Robert Rodriguez v. Virginia Penrod
2017 U.S. App. LEXIS 9179
| D.C. Cir. | 2017Background
- Rodriguez, a retired Army National Guard lieutenant colonel, was relieved of command in 1996 for alleged failures in controlling AWOLs and later received and then had a reprimand removed; he ultimately transferred to the Retired Reserve.
- He filed whistleblower reprisal complaints under the Military Whistleblower Protection Act, 10 U.S.C. § 1034; the Army IG and later the Army Board for Correction of Military Records rejected his claims.
- Rodriguez appealed under § 1034(h) to the Secretary of Defense, whose review authority was delegated; the delegate (Penrod) upheld the Board’s decision on reconsideration in 2015.
- Rather than filing first in district court, Rodriguez sought direct review in the D.C. Circuit of the Secretary’s § 1034(h) decision.
- The D.C. Circuit examined whether it had statutory jurisdiction for direct appellate review, whether the APA or the court’s equitable powers supplied jurisdiction, and whether transfer to district court was appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper forum for judicial review of § 1034(h) decision | Rodriguez argued he could seek review directly in the court of appeals | DoD argued no statute authorizes direct review in the courts of appeals; default is district court | Held: No statute authorizes direct appellate review; default district-court jurisdiction applies |
| Whether the APA supplies direct-appellate jurisdiction | Rodriguez relied on the APA to secure review | DoD: APA creates a cause of action but does not confer appellate jurisdiction; review is normally in district court | Held: APA does not confer direct review in court of appeals; it governs how to review, not where |
| Whether equitable powers authorize appellate jurisdiction | Rodriguez invoked the court’s equitable powers to hear the case directly | DoD: Court has only statutory jurisdiction and cannot assert equitable jurisdiction beyond statute | Held: Court cannot rely on equitable powers to create appellate jurisdiction |
| Remedy for improper filing in court of appeals | Rodriguez sought appellate review to proceed here | DoD opposed dismissal absent proper forum shift | Held: Court transfers the petition to the U.S. District Court for the District of Columbia under 28 U.S.C. § 1631 in the interest of justice |
Key Cases Cited
- Sierra Club v. FERC, 827 F.3d 36 (D.C. Cir. 2016) (starting point: question of court’s jurisdiction)
- Micei Int’l v. Department of Commerce, 613 F.3d 1147 (D.C. Cir. 2010) (APA review ordinarily begins in district court absent statute to the contrary)
- Loan Syndications & Trading Ass’n v. SEC, 818 F.3d 716 (D.C. Cir. 2016) (direct appellate review requires a specific statutory grant)
- NetCoalition v. SEC, 715 F.3d 342 (D.C. Cir. 2013) (absence of express grant favors district-court review under the APA)
- Kidwell v. Department of Army, Bd. for Correction of Military Records, 56 F.3d 279 (D.C. Cir. 1995) (district courts routinely review board decisions under military records statutes)
- Trudeau v. Federal Trade Comm’n, 456 F.3d 178 (D.C. Cir. 2006) (the APA provides a cause of action but not jurisdictional grant)
- Owens v. Republic of Sudan, 531 F.3d 884 (D.C. Cir. 2008) (federal appellate courts are creatures of statute and lack jurisdiction absent congressional authorization)
- Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (U.S. 2005) (federal courts require statutory authorization to exercise jurisdiction)