Martin v. Donley , 886 F. Supp. 2d 1 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
JAMES C. MARTIN, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1590 (RBW)
)
MICHAEL B. DONLEY, )
Secretary of the Air Force )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
This case arises from claims that the defendant, in his official capacity as the head of the
Department of the Air Force with “final authority over [the] correction of records,” unjustifiably
denied the plaintiff’s request for various record corrections pertaining to his resignation from the
Air Force Reserve. Complaint (“Compl.”) ¶¶ 3, 7, 9. Currently before the Court is the
Defendant’s Motion to Dismiss (“Def.’s Mot.”). 1 For the reasons explained below, the Court
will grant the defendant’s motions.
I. BACKGROUND
A. The Anthrax Vaccination Immunization Program
According to the Center for Disease Control (“CDC”) “[a]nthrax is an acute infectious
disease caused by [a] spore-forming bacterium.” CDC, Questions and Answers About Anthrax,
EMERGENCY PREPAREDNESS & RESPONSE (Aug. 20, 2008)
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In addition to the documents already referenced, in resolving the Defendant’s Motion to Dismiss, the Court
considered the following filings: the Defendant’s Memorandum of Points and Authorities in Support of Defendant’s
Motion to Dismiss (“Def.’s Mem.”); the plaintiff’s Opposition the Defendant’s Motion to Dismiss (“Pl.’s Opp’n”);
the Defendant’s Reply in Further Support of Motion to Dismiss (“Def.’s Reply”); and the Administrative Record
(“A. R.”).
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http://www.bt.cdc.gov/agent/anthrax/faq/ (last updated Aug. 20, 2008). “Anthrax spores can be
used as a bioterrorist weapon,” with infections occurring in three forms: “cutaneous (skin),
inhalation, and gastrointestinal.” Id.
In 1970, the National Institutes of Health (“NIH”), the agency then responsible for
licensing biological drugs, licensed Anthrax Vaccine Absorbed (“AVA”) “for use against
anthrax.” Def.’s Mem. at 3; see also Pl.’s Opp’n at 1. The NIH’s AVA license did not
“differentiat[e] among possible uses or limit[] the license to particular routes of exposure.”
Def.’s Mem. at 21 (internal citation omitted). Subsequently, licensing authority was delegated to
the Federal Drug Administration [“FDA”] and the FDA began a “review process to determine
whether previously licensed products, including AVA, were safe, effective, and not misbranded.”
Def.’s Mem. at 3 (internal quotations and citations omitted). In 1985, an FDA panel noted that
“AVA was not licensed against inhalation anthrax.” Pl.’s Opp’n at 29. In 1996, the maker of
AVA submitted an Investigational New Drug Application to the FDA, for the “purpose of
obtaining a specific indication for inhalation anthrax,” which remained pending for several
decades. Id. (internal quotations omitted). As a result, in December 2003, the AVA label still
“did not specify which method of anthrax exposure the [v]accine protected against.” Id.
In 1997, the Department of Defense (“DoD”) initiated the Anthrax Vaccination
Immunization Program (the “vaccination program”), “which required members of the Armed
Forces at risk of anthrax exposure to submit to mandatory vaccination.” Def.’s Mem. at 3; see
also Compl. ¶ 12. The following year, 1998, the vaccination program took effect and AVA
inoculations began “as a preventative measure against inhalation anthrax.” Compl. ¶¶ 12, 14.
That same year, Congress enacted 10 U.S.C. § 1107, which proscribes the “administration of
‘investigational’ new drugs, or drugs unapproved for their intended use, to service members
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without their informed consent.” Id. ¶ 13 (internal citations omitted). The requirement that the
member provide consent to receive the investigational drug may be waived only by the
President. Id. In 1999, President Clinton issued Executive Order 13139, which implemented the
informed consent requirement and declared that presidential waiver would only be granted
“when absolutely necessary.” Id. ¶ 16 (internal quotation omitted).
The vaccination program was implemented without complications until July 17, 2000
when the DoD “dramatically reduce[d] the number of [AVA] inoculations due to an unexpected
delay in the availability of vaccine supplies approved by the [FDA] as safe and effective.” Id. ¶
17. The DoD thus maintained the vaccination program only for personnel in areas of “highest
threat.” Id. In August 2000, the DoD “formally adopted the informed consent requirement”
mandated by 10 U.S.C. § 1107. Id. ¶ 18. Nevertheless, on June 28, 2002, the DoD resumed the
vaccination program with “mandatory inoculation[s] for military personnel . . . at higher risk
whose performance is essential for certain mission critical capabilities.” Id. ¶ 19.
