary,” and therefore had “not shown any probable
material error or injustice in [his] record.” Id. Accordingly, the Board again denied plaintiff’s
petition. Id.
6. Plaintiff’s Operative Amended Complaint
On May 12, 2020, plaintiff filed an amended complaint, requesting judicial review of the
Board’s February 2020 decision. See Am. Compl. He seeks a determination that the Board’s
February 2020 decision is arbitrary, capricious, an abuse of discretion, otherwise not in
accordance with the law, or unsupported by substantial evidence, and an order “direct[ing] the
Defendant to reinstate Plaintiff to military service (with any associated back pay and
allowances),” in addition to attorney’s fees and litigation costs. Id. at 18–19. As grounds for this
relief, plaintiff argues both that the Board incorrectly determined that RADM Norton permissibly
considered plaintiff’s Facebook messages with Mrs. Thomas, and that the Board erred in
rejecting his various procedural objections to the NJP hearing, including that he was not advised
of his rights to demand trial by court-martial in lieu of NJP and to remain silent; was not asked to
enter a plea at the outset of the NJP proceedings; was given only one day’s notice that he needed
to decide between court-martial and NJP; and was dissuaded by RADM Norton from presenting
his own witnesses and being accompanied by counsel. Id. ¶¶ 50, 52.
The parties subsequently cross-moved for summary judgment. See Defs.’ Mot. Summ. J.,
ECF No. 13; Pl.’s Cross-Mot. Summ. J., ECF No. 16. Those motions have been fully briefed,
see Defs.’ Mem.; Pl.’s Opp’n Defs.’ Mot. Summ. J. & Mem. Supp. Cross-Mot. Summ. J. (“Pl.’s
13
Opp’n.”), ECF No. 15; Defs.’ Reply Supp. Mot. Summ. J. & Opp’n Pl.’s Cross-Mot. Summ. J.
(“Defs.’ Reply”), ECF No. 18; Pl.’s Reply Supp. Cross.-Mot. Summ. J. (“Pl.’s Reply”), ECF No.
20, and are now ripe for resolution.
II. LEGAL STANDARD
A. Administrative Procedure Act
The APA provides for judicial review of any “final agency action for which there is no
other adequate remedy in a court,” 5 U.S.C. § 704, and “instructs a reviewing court to set aside
agency action found to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,’” Cigar Ass’n of Am. v. FDA, 964 F.3d 56, 61 (D.C. Cir. 2020) (quoting 5
U.S.C. § 706(2)(A)). This standard “‘requires agencies to engage in reasoned decisionmaking,’
and . . . to reasonably explain to reviewing courts the bases for the actions they take and the
conclusions they reach.” Brotherhood of Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin.,
972 F.3d 83, 115 (D.C. Cir. 2020) (quoting Dep’t of Homeland Sec. v. Regents of Univ. of Cal.
(“Regents”), 140 S. Ct. 1891, 1905 (2020)). An agency’s factual findings are reviewed for
substantial evidence, see 5 U.S.C. § 706(2)(E), “meaning that [the court] ‘determine[s] whether
there is such relevant evidence as a reasonable mind might accept as adequate to support the
[agency’s] conclusion,’” Am. Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 796 F.3d
18, 23 (D.C. Cir. 2015) (quoting Jim Walter Res., Inc. v. Sec’y of Labor, 103 F.3d 1020, 1023–24
(D.C. Cir. 1997)); see also Bistek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (“Under the
substantial-evidence standard, a court looks to an existing administrative record and asks
whether it contains ‘sufficien[t] evidence’ to support the agency’s factual determinations.”
(alteration in original) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))).
Judicial review of agency action is limited to “‘the grounds that the agency invoked when it took
the action,’” Regents, 140 S. Ct. at 1907 (quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)),
14
and the agency, too, “must defend its actions based on the reasons it gave when it acted,” id. at
1909.
B. Summary Judgment
Under Federal Rule of Civil Procedure 56, “‘[a] party is entitled to summary judgment
only if there is no genuine issue of material fact and judgment in the movant's favor is proper as
a matter of law.’” Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006));
see also Fed. R. Civ. P. 56(a). In APA cases such as this one, involving cross-motions for
summary judgment, “the district judge sits as an appellate tribunal. The ‘entire case’ on review
is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)
(footnote omitted) (collecting cases); see also, e.g., Lubow v. U.S. Dep’t of State, 923 F. Supp. 2d
28, 34, (D.D.C. 2013) (“Summary judgment thus serves as the mechanism for deciding, as a
matter of law, whether the agency action is supported by the administrative record and otherwise
consistent with the APA standard of review.”). Thus, this Court need not and ought not engage
in lengthy fact finding, since “[g]enerally speaking, district courts reviewing agency action under
the APA’s arbitrary and capricious standard do not resolve factual issues, but operate instead as
appellate courts resolving legal questions.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d
1085, 1096 (D.C. Cir. 1996); see also Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d 170, 171
(D.C. Cir. 2013) (noting, in an APA case, that “determining the facts is generally the agency's
responsibility, not ours”). Judicial review is limited to the administrative record, since “[i]t is
black-letter administrative law that in an [APA] case, a reviewing court should have before it
neither more nor less information than did the agency when it made its decision.” CTS Corp. v.
EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (second alteration in original) (internal quotation
omitted).
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C. Judicial Review of Board Decisions
Courts “review[] the decisions of boards for correction of military records ‘in light of
familiar principles of administrative law.’” Piersall v. Winter, 435 F.3d 319, 322 (D.C. Cir.
