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Sasen v. Mabus

United States District Court, D. Massachusetts

March 27, 2017

PETTY OFFICER FIRST CLASS JERED SASEN, Plaintiff,
v.
RAY MABUS, in his official capacity as Secretary of the Navy, Defendant.

          MEMORANDUM AND ORDER

          ALLISON BURROUGHS, U.S. DISTRICT COURT JUDGE

         I. INTRODUCTION

         On February 29, 2016, Jered Sasen (“Sasen”) brought suit against Ray Mabus in his official capacity as Secretary of the Navy (“Mabus”), alleging violations of the Fifth Amendment and Article 31 of the Uniform Military Code of Justice. [ECF No. 1]. Presently pending before this Court are Sasen's Motion for Summary Judgment [ECF No. 18] and Mabus' Motion for Order to Affirm Agency Decision [ECF No. 22]. For the reasons explained below, the Court GRANTS Mabus' motion, DENIES Sasen's motion, and enters summary judgment in favor of Mabus.

         II. FACTUAL BACKGROUND

         The material facts in this case are largely undisputed. Both parties submitted and relied upon the administrative record on file with the Board for Correction of Naval Records and Navy Personnel Command (“Administrative Record”).[1] [ECF No. 14]. In accordance with Local Rule 56.1, Sasen submitted a concise statement of undisputed material facts in support of his Motion for Summary Judgment with citations to the Administrative Record. [ECF No. 19]. Because Mabus has not disputed any of these facts, in accordance with the procedures set forth in Local Rule 56.1, those facts are deemed admitted for purposes of this Memorandum and Order provided they are consistent with the Administrative Record.

         In 2006, Sasen enlisted in the Navy and had an impressive career there through to his honorable discharge in 2016. During the relevant time period, Sasen was a Petty Officer First Class (pay grade E-6) and qualified as a Commanding Duty Officer. At all relevant times, he was stationed aboard the USS Constitution berthed at the Charlestown Navy Yard in Charlestown, Massachusetts. At the time of the incident that resulted in this lawsuit, he was a “Frocked” Chief Petty Officer, which allowed him to “assume the title and wear the uniform of a higher pay grade without entitlement to the pay and allowances of that grade” and provided “early recognition for members selected for petty third class through chief petty officer.” [ECF No. 23-1]. He had been recommended for a promotion. Sasen was qualified as an Enlisted Surface Warfare Specialist and Enlisted Aviation Warfare Specialist. Further, he had received numerous awards and accolades, including the Sailor of the Year award in 2012, the Navy Achievement Medal, the Battle Effectiveness Award, the Good Conduct Medal, the Global War on Terrorism Expeditionary Medal, and the Global War on Terrorism medal. He had also received many glowing performance evaluations that recommended him for advancement.

         a. January 11, 2014 - the Incident

         On January 11, 2014, Elizabeth Abril, a sailor in Sasen's unit, injured her hand. At the time, Sasen was on watch aboard the USS Constitution. Abril told Sasen that she injured her hand punching a bulkhead out of frustration with another sailor who had cancelled their planned outing. Sasen asked her whether she wanted to report that she had slipped and fallen, rather than reporting the truth. Before Abril was able to respond, a superior called Sasen and Sasen informed him that Abril had fallen. Sasen sent Abril to the emergency room, accompanied by another sailor, Matthew Fairchild. Once she returned from the emergency room, she texted Sasen that she was fine and had returned to the vessel. The next morning, January 12, 2014, when Sasen was relieved by Lieutenant Julien Geiser, he reported to him that Abril had fallen and injured her hand. Later that same morning, Abril was contacted by a Navy official who requested her paperwork from the hospital. That evening, Abril reported to the CDO[2] that she had injured her hand by punching a bulkhead, and not by falling.

         b. January 13, 2014 - Enlisted Disciplinary Review Board, Article 31(b) Warning, and Voluntary Statements