Since the 1997 initiation of the vaccination program, there have been several “challenges
to the legality of orders requiring military personnel to take [AVA].” Def’s Mem. at 3. Notably,
in 2003, Judge Emmet Sullivan of this Court ruled that, with regard to inhalation anthrax, “AVA
is an investigational drug . . . [that was] being used for an unapproved purpose” in violation of 10
U.S.C § 1107. Id. ¶ 35 (citing Doe v. Rumsfeld, 297 F. Supp. 2d 119, 135 (D.D.C. 2003)). He
then granted the plaintiffs’ request for a preliminary injunction and enjoined inoculation under
the vaccination program. Id.Shortly after the Doe ruling, the FDA issued a final rule and order “[finding] that AVA
was safe and effective ‘independent of the route of exposure.’” Id. ¶ 36 (quoting 69 Fed. Reg.
255, 260 (Jan. 5, 2004)). Judge Sullivan, nonetheless, vacated the FDA’s rule and order because
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“the FDA failed to follow [required] notice and comment procedures.” Id. ¶ 37 (citing Doe v.
Rumsfeld, 341 F. Supp. 2d 1, 16 (D.D.C. 2004). Finding a clear statutory prohibition on
inoculation with investigational drugs, “Judge Sullivan issued a permanent injunction” on the
vaccination program until the FDA certified AVA through the proper procedures. Id. ¶ 38
(citing Doe, 341 F. Supp. 2d at 16).
Finally, in December 2005, the FDA issued a new final order “explicitly finding AVA
efficacious against inhalation anthrax,” id. ¶ 39 (citing Doe v. Rumsfeld, 501 F. Supp. 2d 186,
188 (D.D.C. 2007) (internal citation omitted)), causing the District of Columbia Circuit to
subsequently conclude that the injunction against the vaccination program had “dissolved on its
own terms.” The program was thus reinstated. Id. ¶ 39 (citing Doe v. Rumsfeld, 172 F. App’x,
327, 327 (D.C. Cir. 2006).
Following the Doe rulings, Judge James Robertson, a former member of this Court,
declared that “prior to the FDA's December 2005 rulemaking, it was a violation of federal law
for military personnel to be subjected to involuntary AVA inoculation because the vaccine was
neither the subject of a presidential waiver nor licensed for use against inhalation anthrax.” Id. ¶
40 (quoting Rempfer v. U.S. Dep’t of Air Force Bd. for Corr. of Military Records, 548 F. Supp.
2d 200, 210 (D.D.C. 2008)).
Notwithstanding the prior litigation in this Court, other courts have found that AVA has
been properly licensed since 1970 and, therefore “the vaccination program [is] . . . a ‘lawful
response by [the military] to the dangers with which the military personnel of the United States
may be confronted in the future.” Def’s Mem. at 3 (quoting O’Neil v. Secretary of the Navy, 76
F. Supp. 2d 641, 645 (W.D. Pa. 1999)). And the Court of Appeals for the Armed Forces
concluded in 2006 that AVA was properly licensed since 1970 and held “that the Doe court
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decisions did not affect the legality of the [v]accination order.” Id. at 6-7 (referencing United
States v. Kisala, 64 M.J. 50, 54 (C.A.A.F. 2006).
B. The Plaintiff’s Factual Assertions
Drawing all justifiable inferences in favor of the plaintiff, as the Court must, the factual
allegations underlying this lawsuit are as follows. In 1992, the plaintiff enlisted in the United
States Marine Corps Reserve and was later discharged in 1995. Compl. ¶ 8. Subsequently, the
plaintiff joined the Air Force Reserve and was gradually promoted until he reached the rank of
First Lieutenant in 1999. Id. ¶¶ 8, 10. Throughout his military career, the plaintiff “amassed an
exemplary military record” demonstrating that he was a “highly competent officer” who “met all
performance standards and earned positive assessments from his raters and reviewers.” Id. ¶ 11.
By April 2000, the plaintiff had received three shots of a six-shot series of AVA as part
of the DoD’s vaccination program. Id. ¶¶ 21, 12, 14. The plaintiff had adverse reactions to
AVA and “his reaction worsened” with each shot. Id. ¶ 21. After his third shot of AVA, the
plaintiff became “dizzy,” felt “extreme pain throughout his body that made it difficult to move,”
and experienced “extreme sore[ness] and . . . severe headaches.” Id. The worst effects lasted
approximately ten days and it took “another week [for the plaintiff] to fully recover.” Id. On
April 18, 2000, the plaintiff reported his symptoms and expressed his “concerns about severe,
long-term reactions to [AVA]” to “medical personnel who completed a Vaccine Adverse Event
Reporting System report.” Id. ¶¶ 22, 23. That same day, the plaintiff requested to be “separated
from the Air Force,” but his request was later denied. Id. ¶¶ 23, 24.