2006) (quoting Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989)); see also
Chappel v. Wallace, 462 U.S. 296, 303–04 (1983) (stating that decisions of the Board are
“subject to judicial review and can be set aside if they are arbitrary, capricious, or not based on
substantial evidence.”). Such review is limited, however, by the “fundamental and highly
salutary principle” that “[j]udges are not given the task of running the [military],” Piersall, 435
F.3d at 322 (alterations in original) (quoting Kreis, 866 F.2d at 1511); see also Kreis, 866 F.2d at
1511 (“The Constitution vests ‘[t]he complex, subtle, and professional decisions as to the
composition, training, equipping, and control of a military force’ exclusively in the legislative
and executive branches.” (alteration in original) (quoting Gilligan v. Morgan, 413 U.S. 1, 10
(1973))). Accordingly, courts lack subject-matter jurisdiction to review “military personnel
decisions,” such as requests from servicemembers for promotion or reinstatement, as “[t]o grant
such relief would require [courts] to second-guess the Secretary[] [of the Navy’s] decision about
how best to allocate military personnel in order to serve the security needs of the Nation,” a “task
inherently unsuitable to the judicial branch.” Kreis, 866 F.2d at 1511; see also Brannum v. Lake,
311 F.3d 1127, 1131 (D.C. Cir. 2002) (holding that courts are prohibited from directly reviewing
decision to impose NJP); McKinney v. White, 291 F.3d 851, 854 (D.C. Cir. 2002) (holding that
courts lack jurisdiction to “review direct appeal[]” from court-martial conviction).
A servicemember’s “more modest request” for a “district court merely to evaluate, in
light of familiar principles of administrative law, the reasonableness of the Secretary’s decision
not to take certain corrective action with respect to [plaintiff’s] record,” however, is justiciable.
Kreis, 866 F.2d at 1511; see also Piersall, 435 F.3d at 323–24 (reaffirming “the well-settled rule
16
that the decisions of boards for correction of military records are subject to review under the
APA”). “Adjudication of [such] claims requires the district court to determine only whether the
[Board’s] decision making process was deficient, not whether his decision was correct.” Kreis,
866 F.2d at 1511; see also id. at 1512 (noting that review of Board’s decision “looks like nothing
more than the normal review of agency action, in which [courts] require only that the agency
exercise its discretion in a reasoned manner”).
Judicial “scrupulous[ness] not to interfere with legitimate [military] matters,” id. at 1511(quoting Orloff v. Willoughby, 345 U.S. 83, 93–94 (1953)), further dictates that, although courts
have jurisdiction to review a Board decision pursuant to familiar APA standards, the deference
ordinarily owed to an agency’s substantive decisionmaking and fact finding is heightened when
doing so. “[J]udicial review in this context involves ‘an unusually deferential application of the
“arbitrary or capricious” standard’ of the APA,” Piersall, 435 F.3d at 324 (quoting Kreis, 866
F.2d at 1514); see also Gillan v. Winter, 474 F.3d 813, 817 (D.C. Cir. 2007) (citing Cone v.
Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000)), which requires only that defendants “show that
the [Board’s] decision contains a ‘rational connection between the facts found and the choice
made.’” Gillan, 474 F.3d at 819 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)).
III. DISCUSSION
Plaintiff mounts two challenges to the Board’s February 2020 decision. First, he claims
the Board erred in rejecting his argument that RADM Norton should not have considered his
Facebook messages with Mrs. Thomas in imposing NJP because those communications were
unlawfully obtained. Second, he contends that a bevy of procedural protections were violated
17
during his NJP proceedings. These objections are considered in turn, following analysis of the
Court’s jurisdiction to entertain the instant lawsuit, and both fail.
A. The Court’s Jurisdiction over the Instant Lawsuit
At the outset, the Court must consider whether it has jurisdiction over plaintiff’s lawsuit,
a question the parties failed to address. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)
(“[C]ourts . . . have an independent obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party.”). As noted, one remedy that plaintiff
seeks in the instant lawsuit is an order “direct[ing] the [Navy] to reinstate Plaintiff to military
service (with any associated back pay and allowances).” Am. Compl. at 19. Like the Kreis
plaintiff’s request “for retroactive promotion,” plaintiff’s request that he be reinstated “falls
squarely within the realm of nonjusticiable military personnel decisions,” as granting plaintiff’s
requested “relief would require [the Court] to second-guess the Secretary [of the Navy’s]
decision about how best to allocate military personnel in order to serve the security needs of the
Nation.” Kreis, 866 F.2d at 1511.
The justiciability of the instant lawsuit is saved, however, by plaintiff’s request, as an
alternative remedy, that the Court determine the Board’s February 2020 decision is arbitrary,
capricious, an abuse of discretion, otherwise not in accordance with the law, or unsupported by
substantial evidence, and remand the matter to the Board for further proceedings. See Am.
Compl. at 14. Such review is “nothing more than the normal review of agency action,” Kreis,
866 F.2d at 1512, and therefore within the scope of the Court’s subject-matter jurisdiction. See
id. at 1511–12 (holding that court has jurisdiction to consider plaintiff’s request that the court
“evaluate, in light of familiar principles of administrative law, the reasonableness of the
Secretary’s not to take certain corrective action with respect to [plaintiff’s] record,” even when
plaintiff’s lawsuit was also “aimed ultimately at securing his promotion”).
18
Having established subject matter jurisdiction over the instant lawsuit, plaintiff’s
challenges to the Board’s February 2020 decision are considered next.
B. Plaintiff’s Challenge to Use of Facebook Messages in NJP Proceedings
Plaintiff first contends that “[t]he investigation against him was born out of illegally
obtained communications,” Am. Compl. ¶ 50 because (1) his Facebook messages with Mrs.