         On January 13, 2014, Sasen was questioned about the incident by Senior Chief Petty Officers Nancy Estrada and Kelvin Wiggins at an Enlisted Disciplinary Review Board (“DRB”).[3] The Navy Personnel Command Instruction 5811.1 (“NAVPERSCOM INST”) provides that a servicemember shall be informed, prior to any questioning, of his right “to remain silent and make no statement at all, ” and that any statement “can be used against [him] in a trial by court-martial or other judicial or administrative proceeding.” [ECF No. 23-2]. Article 31(a) of the Uniform Code of Military Justice (“UCMJ”) provides that “[n]o person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.” 10 U.S.C. § 831(a). Article 31(b) requires a warning that no statement solicited in violation of Article 31 may be used against him in a trial by court-martial. Id. § 831(b). Sasen was not informed of his right against self-incrimination under Article 31 before or during the DRB. He admitted at the DRB that he had misreported the cause of Abril's hand injury to Lieutenant Geiser.[4] The DRB recommended that Sasen's promotion recommendation be rescinded and referred him to Captain's Mast.

         Later that morning, following the DRB, Lieutenant Geiser met with Sasen and informed him that he was suspected of violating provisions of the UCMJ. Sasen then signed a waiver of his Article 31 rights, entitled “Military Suspect's Acknowledgment and Waiver of Rights” that contained an Article 31(b) warning. He was not provided with a “cleansing” warning to the effect that his prior unwarned statements, including those to the DRB, could not be used against him. After waiving his rights, he provided Lieutenant Geiser with a written statement, again confessing to lying to him about the cause of Abril's injury. Specifically, Sasen wrote that he had reported to his superior that Abril had injured her hand by slipping and falling. He explained that he regretted his decision to lie and had failed to consider the broader ramifications at the time. There is no evidence in the record, and Sasen does not argue, either that the DRB statements were directly used against him by Lieutenant Geiser or that they were used against him in a court-martial or other criminal proceeding.

         Abril also signed a waiver of her Article 31 rights and voluntarily provided a statement about the incident. She wrote that after she told Sasen the truth about the cause of her injury, he asked her whether she would prefer reporting that she slipped and fell. Before Abril was able to answer, the superior called and Sasen reported that Abril had fallen. Fairchild, the sailor who accompanied Abril to the hospital, also wrote a voluntary statement indicating that Abril had asked him to lie about how she injured her hand. Abril confirmed that it had originally been her intention to lie about the incident.

         c. Captain's Mast[5]

         On January 15, 2014, Sasen received notice that his Commanding Officer, Captain Sean Kearns, was considering imposing non-judicial punishment (“NJP”) for violations of the UCMJ: specifically for dereliction of duty for failing to truthfully report the incident in violation of Article 92, and making a false statement to Lieutenant Geiser in violation of Article 107. Sasen reported to Captain's Mast before Captain Kearns. Sasen was advised that he could seek legal counsel before deciding whether to accept a NJP or to proceed to a court-martial. He elected to forego his right to counsel, and signed a written release to that effect. AR 34-35. At Captain's Mast, Sasen again admitted that he had misreported the cause of Abril's hand injury. Captain Kearns concluded that Sasen was guilty of both charges and issued a written reprimand.

         On January 23, 2014, Captain Kearns issued an Adverse Performance Evaluation Report to Sasen, which stated that the report was “submitted in order to withdraw member's promotion recommendation.” AR 60. It noted that, in addition to the NJP, “[d]uring this reporting period, Petty Officer Sasen has shown a pattern of lapses in judgment, poor leadership, follow-through and Sailor care. He has demonstrated an inability to adhere to the Navy Core Values and, although selected, he is no longer recommended for advancement to Chief Petty Officer.” Id. On January 24, 2014, Captain Kearns permanently removed Sasen's advancement recommendation “due to violation of UCMJ, Article 92: Dereliction of duty and Article 107: false official statement.” AR 131.

