Complaint Pogany Alvarez

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:14-cv-1319 ROBERT ALVAREZ and GEORG-ANDREAS POGÁNY, Plaintiffs, vs. COL DAVID GROSSO, in his individual and official capacity; SGM MARK COOK, in his individual and official capacity; COL JOHN IRGENS, in his individual and official capacity, LTG JOSEPH ANDERSON, in his individual and official capacity; COL DAVID HAMILTON, in his individual and official capacity; and DOES 1 – 20. Defendants. COMPLAINT Robert Alvarez and Georg-Andreas Pogány, Plaintiffs in the above-captioned matter, by and through their counsel of record, for their cause of action against Defendants, state as follows: 1. Robert Alvarez (“ALVAREZ”) is and was at all relevant times a resident of Colorado Springs, El Paso County, Colorado. Georg-Andreas Pogány (“POGÁNY”) is and was at all relevant times a resident of Denver, Denver County, Colorado. 2. Defendants COL GROSSO, COL IRGENS, SGM COOK and LTG ANDERSON were, at the relevant times, residents of El Paso County, Colorado. Hereinafter, references to “the

Transcript of Complaint Pogany Alvarez

Page 1: Complaint Pogany Alvarez

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 1:14-cv-1319 ROBERT ALVAREZ and GEORG-ANDREAS POGÁNY, Plaintiffs, vs. COL DAVID GROSSO, in his individual and official capacity; SGM MARK COOK, in his individual and official capacity; COL JOHN IRGENS, in his individual and official capacity, LTG JOSEPH ANDERSON, in his individual and official capacity; COL DAVID HAMILTON, in his individual and official capacity; and DOES 1 – 20. Defendants.

COMPLAINT

Robert Alvarez and Georg-Andreas Pogány, Plaintiffs in the above-captioned matter, by

and through their counsel of record, for their cause of action against Defendants, state as follows:

1.

Robert Alvarez (“ALVAREZ”) is and was at all relevant times a resident of Colorado

Springs, El Paso County, Colorado. Georg-Andreas Pogány (“POGÁNY”) is and was at all

relevant times a resident of Denver, Denver County, Colorado.

2.

Defendants COL GROSSO, COL IRGENS, SGM COOK and LTG ANDERSON were,

at the relevant times, residents of El Paso County, Colorado. Hereinafter, references to “the

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2012 Defendants” collectively are references to COL GROSSO, COL IRGENS, SGM COOK

and LTG ANDERSON.

3.

Defendant COL HAMILTON is a resident of El Paso County, Colorado. He will begin

his assignment as Garrison Commander of the United States Army installation of Fort Carson,

Colorado, in May 2014.

4.

DOES 1 - 20 are and were employees of the United States Army and/or agents of the

United States Army via employment. DOES 1 - 20 are believed to be residents of Colorado.

5.

All actions undertaken by any and all of the Defendants constituted actions under color

of state law.

6.

Venue and jurisdiction are proper in this Court because the acts and omissions

complained of herein occurred at Fort Carson, El Paso County, Colorado.

7.

FACTUAL BACKGROUND

ALVAREZ is a veteran of the United States Marine Corps. He holds a master’s degree in

Rehabilitation Counseling and advanced certifications in vocational assessment and evaluation.

His experience in the mental health field includes service as the first counselor assigned to the

Fort Carson (Colorado) Warrior Transition Unit, and as a military outreach officer for mental

health care at Give An Hour, where he worked with the United States Army’s Suicide

Prevention Task Force. ALVAREZ spearheaded the development of the Veterans Trauma

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Court in Colorado Springs, El Paso County, Colorado for active-duty and veteran service

members charged with civilian crimes.

8.