Thomas were “illegally obtained” by her husband, in violation of the Wiretap Act and the SCA;
(2) the Navy was proscribed from relying on such illegally obtained communications during his
NJP proceedings; and (3) the Board erred, as a matter of law, in concluding that reliance on these
communications during plaintiff’s NJP proceedings was permissible, id. ¶¶ 43–46. This
argument falls flat, for two reasons. First, the statutes that plaintiff invokes themselves preclude
the remedy that he seeks, namely exclusion of the Facebook messages from his NJP proceedings.
Second, the Military Rules of Evidence and governing military regulations permit the
consideration of these messages.
1. Neither the Wiretap Act nor the SCA Requires or Supports Exclusion of
the Facebook Messages
Plaintiff misconstrues the applicability and relevance of the Wiretap Act and the SCA to
the instant lawsuit, as explained below.
a) Wiretap Act
First, the Wiretap Act, which subjects to criminal penalties or, in some circumstances,
civil suit, any person who, inter alia, “intentionally intercepts . . . any wire, oral, or electronic
communication,” 18 U.S.C. § 2511(1)(a), or “intentionally discloses . . . to any other person the
contents of any wire, oral, or electronic communication, knowing or having reason to know that
the information was obtained through the interception of a wire, oral, or electronic
communication,” id. § 2511(1)(c), is inapplicable to Mrs. Thomas’s husband’s actions in
19
obtaining the Facebook messages between his wife and plaintiff. The proscribed
“intercept[ion],” statutorily defined as “the aural or other acquisition of the contents of any wire,
electronic, or oral communication through the use of any electronic, mechanical, or other
device,” id. § 2510(4), must be contemporaneous with the communication’s transmission. See
Council on Am.-Islamic Relations Action Network v. Gaubatz, 793 F. Supp. 2d 311, 329 (D.D.C.
2011); see also, e.g., Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a
Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1231 (2004) (“[T]he Wiretap
Act . . . protects contents of communications in transit. . . . [A]n e-mail message will be protected
by the Wiretap Act when in transit, but by the SCA when it is stored.” (footnote omitted) (citing
U.S. DEP’T OF JUSTICE, SEARCHING AND SEIZING COMPUTERS AND OBTAINING ELECTRONIC
EVIDENCE IN CRIMINAL INVESTIGATIONS § IV.B (1st ed. 2002)); U.S. DEP’T OF JUSTICE,
SEARCHING AND SEIZING COMPUTERS AND OBTAINING ELECTRONIC EVIDENCE IN CRIMINAL
INVESTIGATIONS 165 (3d ed. 2015) (“The structure and language of the SCA . . . require[s] that
the term ‘intercept’ be applied only to communications acquired contemporaneously with their
transmission. . . . An individual who obtains access to a stored copy of the communication does
not ‘intercept’ the communication.”); Intercept, MERRIAM-WEBSTER ONLINE,
https://www.merriam-webster.com/dictionary/intercept (“to stop, seize, or interrupt in progress
or course or before arrival”).5 Mrs. Thomas’s husband retrieved her Facebook messages with
plaintiff only after transmission was completed and thus did not contemporaneously intercept
them. Accordingly, no violation of the Wiretap Act occurred.
5
The D.C. Circuit has not addressed whether the interception of a communication must be contemporaneous
to fall within the scope of the Wiretap Act, but every other circuit court of appeals to have considered the issue has
uniformly held that interception must be contemporaneous. See Boudrea v. Lussier, 901 F.3d 65, 77–78 (1st Cir.
2018); Luis v. Zang, 833 F.3d 619, 627, 630–31 (6th Cir. 2016); Fraser v. Nationwide Mutual Ins. Co., 352 F.3d
107, 113 (3d Cir. 2003); United States v. Steiger, 318 F.3d 1039, 1047 (11th Cir. 2003); Konop v. Hawaiian
Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002); Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 460–
61 (5th Cir. 1994).
20
Attempting to resist this conclusion, plaintiff contends that the relevant intercepted
communication was not any of the Facebook messages that plaintiff and Mrs. Thomas exchanged
but rather the Facebook password reset email that Mrs. Thomas’s husband triggered when he
reset his wife’s Facebook password. See Pl.’s Opp’n at 6. According to plaintiff, “Facebook
sent the email to Mrs. Thomas, and [her husband] contemporaneously intercepted it,” id., which
in turn permitted her husband “to gain access to the correspondence between Mrs. Thomas and”
plaintiff, id. at 7. This argument fails, however, because Mrs. Thomas’s husband did not
“intercept” that email. Rather, the record reflects that the password reset email was sent to an
email address that Mrs. Thomas and her husband shared. AR at 78. Thus, Mrs. Thomas’s
husband was an intended recipient of the email, as he had control of and authorized access to the
email account to which it was sent, and therefore did not intercept it.
b) Stored Communications Act
The SCA proscribes, inter alia, “intentionally access[ing] without authorization a facility
through which an electronic communication service is provided . . . and thereby obtain[ing],
alter[ing], or prevent[ing] authorized access to a wire or electronic communication while it is in
electronic storage in such system.” 18 U.S.C. § 2701(a). Unlike the Wiretap Act, Mrs.
