181 F. Supp. 3d 100
D.D.C.2016Background
- Lt. Cmdr. Syneeda Penland was court-martialed in 2008, convicted on four UCMJ counts, sentenced to 60 days confinement, forfeitures, and a reprimand, and later administratively separated with a "General (Under Honorable Conditions)" discharge.
- Penland alleged she had reported contractor fraud, waste, and abuse (first to senior officers in 2006 and to the IG in April 2007) and claimed her prosecution and separation were retaliatory and discriminatory.
- Penland petitioned the Board for Correction of Naval Records (BCNR) in 2012 seeking vacation of her conviction, reinstatement, and an upgraded discharge; BCNR concluded it lacked authority to vacate convictions but reviewed clemency and denied relief.
- BCNR based its denial in part on a reading of the Military Whistleblower Protection Act (MWPA) that treated communications to the IG or Members of Congress as required for MWPA protection and thus found no protected communication.
- Penland sued under the Administrative Procedure Act asking the court to overturn BCNR’s denial of clemency and order an upgraded discharge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BCNR can vacate court-martial convictions or only review sentences for clemency | Penland sought vacation of conviction and reinstatement; argued BCNR erred in denying full relief | Mabus argued BCNR lacks authority to vacate convictions and only can review clemency/sentence | Court: BCNR correctly lacks authority to vacate convictions; may only review sentence for clemency under 10 U.S.C. § 1552(f) |
| Scope of MWPA: whether protection extends to communications within chain of command (not only IG/Congress) | Penland contends MWPA protects communications to chain-of-command and alleges such communications preceded reprisals | Secretary argued BCNR reasonably required IG or Member of Congress communication for MWPA protection | Court: BCNR misread MWPA; statute protects communications to chain of command under §1034(b), so BCNR erred by limiting eligibility to IG/Congress communications |
| Whether Penland preserved clemency/retaliation claims before BCNR and in this suit | Penland submitted prior clemency requests and alleged MWPA retaliation in BCNR petition and amended complaint | Mabus argued Penland did not request clemency from BCNR and thus waived the issue | Court: Penland adequately raised clemency and MWPA retaliation before BCNR and in pleadings; claim not waived and merits consideration |
| Appropriate remedy for BCNR legal error | Penland requested vacatur and upgraded discharge; sought judicial relief from BCNR denial | Defendant sought summary judgment upholding BCNR denial | Court: Denied defendant’s summary judgment; granted plaintiff’s in part and remanded to BCNR to reconsider MWPA eligibility and potential clemency in light of correct legal standard |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Ass'n, 463 U.S. 29 (agency must articulate rational connection between facts and decision)
- Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (agency action entitled to presumption of regularity but subject to thorough review)
- Kendall v. Army Bd. for Correction of Military Records, 996 F.2d 362 (D.C. Cir.) (boards of correction cannot set aside courts-martial convictions)
- Piersall v. Winter, 435 F.3d 319 (D.C. Cir.) (Congress limits boards of correction’s review of courts-martial records)
- Hill Dermaceuticals, Inc. v. Food & Drug Admin., 709 F.3d 44 (D.C. Cir.) (remand to agency is appropriate remedy for legal error)