Brown v. McHugh, 972 F. Supp. 2d 58

Background

Henry Brown, Jr., a retired U.S. Army Major, challenged an October 2005 Officer Evaluation Report (OER) that rated him negatively on communication and recommended "Do Not Promote."
Brown sought administrative relief: ASRB denied relief in 2008; he retired honorably in April 2007 and then applied to the Army Board for Correction of Military Records (ABCMR).
Before the ABCMR Brown submitted evidence countering the OER (a supportive letter and positive OERs from other periods) and alleged his rater failed to provide required counseling; he did not explicitly allege rater bias in his ABCMR application.
The ABCMR denied relief in February 2010, finding no material error, inaccuracy, or injustice and noting no evidence showing raters failed to evaluate him fairly and in an unbiased manner.
Brown sued under the Administrative Procedure Act (APA) alleging the ABCMR decision was arbitrary and capricious (claiming rater bias) and asserted a procedural due process violation based on the Army’s alleged failure to follow its regulations; he sought removal of the OER and retroactive promotion/back pay.
The Court granted the government’s motion to dismiss under Rule 12(b)(6): Brown waived the bias claim by failing to raise it administratively, and he failed to plead a cognizable property or liberty interest for due process protection; promotion/back-pay claims conceded as nonjusticiable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Brown properly exhaust administrative remedies for a rater-bias claim?	Brown argues the ABCMR decision is unsupported because the rater was biased and the OER was an injustice.	The bias theory was not raised to the ABCMR; failure to present the issue to the agency waives judicial review.	Dismissed: Brown waived the bias claim for failure to raise it before the ABCMR.
Was the ABCMR decision arbitrary and capricious under the APA?	Brown contends the record shows bias and the Board’s denial lacked substantial evidence.	The Board addressed the evidence presented and reasonably found no material error or injustice; bias was not argued below.	Dismissed insofar as based on unexhausted bias theory; court did not reach merits beyond waiver.
Did Brown state a procedural due process claim based on Army's failure to follow its regulations?	Brown asserts denial of counseling and regulatory violations deprived him of due process (citing military precedent).	The alleged regulatory violations do not implicate a protected property or liberty interest; following Roth framework, process protects substantive entitlements only.	Dismissed: no cognizable property or liberty interest; regulatory violation alone insufficient absent protected interest.
Are requests for retroactive promotion and back pay justiciable?	Brown sought promotion to Lieutenant Colonel and back pay as relief.	Such requests for retroactive promotion are nonjusticiable military decisions; monetary damages against the U.S. not waived under APA.	Dismissed/conceded: promotion and back-pay claims are nonjusticiable or jurisdictionally barred.

Key Cases Cited

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must state plausible claim)
Ashcroft v. Iqbal, 556 U.S. 662 (requirement that complaint show entitlement to relief)
Woodford v. Ngo, 548 U.S. 81 (proper exhaustion requires using agency steps and doing so properly)
CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076 (issue waiver for arguments not raised before agency)
Kreis v. Secretary of the Air Force, 866 F.2d 1508 (retroactive promotion nonjusticiable)
Board of Regents v. Roth, 408 U.S. 564 (due process requires deprivation of protected property or liberty interest)
Antonuk v. United States, 445 F.2d 592 (military failure to follow regulations may implicate due process when liberty interests are at stake)