Thomas’s husband may have violated the SCA, as he “intentionally access[ed]” Facebook’s
servers, by logging into his wife’s account without her permission, in order to “obtain[] . . . a[n]
electronic communication,” namely the Facebook messages between Mrs. Thomas and plaintiff,
in “electronic storage” on those servers. Id.; see also Konop v. Hawaiian Airlines, Inc., 302 F.3d
868, 879–80 (9th Cir. 2002) (assuming, for purposes of determining whether SCA exception
applied, that unauthorized access to private messages on social media websites violates
§ 2701(a)(1) of SCA); Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 667–
21
69 (D.N.J. 2013) (holding that semi-public Facebook “wall posts” are protected from disclosure
by § 2701 of SCA); Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 980–81 (C.D. Cal.
2010) (holding that private Facebook messages, like those at issue here, are electronic
communication services and therefore may not be voluntarily disclosed by Facebook, pursuant to
§ 2702(a)(1), (b) of SCA). Although Mrs. Thomas’s husband’s access to the Facebook servers
to retrieve her private messages may have been unlawful, his disclosure of those messages to his
chain of command was not. See 18 U.S.C. § 2701(a) (prohibiting only access to electronically
stored communications); see also Wesley College v. Pitts, 974 F. Supp. 375, 389 (D. Del. 1997)
(“[A] person who does not provide an electronic communication service . . . can disclose or use
with impunity the contents of an electronic communication unlawfully obtained from electronic
storage.”).6
6
Unlike § 2701 of the SCA, the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, forbids not
only unauthorized access to certain electronic contents but also, in some circumstances, disclosure of such
unlawfully accessed material. See id. § 1030(a)(1) (prohibiting any person from knowingly accessing “information
that has been determined by the United States Government . . . to require protection against unauthorized disclosure
for reasons of national defense or foreign relations” and from “willfully communicat[ing], deliver[ing],
transmit[ting] . . . the same [information] to any person not entitled to receive it.”); id. § 1030(a)(2))(C), (e)(2)
(prohibiting “intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and
thereby obtain[ing] . . . information from any . . . computer” that is used in or affects interstate commerce). Courts
have held that a person “exceeds authorized access” and therefore violates § 1030(a)(2) by disclosing without
authorization information obtained from a computer to which the person had authorized access. See, e.g., EF
Cultural Travel BV v. Explorica, 274 F.3d 577, 582–83 (1st Cir. 2001) (holding that defendant exceeded authorized
access within meaning of § 1030(a)(2) by disclosing computer data that it was permitted to access but forbidden, by
confidentiality agreement, to disclose); see also United States v. John, 597 F.3d 263, 272 (5th Cir. 2010) (“Access to
a computer and data that can be obtained from that access may be exceeded if the purposes for which the access has
been given are exceeded.”).
The Board in its February 2020 decision noted that during plaintiff’s BOI proceedings, he argued that his
Facebook messages were obtained in violation of both the Wiretap Act and § 1030(a)(2) of the CFAA, but no
reference to the CFAA appears in the administrative record of the BOI proceedings, which instead reflects that
plaintiff argued to the BOI only that those messages had been obtained in violation of the Wiretap Act. See AR at
76–86. In any event, assuming that plaintiff did contend before the BOI that Mrs. Thomas’s husband violated §
1030(a)(2) of the CFAA, he has long since abandoned that argument, as he did not renew it either in his Board
proceedings or before this Court. Plaintiff’s abandonment of this contention was prudent, as the CFAA likely does
not apply to Mrs. Thomas’s husband’s conduct. As explained, the Facebook messages at issue were obtained from
Facebook’s servers, and, accordingly, were not “obtain[ed] . . . from a[] . . . computer,” id. § 1030(a)(2)(C). Indeed,
plaintiff concedes as much when he argues that Mrs. Thomas’s husband did “not . . . illegal[ly] access . . . a home
computer” but rather “illegal[ly] access[ed] . . . stored communications protected by the SCA that were stored on
Facebook’s server,” Pl.’s Opp’n at 7.
22
Further, the SCA does not authorize the exclusionary remedy plaintiff seeks to enforce
here. Rather, the SCA provides that a person who violates the Act is subject to criminal
penalties consisting of a fine or up to a year imprisonment, 18 U.S.C. § 2701(b), or a civil action
for an injunction or other equitable relief or to recover damages, id. § 2707(a)–(b). Notably,
those “remedies and sanctions . . . are the only judicial remedies and sanctions for
nonconstitutional violations of” the SCA. Id. § 2708 (entitled “Exclusivity of remedies”). Thus,
the SCA forecloses the relief plaintiff seeks for Mrs. Thomas’s husband’s alleged violation of the
Act, namely, exclusion of his wife’s Facebooks messages with plaintiff from plaintiff’s NJP
proceedings.
