United States District Court, S.D. Ohio, Eastern Division
PETER W. BICKEL, Plaintiff,
THE DELAWARE AIR NATIONAL GUARD, et al., Defendants.
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE
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.
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.).
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.).
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.
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).
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).
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 ¶
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).
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
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 ...