On May 10, 2000, the plaintiff “willfully disobey[ed] a lawful command from his
superior officer . . . to have himself inoculated with [AVA].” Id. ¶ 27. The following day the
plaintiff was offered a nonjudicial punishment for his transgression, which he accepted. Id. ¶ 25.
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The punishment consisted of “a forfeiture of $605[] per month for two months and a Letter of
Reprimand.” Id. ¶ 26.
Approximately a month later, the plaintiff’s commander informed him that “he was
facing involuntar[y] discharge from the Air Force for the commission of a serious offense.” Pl.’s
Opp’n at 6. Rather than face “further administrative actions,” the plaintiff “[t]endered his
resignation” on June 12, 2000. Compl. ¶ 28. A few weeks later, the plaintiff’s “request [for
resignation] was found legally sufficient” and was endorsed by several superior officers,
including the Secretary of the Air Force. Id. ¶¶ 29-30. Ultimately, the plaintiff’s resignation was
approved and he was “discharged with a general (under honorable conditions)” characterization.
Id. ¶¶ 31, 32.
C. The Plaintiff’s Pursuit of Administrative Remedies and the Parties’ Arguments
On July 30, 2003, the plaintiff applied to the Air Force Discharge Review Board
(“Review Board”), “requesting an upgrade of [his] discharge characterization to Honorable” as a
matter of equity. Id. ¶¶ 41, 42. His request was based on the DoD’s “change in . . . policy
regarding administration of the vaccination program,” which would have allowed him to
withhold consent and avoid AVA inoculation without disobeying a lawful order, and on “his
otherwise meritorious service.” Id. ¶ 42. The Review Board denied the plaintiff’s request in
February 2004. Id. ¶ 43.
In October 2008, the plaintiff petitioned the Air Force Board for the Correction of
Military Records (“Board for Correction”), seeking several forms of relief, including his
previous demand for a “[c]hange of character of service to Honorable,” on the basis that the
order to submit to AVA injection was illegal. Id. ¶ 44. Following nine advisory opinions, two
supplementary advisory opinions, and an additional advisory opinion from the Air Force
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Administrative Law Division—all of which recommended denial—the plaintiff’s request was
formally denied on April 23, 2010. Id. ¶¶ 47-73.
As a result, the plaintiff brought this case challenging the Board for Correction decision
as “arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or
otherwise contrary to law.” Id. ¶ 87. In response, the defendant filed the motion to dismiss
currently before the Court. Def.’s Mot. The defendant asserts that the plaintiff’s challenge to the
Board for Correction decision is meritless because “[AVA] has been legally licensed for
inoculation against anthrax since 1970” and the order to submit to AVA inoculation was lawful.
Def.’s Mem. at 20. The plaintiff responds by arguing that his claim is meritorious because he
was properly entitled to the requested corrections from the Board for Correction because,
pursuant to the rulings in Doe, “it is settled law in this jurisdiction that pre-2005 military orders
to involuntarily inoculate service members were illegal.” Pl.’s Opp’n at 26. Accordingly, he
contends that the Board for Correction was required “to correct all orders emanating from the
illegal orders, [including] non-judicial punishment records as well as the adverse discharge
documentation.” Id. at 33. This Memorandum Opinion addresses these arguments.
II. STANDARD OF REVIEW
The defendant has moved for dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6). However, Rule 12(d) provides that “if, on a motion under Rule 12(b)(6) . . . , matters
outside the pleadings are presented to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Because both
parties have presented material outside the pleadings (namely, the administrative record) for the
Court to consider in adjudicating the motions, the Court deems it appropriate to treat the
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defendant’s motion to dismiss as a motion for summary judgment. See Marshall Cnty. Health
Care. Auth. v. Shalala, 988 F.2d 1221, 1226 & n.5 (D.C. Cir. 1993) (noting that a district court
considering a Rule 12(b)(6) motion “can consult the [administrative] record to answer the legal
question[s] before the court,” but that “[i]t is probably the better practice for a district court
always to convert to summary judgment.” (emphases added)).
“Summary judgment is the proper mechanism for deciding, as a matter of law, whether
an agency action is supported by the administrative record and consistent with the
[Administrative Procedure Act, 5 U.S.C. § 702 (2006),] standard of review.” Loma Linda Univ.
Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010) (citing Stuttering Found. of Am. v.
Springer, 498 F. Supp. 2d 203, 207 (D.D.C. 2007)); see also Richards v. INS, 554 F.2d 1173,
1177 & n.28 (D.C. Cir. 1977). But due to the limited role of a court in reviewing the
administrative record, the typical summary judgment standards set forth in Rule 56 are not
applicable. Stuttering, 498 F. Supp. 2d at 207 (citation omitted). Rather, “[u]nder the APA, it is
the role of the agency to resolve factual issues to arrive at a decision that is supported by the
administrative record, whereas ‘the function of the district court is to determine whether or not as
a matter of law the evidence in the administrative record permitted the agency to make the
decision it did.’” Id. (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.