2. The Military Rules of Evidence Exclusionary Rule Is Inapplicable in
NJP Proceedings
Regulations governing plaintiff’s NJP proceedings likewise did not authorize the
exclusionary remedy plaintiff seeks but rather permitted RADM Norton to consider plaintiff’s
Facebook messages with Mrs. Thomas. The UCMJ provides “four levels of punishment
proceedings—NJP, summary court-martial, special court-martial, and general court-martial—
gradually progressing upward in both procedural protections and possible punishments.” Turner
v. Dep’t of Navy, 325 F.3d 310, 314 (D.C. Cir. 2003). NJP is an “administrative method of
dealing with the most minor offenses,” Middendorf v. Henry, 425 U.S. 25, 32–32 (1976); see
also JOINT SERVICE COMM. ON MILITARY JUSTICE, MANUAL FOR COURTS-MARTIAL UNITED
STATES (“Manual for Courts-Martial”), Part V, ¶ 1.b (2012) (“Nonjudicial punishment is a
disciplinary measure more serious than . . . administrative corrective measures . . . but less
serious than trial by court-martial.”), and “provides commanders with an essential and prompt
means of maintaining good order and discipline[,] and also promotes positive behavior changes
in Servicemembers without the stigma of a court-martial conviction,” Manual for Courts-Martial,
23
Part V, ¶ 1.c; see also Turner, 425 F.3d at 318–19 (Tatel, J., concurring) (noting that purpose of
NJP is “to help service members avoid the stigma of court-martial convictions while allowing
military commanders to act quickly to preserve order and morale”); Sasen v. Spencer, 879 F.3d
354, 361 (1st Cir. 2018) (noting that NJP is “meant to ensure order and good behavior within the
armed forces” but “is not a criminal proceeding”).7 In contrast, trial by court-martial is
ordinarily reserved for more serious offenses and can result in severe punishment, see
Middendorf, 425 U.S. at 31–32, although a servicemember facing NJP may elect instead to
proceed via court-martial, see supra note 1; Manual for Courts-Martial, Part V, ¶ 3 (“Except in
the case of a person attached to or embarked in a vessel, [NJP] may not be imposed . . . upon any
member of the armed forced who has, before the imposition of [NJP], demanded trial by court-
martial in lieu of [NJP].”). Commanders have broad latitude to impose NJP, see generally
Manual for Courts-Martial, Part V, ¶ 1, and any appeal from or later review of NJP is considered
and decided deferentially, see, e.g., id. ¶ 1.i (“Failure to comply with any of the procedural
provisions [governing NJP] . . . shall not invalidate a punishment . . . , unless the error materially
prejudiced a substantial right of the Servicemember . . . .”).
Reflecting the difference in formality between NJP and court-martial proceedings, the
latter includes procedural protections not provided in the former. Salient here, the Military Rules
of Evidence provide for the exclusion of certain unlawfully obtained evidence from court-martial
proceedings. See generally Manual for Courts-Martial, Part III, § 3 (reproducing the Military
Rules of Evidence). For instance, an involuntary incriminating statement “is inadmissible at
trial” by court-martial. Military R. Evid. 304(a); see also 10 U.S.C. § 831(a), (d) (providing that
7
The Manual for Courts Martial has been updated as recently as 2019. See JOINT SERVICE COMM. ON
MILITARY JUSTICE, MANUAL FOR COURTS-MARTIAL UNITED STATES (2019). The 2012 edition was in effect at the
time of plaintiff’s NJP proceedings.
24
a servicemember may not be “compel[led] . . . to incriminate himself or to answer any question
the answer to which may tend to incriminate him” and that “[n]o statement obtained from any
person in violation of this article, or through the use of coercion, unlawful influence, or unlawful
inducement may be received in evidence against him in a trial by court-martial”). Similarly,
“[e]vidence obtained as a result of an unlawful search or seizure made by a person acting in a
governmental capacity is inadmissible against the accused” in a court-martial proceeding if the
accused timely files to suppress the evidence and had a reasonable expectation of privacy in the
evidence seized. Military R. Evid. 311(a).
Plaintiff attempts to import such procedural protections applicable in court-martial
proceedings into his NJP proceedings. Crucially, however, regulations governing NJP
proceedings expressly provide that “[t]he Military Rules of Evidence . . . , other than with respect
to privileges, do not apply at nonjudicial punishment proceedings.” Manual for Courts-Martial,
Part V, ¶ 4.c.3. Consistent with this clear statement, courts to have considered the issue have
concluded that the exclusionary remedy does not apply in NJP proceedings or, more generally,
outside of court-martial proceedings. See Sasen, 879 F.3d at 360 (“[T]he exclusionary remedy
sought by the [plaintiff] is not available in non-judicial punishment proceedings.”); Scarselli v.
United States, No. 17-507C, 2020 WL 1670705, at *9 (Fed. Ct. Cl. Apr. 3, 2020) (“[Boards of
Inquiry] are not courts-martial and the rules of evidence do not apply.” (internal quotation marks
omitted)); Kindred v. United States, 41 Fed. Cl. 106, 112 (1998) (holding that exclusionary
remedy of Article 31(d) of UCMJ, 10 U.S.C. § 831(d), does not apply outside court-martial
context). Thus, the exclusionary remedy that plaintiff seeks to have applied to his NJP
proceedings is reserved for trial by court-martial, and so RADM Norton’s consideration of
plaintiff’s Facebook messages with Mrs. Thomas was permissible.
25
Furthermore, even if the Military Rules of Evidence did apply in plaintiff’s NJP
proceedings, they would nevertheless not have proscribed consideration of plaintiff’s Facebook
messages with Mrs. Thomas. The Military Rules of Evidence provide that “[e]vidence obtained
as a result of an unlawful search or seizure made by a person acting in a governmental capacity
is inadmissible against the accused in court-martial proceedings.” Military R. Evid. 311(a)
(emphasis added). Here, no evidence suggests that Mrs. Thomas’s husband was acting “in a
governmental capacity” when he accessed his wife’s Facebook messages. To the contrary, the
record indicates that Mrs. Thomas’s husband accessed her messages in his personal capacity as a
husband suspicious of his spouse’s infidelity. See AR at 78 (explaining that Mrs. Thomas’s
husband attempted to log in to his wife’s Facebook account after he “noticed some odd searches
in the search history” of their shared computer, “which pertained to romance and romantic
phrases,” and “he was confused at the nature of these searches”). Indeed, the role of the Navy
itself in the acquisition of the messages was wholly passive and unknowing, as it did not receive
or even become aware of those messages until they were forwarded, unsolicited, by Mrs.