POGÁNY is a veteran of the United States Army. His service included deployment as a

member of Special Forces Operational Detachment Alpha 092, Charlie Company, 3rd Battalion,

10th Special Forces Group (Airborne). He holds a bachelor’s degree in criminology. His

experience includes investigative work for the National Gulf War Resource Center, and Veterans

For America, as well as work with the National Veterans Legal Services Program. He has also

served administratively for mental health organizations such as Give An Hour and the mental

health initiative Just One Wounded Warrior, a project of the National Gulf War Resource

Center.

9.

In approximately 2008, ALVAREZ and POGÁNY began working together to provide

investigative, forensic and advocacy services to service members facing administrative and

judicial proceedings, and assistance in securing service-connected benefits, to include obtaining

accurate diagnoses and disability ratings in order to ensure delivery of service members’ health

care after discharge from the military. This included, but was not limited to:

* Case analysis, to include client-authorized receipt of and comprehensive review of a client’s records of health care and service for completeness and accuracy;

* Client-authorized direct communication with military and civilian health

care and mental health care providers, both to help the client understand his medical condition and history and to help the providers understand the client’s needs;

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* Where appropriate, seeking correction of health care records and/or additional diagnostic workup in order to correct incomplete or inaccurate diagnoses;

* Communication with and advocacy to a client’s chain of command up to

and including the post commander, * Investigation of allegations underlying efforts at bad conduct discharges,

including witness interviews, analysis of physical evidence, site/scene inspections, document review, other background investigation and communication with criminal defense counsel; and

* Trial support services during courts-martial and other administrative or

judicial proceedings, both military and civilian. ALVAREZ and POGÁNY’s services also include ongoing support to clients and their families to

help them transition to civilian life and to obtain the services and health care necessary to

manage their conditions.

10.

The majority of ALVAREZ and POGÁNY’s clients suffer from acute mental illness

precipitated by traumatic brain injury (“TBI”) and/or post-traumatic stress disorder (“PTSD”),

and are unable to fully understand the nature of legal proceedings or even the nature of their own

physical/mental conditions. Nor are the majority of ALVAREZ and POGÁNY’s clients able to

effectively investigate and advocate for themselves in light of their inexperience with and lack of

understanding of the complexities of the military benefits and military justice systems.

11.

ALVAREZ and POGÁNY perform these services on a pro bono basis, working together

and sometimes in association with attorneys representing service members (including attorneys of

the United States Army Trial Defense Service office as well as civilian lawyers). Since 2008, they

have provided these services to hundreds of clients at no cost to the clients. Their investigative

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work have enabled their clients’ criminal defense attorneys to disprove prosecutorial allegations

in courts-martial. Their advocacy work has enabled their clients to secure access to health care

for injuries and psychiatric disorders sustained during military service. Their care for their clients,

many of whom struggle with suicidal ideation, has quite literally saved lives.

12.

In 2013, ALVAREZ and POGÁNY formalized their association as Uniformed Services

Justice & Advocacy Group (501(c)(3) status pending). The nature of the services ALVAREZ

and POGÁNY provide did not change with this incorporation. ALVAREZ and POGÁNY serve

both veterans and active duty service members.

13.

The nature of ALVAREZ and POGÁNY’s work requires physical access to military

installations. Many of their clients reside on post. Courts-martial and administrative hearings

are held on post. Witnesses who have information relevant to allegations against their clients are

held on post. When their clients out-process at the conclusion of their service, the requisite

paperwork is completed on post. By and large, their clients receive medical evaluation and

treatment on post at military hospitals and clinics. Obviously, their clients’ commanders live and

work on post. If ALVAREZ and POGÁNY cannot physically access the post and buildings and

facilities thereon, their advocacy, investigation and service is impaired. Before November 5,

2012, ALVAREZ and POGÁNY had unfettered access to the unrestricted areas of the United

States Army installation at Fort Carson, Colorado.

14.

