The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER WITHOUT PREJUDICE
On April 3, 2012, Plaintiff Sergeant Gary A. Stein ("Plaintiff" or "Stein") filed a complaint against Defendants, along with an ex parte motion for temporary restraining order and order to show cause why a preliminary injunction should not issue. (Doc. Nos. 1 & 2.) Plaintiff alleges that Defendants have scheduled administrative separation proceedings against Plaintiff Stein on Thursday, April 5, 2012. (Id.) Specifically, Plaintiff maintains that he has inadequate time to present a defense at the administrative separation proceedings and that the conduct sought to be enjoined, if allowed to occur, will cause Stein immediate and irreparable injury. (Doc. No. 2.) The Court declined to address Plaintiff's motion ex parte, and Defendants filed a response on April 4, 2012. (Doc. No. 5.)
The Court held a hearing on April 4, 2012. Gary G. Kreep, Nathaniel J. Oleson, David Loy, and J. Mark Brewer (pro hac vice) appeared for Plaintiff, and Thomas C. Stahl appeared for Defendants. The Court compliments both sides on the excellent presentation on short notice. This case was especially complicated because it implicates First Amendment rights, fundamental rights protected by the United States Constitution. In the Court's review of the matter, the Court recognizes that Plaintiff has some valid arguments and Defendants have valid responses. In this matter, Plaintiff alleges that Defendants seek to discharge Plaintiff on short notice in violation of Plaintiff's First Amendment right of free expression and Fifth Amendment Due Process rights. Plaintiff also alleges that Defendants violated their own rules and regulations concerning administrative separation procedures. The Plaintiff has been in the United States Marines for nearly nine years, and the country owes Plaintiff and other Marines a debt of gratitude for their service. Plaintiff is charged with certain responsibilities as an active-duty member of the United States Marines and is required to comply with all the lawful rules and regulations of the United States Marines. On enlistment, Plaintiff took an oath to comply, among other things, with the Uniform Code of Military Justice.
For the following reasons, the Court declines to enjoin Plaintiff's scheduled administrative separation proceedings.
On April 4, 2012, Plaintiff initiated the instant action against Defendants for declaratory and injunctive relief to enjoin Defendants' attempts to discharge Plaintiff from the United States Marine Corps with an "Other Than Honorable" discharge. (Doc. No. 1, ¶ 1.) Plaintiff alleges that Defendants are attempting to discharge Plaintiff on short notice, depriving Plaintiff of (a) his liberty without due process of law; (b) his right that Defendants comply with their own rules, regulations, and procedures; and (c) his rights of full American citizenship as promised by Department of Defense Directive 1344.10 ("DOD Directive 1344.10"). (Id.)
Since July 15, 2003, Plaintiff has been an enlisted Marine with the United States Marine Corps. (Doc. No. 1, ¶ 6.) On May 1, 2008, Plaintiff attained the rank of Sergeant, and Plaintiff's current term of service expires on July 28, 2012. (Id.) Plaintiff alleges that during the period of 2010 through 2012, Plaintiff, through activities unconnected with his duties as a U.S. Marine, spoke, wrote, and otherwise communicated with other private citizens regarding matters of public concern, including public policy issues, along with three other individuals during his personal time. (Id., ¶ 13.) Plaintiff expressed personal opinions on political candidates and issues, and Plaintiff and three other individuals maintained an account on the computer social networking site known as "Facebook." (Id.) Plaintiff is permitted to do so, as long as he is not in violation of his military rules and obligations. Plaintiff does have First Amendment protection for his own personal views and his own personal Facebook account.
In April 2010, Plaintiff was invited to appear on Chris Matthews' television show, Hardball. (Id., ¶ 14.) Plaintiff obtained permission from his immediate superior, his Gunnery Sergeant, and made travel plans to appear. (Id.) On Plaintiff's way to appear on the television show, Plaintiff received a telephone call from Headquarters, Marine Corps, in Quantico, Virginia, and Plaintiff was ordered to return to his base and did return to the base. (Id.) This should not be a basis for any separation or discharge.
