United States District Court, E.D. Virginia, Alexandria Division
M. BRINKEMA UNITED STATES DISTRICT JUDGE.
the Court is defendants' Motion to Dismiss [Dkt. No. 29].
For the reasons that follow, defendants' Motion will be
civil action, plaintiff John N. Haramalis
("Haramalis") alleges that officials in the Army
and/or National Guard Bureau ("NGB"), who are under
the command of defendants Joseph Lengyel
("Lengyel"), the Chief of the NGB, and Ryan
McCarthy ("McCarthy"), the Acting Secretary of the
Army, have illegally blocked a request to extend his
Mandatory Removal Date ("MRD"), forcing him to
retire from the military and depriving him of future
opportunities for employment and advancement. He seeks
declaratory and injunctive relief, as well as a writ of
who had the rank of colonel in the United States Army when he
filed this lawsuit, has had a lengthy and distinguished
military career. Compl. [Dkt. No. 1] ¶¶ 8-10. Until
recently, Haramalis had been on active duty, on the
"Reserve Active-Status List" ("RASL") at
the NGB. Id. ¶ 8. Officers who are on the RASL are
statutorily subject to removal from the list once they reach
their MRD, which is based on rank and number of years of
service. 10 U.S.C. § 14507. By statute, the Secretary
may retain an officer on the RASL past the MRD in certain
limited circumstances. Id. §§ 14701-14702.
Haramalis was on federal active duty at the NGB, the head of
the California Army National Guard ("CANG"), in
which Haramalis had had an appointment before going on active
duty, informed him that he would not be nominating him for a
promotion but that he would support Haramalis's efforts
to move to another state's national guard and seek career
advancement. Compl. ¶ 11. Haramalis interviewed with the
Adjutant General of the Arizona Army National Guard
("AANG"), Major General Michael T. McGuire
("General McGuire"). Id. In his Complaint,
Haramalis alleges that General McGuire offered him a position
and agreed to nominate him for a promotion. Id.
¶¶ 11-12. Haramalis believes that this angered the
head of the CANG, who allegedly blocked the release of
Haramalis's records to the AANG, resulting in the
expiration of the position. Id. ¶¶ 12-13.
Haramalis filed a civil action in California state court
relating to these actions by the CANG but did not receive the
relief he wanted. Id. ¶ 13.
2016, Haramalis learned of a dual-status technician
opportunity with the AANG, which would have required the
extension of his MRD while he worked as a civilian employee
of the AANG. Id. ¶ 14. He again asked the CANG
to release his records but was unsuccessful and, eventually,
filed a federal civil action in the United States District
Court for the Eastern District of California to compel the
release of his records. Id. In March 2017, the CANG
published orders separating Haramalis from the CANG and,
shortly thereafter, the AANG hired him. Id. ¶
15. Haramalis alleges that his superiors in the AANG asked
him to submit an application for an extension of his MRD.
Id. ¶ 16.
receive an extension of an MRD, an officer must obtain the
consent of the Governor of the State with respect to the
relevant National Guard, 10 U.S.C. § 12301(d), and the
consent of the Secretary of Defense, id §
14701(a)(1)(A). Typically (and apparently in Arizona), the
Governor delegates this authority to the Adjutant General of
the State's National Guard. The Secretary of Defense has
delegated his authority to the Secretary of the Army,
allowing the Army to retain officers "with special
skills." See Def. Mem. 6. The Army, in turn, has
implemented this delegation of authority through two
regulations, AR 140-10 and NGR 635-11. These regulations
provide narrow enumerated categories of officers who are
eligible for MRD extensions. An officer like Haramalis, who
does not fit into any of these enumerated categories, may
submit an "exception to policy" application (with
the consent of the relevant governor) to apply for a
continuation of the MRD. See id There are no specific
criteria to govern the adjudication of these applications,
but they may only be approved by Headquarters, Department of
the Army ("HQDA"). Id. at 6-7.
to Haramalis, he was informed in May 2017 by AANG officials
that some individual(s) at NGB were "blocking the
processing" of his extension request. Id.
¶ 17. Haramalis alleges that AANG officials repeatedly
inquired about the situation and that NGB officials told them
that they were blocking the extension because of a draft
regulation that required MRD extensions to be submitted at
least six months ahead of the MRD, a deadline plaintiff did
not meet because his MRD was August 31, 2017. Id.
July 2017, Haramalis sought leave to amend his complaint in
his still-pending federal civil action in California to add
the specific claims and defendants who he has included in
this civil action. Id. ¶ 19. He also filed a
motion to shorten the time for the hearing of his motion to
amend. Id. The court denied his motion. Id.
With his MRD approaching, plaintiff filed the pending
Complaint in this district and immediately filed a Motion for
a Preliminary Injunction [Dkt. No. 3]. Plaintiffs four-count
Complaint includes a request for declaratory and injunctive
relief establishing that the use of the "draft"
regulation to block the processing of his application was
ultra vires (Count 1), a procedural due process
claim (Count 2), a count claiming violations of substantive
due process and occupational liberty (Count 3), and a request
for a writ of mandamus directing defendants to approve
plaintiffs MRD extension (Count 4).
have filed a Motion to Dismiss, in which they argue that
Haramalis's Complaint should be dismissed under
Fed.R.Civ.P. 12(b)(1) because this civil action involves a
nonjusticiable military controversy and also constitutes
impermissible claim splitting. In addition, they argue that
the Complaint should be dismissed under Rule 12(b)(6) for
failure to state a claim.
Standard of Review
motion to dismiss under Fed.R.Civ.P. 12(b)(1) must be granted
when a district court lacks subject matter jurisdiction over
a civil action. The burden is on the plaintiff to establish
subject matter jurisdiction, and in determining whether
jurisdiction exists, the court may examine both the pleadings
as well as evidence outside the pleadings without converting
the motion to one for summary ...