1985)).
III. LEGAL ANALYSIS
A. The Court’s Jurisdiction Over Claims Against the Federal Government
As an initial matter, the Court must decide whether, and on what basis, it possesses
jurisdiction to review the parties’ claims. The defendant contends that the plaintiff is seeking
monetary damages, and that this action is thus one based in part on the Little Tucker Act, 28
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U.S.C. § 1346(a)(2) (2006). 2 Def.’s Mem. at 12-15. The plaintiff maintains, however, that this
suit is one properly brought under the Administrative Procedure Act (“APA”). Compl. ¶ 1.
Because an APA claim is only appropriately pleaded “when there is no other adequate remedy,”
the Court must first determine whether this action is one properly brought under the Tucker Act.
Calloway v. Brownlee, 366 F. Supp. 2d 43, 50 (D.D.C. 2005) (internal citation omitted). 3
“As a sovereign, the United States may not be sued except by its consent, and a fortiori
the government can place conditions on the circumstances under which it will consent to suit.”
Bublitz v. Brownlee, 309 F. Supp. 2d 1, 5 (D.D.C. 2004) (internal citations omitted). The APA
and the Tucker Act both waive sovereign immunity, allowing plaintiffs to sue the United States
in specific circumstances. Under the APA, a plaintiff may sue the United States “in the district
courts for remedies other than money damages arising from an agency’s unlawful action.” Id.(emphasis in the original); see 5 U.S.C. §§ 701-06. Alternatively, the Tucker Act grants the
United States Court of Federal Claims exclusive jurisdiction to “hear monetary claims against
the United States founded either upon an express or implied contract or upon a provision of the
Constitution, or any Act of Congress, or any regulation of an executive department that ‘can
fairly be interpreted as mandating compensation by the Federal Government for the damages
sustained,’” Cartwright Int’l Van Lines, Inc. v. Doan, 525 F. Supp. 2d 187, 194 (D.D.C. 2007)
(quoting United States v. Mitchell, 463 U.S. 206, 217 (1983)), “even if such claims could be
2
“The Tucker Act consists of 28 U.S.C. § 1491, which sets out the jurisdiction of the Claims Court, and §
1346(a)(2), which gives concurrent jurisdiction to the district courts for claims not exceeding $10,000. The Federal
Circuit affectionately refers to the latter section as the “Little Tucker Act.” Van Drasek v. Lehman, 762 F.2d 1065,
1067 (D.C. Cir. 1985). Both sections will be referenced in this Memorandum Opinion as the Tucker Act.
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If this suit were characterized as one for money damages, there is no dispute that this Court’s jurisdiction
would be pursuant to the Tucker Act, as the plaintiff has waived “any right or entitlement to recover monetary
damages greater than $10,000,” Compl. ¶ 5; Def.’s Mem. at 12-13; Pl.’s Opp’n at 15-17.
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brought within the terms of some other jurisdictional grant,” Brown v. West, 1995 WL 623038*1, *3 (D.D.C. 1995); see 28 U.S.C. § 1491; Bowen v. Massachusetts, 487 U.S. 879, 910 n.48
(1988). Additionally, the Tucker Act grants “district courts concurrent jurisdiction with the
Court of Federal Claims in most Tucker Act cases seeking less than $10,000.” Kidwell v. Dep’t
of the Army, 56 F.3d 279, 283 (D.C. Cir. 1995) (citing 28 U.S.C. § 1346(a)(2)).
The District of Columbia Circuit has established a bright-line test for determining
whether a plaintiff’s claim regarding an agency’s actions should be considered under the district
court’s APA jurisdiction or its Tucker Act jurisdiction. Kidwell, 56 F.3d at 284-87. Under this
test, a case is considered a Tucker Act case “only if the plaintiff seeks money or the district court
grants it.” Id. at 285. Accordingly, “complaints requesting injunctive relief generally will be
taken at their word for jurisdictional purposes.” Bublitz, 309 F. Supp. 2d at 6 (citing Vietnam
Veterans of Am. v. Sec’y of the Navy, 843 F.2d 528, 535 (D.C. Cir. 1988)).