Thomas’s husband. Accordingly, plaintiff concedes, as he must, that the exclusionary rule
proscribing consideration of unlawfully obtained evidence does not apply to NJP proceedings.
See Pl.’s Opp’n at 12 (acknowledging “[t]he common practice of not utilizing the particular
evidentiary rules during informal hearings such as the NJP” and “the lack of formal evidentiary
standards” at NJP proceedings).
Plaintiff nevertheless contends that the fact that the exclusionary remedy does not apply
to NJP proceedings “holds no weight with the issue at hand,” Pl.’s Opp’n at 12, citing as support
McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998). McVeigh does not support plaintiff’s
position, however. That case involved a challenge to the Navy’s compliance with the military’s
26
“Don’t Ask, Don’t Tell” policy after it investigated plaintiff’s sexual orientation by requesting
from AOL information associated with an anonymous email account believed to be plaintiff’s.
To be sure, the challenged Navy action in McVeigh was a so-called “administrative separation,”
983 F. Supp. at 217, not a court-martial, and the court in McVeigh stated that the actions taken by
the Navy to ferret out details of plaintiff’s personal life, upon which it then relied in plaintiff’s
administrative separation proceedings, were “likely illegal under the Electronic Communications
Privacy Act of 1986 (‘ECPA’), ” id. at 219. Yet this observation was not essential to the court’s
holding, which was that “the Navy violated its own regulations” when it took
“affirmative[] . . . steps” to confirm personal details concerning plaintiff. Id.; see also id. at 218(“At its core, the Plaintiff’s complaint is with the Navy’s compliance, or lack thereof, with its
new regulations under the ‘Don’t Ask, Don’t Tell, Don’t Pursue’ policy.”); id. at 221 (“[T]he
case will be able to be disposed on the basis of the ‘Don’t Ask, Don’t Tell, Don’t Pursue’
policy.”). Moreover, the court in McVeigh appears not to have considered, and the Navy appears
not to have argued, whether the evidence allegedly gathered in violation of ECPA was
nevertheless properly considered in plaintiff’s administrative separation proceedings in light of
the inapplicability of the Military Rules of Evidence exclusionary rule. Finally, in McVeigh, the
evidence at issue was sought and obtained by the Navy itself in the course of its official
investigation into plaintiff’s sexual orientation, see id. at 217, unlike here, where, as explained,
plaintiff’s Facebook messages with Mrs. Thomas were obtained by her husband acting in a
personal, rather than official, capacity, and forwarded, unsolicited, to the Navy without any
official request from the Navy.
Accordingly, the Navy was not prohibited from considering these Facebook messages in
imposing plaintiff’s NJP, and the Board did not err in rejecting plaintiff’s argument to the
27
contrary. Plaintiff has failed to show that the Board acted arbitrarily and capriciously, and this
objection to the Board’s February 2020 decision therefore provide no basis for his requested
remand of the matter to the Board.
C. Plaintiff’s Procedural Challenges to His NJP
Plaintiff next argues that, even putting aside the allegation that his messages with Mrs.
Thomas should not have been considered during his NJP proceedings, “the injustice against him
spread to the denial of basic procedural rights leading up to and during the NJP proceeding.”
Am. Compl. ¶ 50. According to plaintiff, those proceedings violated “the Navy’s own policies
and procedures governing non-judicial punishment,” id. ¶ 54, by (1) not affording him his right,
pursuant to Article 31(b) of the UCMJ, to be “inform[ed] . . . of the nature of the accusation
[against him] and advis[ed] . . . that he does not have to make any statement,” id. ¶ 55 (quoting
10 U.S.C. § 831(b)); (2) conducting the NJP proceedings only one day after plaintiff was
informed he needed to decide between NJP and court-martial proceedings, id. ¶ 52; (3)
“dissuad[ing] [him] from calling witnesses or being accompanied by counsel,” id.; and (4) not
affording him an opportunity to enter a plea, id. ¶ 56. In addition to these procedural objections
to his NJP proceedings, plaintiff also argues that (5) the Board “fail[ed] to properly evaluate the
full record,” Pl.’s Opp’n at 11. He seeks a remand to the Board to reconsider these challenges.
See Am. Compl. at 10, 18–19. These arguments are addressed in turn, and none is persuasive.
1. The Board’s Finding that, Before His NJP Proceedings, Plaintiff Was
Notified of His Rights to Court-Martial and Against Self-Incrimination
Before imposing NJP, the Navy was required to inform plaintiff of his right to forgo NJP
and demand trial by court-martial, Manual for Courts-Martial, Part V, ¶ 4.a.5, and his right
against self-incrimination, id. ¶ 4.c.1.A; see also 10 U.S.C. § 831. Plaintiff contends that he was
28
not provided such notice, and that the Board’s finding to the contrary was unsupported by
substantial evidence.
As explained, see supra Part I.B.5, the Board considered and rejected plaintiff’s argument
that he was not advised of these rights in advance of his NJP proceedings. While recognizing
that plaintiff “did not acknowledge all of [his] rights in writing until” March 8, 2012, the Board
found that he had been verbally advised of those rights before the NJP proceedings. AR at 6
(emphasis in original). Contrary to plaintiff’s insistence that the Board’s determination that he
was advised of his rights is “pure speculation,” Pl.’s Opp’n at 12, this finding is supported by
substantial evidence in the record, see Kreis, 866 F.2d at 1512 (citing Chappell, 462 U.S. at 303).