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The nature of ALVAREZ and POGÁNY’s work also requires access to military personnel

and contractors, including health care personnel and their clients’ commanders. To investigate

the completeness of a medical diagnosis, they must have unfettered access to the providers who

developed the diagnosis. To advocate and intercede for their clients to command staff, they must

be able to at least try to contact these officers. Investigation of allegations against clients charged

with crimes and/or violations of the Uniform Code of Military Justice also requires that Plaintiffs

be able to contact and interview military personnel, including officers and commanders. Before

November 5, 2012, ALVAREZ and POGÁNY were unaware of any orders prohibiting military

personnel and military contractors from speaking with them.

15.

At all times, ALVAREZ and POGÁNY have conducted themselves professionally and

with understanding of, and appropriate respect for, the need for military order and discipline.

ALVAREZ and POGÁNY have had positive and cooperative working relationships with Fort

Carson’s Commanding General preceding LTG ANDERSON as with Fort Carson’s Garrison

Commander preceding COL GROSSO. ALVAREZ and POGÁNY had never interacted with

COL GROSSO directly in their work as veterans’ advocates.

16.

By late 2011, while reviewing cases for the Trial Defense Service office at Fort Carson,

ALVAREZ and POGÁNY identified a pattern wherein the Army was increasing its use of

administrative discharge procedures, such as Chapter 10, AR 635-200 Request for Discharge in

Lieu of Trial by Court-Martial, to expel service members for misconduct, when those service

members suffered from TBI, PTSD and other injuries that should have been addressed through

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medical disposition. In early 2012, SGM COOK contacted ALVAREZ and POGÁNY, at the

direction of COL IRGENS and LTG ANDERSON, to invite their collaboration in identifying

soldiers whose misconduct was caused by service-related injuries and moving those soldiers into

medical disposition instead of court-martial or Chapter 10 discharge.

17.

ALVAREZ and POGÁNY continued investigating, reviewing, communicating with

doctors and otherwise interceding to command staff on behalf of their clients. ALVAREZ and

POGÁNY maintained professional communication to LTG ANDERSON as well as with

Defendants SM COOK and COL IRGENS, bringing their clients’ cases to Defendants’ attention

when they found inaccuracies or dispositional improprieties in their clients’ cases.

18.

On occasions wherein ALVAREZ and POGÁNY were unable to resolve differences with

Fort Carson command relating to their clients, ALVAREZ and POGÁNY reported the dispute to

the Office of the Surgeon General of the United States Army; to the Vice-Chief of the United

States Army; and to United States senators and congressional representatives. ALVAREZ and

POGÁNY also requested Army Regulation 15-6 investigations of Fort Carson physicians and

commanders for interference with their clients’ medical evaluation and treatment and with

medical disposition of their clients’ separation from the Army.

19.

On March 29, 2012, ALVAREZ and POGÁNY contacted LTG ANDERSON via e-mail

regarding a client named SPC Nesbett. SPC Nesbett faced involuntary separation from the Army

without benefits or access to health care, via Chapter 14-12b proceedings alleging “Pattern of

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Misconduct.” After reviewing SPC Nesbett’s case, ALVAREZ and POGÁNY learned that SPC

Nesbett’s alleged misconduct was caused by a service-related injury, specifically drug addiction

resulting from medically-prescribed opiate treatment for war wounds. ALVAREZ and POGÁNY

identified inaccuracies in SPC Nesbett’s medical records, specifically inaccurate claims that SPC

Nesbett was a drug addict before enlisting in the Army; and asked LTG ANDERSON to suspend

all separation activity on SPC Nesbett’s case pending further review and correction of SPC

Nesbett’s record.

20.

On April 2, 2012, SGM COOK responded to ALVAREZ and POGÁNY’s

communication on LTG ANDERSON’s behalf. SGM COOK maintained that SPC Nesbett was

a drug addict before enlisting in the Army and that he should be separated from the Army.

ALVAREZ and POGÁNY thereafter advised LTG ANDERSON that they felt obliged to ask the

Senate Veterans Affairs Committee and Senate Armed Services Committee to initiate an

investigation. Thereafter, LTG ANDERSON suspended separation proceedings for SPC

Nesbett; and, on further review, SPC Nesbett’s case was determined to be appropriate for medical

disposition rather than Chapter 14 discharge.