         d. Appeals and the decision of the Board of Correction of Naval Records Decision

         On January 23, 2014, Sasen appealed the imposition of the NJP (the written reprimand) to Vice Admiral Scott H. Swift, arguing that his punishment was disproportionate to the offense and that he had not received due process as a result of not having been advised of his rights prior to the DRB. Although Sasen understood that the NJP would not formally reduce his rank, he was concerned that it would delay his promotion. Captain Kearns, the Commanding Officer who issued the NJP, wrote a letter, dated January 28, 2014, in which he recommended that the appeal be denied. In his letter, Captain Kearns explained that “[t]he decisions . . . at NJP were based on the statements of DC1 Sasen and ABHAN Abril and not, in any part, from information that came out of the DRB.” AR 53. In addition to Sasen's false report about the cause of Abril's injury, Captain Kearns explained that “[h]is handling of the situation was completely inappropriate as he disobeyed my Standing Orders by not informing me that he had sent one of my Sailors to the Emergency Room for treatment.” Id. Additionally, he wrote that “DC1 Sasen misrepresented the incident to the relieving CDO, my SWO, and it was my SWO that called to report the incident the following morning.” Id. Moreover, Captain Kearns noted that an appeal of the NJP was not the proper forum to discuss a promotion recommendation, which was a separate administrative action from the imposition of the NJP at Captain's Mast. He further explained that, even with the NJP on his record, Sasen could still be promoted to Chief Petty Officer in as little as three years. AR 54.

         On February 14, 2014, Sasen's appeal was denied. Admiral Swift concluded that Sasen's statements following the DRB were voluntary and preceded by an Article 31(b) warning, and further that the DRB proceedings did not adversely impact the integrity of the Captain's Mast. He concluded that the punishment was “neither unjust nor disproportionate.” AR 107.

         On February 20, 2014, through counsel, Sasen petitioned the Board of Correction of Naval Records (“BCNR”), pursuant to 10 U.S.C. § 1552(a)(1), [6] to set aside the NJP. He challenged the written reprimand, the revocation of the promotion recommendation, and his adverse performance evaluation. Sasen argued that his non-judicial punishment was invalid because he did not get an Article 31(b) warning before the DRB or a cleansing warning when he did eventually get his warning and that, as a result, his post-DRB statements were involuntary given the totality of the circumstances.

         On April 6, 2015, the BCNR denied the petition. In reaching its decision, the BCNR reviewed Sasen's application; naval record; applicable statutes, regulations, and policies; a March 11, 2015 Advisory Opinion provided by the Office of the Judge Advocate General, Criminal Law Division (Code 20) (“JAG Advisory Opinion”); and the January 28, 2014 letter written by Captain Kearns in which he recommended that the petition be denied. In his Advisory Opinion, the JAG Officer considered the same issues underlying the instant matter and concluded that the NJP was lawfully imposed. The BCNR concluded that there was no significant error in the NJP proceedings and further, it also “substantially concurred” with the recommendations of Captain Kearns and the JAG Advisory Opinion. The BCNR further explained that it had considered all potentially mitigating factors in its decision, but ultimately found that Sasen's record should not be altered given the seriousness of the misconduct and the lack of error in the Captain's Mast.

         III. PROCEDURAL BACKGROUND

         On February 29, 2016, Sasen filed a complaint against Mabus asking this Court to review the BCNR decision pursuant to the Administrative Procedure Act (“APA”). The complaint alleges one count: “Violation of the APA” based on alleged violations of the Fifth Amendment, Article 31, and the Navy's own processes and procedures. Sasen requests that the Court declare the NJP void as it was obtained in violation of the Fifth Amendment and Article 31, issue an injunction to require the BCNR to remove the letter of reprimand, correct Sasen's adverse performance report, restore his recommendation for promotion to Chief Petty Officer, and award attorneys' fees and costs.

         On July 25, 2016, Sasen moved for summary judgment [ECF No. 18], and filed an accompanying Statement of Material Facts pursuant to Local Rule 56.1 [ECF No. 19] and a memorandum of law in support [ECF No. 21]. On September 9, 2016, Mabus filed a Motion for Order to Affirm Agency Decision [ECF No. 22] with a supporting memorandum of law [ECF No. 23].[7]

         IV. LEGAL STANDARD

         Section 706 of the APA provides for judicial review of an agency decision. 5 U.S.C. § 706. The Department of the Navy is an agency whose acts are subject to judicial review under the APA. See Piersall v. Winter, 435 F.3d 319, 325 (D.C. Cir. 2006); see also Chappell v. Wallace, 462 U.S. 296, 303 (1983). Sasen specifically challenges the BCNR's decision not to reverse the effects of his non-judicial punishment under §§ 706(2)(A), (B), (C), and (D), but also, in the alternative, asks this Court to find the BCNR decision arbitrary and capricious under § 706(2)(A). The relevant provisions of § 706 state: “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action [and] shall . . . (2) hold unlawful and set aside agency action, findings, and conclusions found to be-

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short ...

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