As the Board reasoned in its February 2020 decision, “on numerous occasions, [plaintiff]
had the opportunity to challenge the validity of [his] NJP based on alleged violations of [his]
rights, but [he] failed to do so.” AR at 7. The PLOR that was submitted to plaintiff’s file
expressly notes that his “NJP hearing was conducted after [plaintiff] was ‘apprised of [his]
rights, pursuant to [the UCMJ], to refuse [NJP] and demand trial by court-martial,’ and that
[plaintiff] made admissions ‘after being apprised of [his] right against self-incrimination.’” Id. at
1 (emphasis added). As the Board found, plaintiff was provided the opportunity to submit a
response to the PLOR, including the PLOR’s statements that he was advised of his rights before
the NJP proceedings, id., but instead plaintiff submitted a statement only that he “d[id] not intend
to submit a statement,” id. at 153. He was afforded an additional opportunity to argue that he
had not been advised of his rights when he appealed his NJP, but he again failed to do so, as “the
gravamen of [his] . . . NJP appeal was that the forfeitures awarded were disproportionate to [his]
offense.” Id. at 7. Nor did plaintiff argue that his NJP proceedings had been infected with
procedural violations, including that he had not been advised of his rights, when he was informed
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that his promotion eligibility was being suspended pending a BOI proceeding regarding his
misconduct with Mrs. Thomas. See id. In light of plaintiff’s repeated failures to object or even
suggest that he had not been advised of these rights before his NJP hearing, even given
“numerous opportunities in which one might reasonably have been expected to raise such a
claim,” id., the Board found that he had in fact been advised of those rights, notwithstanding that
he did not acknowledge those rights in writing until twenty days after the NJP proceedings had
concluded.8 This factual determination, for which the Board is entitled to broad deference, see
Piersall, 435 F.3d at 211; Gillan, 474 F.3d at 817, 819, was supported by substantial evidence.9
8
Defendants offer a further reason that the Board did not err in determining that plaintiff was advised of his
rights, notwithstanding that his written acknowledgement of such occurred twenty days after his NJP. As noted,
plaintiff twice signed the Report memorializing his offense and the NJP disposition. The first signature, executed on
February 16, 2012, the day of the NJP proceedings, acknowledged that he had the right to demand trial by
court-martial in lieu of NJP. AR at 2. Twenty days later, on March 8, 2012, he signed a different line on the same
page of the Report, this signature acknowledging that he had been informed of the nature of the accusations against
him and that he did not have to make a statement, and that any statement he made could be used against him. See id.(noting that on March 8, 2012, plaintiff signed the Report, for the second time, “in the section immediately
preceding and . . . right above [his] 16 February 2012 signature”). Defendants suggest that “[i]t is hardly
‘speculation’ to conclude that Plaintiff received the entire document when he signed the document” the first time, on
February 16. Defs.’ Reply at 11. Although this logic might have bolstered the Board’s factual determination that
defendant had been verbally advised of his rights prior to the NJP proceedings, this reason was not provided or
relied upon by the Board in its February 2020 decision and therefore will not be considered. See Regents, 140 S. Ct.
at 1907.
9
Furthermore, even if plaintiff were correct that he had not been advised of these rights, he has failed to
demonstrate that he was prejudiced by such supposed error. See 5 U.S.C. § 706 (flush text) (“[T]he court shall
review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial
error.”); Shinseki v. Sanders, 556 U.S. 396, 409 (holding that this statutory language “requires [the court] to apply
[in review of Board decisions] the same kind of ‘harmless-error’ rule that courts ordinarily apply in civil cases”); id.
at 409 (“[T]he party that ‘seeks to have a judgment set aside because of an erroneous ruling carries the burden of
showing that prejudice resulted.” (quoting Palmer v. Hoffman, 318 U.S. 109, 116 (1943))). In other words, plaintiff
must “explain[] how he would have acted differently” had the alleged error not occurred. Shinseki, 556 U.S. at 403.
Plaintiff has not done so. Instead, plaintiff argues only that this supposed error qualifies as inherently prejudicial
without any further showing, stating that “had the [Navy] not made the error[], the Plaintiff would have been able to
keep his job.” Pl.’s Opp’n at 14; see also Pl.’s Reply at 9 (“Failure to advise somebody of their rights to ensure that
they make an informed decision about how they should proceed is an inherently harmful action.”). This position,
however, is squarely foreclosed by Supreme Court precedent. See Shinseki, 556 U.S. at 403, 405 (rejecting
argument that agency’s failure to provide required notice is presumptively prejudicial and “has the ‘natural effect’ of
producing prejudice” (quoting Mayfield v. Nicholson, 19 Vet. App. 103, 120–24 (2005))).
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2. Plaintiff’s Remaining Procedural Objections
Plaintiff’s remaining arguments concerning the Board’s analysis of his procedural
objections to his NJP proceedings, see Am. Compl. ¶¶ 52, 56, may be readily dispatched, as the
Board’s treatment of each of those arguments was not arbitrary or capricious and was supported
by substantial evidence, and in fact plaintiff largely does not argue otherwise. First, plaintiff
objects that his NJP proceedings were conducted just one day after he was informed that he
needed to choose between NJP and court-martial proceedings, such that he had only one day’s
advance notice of the proceedings. As the Board noted, however, the Navy was not required to
provide any amount of advance notice of the impending NJP proceedings. AR at 8. A
servicemember facing possible NJP must be notified of that fact, see Manual for Courts-Martial,
Part V, ¶ 4.a, but conspicuously absent from that governing regulation is any requirement that the
notice must be provided at a certain time in advance of the proceedings, see id.Second, the Board likewise rejected plaintiff’s argument that he was not afforded an
opportunity to enter a plea, as “nothing in law or regulation requires the entry of pleas at NJP.”