21.

SPC Nesbett’s case was one of many in which ALVAREZ and POGÁNY identified

fraudulent information entered into soldiers’ mental status evaluations, and demonstrated that

mental status evaluations were written to justify adverse administrative separation with a “Less

Than Honorable” characterization of service, in contradiction of soldiers’ medical records. As a

result of ALVAREZ and POGÁNY’s work for soldiers facing adverse administrative separation

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and attorneys representing soldiers facing adverse administrative separation, their clients were

able to obtain complete evaluations necessary to show that TBI and/or PTSD, or other service-

related injuries (to include prescription drug addiction), were at the root of alleged misconduct.

This in turn slowed and often reversed the course of adverse administrative separation for many

soldiers, ensuring that those soldiers would have access to health care and benefits to help them

heal from TBI, PTSD and addiction and reenter civilian life; the other consequence, however,

was additional cost to the Army and Veterans Administration, as soldiers honorably discharged

on medical retirement (as opposed to adversely discharged for misconduct) remain eligible for

health care and other veterans benefits.

22.

ALVAREZ and POGÁNY continued this work through the summer and into autumn of

2012. Their work included representation of a soldier named SGT Tackett, who faced adverse

discharge for misconduct. SGT Tackett’s misconduct was caused by a service-related injury, e.g.,

PTSD; and SGT Tackett was mentally ill, unstable and suicidal. ALVAREZ and POGÁNY

confronted Defendants with reports of Army psychiatrists confirming that SGT Tackett suffered

from PTSD caused by a service-related injury. Nonetheless, LTG ANDERSON ordered that

SGT Tackett would receive a Less Than Honorable discharge.

23.

Also in that time period, ALVAREZ and POGÁNY represented a soldier named SPC

Bettencourt, who, like most of ALVAREZ and POGÁNY’s clients, also faced adverse discharge

for misconduct. SPC Bettencourt’s medical records confirmed diagnoses of TBI and PTSD, as

well as treatment plans consistent with those diagnoses. Because SPC Bettencourt’s misconduct

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was caused by a service-related injury, ALVAREZ and POGÁNY interceded to Defendants to

request that the Army suspend Chapter 14-12 proceedings and process SPC Bettencourt for

medical disposition. This included contacting the 2012 Defendants’ “Tiger Team,” formed by

LTG ANDERSON ostensibly to ensure that complicated cases have all matters fully considered

prior to being brought before him or his subordinate commanders for decision. This also included

assisting SPC Bettencourt in requesting additional evaluation of his TBI and PTSD with full

review of his medical chart.

24.

The suspension of SPC Bettencourt’s discharge was short-lived. On October 23, 2012,

Defendants authorized resumption of SPC Bettencourt’s out-processing. COL IRGENS advised

ALVAREZ and POGÁNY that

[w]e hope that you will continue to provide information to the Tiger Team regarding perceived problems with systems used by the Installation, and specific injustices you believe are happening to individual Soldiers ... Your input regarding issues is valued, as this Installation and its Commanders care deeply about Soldiers. They are highly interested in looking into any matter that might be perceived as or actually does deprive a Soldier of any fairness. Please feel free to notify the Tiger Team of all issues. It would be most helpful in ensuring we look into the proper issues of you reduce your specific concerns to writing for presentation to the Tiger Team.

25.

In an e-mail dated October 27, 2012, ALVAREZ and POGÁNY again asked LTG

ANDERSON to suspend SPC Bettencourt’s discharge, and expressed to LTG ANDERSON their

frustration with the disposition of SPC Bettencourt’s case as a Chapter 14-12b rather than a

medical discharge. ALVAREZ and POGÁNY repeated this request in a subsequent e-mail to

LTG ANDERSON dated October 31, 2012. In these e-mails, ALVAREZ and POGÁNY

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expressed their concern that the post’s legal staff, to include SGM COOK, as well as the Tiger

Team had improperly thwarted medical disposition of soldiers such as SPC Bettencourt and had

diverted and/or concealed medical evidence that could change the disposition of soldiers such as

SPC Bettencourt.