Nevertheless, as this Court has noted, “the bright-line rule . . . turns out to be rather dim,
for the court of appeals has recognized that not all complaints asking for equitable relief will be
taken at face value.” Id.; see Kidwell, 56 F.3d at 283 (“The plain language of a complaint . . .
does not necessarily settle the question of Tucker Act jurisdiction.”). Because plaintiffs may try
to avoid Tucker Act jurisdiction “by converting complaints which ‘at their essence’ seek money
damages from the government into complaints requesting injunctive relief or declaratory
actions,” district courts must “look to the complaint’s substance, not merely its form.” Kidwell,
56 F.3d at 284. To do this, district courts “weigh the relative importance of the monetary
recovery against the equitable relief, and [find Tucker Act] jurisdiction where the injunctive
relief sought is of ‘negligible’ worth or lacks ‘considerable’ value.” Bublitz, 309 F. Supp. 2d at8 (citing Kidwell, 56 F.3d at 284). Thus “a district court will not lose [APA] jurisdiction over a
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claim for injunctive relief where that injunctive relief triggers the payments of money, so long as
the injunctive relief is of sufficient importance relative to the monetary award to support
jurisdiction.” Id. (emphasis omitted); see Wolfe v. Marsh, 846 F.2d 782, 784 n.3 (D.C. Cir.
1988).
Applying this Circuit’s Kidwell bright-line test and subsequent cases interpreting that test
to the present litigation, the Court finds: (1) that the plaintiff has not explicitly requested money
damages, and (2) that the plaintiff’s requested relief is not in essence a request for money.
Accordingly, the plaintiff’s cause of action does not fall under the purview of the Tucker Act. In
Kidwell, a plaintiff asked the court to “correct [his] army record to reflect military retirement in
pay grade E-4 . . . [and] any other relief he may be entitled to,” 56 F. 3d at 283. Similarly, the
plaintiff in the instant case has asked the Court to “correct [his] record to reflect credit for back
pay and allowances . . . and grant any other relief.” Compl. (Prayer for Relief) at 20. The
District of Columbia Circuit held that because the plaintiff in Kidwell “d[id] not explicitly
request monetary relief from the United States, jurisdiction under the APA would appear to lie.”
56 F.3d at 284. Correspondingly, because the plaintiff here has not explicitly sought monetary
relief his suit is properly pleaded under the APA.
Moreover, “any financial benefit [the] plaintiff may receive would not come from an
award of money damages by this Court but from the change in his status that would result from
the correction of his military records.” Charlton v. Donley, 611 F. Supp. 2d 73, 76 (D.D.C.
2009); see Kidwell, 56 F.3d at 285-86 (“[A]ny monetary benefits that may flow from [the
plaintiff’s record correction] would not come from [this] court’s exercise of jurisdiction, but
from the structure of the statutory and regulatory requirement governing compensation when a
servicemember’s files change.”); Tootle v. Sec’y of Navy, 446 F.3d 167, 175 (D.C. Cir. 2006)
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(“[A]ny monetary benefits that might flow if [the plaintiff] prevails on his non-monetary claims
[for record corrections] will not come from the [d]istrict [c]ourt’s exercise of jurisdiction.”
(citing Kidwell, 56 F.3d at 285-86)). As this Circuit has acknowledged, such “collateral
consequences of equitable relief do not implicate the Little Tucker Act.” Wolfe, 846 F.2d at 784.
Accordingly, it is irrelevant that the plaintiff here may receive credit for back pay as a
consequence of his requested record corrections, or that he “hints at some interest in a monetary
reward from the federal government,” Kidwell, 56 F.3d at 284, because “a claim is not for
money [damages] merely because its success may lead to pecuniary costs for the government or
benefits for the plaintiff,” Vietnam Veterans of Am., 843 F.2d at 534.
Additionally, the defendant’s contention that the plaintiff’s waiver of “any right or
entitlement to recover monetary damages greater than $10,000 in this action,” Compl. ¶ 5,
“avails [the plaintiff] of this [Court’s] concurrent jurisdiction under the Little Tucker Act,”
Def.’s Mem. at 13, is incorrect. It is well established in this Circuit that “[a]s it relate[s] to a
complaint which does not request monetary relief, [a plaintiff’s] waiver [of damages in excess of
$10,000] is ambiguous at best; there [is] no monetary claim to waive.” Wolfe, 846 F.2d at 784.
Because “it is an extremely rare plaintiff who has trouble asking for money, if that is what he
wants,” courts will not imply monetary claims when the plaintiff has not explicitly requested
them. Id. at 784 n.2. “Given the need for certainty . . . , [the Court] cannot allow [the]
plaintiff’s subjective intent, ambiguously expressed, to control the issue [of proper subject matter
jurisdiction].” Id. at 785.