AR at 8. Although a servicemember must be afforded an opportunity to enter a plea at the outset
of court-martial proceedings, see Manual for Courts-Martial, Part II, ch. 9, at II-117–20, no such
requirement exists for NJP proceedings, see id., Part V, ¶ 4(a).
Third, the Board rejected plaintiff’s contention that he was dissuaded from calling
witnesses or being accompanied by counsel. Although an accused in NJP proceedings is entitled
to be accompanied by a “spokesperson,” id. ¶ 4.c.1.B, and to have “reasonably available”
witnesses present, id. ¶ 4.c.1.F, the Board found that plaintiff had not in fact even “requested
witnesses or to be accompanied by counsel,” and therefore could not show “that such requests
were denied,” AR at 8. In reaching this conclusion, the Board considered, but was “not
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persuaded” by, plaintiff’s evidence, “including [his] affidavit and the second-hand account of
[his potential] witness,” that his “decision not to call witnesses or be accompanied by counsel
was involuntary.” Id. This credibility determination by the Board is accorded the same
deference that is owed its other factual determinations, see, e.g., Sokol v. United States, 120 Fed.
Cl. 144, 155 (2015) (citing Stine v. United States, 92 Fed. Cl. 776, 796 (2010)), and even more so
on this issue, considering that plaintiff advances no argument as to how the Board erred in this
analysis.
Finally, although plaintiff’s Amended Complaint provides no obvious basis for this
claim, he devotes much of his summary judgment briefing to disputing the Board’s factual
finding that he was involved in a “romantic relationship” with Mrs. Thomas. Pl.’s Reply at 2–6;
see also Pl.’s Opp’n at 9–11. He argues that the Board “attempt[ed] to take statements made by
the Plaintiff out of context and apply a meaning that was not at all intended,” Pl.’s Opp’n at 9,
contending that, during his NJP proceedings, although he “generally apologized for any errors he
made,” he “specifically stated that a friendship had grown too close,” not “that the relationship
with Mrs. Thomas was romantic in nature.” Id. at 10 (emphasis in original); see also Pl.’s Reply
at 3. He further suggests that his “statement that the friendship had ‘gone too far’ was a
reference to the friendship with [Mrs. Thomas] evolving into something obsessive, not
romantic,” Pl.’s Reply at 4, the blame for which development, according to plaintiff, is
attributable to Mrs. Thomas, see id. at 3–4.
This argument is wholly uncompelling, for two reasons. First, plaintiff mischaracterizes
the Board’s factual finding. It never concluded that he had a “romantic relationship” with Mrs.
Thomas, but rather determined that “during the period from November 2011 to January 2012,
[plaintiff] and [Mrs. Thomas] engaged in inappropriate and flirtatious behavior and
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e-mail/Facebook . . . message exchanges,” AR at 2, and that in the course of the NJP
proceedings, plaintiff was found to have “engaged in an unduly familiar relationship . . . with the
wife of a fellow sailor,” id. Thus, plaintiff objects to a finding that the Board never actually
made. Second, and more importantly, although plaintiff attempts to frame this objection as an
argument that the Board “fail[ed] to properly evaluate the full record,” Pl.’s Opp’n at 11, in
reality it amounts to no more than a disagreement with the substance of the Board’s factual
findings based on its review of the record. Indeed, plaintiff admits as much when he states that
he “does not deny certain events or conversations, but [rather] . . . rejects the [Board’s] incorrect
interpretation” of those events. Pl.’s Opp’n at 11. Thus, plaintiff’s contention that the Board
“potential[ly] misinterpret[ed]” his statements and messages with Mrs. Thomas, id. at 10, runs
afoul of the bedrock principle that “when reviewing an agency determination for substantial
evidence the question is not whether the challenger’s construction is plausible but whether the
record can support the agency’s conclusion,” Am. Coal Co., 796 F.3d at 30 (citing Fla. Gas
Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010)). Here, the record plainly
supports the Board’s finding that plaintiff “engaged in inappropriate and flirtatious behavior”
with Mrs. Thomas. AR at 2; see also supra Part I.B.1–.3. In arguing to the contrary, plaintiff
asks the Court “to substitute its judgment for that of the” Board, which the Court may not do,
State Farm, 463 U.S. at 43; see also Kreis, 866 F.2d at 1511 (holding that APA review of
Board’s decision permits “determin[ation] only [of] whether the [Board’s] decision making
process was deficient, not whether [its] decision was correct”).
IV. CONCLUSION
For the foregoing reasons, the Board’s February 2020 decision was not arbitrary and
capricious and was supported by substantial evidence. Plaintiff’s reliance on the Wiretap Act,
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the SCA, and the Military Rules of Evidence as a source of error in the Board’s reasoning is
misplaced since none of those sources forbade consideration, during plaintiff’s NJP proceedings,
of his Facebook messages with Mrs. Thomas, and in fact regulations governing NJP permitted
such consideration. The Board likewise did not err in rejecting plaintiff’s procedural objections
to his NJP proceedings, as its findings that (1) plaintiff was advised of his rights in advance of
those proceedings, (2) was not denied his rights to a spokesperson or to call witnesses, and (3)
engaged in an inappropriate relationship with Mrs. Thomas were supported by substantial
evidence, and plaintiff’s remaining procedural objections have no basis in the law governing NJP
proceedings. Accordingly, defendants’ Motion for Summary Judgment is granted, and plaintiff’s
Cross-Motion for Summary Judgment is denied.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: May 6, 2021
__________________________
BERYL A. HOWELL
Chief Judge
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