Bors v. Allen

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
CW0-2 DARIUS BORS, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-84 (RWR)
)
ADMIRAL THAD W. ALLEN et al., )
)
Defendants. )
______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Darius Bors, a Chief Warrant Officer in the United

States Coast Guard (“USCG”), brings this action against various

defendants including the Commandant of the USCG to challenge his

discharge. Bors seeks an injunction1 preventing the USCG from

discharging him from service on April 16, 2009. Because Bors has

not shown a likelihood of success on the merits and the

circumstances do not otherwise warrant granting Bors relief, his

motion will be denied.2

1
While Bors styles the relief he requests a “temporary
restraining order pendente lite,” it appears that Bors is
actually seeking a preliminary injunction, because a TRO expires
no more than ten days after it is entered, and Bors seeks an
order preventing the defendants from discharging him during the
duration of litigation. See Fed. R. Civ. P. 65(b)(2).
2
Neither party requested a hearing on this motion, and the
parties do not present the type of factual disputes that would
require a hearing. A court may deny a plaintiff’s application
for a preliminary injunction without first providing a hearing on
the merits when the record demonstrates a lack of right to
relief. Cornish v. Dudas, 540 F. Supp. 2d 61, 64 (D.D.C. 2008)
(citing Smith v. Harvey, Civil Action No. 06-1117 (RWR), 2006 WL
 -2-

BACKGROUND

Bors served as an enlisted member of the USCG from March 6,

1990 through June 1, 2007. (Compl. ¶ 5.) In 2007, Bors was

offered an appointment as a permanent regular Chief Warrant

Officer. Bors accepted the offer on June 1, 2007. (Compl. ¶ 6.)

That December, while he was on an approved leave from duty, Bors

went to a medical clinic to fill a prescription. While he was in

the treatment room, a medical corpsman and a Lieutenant Commander

questioned Bors about alcohol consumption and accused him of

being drunk on duty. (Compl. ¶¶ 11-12.) Bors denied that he was

drunk and denied consuming alcohol. However, he provided a blood

sample to the medical corpsman and the Lieutenant Commander that

revealed that he had recently consumed alcohol. (Compl. ¶¶ 12-

13.) Bors was charged with three violations of the Uniform Code

of Military Justice (“UCMJ”): one count of making a false

statement to a Lieutenant Commander in violation of Article 107;

one count of being drunk while on duty in violation of

Article 112; and one count of destroying military property in

violation of Article 108. (Compl. ¶ 13.) After an

investigation, the charges alleging violations of Articles 108

and 112 were dropped, while a charge alleging that Bors violated

Article 92 of the UCMJ by failing to obey a lawful order was

2025026, at *2 (D.D.C. July 17, 2006)); Local Civil Rule 65.1(d)
(a court may decide a motion for preliminary injunction on the
papers before holding a hearing)).
 -3-

added. The charge alleging a violation of Article 92 was based

upon the fact that Bors had previously been ordered to refrain

from consuming alcohol, as part of a treatment and aftercare

plan. (Compl. ¶¶ 15-16.)

Bors did not invoke his right to be tried by court-martial.

Rather, he agreed to engage in “non-judicial punishment” under

Article 15 of the UCMJ, namely, a hearing before his Commander.

(Compl. ¶ 17.) At the Article 15 hearing, the Commander

dismissed the charge against Bors under Article 92, but found by

a preponderance of the evidence that Bors violated Article 107 by

making a false official statement to the medical officer and a

senior officer. Bors was awarded a Letter of Admonition and a

“30-day restriction,” which was suspended for six months.

(Compl. ¶ 18.)

The results of the Article 15 hearing were forwarded to the

Commandant Guard Personnel Command (“CGPC”). Bors’ Commanding

Officer, Captain R.R. O’Brien, recommended terminating Bors’

appointment as Chief Warrant Officer for “unsuitability due to

repeated violations of his alcohol aftercare program and

associated violation of the UCMJ.” (Compl. ¶ 20; Defs.’ Opp’n to

Pl.’s Mot. for TRO in Form of a Stay Pendente Lite (“Defs.’

