Judge Huff of the United States District Court for the Southern District of California today issued this ruling granting DOJ’s motion to dismiss the compaint in Stein v. Dowling, the case arising from the admin discharge of a Marine for comments he posted online about the President. Judge Huff allowed plaintiff’s counsel to file an amended complaint within 30 days. The authority, however, appears inconsequential because Judge Huff’s ruling suggests that plaintiff cannot prevail, regardless of what’s alleged in an amended complaint.
Here’s what then-Sgt Stein posted on an online forum for Marine Corps meteorologists:
As an active duty Marine, I say screw Obama and I will not follow all orders from him; will do my job better than the next guy. But as for saluting Obama as Commander in Chief, I will not! . . . You’re 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.
The plaintiff complains that his separation with an OTH violated his due process rights. But Judge Huff emphasizes that he had an opportunity to be heard at his admin discharge board, where he was represented by two Marine defense counsel and three civilian counsel. Judge Huff notes that the decision was reviewed by his Commanding General, who did not appear to be biased, and is subject to further review through military administrative channels. Thus, “Plaintiff’s due process claim lacks sufficient merit to weigh in favor of granting judicial review under the Mindes test.”
Further militating against justiciability under Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), is the availability of “administrative remedies to redress his claims of any alleged irregularities in the military AdSep proceedings. . . . Plaintiff may appeal his discharge to the Board for Correction of Naval Records or the Naval Discharge Review Board. Plaintiff may seek a review from the Board for Correction of Naval Records to redress any injustice or error. . . . Should the Board for Correction of Naval Records conclude a Marine’s discharge was improper, it can recommend relief including reinstatement, recharacterization of discharge, and back pay. . . . Additionally, ‘[b]oard decisions are subject to judicial review and can be set aside if they are arbitrary, capricious or not based on substantial evidence.’”
Additionally, “[t]he relief Plaintiff seeks, namely recharacterization of his discharge as honorable, is within the power of both the Board for Correction of Naval Records and the Naval Discharge Review Board to grant. Both boards can address Plaintiff’s claims regarding any irregularities in his discharge process.”
Further counseling against justiciability is the principle that military “[p]ersonnel decisions are treated with a high level of caution against review by civilian courts.”
Regarding plaintiff’s claim that his First Amendment rights were violated by being subjected to an OTH due to the content of his speech, Judge Huff ruled that “[m]ilitary officers are better suited than civilian courts to determine, after a hearing, whether Plaintiff’s conduct disrupted good order and discipline in the service.” She concluded, “In sum, Plaintiff’s claim that his discharge violated the First Amendment, to the extent that his discharge was based on a violation of Article 134 of the UCMJ, lacks sufficient merit to weigh in favor of review under the Mindes test.”
The opinion doesn’t appear to leave any room for salvaging justiciability regardless of how the complaint is amended. On to the 9th Circuit?