26.

ALVAREZ and POGÁNY made clear in their October 31, 2012 e-mail that their

remarks were restricted to the cases they were handling, without aspersion to other cases that the

Tiger Team might be reviewing in which ALVAREZ and POGÁNY were uninvolved. Without

using vulgarities, profanity or threats, ALVAREZ and POGÁNY expressed concern that the

conduct of some of LTG ANDERSON’s subordinates was tantamount to a violation of Article

134 of the Uniform Code of Military Justice, e.g., “wrongful interference with an adverse

administrative proceeding.” ALVAREZ and POGÁNY notified LTG ANDERSON of plans to

approach the Armed Services Committee to seek its intervention for SPC Bettencourt. Finally,

ALVAREZ and POGÁNY asked again that LTG ANDERSON suspend SPC Bettencourt’s

discharge; transition SPC Bettencourt to MEB disposition; and assist in referring SPC

Bettencourt to NICoE for Psychological Health and Brain Injury for complete assessment and

evaluation of his TBI before commencement of MEB proceedings.

27.

On the same day (October 31), ALVAREZ accompanied SPC Bettencourt through his

out-processing from Fort Carson. POGÁNY was in Denver and was unable to participate.

ALVAREZ identified himself to SPC Bettencourt’s military escort and presented him with a

business card. Midway through the process, the out-processing was halted via telephone on an

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order from SPC Bettencourt’s physician, ordering suspension of SPC Bettencourt’s discharge for

further medical evaluation.

28.

On October 30, 2012, SGM COOK sent the following e-mail to POGÁNY:

You and [ALVAREZ] are invited to the Tiger Team meeting on Thursday, 1 November. The meeting is at Behavioral Health, bldg 1830, at 0800. The team will take up old business at the beginning. You are scheduled to brief at 0830. Please wait in the waiting area and someone will come out and get you. You are invited to present issues that you would like the Tiger Team to look into. I ask you to come to the meeting prepared to present specific delineable issues, brief and to the point. I also ask that you bring your issues in writing so you can ensure we don't have any mistakes, misinterpretations and misunderstanding of the issues and that we capture all the information you brief in its entirety. The intent of the meeting is for the Tiger Team to understand the context and background of each issue we need to look into. We will present the issues to the commander along with our findings so that he can take appropriate action.

29.

Four days later, on November 5, 2012, COL GROSSO issued an order barring

ALVAREZ and POGÁNY from Fort Carson, asserting that their presence on Fort Carson was

disruptive “to the good order and discipline of the installation.” COL GROSSO gave no

explanation of what actions ALVAREZ and POGÁNY allegedly took that disrupted “the good

order and discipline” of Fort Carson. This order prevented, and continues to prevent,

ALVAREZ and POGÁNY from entering Fort Carson for any reason, even as trial support for

criminal defense attorneys in courts-martial. This order also prevented, and continues to

prevent, ALVAREZ and POGÁNY from contacting military personnel and contractors on Fort

Carson.

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30.

While ordered by COL GROSSO, this order was issued with the agreement and

cooperation of, if not actually on the orders of, LTG ANDERSON, with the agreement and

cooperation of SGM COOK and COL IRGENS.

31.

Before November 5, 2012, the 2012 Defendants gave ALVAREZ and POGÁNY no

warning or notice that their actions were in any manner allegedly disruptive or unprofessional.

32.

In barring ALVAREZ and POGÁNY from Fort Carson, the 2012 Defendants exercised

their authority in an arbitrary and unpredictable manner. The November 5, 2012 order barring

ALVAREZ and POGÁNY lacked reasonable grounds, and was injudiciously applied.

33.

