Reilly v. Secretary of the Navy
12 F. Supp. 3d 125
D.D.C.2014Background
- Reilly, a former Marine Corps Reserve Captain, sues the Secretary of the Navy and BCNR claiming improper discharge and APA violations tied to two failed promotions to Major in the MCR.
- The 2003 Major Promotion Board selected Reilly, placing his name on the 2003 Major Promotion List, with promotion to take effect pending Presidential approval.
- Reilly’s 2003 promotion was halted after discovery of an NJP from 1998; the CMC favored retention, but the Navy Secretary disapproved in 2004 and the President removed him from the list.
- In 2006, Reilly again sought promotion; the 2006 Promotion Board denied him, triggering his mandatory separation in 2005.
- In 2005, Reilly petitioned the BCNR to correct his records regarding the 2003 removal and the 2006 denial; BCNR denied the petition in 2005 after JAM advisory opinions and affidavits were reviewed.
- Reilly then filed this action in 2011–2012 seeking equitable relief related to removal from the list and an APA challenge to the BCNR’s denial; the court later granted Defendants’ motion, dismissing Count I and granting summary judgment on Count II.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the case permits monetary damages for improper discharge. | Reilly seeks back pay and emoluments from improper removal. | Sovereign immunity bars monetary relief and plaintiff has withdrawn monetary claims. | Monetary relief is dismissed; plaintiff withdrew such claims. |
| Whether the improper discharge claim is jurisdictionally exhausted under 10 U.S.C. § 14502(g)-(h). | § 14502 exhaustion applies because removal relates to promotion. | § 14502 requires SSB review before court review for non-selections. | Exhaustion not applicable; the claim concerns removal from a 2003 list, not the 2006 non-selection. |
| Whether the improper discharge claim is justiciable or nonjusticiable. | Court can review the merits of military decisions and grant equitable relief. | Requests for retroactive promotion are nonjusticiable; presidential discretion is nonreviewable. | The core improper-discharge claim is nonjusticiable (retroactive promotion) and cannot be granted. |
| Whether the BCNR’s denial of Reilly’s petition complies with the APA. | BCNR relied on hearsay and presumption of regularity to deny correction. | BCNR acted within its regulatory framework; affidavits and JAM advisory opinions are permissible. | BCNR’s denial was not arbitrary or capricious and was supported by substantial evidence. |
Key Cases Cited
- Kreis v. Sec’y of the Air Force, 866 F.2d 1508 (D.C. Cir. 1989) (extensive deference in military decision review; rational connection sufficient under APA)
- Dysart v. U.S., 369 F.3d 1303 (Fed. Cir. 2004) (Review of corrections boards; probative process adequacy; not the merits)
- Adkins v. United States, 68 F.3d 1317 (Fed. Cir. 1995) (nonrobitious review of military decision procedures; exhaustions principles)
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005) (promotions/military decisions reviewable for statutory violations; merits limited)
- Piersall v. Winter, 435 F.3d 319 (D.C. Cir. 2006) (unusually deferential review of military records boards; procedures matter)
- Lewis v. Rumsfeld, 154 F. Supp. 2d 56 (D.D.C. 2001) (review of military decisions via APA where applicable)
- Dilley v. Alexander, 627 F.2d 407 (D.C. Cir. 1980) (review of promotion procedures; non-merits relief possible)