Subsequently, Plaintiff was approached by his Chief Warrant Officer concerning his Facebook page, because of the possibility that it could be construed as emanating from military sources, rather than from private sources. (Id., ¶ 14.) Plaintiff took down his Facebook page while he reviewed the matter. (Id.) Plaintiff was urged by a Judge Advocate of the First Marine Expeditionary Force to add a disclaimer to his Facebook page, if he was going to leave the page up, that all statements therein are personal views, not made in an official capacity, and not representing the views of the U.S. Marine Corps. (Id.) The Court agrees that this would be First Amendment protected expression. Plaintiff added a disclaimer to the Facebook page that he hosted with three other individuals and put the Facebook page back on the Internet. Plaintiff was not advised at that time, or later, to take down the Facebook page. (Id.)
From November 2010, through March 1, 2012, Plaintiff is alleged to have posted on his Facebook page and on METOC, a Marine weathermen community social media site, various criticisms of President Barack Obama, questions concerning the Obama Administration's policies, and critiques of other politicians. (Id., ¶ 15.) Plaintiff alleges that he did not disobey or advocate disobeying any particular order actually issued by any superior officer. (Id.) Plaintiff alleges, "[t]hough some of the language he used in discussing certain hypothetical unlawful orders might have been viewed as intemperate, he subsequently clarified, repeatedly, and publicly, that he was only discussing the settled principle of military law that service members should not follow unlawful orders." (Id.) It is a correct statement of the law that service members are not required to follow unlawful orders.
Plaintiff alleges that between November 2010 and March 1, 2012, no attempt was made by any of Plaintiff's commanding officers, or any other Marine Corps officer, to restrict or correct Plaintiff's, and his friends', Facebook activities. (Id., ¶ 16.) On March 21, 2012, Plaintiff's Commanding Officer Dowling ("Defendant Dowling") notified Plaintiff of the institution of Administrative Separation Proceedings where Defendant Dowling was recommending Plaintiff's discharge from the United States Marine Corps, because of alleged misconduct. (Id., ¶ 17.) As grounds for discharge, Plaintiff's Notification of Administrative Separation Proceedings, dated 21 March 2012 ("Notification") stated:
The bases for this recommendation are as follows: (1) that on or about 1 March 2012, you allegedly made statements regarding the President of the United States that are prejudicial to good order and discipline, as well as service discrediting in violation of Article 134, UCMJ; (2) from on or about November 2010 to the present you allegedly created, administered, and provided content to a Facebook page, as well as other online media sources, in violation of DOD Directive 1344.10. (Doc. No. 1, Ex. A, at 1.) According to the Notification, Defendant Dowling intended to recommend that Plaintiff receive a separation from service characterization of "Other Than Honorable Conditions" ("OTH"). (Doc. No. 1, ¶ 18.) The Notification required Plaintiff to respond, in default of which his rights would be waived, within two working days, the minimum time required by Section 6304.4, of the Marine Corps Separation and Retirement Manual ("MARCORSEPMAN"). (Id., Ex. H.) Plaintiff alleges that the Notification was served on Plaintiff during a period that Defendants knew that all Judge Advocates serving as defense counsel at Plaintiff's base were involved in annual legal training, and thus, were unavailable to consult with Plaintiff before his response was required to be filed. (Id., ¶ 19.) If intentional, this may be a violation of Plaintiff's Due Process rights.
Plaintiff responded timely to the Notification, and Defendants scheduled a hearing for March 20, 2012. (Id., ¶ 20, Ex. B.) Plaintiff alleges that Defendants were aware that any members of the Judge Advocate who were able to serve as defense counsel to Plaintiff were at a conference and could not begin work on Plaintiff's case until March 23, 2012. (Id., ¶ 20.)