Opp’n”) at 3.) Captain O’Brien explained:

CWO Bors was determined to be alcohol dependent on
two separate occasions after self-referring for alcohol
abuse twice. He was required to abstain from drinking
indefinitely as a condition of his aftercare plan.
 -4-

Following the second diagnosis, [Bors] was questioned
about his drinking on numerous occasions due to the
smell of alcohol apparently emanating from him and his
suspect behavior while on duty. In each case he denied
drinking alcohol. While on leave but in the Sector New
York clinic, he was again confronted regarding the
apparent odor of alcohol. The medical officer,
concerned about CWO Bors well being, ordered a blood
test to determine his alcohol consumption level despite
CWO Bors’ repeated denials of drinking. Contrary to
his denials, which amounted to false official
statements, CWO Bors was found to have consumed alcohol
and later admitted to drinking the night prior to the
blood test. A UCMJ action, limited to the specific
events of Dec. 18, 2007, was taken against CWO Bors. A
further review of the member’s record shows a pattern
of behavior which is inconsistent with that demanded of
a chief warrant officer. . . . Having previously been
found to be dependent on alcohol and having twice
failed to adhere to counseling and prescribed aftercare
treatment (i.e. abstention from alcohol consumption
indefinitely) CWO Bors is subject to separation in
accordance with reference (a) Chapter 20.B.2.1. [of the
USCG Personnel Manual].

(Pl.’s Mem. in Supp. of Pl.’s Mot. for TRO in Form of a Stay

Pendente Lite (“Pl.’s Mem.”), Ex. 53 at 1-2.) The USCG convened

a Special Board, consisting of a panel of three officers who

reviewed Captain O’Brien’s recommendation to terminate Bors’

warrant officer appointment under Article 12.A.204 of the USCG

3
References to plaintiff’s exhibits correspond to how they
are numbered on this court’s electronic docket, rather than to
how the plaintiff has designated them on his filing.
4
Article 12.A.20 provides:
The Secretary may terminate the appointment of a
chief warrant officer of the Regular Coast Guard at any
time within three years after the date he or she
accepted the original appointment as chief warrant
officer. A chief warrant officer whose appointment is
terminated under this Article is not entitled to
severance pay but may apply to the Commandant to
 -5-

Personnel Manual. (See Pl.’s Mem. Ex. 7 at 1-2.) The Special

Board sent a Report to the Secretary of the United States

Department of Homeland Security, Michael Chertoff, recommending

terminating Bors’ appointment as a Chief Warrant Officer. (See

Pl.’s Mem. Ex. 8 at 1-2.) The Special Board stated that Bors’

violation of Article 107 combined with an alcohol related

incident that occurred in 2006, “cast doubt on [Bors’] integrity

and moral qualifications. [Bors] demonstrated a significant

breech [sic] of Coast Guard’s Core Values by making false

statements and [failing] to adhere to the policies and provisions

of Article 20.B of the Personnel Manual.” (Id. at 4-5.) The

Special Board further recommended a “full and careful review of

the record and Article 20.B of the Personnel Manual” if Bors were

to apply for reenlistment. (Id. at 5.)

Secretary Chertoff approved the Special Board’s

recommendation. (See Pl.’s Mem. Ex. 9.) Commander James E.

Andrews wrote to Bors informing him of the decision and

explaining that:

In accordance with [10 U.S.C. § 1165], a warrant
officer who is separated is entitled, if eligible, to
separation pay under [10 U.S.C. § 1174]. [Title 10 of
the U.S. Code] authorizes an opportunity to request to

reenlist (10 U.S.C. § 1165). If approved, he or she
reenlists in a grade the Commandant directs but not in
one lower than the rate he or she held immediately
before appointment as a chief warrant officer (10
U.S.C. § 515). The procedures described in Article
12.A.11.b apply.
 -6-

reenlist under Section 515, however the nature of your
circumstances, relative to Chapter 20 of [the USCG
Personnel Manual] precludes your retention on further
active duty. Accordingly, you will be discharged from
the Coast Guard.

(Compl. ¶ 23; Pl.’s Mem. Ex. 10 at 1.) Bors was notified that he

would be discharged from the USCG on January 19, 2009. (See

Pl.’s Mem. Ex. 12 (“Bors Aff.”) at 1-2.)