After

a- the 2012 Defendants falsely accused ALVAREZ of physically interfering with the out-processing of SPC Bettencourt, despite knowing that ALVAREZ did nothing to obstruct, delay or interfere with SPC Bettencourt’s outprocessing;

the 2012 Defendants issued the debarment order, ALVAREZ and POGÁNY

sought reversal of and investigation of the debarment order by other and higher authorities. In

justifying their debarment order in response to those inquiries, the 2012 Defendants falsely

accused ALVAREZ and POGÁNY of deceitful and dishonorable conduct in an effort to

undermine their work for soldiers facing adverse administrative separations with a Less Than

Honorable characterization of service and the ensuing loss of veterans’ benefits. For example:

b- the 2012 Defendants falsely accused POGÁNY of physically interfering

with the out-processing of SPC Bettencourt, despite knowing that POGÁNY was not even physically present in El Paso County during SPC

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Bettencourt’s outprocessing, and had only brief telephone contact with ALVAREZ, SPC Bettencourt or anyone else connected to SPC Bettencourt during the out-processing;

c- the 2012 Defendants falsely accused ALVAREZ and POGÁNY of telling a

soldier to “drool” and otherwise falsify symptoms of mental illness in order to justify medical disposition and evade bad conduct discharge proceedings.

The 2012 Defendants made these accusations only after issuing the debarment order, when asked

by other and higher authorities to account for the debarment order. The 2012 Defendants did

not make these allegations in support of the debarment order at the time of issuance of the order.

Nonetheless, these allegations served to dissuade other and higher authorities’ investigation of

the debarment order, and to falsely and unfairly malign ALVAREZ and POGÁNY.

35.

The 2012 Defendants stood on the debarment order even when, in April 2014, Plaintiffs

were invited to Evans Army Community Hospital on Fort Carson to meet with Hospital

Commander COL Dennis LeMaster, for the purpose of discussing issues and concerns

surrounding the delivery of medical care to soldiers at Fort Carson. Such meeting was initiated at

the request of COL LeMaster as an extension of Plaintiffs’ ongoing dialogue with the United

States Army Surgeon General. Within a day of receiving COL LeMaster’s invitation, Plaintiffs

requested permission from COL GROSSO to enter Fort Carson for this limited purpose and even

offered to submit to Army escort; COL GROSSO, through his Executive Officer, refused this

request.

FIRST CAUSE OF ACTION

42 U.S.C. § 1983

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36.

Plaintiffs incorporate Paragraphs 1-35 above as if fully set forth herein.

37.

Plaintiffs had a right under the Constitution of the United States to freedom of speech,

assembly and association by employees of governmental entities.

38.

At all times relevant to this Complaint, COL GROSSO, COL IRGENS, SGM COOK,

LTG ANDERSON and DOES were acting under color of law – under the constitutions, statutes,

administrative rules, customs, policies and usages of the United States – and had assumed the

responsibilities, activities, and rights involved in exercising their roles as members of the United

States Army’s professional, supervisory and/or decision making staff.

39.

At all times relevant to this Complaint, ALVAREZ and POGÁNY were engaged in

speech and other activities protected by U.S. CONST. amend. I, including, but not limited to:

a- Engaging in and reporting the results of factual investigation and analysis;

b- Interviewing clients, witnesses, physicians, psychologists, counselors, commanders, and other individuals who may have information bearing on a potentially improper adverse administrative separation with a Less Than Honorable characterization of service and/or potentially improper denial of veterans’ benefits;

c- Communication of findings with clients and criminal defense counsel;

d- Assisting at pretrial proceedings and courts-martial;

e- Communication of grievances and disputes to Defendants, physicians, and others involved with the disposition of soldiers’ separation proceedings; and

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f- Reporting investigative findings to other authorities and agencies, such as the Office of the Surgeon General of the United States Army, the Inspector General of the United States Army and United States senators and congressional representatives.

ALVAREZ and POGÁNY engaged in these activities in a professional and completely lawful

manner that was not violent, vulgar, profane or threatening. Their activities were in no manner

disruptive to or interfered with the good order and discipline of Fort Carson.

