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Bickel v. Delaware Air National Guard

United States District Court, S.D. Ohio, Eastern Division

May 11, 2018

PETER W. BICKEL, Plaintiff,
v.
THE DELAWARE AIR NATIONAL GUARD, et al., Defendants.

          Vascura Judge.

          OPINION & ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Motion for Preliminary Injunction (ECF No. 7) and First Amended Complaint For Injunctive Relief (ECF No. 2) (“Motion to Dismiss”) (ECF No. 21). For the reasons stated below, Defendants' Motion to Dismiss is GRANTED.

         I. BACKGROUND

         A. Factual Background

         Plaintiff Peter Bickel is an Ohio licensed doctor of optometry, a Colonel in the Delaware Air National Guard (“DE ANG”), and a reserve of the Air Force. (ECF No. 7-1 at ¶ 2). Col Bickel served in various positions in the Air National Guard and as a reserve of the Air Force for over 29 years. (Id.). In 2014, Col Bickel was offered a position as DE ANG's 166th Airlift Wing's Medical Group Commander, which he accepted. (ECF No. 2 at ¶ 10). His first official day as the Medical Group Commander was January 15, 2015. (Id.).

         During his tenure as Medical Group Commander, Col Bickel frequently engaged his part-and full-time staff by telecommuting through text messaging, telephone, and electronic mail. (ECF No. 7-1 at ¶ 3). Col Bickel contends telecommuting was necessary given his part-time status and the Major General's focus on Officer Performance Reports as a method of improving Wing Readiness. (Id.). Col Bickel discussed telecommuting with his immediate supervisor, then Vice Wing Commander, Colonel Donald Bevis. (Id. at ¶ 4). Col Bickel and Col Bevis completed the Air National Guard Telecommuting Work Agreement and the Air National Guard Telecommuting Supervisor and Telecommuter Checklist required by Air National Guard Instruction 36-8001 (“ANGI”). (Id. at ¶¶ 3-4). Col Bevis orally approved Col Bickel's request to report his time in complete days, accumulating time spent on various days and only reporting when it reached a full eight hour day. (Id. at ¶ 4). Col Bickel thus reported his time using an approved spreadsheet and Col Bevis never refused to make a payment because of the manner in which the telecommute time was submitted. (Id. at ¶ 5). Col Bickel was often advised, however, that there was no budget for payment, and he then would accumulate telecommute time and re-submit the request when money was available. (Id.).

         In August of 2016 Col Bevis was replaced by Colonel Robert E. Culcasi. (Id. at ¶ 6). Col Culcasi stopped all telecommuting time when he took over, but permitted Col Bickel to be reimbursed for telecommuting time that he had previously submitted. (Id.). Col Bickel had accumulated but not submitted additional telecommuting time before Col Culcasi halted telecommuting, and Col Culcasi asked to review that time. Col Bickel has not been paid for that time and has not submitted any additional telecommute time after August of 2016.

         On June 1, 2017, Col Culcasi authorized an investigation under his command of Col Bickel's alleged abuse of telework, government owned vehicles, and his position. (ECF No. 21-1 at ¶ 6). This Commander Directed Investigation (“CDI”) was conducted from June 1 to July 30, 2017. (Id.). Col Bickel initially believed the CDI was directed against a different target and thought he was a potential witness. (ECF No. 7-1 at ¶ 7). Col Bickel was informed that the CDI was against him on July 12, 2017. (ECF No. 24 at ¶ 3, Ex. A). That month, he was assigned a military defense attorney JAG officer to assist him with the CDI. (ECF No. 7-1 at ¶ 7). On July 24, 2017 Bickel responded to a series of questions relating to the CDI. (ECF No. 24, Ex. B). On July 30, 2017, a Report of Investigation (“ROI”) was issued, spanning approximately 400 pages and including sworn statements of eleven witnesses and other supporting documents. (ECF No. 21-1 at ¶¶ 7, 8). Col Bickel contends that he has never seen the ROI, while Defendants assert that the DE ANG Staff Judge Advocate, Lieutenant Colonel Jonathan Wasden, discussed or shared the ROI with four different lawyers representing Col Bickel. (Compare ECF No. 23 at 5 with ECF No. 27-1 at ¶ 6). In any event, the ROI and CDI file were then reviewed by Lt Co Wasden, who drafted a memorandum recommending that Col Culcasi approve the CDI/ROI findings that Col Bickel (1) did not comply with telework procedures and instruction, and his claim for telework was unreasonable; and (2) violated regulation by using a government owned vehicle in a prohibited manner. (ECF No. 21-1 ¶ 10).