On January 14, 2009, Bors filed his complaint in this case,

along with a motion for a temporary restraining order (“TRO”)

seeking an order that would prevent the USCG from discharging him

on January 19, 2009. That day, the USCG agreed not to discharge

Bors until at least 90 days after the date on which he received

transition assistance counseling, and Bors agreed to withdraw his

motion for a TRO. In addition, the defendants agreed to allow

Bors to request reenlistment in accordance with 10 U.S.C. § 515.

(See Notice of TRO Resolution, Docket Entry # 5, January 16,

2009.) On February 13, 2009, Bors requested reenlistment at the

grade he held prior to his appointment as Chief Warrant Officer.

Bors’ request was denied by the Chief of Enlisted Personnel.

(See Defs.’ Opp’n at 6.)

On April 7, 2009, Bors filed the instant motion for an order

preventing the defendants from discharging him on April 16, 2009.

Bors argues that the defendants’ denial of his request for re-

enlistment entitled him to a “reenlistment board under the

provision of the Coast Guard Personnel Manual, . . . Chapter 12,”
 -7-

and that if the basis for the denial of his reenlistment is the

“failure of alcohol rehabilitation,” then Bors is entitled to a

“separation board.” (Pl.’s Mem. at 9.) The defendants oppose,

arguing that Bors cannot show irreparable harm because Bors will

receive more than $84,000 in separation pay and can be reinstated

with back pay if the USCG loses the case, and because Bors is not

likely to win on the merits of his claim because USCG’s discharge

of Bors is proper under 10 U.S.C. § 1165 and the implementing

regulations in the USCG Personnel Manual. (Defs.’ Opp’n at 1.)

DISCUSSION

A preliminary injunction is an “extraordinary” remedy.

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). A preliminary

injunction preventing the government from terminating federal

service should be limited to “genuinely extraordinary

situation[s].” Sampson v. Murray, 415 U.S. 61, 90 (1974). A

plaintiff carries the burden of persuasion by a clear showing

1) of a substantial likelihood of success on the merits, 2) of

irreparable injury if the injunction is not granted, 3) that the

injunction would not substantially injure another interested

party, and 4) that the injunction is in the public interest.

Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). While in

general a court should not review internal military affairs if a

plaintiff has not exhausted all available intraservice corrective

measures, “[t]his Circuit does not require exhaustion if pursuit
 -8-

of an administrative remedy would be futile or if the plaintiff

can show irreparable harm.” Qualls v. Rumsfeld, 357 F. Supp. 2d

274, 279 (D.D.C. 2005) (citing Bois v. Marsh, 801 F.2d 462, 468

(D.C. Cir. 1986)). “The four factors should be balanced on a

sliding scale, and a party can compensate for a lesser showing on

one factor by making a very strong showing on another factor.”

In re: Navy Chaplaincy, 516 F. Supp. 2d 119, 122 (D.D.C. 2007)

(citing CSX Transp., Inc. v. Williams, 406 F.3d 667 (D.C. Cir.

2005)).

I. IRREPARABLE INJURY

“Some showing of irreparable harm . . . is a threshold

requirement for a preliminary injunction.” City of Moundridge v.

Exxon Mobil Corp., 429 F. Supp. 2d 117, 127 (D.D.C. 2006).

“Irreparable harm is an imminent injury that is both great and

certain, and that legal remedies cannot repair.” Id. (citing

Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674

(D.C. Cir. 1985)).

The key word in this consideration is irreparable.
Mere injuries, however substantial, in terms of money,
time and energy necessarily expended in the absence of
a stay, are not enough. The possibility that adequate
compensatory or other corrective relief will be
available at a later date, in the ordinary course of
litigation, weighs heavily against a claim of
irreparable harm.

City of Moundridge, 429 F. Supp. 2d at 127-128 (quoting Va.

Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925

(D.C. Cir. 1958); Davenport v. Int’l Bhd. of Teamsters, 166 F.3d
 -9-

356, 367 (D.C. Cir. 1999)). Monetary injuries, however

substantial, do not constitute irreparable harm. Nat’l Propane

Gas Ass’n v. United States Dep’t of Homeland Sec., 534 F. Supp.

2d 16, 19 (D.D.C. 2008) (quoting Wis. Gas Co., 758 F.2d at 674).

