760 F. Supp. 2d 15
D.D.C.2011Background
- Morrison, a former USMC member, received nonjudicial punishment (NJP) for unauthorized absence in 1986 and was discharged in 1988.
- In 2008 Morrison applied to the BCNR to set aside the NJP, reinstate him with back pay and promotions, a 10-year service obligation, and 30-year benefits.
- The BCNR denied Morrison's application.
- In 2010 Morrison filed a lawsuit for APA review of the BCNR decision, asserting de novo review and relief including reinstatement and back pay.
- Defendants moved to dismiss non-APA claims for lack of jurisdiction and 12(b)(6) for failure to state a claim; they also argued APA de novo review is improper.
- The court denied the motion to dismiss non-APA claims and granted the APA claim against arbitrary and capricious action, finding Morrison adequately alleged failure to consider mitigating evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Morrison states a valid APA claim. | Morrison seeks APA review of BCNR decision. | The action is not properly an APA claim or is otherwise insufficient. | APA claim sufficiently plead. |
| Whether non-APA claims exist and subject-matter jurisdiction. | N/A | There are non-APA monetary and injunctive claims; jurisdiction lacking. | Non-APA claims not present; dismissed as to jurisdiction not required; court addresses APA claim. |
| Standard of review for APA claims. | Requests de novo review under APA. | De novo review not appropriate; standard argued differently. | Court applies arbitrary-and-capricious standard, liberally construing as APA review. |
| Whether BCNR's failure to consider mitigating evidence was arbitrary and capricious. | BCNR overlooked Morrison's exceptional service and favorable records. | Affects of evidence not properly stated; not enough to show arbitrary action. | Plaintiff alleges sufficient factual basis that BCNR failed to consider mitigating evidence; APA claim survives. |
Key Cases Cited
- Gillan v. Winter, 474 F.3d 813 (D.C.Cir. 2007) (APA review applied to BCNR determinations)
- United Technologies Corp. v. U.S. Dep’t of Defense, 601 F.3d 557 (D.C.Cir. 2010) (APA review requires a rational connection between facts and decision)
- Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. Supreme Court 1983) (arbitrary and capricious standard for agency action)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. Supreme Court 2009) (plausibility pleading standard)
- Khadr v. United States, 529 F.3d 1112 (D.C.Cir. 2008) (subject-matter jurisdiction and pleading standards)
- Tuck v. Pan Am. Health Org., 668 F.2d 547 (D.C.Cir. 1981) (jurisdictional burden on plaintiff)