         In September of 2017, Col Bickel was asked to meet with Col Culcasi and Lt Co Wasden. (ECF No. 7-1 at ¶ 9). Col Bickel was not represented by counsel at the meeting, and contends that he previously conferred with his assigned JAG counsel who “advised that it was not necessary for assigned JAG counsel to attend because it was likely that an apology for the CDI was going to be offered.” (Id.). At the meeting, however, Lt Co Wasden delivered two Letters of Reprimand (“LORs”), the first LORs of Col Bickel's career. (Id.). The LORs purported to discipline Col Bickel for failure to comply with telework instructions and legal requirements and questioning witnesses about their testimony while the investigation was pending, in violation of a direct order. (ECF No. 21-1 at ¶ 11). Col Bickel signed acknowledgement of receipt of the LORs, but advised Col Culcasi and Lt Co Wasden that he denied any wrong-doing. (ECF No. 7-1 at ¶ 9).

         Col Bickel was given three days to submit a rebuttal to the LORs. (Id. at ¶ 10). Alternatively, he was told he could retire to avoid any negative implications from the LORs. (Id.). Col Bickel consulted his assigned JAG counsel about rebutting the LORs, and alleges that he was advised that regardless of the reasonableness and adequacy of the rebuttal, Lt Co Wasden had informed the assigned JAG counsel that efforts to rebut the LORs would be futile. (Id.). Thereafter, Col Bickel met with Col Culcasi and the Wing's Vice Commander, Colonel Trevor Fulmer, to advise them of what his JAG counsel told him regarding Lt Co Wasden's statement about futility. (Id. at ¶ 11). Col Bickel told Col Culcasi and Col Fulmer that he would no longer work with that assigned JAG counsel, and Col Fulmer advised Col Bickel that new counsel would be provided. (Id.). Col Bickel also requested an extension of time to submit his rebuttals to the LORs, and was granted an extension to November of 2017. (Id.). On September 20, 2017, however, Col Bickel was advised by Col Culcasi that it was Col Bickel's responsibility to obtain new JAG counsel, and that he must submit his rebuttals to the LORs by September 29, 2017. (Id. at ¶ 12). By October 3, 2017, Col Bickel informed Col Culcasi that he would not respond to the LORS, based on the advice of civilian counsel. (ECF No. 21-1 at ¶ 14). The LORs and supporting documentation were placed into an Unfavorable Information File (“UIF”). (Id. at ¶ 15).

         On November 28, 2017, Col Culcasi sent a letter to Col Bickel informing him of Col Culcasi's recommendation that Col Bickel's federal recognition be withdrawn, and that Col Bickel be discharged from the DE ANG for misconduct. (Id. at ¶ 16). The letter informed Col Bickel that a board of officers would be convened to determine whether he should be discharged and lose his federal recognition. (Id. at Ex. A). The letter further notified Col Bickel that he has the right to consult civilian legal counsel at his own expense, or military legal counsel at no cost, the right to present his case to the board, and the right to submit statements on his own behalf at any time. (Id.). After the board makes its determination, the determination must be approved by the Secretary of the Air Force. (Id.). If Col Bickel is not satisfied with the decision, he may appeal to an Air Force Discharge Review Board, which is a multi-phase process that includes briefing, oral argument, findings of fact and law, and a final order/decision. (ECF No. 21-1 at ¶¶ 19, 20). To date, a board of officers has not been convened. Col Bickel's mandatory retirement date is June 1, 2019. (ECF No. 7-1 at ¶ 13).

         In December of 2018, Col Bickel filed a complaint with the Air Force Inspector General (“AFIG”). (Id.). In January of 2018, Col Bickel was notified of DE ANG's intent to recoup amounts paid to him for telecommuting time, totaling $36, 984.07. (Id. at ¶¶ 12, 14). In the same month, a Security Information File was created and Col Bickel was notified of DE ANG's intent to suspend and ultimately revoke his security clearance. (Id.). In February of 2018, Col Bickel's discovered that he was denied access to his military electronic account. (Id. at ¶ 12). On February 1, 2018, Col Bickel filed a second complaint with AFIG. (Id. at ¶ 14). To date, the AFIG has failed to act. (Id. at ¶ 13).

         B. Procedural History

         Col Bickel initiated this action on February 14, 2018 against DE ANG, Major General Carol A Timmons in her official capacity as the Adjutant General of the DE ANG, and the United States Department of Defense (DoD), James N. Mattis, in his official capacity as the United States Secretary of Defense. (ECF No. 1). On February 16, Col Bickel filed an Amended Complaint alleging violations of his constitutional due process rights and seeking injunctive relief to:

• Enjoin DE ANG from continuing to deprive Bickel of his means of livelihood by denying Bickel his due process rights related to the CDI and any future actions related thereto because Bickel has not been provided with proper documentation regarding the CDI
• Enjoin DE ANG from continuing to interfere with Bickel's ability to obtain new military assignments based on allegations made against him ...

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