On March 23, 2012, Defendant Dowling counseled Plaintiff regarding his activities. Specifically, Plaintiff was advised: "On 1 Mar 12 you made specific disrespectful and insulting statements about your Commander-in-Chief, the President of the United States, in violation of Article 134, UCMJ, which were prejudicial to good order and discipline and were of a nature to bring discredit upon the United States Marine Corps and the U.S. armed forces. Specifically, you stated:
"As an Active Duty Marine I say 'Screw Obama' and I will not follow all orders from him . . . Will do my job better then [sic] the next guy . . . But has [sic] for saluting Obama as commander-in-chief . . . I will not" and "Your [sic] right it said to defend the 'I will support and defend the Constitution of the United States against all enemies, foreign and domestic' Obama is the economic enemy . . . He is the religious enemy . . . he is the 'Fundamentally change' America enemy . . . he IS the Domestic Enemy."
In this statement, Plaintiff identified himself as an active-duty Marine. Therefore, Plaintiff's statements go beyond his individual capacity because he identifies himself as an active-duty Marine. His defense is that he is simply articulating the existing law that he is not required to follow any unlawful order. His defense is that he is making these statements in the context of public policy discussions.
According to the Commanding Officer, Defendant Dowling: "Your comments were clearly disrespectful in tone and tenor toward your Commander-in-Chief and unquestionably constitute a lack of personal and professional discipline on your part as an active-duty Marine. Furthermore, your specific statement that 'I will not follow all orders from him', which you made while on active duty as a Sergeant of Marines, is unquestionably prejudicial to the good order and discipline of this command and our Corps. You posted these inappropriate and disrespectful statements to a Facebook page designed for discussion among active-duty Marines in the METOC community and were in fact viewed by active-duty Marines at that time. Your disrespectful and insulting comments also constitute a serious deviation from our core values of honor, courage, and commitment and have unquestionably brought discredit upon yourself, this Command, and our Corps."
These statements are the views of Plaintiff's Commanding Officer, Defendant Dowling, on the base. Plaintiff's Commanding Officer belatedly counseled Plaintiff on March 23, 2012, after initiating Plaintiff's administrative separation procedures on March 21, 2012, based on Plaintiff's specific METOC statement on March 1, 2012. Plaintiff's METOC statements were not made on Plaintiff's own Facebook page that included the banner disavowing any connection to the military. Plaintiff attributed the METOC statements to himself "as an Active-Duty Marine." Plaintiff's counsel may explain the full defense to the administrative separation board. If Plaintiff is simply articulating well-established law that a Marine is not required to comply with unlawful orders, Plaintiff will win. If however, Plaintiff's statements go beyond that, and deviate from the military core values of honor, courage, and commitment, or discredit the service, then Plaintiff may face the appropriate consequences for these statements. The Court concludes that the initial decision as to whether these statements violate Article 134 or DOD Directive 1344.10, or whether these statements are protected speech, should be made through the military process. For the Court to step in and decide as a preliminary matter that Plaintiff's statements are protected free speech, unrelated to any violation of any military rule and regulation, would be premature.
The Commanding Officer, Defendant Dowling, further counseled Plaintiff as follows: "On 5 Mar 2012 your Company 1stSgt read you your Article 31(b) rights and informed you that you were suspected of violating the UCMJ for making disrespectful comments about the President of the United States on your recent 1 Mar 12 Facebook posts. After 1stSgt completed his Art 31(b) rights advisement, you indicated that you did not desire to discuss this topic any further until you had the opportunity to speak with a military attorney. Your company 1stSgt approached you later that week on or about 9 Mar 12 and specifically advised you that as an active-duty U.S. Marine, you were required to comply with the provisions of DOD Directive 1344.10, entitled "Political Activities by Members of the Armed Forces", and the UCMJ."
The Court requests further briefing from both parties, as soon as reasonably possible, on the applicability of any injunction prohibiting the military from violating First Amendment rights under DOD Directive 1344.10. See Rigdon v. Perry, 962 F. Supp. 150, 166 (D. D.C. 1997) (enjoining the defendants "from interpreting DOD Directive 1344.10, or any similar law or regulation in a manner that prohibits the plaintiffs from exercising their free speech and free exercise rights under the First Amendment of the Constitution.") In the Court's view, DOD Directive 1344.10 would be authorized if it is narrowly tailored and not overly broad, in ...