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Haramalis v. Lengyel

United States District Court, E.D. Virginia, Alexandria Division

January 18, 2018

JOSEPH LENGYEL, Chief, National Guard Bureau, et al., Defendants.



         Before the Court is defendants' Motion to Dismiss [Dkt. No. 29]. For the reasons that follow, defendants' Motion will be granted.

         I. BACKGROUND

         In this 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 mandamus.

         Haramalis, who had the rank of colonel[1] 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.[2] 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.

         While 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.

         In late 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.

         To 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.

         According to Haramalis, he was informed in May 2017 by AANG officials that some individual(s) at NGB were "blocking the processing"[3] 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. ¶¶ 17-18.

         In late 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).

         Defendants 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.


         A. Standard of Review

         A 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 ...

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