40.

The 2012 Defendants acted with deliberate indifference to ALVAREZ and POGÁNY’s

known and recognized constitutional and legal rights to due process, freedom of speech, freedom

of association and freedom from retaliation for protected conduct. The 2012 Defendants

recklessly and deliberately participated in the deprivation of ALVAREZ and POGÁNY’s

constitutional rights by debarring ALVAREZ and POGÁNY from Fort Carson and from access to

Fort Carson health care professionals and officers in a manner that was arbitrary and

unpredictable, amounting to content-based discrimination. This includes, but is not limited to:

a- “Whistleblower” retaliation against ALVAREZ and POGÁNY for reporting to higher authorities the efforts to subject soldiers to adverse administrative separation with a Less Than Honorable characterization of service for misconduct caused by service-related injuries, rather than providing those soldiers with appropriate medical evaluation and treatment and medical discharges from service; and

b- Content-based discrimination against ALVAREZ and POGÁNY for their

advocacy against the United States Army’s pattern and practice of reducing its ranks by “chaptering” soldiers with service-related injuries.

By arbitrarily debarring ALVAREZ and POGÁNY from Fort Carson and from access to Fort

Carson officers and healthcare professionals, the 2012 Defendants retaliated against ALVAREZ

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and POGÁNY with the impermissible motive of curbing ALVAREZ and POGÁNY’s protected

conduct.

41.

The ongoing retaliatory acts set forth above have deprived, are now depriving and will

imminently deprive ALVAREZ and POGÁNY of their right to engage in constitutionally-

protected conduct free from governmental retaliation. These retaliatory acts have caused, are

causing and will continue to cause irreversible harm to ALVAREZ and POGÁNY in their

protected advocacy activities. To the extent that COL HAMILTON maintains the debarment

order, he, too, is violating and will imminently continue to violate ALVAREZ and POGÁNY’s

right to engage in constitutionally-protected conduct free from governmental retaliation.

SECOND CAUSE OF ACTION

42 U.S.C. § 1983

42.

Plaintiffs incorporate paragraphs 1 - 41 as if fully set forth herein.

43.

LTG ANDERSON, COL GROSSO and COL HAMILTON have broad discretion to

exclude civilians from a military base. That power cannot, however, be exercised in a manner

that is patently arbitrary, irrational, unpredictable or discriminatory.

44.

Plaintiffs had a right under the Constitution of the United States to due process,

specifically to not be debarred from non-restricted areas of Fort Carson in an arbitrary, irrational,

unpredictable and discriminatory manner.

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45.

By debarring ALVAREZ and POGÁNY from Fort Carson in an arbitrary and

unpredictable manner, the 2012 Defendants violated, are violating and will imminently continue

to violate ALVAREZ and POGÁNY’s right to substantive due process. To the extent that COL

HAMILTON maintains the debarment order, he, too, is violating and will imminently continue

to violate ALVAREZ and POGÁNY’s right to substantive due process.

46.

The ongoing arbitrary acts set forth above have deprived, are now depriving and will

imminently deprive ALVAREZ and POGÁNY of their right to substantive due process, including

the right to engage in constitutionally-protected conduct free from governmental retaliation.

These retaliatory acts have caused, are causing and will continue to cause irreversible harm to

ALVAREZ and POGÁNY in their protected advocacy activities.

THIRD CAUSE OF ACTION

INTERFERENCE WITH RIGHT OF ACCESS TO COURT

47.

Plaintiffs incorporate paragraphs 1 - 46 as if fully set forth herein.

48.

ALVAREZ and POGÁNY’s advocacy work includes providing trial support service to

criminal defense lawyers representing soldiers (including clients of ALVAREZ and POGÁNY)

facing court-martial. Their trial support service can include file and witness management during

trial as well as providing testimony regarding their investigative findings.

49.