Furthermore, this Court finds that beyond the complaint’s plain language, the plaintiff’s
request is not “in essence” one for money damages because the record correction it seeks is
“valuable non-monetary relief.” Kidwell, 56 F.3d at 286. As this Circuit has repeatedly
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recognized “a plaintiff seeking a change in discharge status has sought non-monetary relief that
is not ‘negligible in comparison’ to the likely monetary benefit [the] plaintiff might receive as a
result of the change in status.” Charlton, 611 F. Supp. 2d at 77; see Smalls v. United States, 471
F.3d 186, 190 (D.C. Cir. 2006) (holding that a district court has jurisdiction to change a
plaintiff’s discharge status even if doing so would automatically entitle the plaintiff to retirement
benefits); Tootle, 446 F.3d at 176 (finding that a district court has jurisdiction over a plaintiff’s
record correction claim even if such a correction would entitle him to retirement benefits).
Here, the plaintiff requests “relief [that] is equitable, seeking declaratory or injunctive
relief.” Pl.’s Opp’n at 14. Most importantly, the plaintiff asks this Court to “[o]rder the Board
for Correction to remove the adverse ‘Misconduct’ narrative characterization [in his record] . . .
and to modify [his] record to reflect that [he] was retired and not adversely discharged,” Compl.
(Prayer for Relief) at 19-20; see Compl. ¶ 32 (currently the plaintiff’s record reflects a “general
[discharge] (under honorable conditions)”). This Circuit has recognized that raising a plaintiff’s
discharge status “would lift some of the shame associated with failing to receive an honorable
discharge.” Kidwell, 56 F.3d at 284; see generally Christopher H. Lunding, Judicial Review of
Military Administrative Discharges, 83 Yale L.J. 33, 35 (1973) (noting the stigma that flows
from a general discharge). Furthermore, this Court has previously accepted that the elimination
of such stigma has “considerable value.” Calloway, 366 F. Supp. 2d at 51. In the case at hand,
then, the plaintiff seeks equitable “non-monetary relief that is ‘not negligible in comparison’ to
the likely monetary benefit [the] plaintiff might receive as a result of the change in status.”
Charlton, 611 F. Supp. 2d at 77.
After carefully weighing the “relative importance of the [plaintiff’s] monetary recovery,”
Bublitz, 309 F. Supp. 2d at 8, which, as noted, cannot exceed $10,000, see Compl. ¶ 5, against
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the valuable equitable relief sought, the Court determines that the plaintiff’s claims in this case
are not “in essence” for money damages. Thus, the plaintiff’s claims are not predicated on the
Tucker Act; rather, the plaintiff has pleaded APA claims, which the Court may review pursuant
to its federal question jurisdiction.
While this Court recognizes the effort made by Congress to ensure that claims for money
damages against the United States receive uniform adjudication, the Court joins other judges
from the courts of this Circuit in noting its frustration with the quagmire that is the Tucker Act
and its imprecisely drawn jurisdictional provision. See Sharp v. Weinberger, 798 F.2d 1521,
1522 (D.C. Cir. 1986) (“If there is a less profitable expenditure of the time and resources of
federal courts and litigants than resolving a threshold issue of [Tucker Act jurisdiction], it does
not readily come to mind.”); Van Drasek, 762 F.2d at 1072 (“The burden of wading through this
jurisdictional quagmire outweighs, we think, the limited utility of providing uniform adjudication
of such relatively small money claims against the United States.”)
B. The Plaintiff’s APA Claims
The plaintiff asserts that the Board for Correction’s decision to deny his requested record
correction was “arbitrary, capricious, [and] an abuse of discretion,” Compl. ¶ 89, for three
separate reasons: (1) that “[t]he [Board for Correction] erroneously concluded that the order to
submit to the [vaccination program] was not illegal,” id. ¶ 85; (2) that “[t]he [Board for
Correction] erroneously concluded that 10 U.S.C. § 1552(f) prohibited the [Board for
Correction] from considering legal arguments attacking military justice actions that are not court-
martial actions,” id. ¶ 86; and (3) that “[t]he [Board for Correction] failed to apply [its own]
precedent as required by the law of this Circuit,” id. ¶ 87. In contrast, the defendant asserts that
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“there is no basis to question the [Board for Correction]’s decision, much less set it aside under
the ‘unusually deferential’ standard applicable here,” Def.’s Mem. at 2.
As the plaintiff correctly notes, the correction of military records is governed by 10
U.S.C § 1552. Compl. ¶ 80. This statute “provides that ‘[t]he Secretary of a military department
may correct any military record . . . when the Secretary considers it necessary to correct an error
or remove an injustice.” Schwalier v. Panetta, 839 F. Supp. 2d 75, 82 (D.D.C. 2012) (alterations
in original) (citing 10 U.S.C. § 1552(a)(1)). Within the Air Force, the correction of military
records is undertaken by “a panel of at least three [Board for Correction] members . . . act[ing]
for the Secretary of the Air Force.” Id. at 83 (citing 32 C.F.R. § 865.0-865.8 (outlining the
procedures governing the correction of military records for the Air Force)).