When a plaintiff requests an injunction preventing a military

discharge, some courts have determined that the plaintiff must

make a “much stronger showing of irreparable harm than the

ordinary standard for injunctive relief,” due to the “magnitude

of the interests weighing against judicial interference with the

internal affairs of the armed forces.” Veitch v. Danzig, 135 F.

Supp. 2d 32, 37 (D.D.C. 2001) (finding that a U.S. Navy

chaplain’s alleged loss of salary and benefits and damage to

professional reputation did not constitute irreparable injury);

Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir. 1985);

Sebra v. Neville, 801 F.2d 1135, 1141 (9th Cir. 1986) (“[T]he

test for injunctive relief is much more stringent for a

government military employee than the normal test for

injunction.”); Guerra v. Scruggs, 942 F.2d 270, 274 (4th Cir.

1991) (reversing a district court’s decision granting a

preliminary injunction prohibiting the plaintiff’s discharge,

stating “[w]e believe that . . . [a] higher requirement of

irreparable injury should be applied in the military context

given the federal courts’ traditional reluctance to interfere

with military matters”).
 -10-

Bors argues that he will suffer irreparable injury if the

defendants are allowed to complete his discharge. He claims that

if he is forced to pursue the full course of litigation, he will

be required to exhaust his administrative remedies by filing a

petition before the USCG Board for Correction of Military

Records, which might not involve a hearing before a Board as he

requests here, and would place the burden of proof on Bors,

instead of on the defendants. (Pl.’s Mem. at 18-19.) Bors’

argument presumes that the right to an administrative discharge

board that enlisted members with at least eight years of service

receive applies to him. Because he was a Chief Warrant Officer,

it does not, as is more fully discussed below. In addition, the

defendants assert and Bors does not dispute that Bors will

receive more than $84,000 in separation pay, and if he were to be

successful on the merits, would be reinstated and receive back

pay. (Defs.’ Opp’n at 10.) Since “the possibility that adequate

compensatory or other corrective relief will be available at a

later date, in the ordinary course of litigation, weighs heavily

against a claim of irreparable harm[,]” Wis. Gas Co., 758 F.2d

at 674, Bors has not shown that he will suffer irreparable injury

if his motion for an injunction is denied.

II. SUCCESS ON THE MERITS

If a movant has no likelihood of success on the merits,

inquiry into the remaining factors is unnecessary, for the
 -11-

injunctive relief should be denied on that basis. See Trudeau v.

Federal Trade Comm’n, 456 F.3d 178, 182 n.2 (D.C. Cir. 2006). To

show that interference into the personnel decisions of the USCG

is warranted, Bors must make a very compelling case that he was

denied process explicitly given to him by statute, or that the

USCG’s decision was arbitrary or capricious. “The Court’s

deference to the military is at its highest ‘when the military,

pursuant to its own regulations, effects personnel changes

through the promotion or discharge process.’” Housman v. Baratz,

916 F. Supp. 23, 28 (D.D.C. 1996) (quoting Dilley v. Alexander,

603 F.2d 914, 920 (D.C. Cir. 1979)). Judicial review of

personnel decisions of the armed forces is limited to a

determination whether they were arbitrary, capricious or contrary

to the Constitution, statutes, or governing regulations.

Housman, 916 F. Supp. at 28 (citing Blevins v. Orr, 721 F.2d

1419, 1421 (D.C. Cir. 1983)).

Bors argues that he is likely to succeed on the merits

because the defendants failed to provide him the process he was

entitled to under relevant statutes and the USCG Personnel

Manual. While Bors claims that he is not making “a facial

challenge to [Secretary Chertoff’s] discretionary decision to

terminate [Bors’] appointment as a Warrant Officer,” he alleges

that his discharge violated “Federal case law, due process, and

Coast Guard regulations” because he was not given “any form of
 -12-

due process or right to a Board or hearing.” (Pl.’s Mem. at 9-

10.) Bors alleges that information that was favorable to him,

namely a performance evaluation, was withheld from the Special

Board that recommended that Secretary Chertoff terminate Bors’

appointment. (Id. at 8.) Bors asserts that if defendants are

allowed to discharge Bors from service in this manner, an

“arbitrary, narrow class of persons . . . - - Warrant officers

with less than three years of service as officers” will not

receive the benefit of a “Board or hearing” before being

discharged, while enlistees with less service time would receive

a board or a hearing. (Id. at 11.) Defendants argue that Bors’

status as an enlisted member of the USCG, and all the rights and

protections that accompany that status, ceased on June 1, 2007,

when Bors accepted his appointment to become a Chief Warrant

Officer. (Defs.’ Opp’n at 2-3.)