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The Fort Carson courtrooms are public courtrooms, open to any member of the public as

a default.

50.

At no time did ALVAREZ or POGÁNY ever conduct themselves in a Fort Carson

courtroom in anything other than a professional manner. At all times that ALVAREZ and

POGÁNY provided trial support service, they were courteous, focused, deferential to the

presiding judge, respectful of courtroom procedures, and if anything assisted in maintaining

courtroom decorum by providing comfort and support to their mentally ill soldier clients who

were in distress during court proceedings.

51.

While the 2012 Defendants have made after-the-fact false accusations against ALVAREZ

and POGÁNY to justify the debarment order to inquiring authorities, the 2012 Defendants

actually have yet to levy any accusations of misconduct or inappropriate behavior by either

ALVAREZ or POGÁNY in any Fort Carson courtroom.

52.

Defendants’ debarment order banned ALVAREZ and POGÁNY from the Fort Carson

courtrooms.

53.

The 2012 Defendants violated, are violating and will imminently violate ALVAREZ and

POGÁNY’s right to access criminal and other non-restricted proceedings in the courtrooms of

Fort Carson, by preventing ALVAREZ and POGÁNY from providing trial support services

during courts-martial and other administrative or judicial proceedings. To the extent that COL

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HAMILTON maintains the debarment order, he, too, is violating and will imminently continue

to violate ALVAREZ and POGÁNY’s right to access criminal and other non-restricted

proceedings in the courtrooms of Fort Carson.

54.

ATTORNEY’S FEES

Plaintiffs incorporate by reference the allegations contained in 1-53 above as though fully

set forth herein.

55.

As a result of defendants’ actions as alleged herein, ALVAREZ and POGÁNY have been

required to retain the services of attorneys and are entitled to a reasonable amount for attorney’s

fee pursuant to 42 U.S.C. § 1988 for those violations covered by the Civil Rights Act.

56.

DAMAGES

Plaintiffs incorporate by reference the allegations contained in paragraph 1-55 above as

though fully set forth herein.

57.

It is necessary and proper that this Court adjudicate and declare that Defendants have

arbitrarily, irrationally, unpredictably and discriminatorily debarred ALVAREZ and POGÁNY

from Fort Carson in violation of their Constitutional rights and in retaliation for protected

conduct. It is furthermore necessary and proper that this Court adjudicate and declare that

Defendants must vacate the debarment order, and ALVAREZ and POGÁNY’s right of access to

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non-restricted areas of Fort Carson and to officers, soldiers and healthcare providers on Fort

Carson is restored.

WHEREFORE, ALVAREZ and POGÁNY pray for judgment against Defendants as

follows:

a. A declaration that Defendants have violated ALVAREZ and POGÁNY’s First Amendment rights and rights of substantive due process;

b. A declaration that the November 5, 2012 debarment order is arbitrary, irrational,

unpredictable and discriminatory; c. A declaration that COL HAMILTON must vacate the debarment order, and

restore ALVAREZ and POGÁNY’s right of access to non-restricted areas of Fort Carson and to officers, soldiers and healthcare providers;

d. An order requiring Defendants to pay ALVAREZ and POGÁNY’s attorney’s fees

and expenses, pursuant to 42 U.S.C. § 1988; and e. Ordering such other and further relief as is mete.

ALVAREZ and POGÁNY request that this matter be tried to the Court in Denver,

Colorado.

DESIGNATION OF PLACE OF TRIAL

ROBERT ALVAREZ and GEORG-ANDREAS POGÁNY, Plaintiffs, By:Maren Lynn Chaloupka – Nebraska State Bar Assoc. #20864

/s/ Maren Lynn Chaloupka

Chaloupka Holyoke Snyder Chaloupka Longoria & Kishiyama, P.C., L.L.O. 1714 2nd Avenue P.O. Box 2424 Scottsbluff, NE 69363-2424 Telephone: (308) 635-5000 Facsimile: (308) 635-8000 [email protected]