Federal courts may review the “decisions made by the [Board for Correction] under the
APA.” Wilhelmus v. Geren, 796 F. Supp. 2d 157, 161 (D.D.C. 2011); see Kidwell, at 283-84.
These decisions are assessed under the “arbitrary, capricious, or contrary to law” standard,
Kidwell, 56 F.3d at 286, which directs that “an agency action is arbitrary and capricious if the
agency failed to follow procedures as required by law, or has entirely failed to consider an
important aspect of the case.” Calloway, 366 F. Supp. 2d at 53; see 5 U.S.C. § 706(2); Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., Co., 463 U.S. 29, 43 (1983). “This is a
‘narrow’ standard of review as courts defer to the agency’s expertise.” Wilhelmus, 796 F. Supp.
2d at 160 (citing Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43).
Furthermore, this Circuit has recognized that because the language of 10 U.S.C § 1552(a)
“fairly exudes deference” to the Secretary, decisions of the Board for Correction are evaluated by
an “unusually deferential application of the ‘arbitrary or capricious’ standard.” Kreis v. Sec’y of
Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989). Although the “unusually deferential” standard
15
does not make the Board for Correction’s decisions “utterly unreviewable, . . . only the most
egregious decisions may be prevented.” Id. at 1514-15. Accordingly, the Board for Correction’s
decision “need not be ‘a model of analytic precision,’” but “[it] ‘must minimally contain a
rational connection between the facts found and the choice made.’” Wilhelmus, 796 F. Supp. 2d
at 163 (quoting Dickson v. Sec’y of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995)). In this way,
the deferential standard ensures that a court does not “substitute its judgment for that of the
agency,” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, or “supply a reasoned basis for the
agency’s decisions that the agency itself has not offered,” Puerto Rico Higher Educ. Assistance
Corp. v. Riley, 10 F.3d 847, 850 (D.C. Cir. 1993) (internal citation omitted). Rather, “the court .
. . ensure[s] that the agency ‘examined the relevant data and articulate[d] a satisfactory
explanation for its action,” Calloway, 366 F. Supp. 2d at 54 (citing Riley, 10 F.3d at 850), by
limiting its review to “the administrative record already in existence [and] not some new record
made initially in the reviewing court,” Wilhelmus, 796 F. Supp 2d at 161; see Camp v. Pitts, 411
U.S. 138 (1973).
As far as the plaintiff’s first two challenges are concerned, the Court is not persuaded that
the Board for Correction acted arbitrarily or capriciously in concluding that “the order to submit
to the vaccination program was not illegal,” and that it should “defer to the Court of Appeals for
the Armed Forces in [United States v. Kisala, 64 M.J. 50 (2006)].” Def.’s Mem at 10. The
parties agree, and the Administrative Record is clear, that before the Board for Correction made
its final ruling it sought the recommendations of nine advisory opinions from various offices in
the Air Force, as well as from the Air Force Administrative Law Division. Compl. ¶ 47, 59; see
also Def.’s Mem. at 10; A.R., Ex. A (May 13, 2010 R. of Proceedings) at 10-11. After
consulting these opinions, the Board for Correction decided not to second-guess the military
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court’s decision on a “basic legal issue” of military justice. A.R., Ex. A (May 13, 2010 R. of
Proceedings) at 10-11. In the alternative, the Board for Correction concluded that even if it were
to undertake its own review of the legality of the vaccination program order it was “not
convinced the order was illegal.” Id. at 11. The Board for Correction then gave several
justifications for why it would not invalidate the order, relying heavily on the analysis in the
advisory opinions. Id. A reasoned decision is certainly not the type of “egregious decision[]”
the Court should undo. See Kreis, 866 F. 2d at 1515. In fact, the Court finds that the Board for
Correction’s decision is supported by substantial evidence. See Knight v. US, 2012 WL 983148*1, *6 (D.D.C. 2012) (setting forth standard of review requiring determination only whether
conclusion is supported by substantial evidence); Walker v. Shannon, 848 F. Supp. 250, 255
(D.D.C. 1994). Because a review of the Board for Correction’s decision is not intended to “
reweigh[] . . . the evidence,” id., and because the deferential standard of review prohibits a court
from “substitut[ing] its judgment for that of the [Board for Correction],” Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43, the Court is satisfied that the Board for Correction’s decision sufficiently
contains a “rational connection between the facts . . . and the choice made,” Dickinson, 68 F.3d
1396.