Bors does not sufficiently support his assertions that he

was denied procedural protections he was entitled to under

statute or under the Personnel Manual. First, Bors misreads the

applicable statutes when he asserts that he had a dual status as

an Officer and an enlisted member of the USCG. Section 1165 of

Title 10 of the U.S. Code specifically provides that:

The Secretary [of the USCG] may terminate the regular
appointment of any permanent regular warrant officer at
any time within three years after the date when the
officer accepted his original permanent appointment as
a warrant officer in that component. A warrant officer
who is separated under this section is entitled, if
 -13-

eligible therefor, to separation pay under section 1174
[10 U.S.C. § 1174] or he may be enlisted under section
515 of this title [10 U.S.C. § 515]. If such a warrant
officer is enlisted under section 515 of this title
[10 U.S.C. § 515], he is not entitled to separation
pay.

(Emphasis added.) Section 515, titled “Reenlistment after

discharge as a warrant officer,” provides that:

A person who has been discharged from a regular
component of an armed force under section 1165 or 1166
of this title [10 U.S.C. §§ 1165, 1166] may, upon his
request and in the discretion of the Secretary
concerned, be enlisted in that armed force in the grade
prescribed by the Secretary. However, a person
discharged under section 1165 of this title [10 U.S.C.
§ 1165] may not be enlisted in a grade lower than the
grade that he held immediately before appointment as a
warrant officer.

Thus, the statutory sections clearly imply that a Chief

Warrant Officer who is discharged under 10 U.S.C. § 1165 is no

longer an enlisted member, and may only seek permissive

reenlistment at the discretion of the Secretary of the Department

of Homeland Security. Bors was allowed to request reenlistment;

his request was denied.

Bors also points out several procedures that he would be

entitled to before separation under Article 12.B of the USCG

Personnel Manual due to his years of service in the USCG, and to

10 U.S.C. § 1176(a), which provides that an enlisted member of

the USCG who is within two years of retirement “shall be retained

on active duty until the member is qualified for retirement.”

(See Pl.’s Mem. at 13-14.) However, neither Article 12.B nor 10
 -14-

U.S.C. § 1176(a) apply to Bors; both provisions pertain to

enlisted members, a status that Bors gave up in 2007.

Bors does not specify any other provision that would provide

him with more process than he was given. The defendants complied

with the procedures outlined in Article 12.A.11.b.: a superior in

Bors’ chain of command recommended revoking Bors’ appointment;

the recommending officer granted Bors an opportunity to review

the recommendation and comment (see Pl.’s Mem. Ex. 6 (“Special

Board Memo.”) at ¶ 3; Ex. 5 (“O’Brien Rec.”) at 2 (listing “CWO

Bors Statement” as an enclosure accompanying his recommendation

to the Special Board)); and a panel of senior officers reviewed

the recommendation. Bors simply has not shown any procedural

step that he was not granted, or that did not occur before the

decision was made to discharge him from the USCG. Thus, he has

not shown a substantial likelihood of success on the merits.

III. HARM TO OTHERS; PUBLIC INTEREST

The balance of the harms and the public interest do not

weigh in favor of granting an injunction. Bors argues that an

injunction would only force the defendants to do what they were

already required to do. However, Bors acknowledges that judicial

“interference in military personnel decisions [causes] great harm

to the military because of the potential cumulative effect of

multiple injunctions.” (Pl.’s Mem. at 19-20.) He has not shown
 -15-

that there is any consideration of public interest that would

favor such harm in this case.

CONCLUSION AND ORDER

Because Bors has not shown that he will suffer irreparable

injury absent his requested injunction, that he is likely to

succeed on the merits of his claim against the defendants, or

that the balance of harms and the public interest weigh in favor

of his proposed injunction, it is hereby

ORDERED that Bors’ motion for a preliminary injunction [13]

preventing the defendants from discharging him while this

litigation continues be, and hereby is, DENIED.

SIGNED this 15th of April, 2009.

/s/
RICHARD W. ROBERTS
United States District Judge