Brezler v. Mills
86 F. Supp. 3d 208
E.D.N.Y2015Background
- Major Jason Brezler, a Marine Corps reservist, was referred to a Board of Inquiry (BOI) after transmitting a classified document over unsecured e-mail; the BOI recommended separation with an honorable characterization but that recommendation is pending higher review.
- Brezler alleges the BOI was convened to silence him after he warned Marines about a threat at FOB Delhi; he also contends the BOI transcript is materially defective (many "inaudible" markings).
- Defendants contend NCIS found Brezler stored and transmitted classified documents and that the BOI recommended separation after factfinding; the record (including revised transcript and audio) is under review by the Staff Judge Advocate and other senior Marine/Navy officials.
- Brezler moved for a preliminary injunction to stop the Navy from acting on the BOI recommendation or, alternatively, to compel an accurate transcript.
- The court denied the preliminary injunction, holding it lacked jurisdiction under the APA because the BOI recommendation is not a final agency action and Brezler’s constitutional and regulatory claims are unexhausted and/or unripe.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BOI recommendation is reviewable under the APA | BOI findings are definitive and ripe for judicial review | BOI report is only a recommendation subject to multiple layers of agency review | BOI recommendation is not final agency action; APA review unavailable now |
| Whether exhaustion should be required for APA/due process claims | Darby limits exhaustion once agency action is final; court can review now | Military exhaustion principles and finality bar pre-review | Court applies finality test: no APA jurisdiction; due process claims unexhausted and unripe |
| Whether a freestanding Due Process claim can proceed now | Due process claim challenges BOI procedures and seeks immediate relief | Administrative remedies exist; exhaustion and ripeness required | Due process claim is unexhausted and unripe; injunction denied |
| Whether a First Amendment retaliation claim is before the court | (At oral argument) Brezler may have been targeted for speaking to Congress/media | Defendants note complaint contains no First Amendment claim | No First Amendment claim pleaded; court will consider only if complaint is amended |
Key Cases Cited
- Guitard v. United States Sec'y of Navy, 967 F.2d 737 (2d Cir. 1992) (exhaustion required in military discharge cases)
- Darby v. Cisneros, 509 U.S. 137 (U.S. 1993) (judicial review requires final agency action; exhaustion not required once action is final unless statute/rule so provides)
- Able v. United States, 88 F.3d 1280 (2d Cir. 1996) (factors for when exhaustion may be excused for constitutional claims against military)
- Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir. 2008) (two-part finality/Bennett test for APA review)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (established the two-part finality test for agency actions)