Lastly, the plaintiff contends that the Board for Correction’s failure to consider or
distinguish a relevant precedent was arbitrary and capricious. Compl. ¶ 87. The plaintiff points
to the Board for Correction’s review of Docket No. 00-01870, A.R., Ex. B (Jan. 31, 2001 R. of
Proceedings) at 3-7. In that case, the plaintiff had also refused “a lawful order directing her to
take a mandatory [AVA] vaccination,” after suffering adverse effects from previous AVA
injections. Id. at 3. After facing discharge proceedings, she was ultimately discharged for her
refusal with a “general (under honorable conditions) discharge.” id. at 4, and subsequently she
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sought a change in her record to indicate a “medical discharge” instead, id. at 6. There, the
Board for Correction granted the applicant’s correction and instructed her discharge status to be
changed to an “Honorable Discharge.” Id. at 7.
The defendant asserts that because the plaintiff “never cited [the precedent] or otherwise
called attention to it in proceedings before the board . . . he waived this issue at the agency level,
and many not now challenge the [Board for Correction’s] decision on this basis.” Def.’s Mem at
29. While the plaintiff does not dispute his failure to cite to this specific precedent during the
administrative process, he does note that he pursued his case as a “pro se applica[nt]” at the
agency level. Pl.’s Oppn’ at 7. It is well established that when it comes to pro se applicants,
“this Court and the agency must take pains to protect the rights of pro se parties against the
consequences of technical errors,” Calloway, 366 F. Supp. 2d at 55, by “hold[ing] [them] to less
stringent standards,” Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981). See also Haines
v. Krener, 404 U.S. 519, 520 (1972). Accordingly, the Court will not hold against the plaintiff
the fact that his pro se application at the agency level failed to cite precedent he now relies upon.
The defendant alleges that “[e]ven if the plaintiff had cited the [Board for Correction’s
previous] decision, it would provide no basis for remand” because that decision was “an act of
grace . . . rather than precedential application of agency policy.” Def.’s Mem.at 30. In the
alternative, the defendant contends that even if the Board for Correction’s decision in the instant
case was a departure from precedent, “the [Board for Correction] clearly predicated its decision
on considerations that were not applicable in Docket No. 00-01870.” Id.The Court will not reach whether Docket No. 00-01870 was in fact precedential or not
because it is clear that, here, the Board for Correction sufficiently distinguished the plaintiff’s
case from the circumstances in Docket No. 00-01870 by undertaking new considerations not
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previously contemplated. Although “an agency must adhere to its precedents in adjudicating
[the] cases before it,” Consol. Edison Co. of N.Y., Inc. v. FERC, 315 F.3d 316, 323 (D.C. Cir.
2003), a reviewing court “do[es] not require an agency to grapple with every last one of its
precedents no matter how distinguishable,” Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613
F.3d 1112, 1120 (D.C. Cir. 2010) (citing LeMoyne-Owen College v. NLRB, 357 F.3d 55, 60
(D.C. Cir. 2004)). Indeed, the court will “permit agency action to stand . . . where distinctions
between the case under review and the asserted precedent are so plain that no inconsistency
appears.” Bush-Quayle ‘92 Primary Comm., Inc. v. FEC, 104 F.3d 448, 454 (D.C. Cir. 1997).
Furthermore, “[w]here the reviewing court can ascertain that the agency has not in fact diverged
from past decisions, the need for a comprehensive and explicit statement of its current rationale
is less pressing,” Hall v. McLaughlin, 864 F.2d 868, 872 (D.C. Cir. 1989), and an agency “may
distinguish precedent simply by emphasizing the importance of considerations not previously
contemplated. . . . [I]n so doing it need not refer to the cases being distinguished by name.”
Envtl. Action v. FERC, 996 F.2d 401, 411-12 (D.C. Cir. 1993).
Here, the Board for Correction based much of its decision on the Kisala decision, in
which the court determined that a 2000 order to submit to AVA was lawful, 64 M.J. 50, 55
(C.A.A.F 2006). A.R. at 10-11. As Kisala was decided in 2006, and Docket No. 00-01870 was
decided in 2000, it is clear that here the Board for Correction took into account considerations
that were not previously contemplated. In its deliberation of the instant case, the Board for
Correction also focused on the fact that the plaintiff “made an informed decision to resign.”
A.R. at 12. This is patently different than was the situation in Docket No. 00-01870, where the
plaintiff was facing discharge proceedings. Accordingly, the Court finds that this case is
distinguishable from the earlier case cited by the plaintiff and the Board for Correction
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considered factors that were not presented in the prior case—Docket No. 00-01870—in reaching
its decision. Thus the plaintiffs APA challenges to the Board for Correction’s decision must be
rejected.
III. CONCLUSION
For the foregoing reasons, this Court grants the defendant’s motion to dismiss. 4
REGGIE B. WALTON
United States District Judge
4
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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