MEMORANDUM AND ORDER
This lawsuit arises from a military Board of Inquiry (“BOI”) disciplinary proceeding that recommended Major Jason Brezler’s dismissal from the United States Marine Corps. Major Brezler (“plaintiff’) brings this action against Lieutenant General Richard Mills, the United States Marine Corps, and the United States Department of the Navy (collectively, “the government” or “defendants”), challenging that BOI proceeding under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., and pursuant to 28 U.S.C. §§ 1331, 1361, and 2201.
Plaintiffs Second Amended Complaint (ECF No. 45) requests, inter alia, that the Court vacate the findings and recommendation of the BOI and permanently enjoin defendants from taking any adverse personnel action against plaintiff on the basis of the BOI proceeding, his August 30, 2013 referral to the same, or the purported facts underlying the BOI proceeding.
The government has moved to dismiss the complaint or, in the alternative, for summary judgment. Plaintiff has cross-moved for summary judgment. The government claims that dismissal or summary
In addition to arguing that the Navy failed to comply with several mandatory regulations governing the BOI process, plaintiff argues that the BOI itself was the product of unlawful retaliation stemming from a protected communication he made to U.S. Congressman Peter King.
For the reasons set forth herein, the Court denies the government’s motion— except that it dismisses defendants Lieutenant General Mills and the United States Marine Corps from this action, see supra note 1 — and grants plaintiff’s motion to the extent that it finds that defendants failed to provide plaintiff with “[f]ull access to, and copies of, records relevant” to the BOI proceeding as required by Secretary of the Navy Instruction (“SECNAVINST”) 1920.6C, Enclosure 8, ¶ 6(d) (2005). Accordingly, the Court vacates the BOI’s findings and recommendation and remands to the Secretary of the Navy for further proceedings consistent with this Memorandum and Order, including providing plaintiff with documents that -are relevant to his retaliation claims and with a new BOI proceeding during which he can fully and fairly explore those issues and complete the administrative record.
As a threshold matter, discussed in more detail below, the government correctly concedes that the intramilitary immunity doctrine does not bar judicial review under the APA as to whether the Navy failed to abide by its own mandatory regulations, which is the precise issue that the Court explores in the instant case. Moreover, based upon the plain language of the APA and clear Supreme Court jurisprudence construing the APA in Darby v. Cisneros,
With respect to the merits, the Court concludes that the Navy violated its own discovery rule by failing to provide Major Brezler, prior to his BOI hearing or at any stage during the administrative review process, with all documents relevant to his retaliation claims. Those materials would have been critical to plaintiffs ability to fully and fairly explore whether, among other things, the Navy convened the BOI because of a protected communication he made to Congressman King (which was the subject of an August 25, 2013 story in the Marine Corps Times).
For example, in arguing to this Court that there is no evidence of retaliation in the administrative record, the Navy relies heavily on an action memorandum to the Judge Advocate General of the Navy stating that the “legal review” of Major Bre-
In short, this Court finds that Major Brezler lacked the relevant documents necessary to fully and fairly litigate his retaliation claims, and that the Navy’s failure to provide those materials violated its own discovery rule under the particular circumstances of this case. The Court emphasizes that, in reaching this holding, it has not concluded that the BOI was in fact retaliatory, or that the final agency action separating plaintiff from the Marine Corps was arbitrary and capricious. Instead, the Court holds that the Navy’s regulatory infraction clearly prevented Major Brezler from fully and fairly litigating his retaliation claims during the administrative process, and potentially deprived decision-makers within the Marine Corps and the Department of the Navy of critical information relevant to their assessment of those claims, which they rejected based upon an incomplete record.
Finally, on the issue of remedy, the Court is cognizant of (and agrees with) the Supreme Court and Second Circuit’s admonitions that federal courts avoid unreasonably interfering with the military mission by probing the subjective intent of military personnel decisions. However, as discussed below, both the Supreme Court and the Second Circuit have recognized that such deference is not limitless. In the instant case, given that the Court’s conclusion is limited to the Navy’s violation of its own discovery rule, and there is insufficient evidence that such failure was in bad faith, the Court declines Major Brezler’s invitation to engage in an unwarranted intrusion into the Navy’s administrative process by ordering district court discov
Instead, it is clear to the Court that the proper remedy, under the particular circumstances of this case, is to remand this matter to the Department of the Navy so that Major Brezler may obtain relevant discovery on his retaliation claims as required by Navy regulations. The Navy must then provide Major Brezler with a new BOI hearing so that he may fully and fairly present relevant evidence on those issues. Of course, following remand, plaintiff could again contest any final ageney decision before this Court pursuant to the APA.
I. Background
A. Regulatory Framework
Because this lawsuit challenges the manner in which the Navy conducted Major Brezler’s disciplinary proceeding, a brief discussion of the relevant administrative framework is necessary.
Applicable are three sections of the Únited States Code, Title Ten, governing the involuntary separation of officers from the armed forces: 10 U.S.C. §§ 1181,1182 and 14908. Together, Sections 1182 and 14903 provide that the “military department concerned” (here, the Navy) must convene a “board of inquiry” to receive evidence in the case of any officer who has been required to show cause why he should not be separated. Section 14903 requires the BOI to make a recommendation to the Secretary of the Navy, who reviews the recommendation and decides whether to remove the officer or close the case.
Section 1181 confers on the Navy the authority to establish its own specific procedures for implementing the BOI process. The primary Navy regulations that govern separation proceedings are SECNAVINST 1920.6C, entitled “Administrative Separation of Officers,” and Marine Corps Order (“MCO”) P5800.16A, entitled “Marine Corps Manual for Legal Administration.”
Under these Navy regulations, separation proceedings for Marines occur in the following manner. First, the Show Cause Authority
If the Secretary directs separation, an individual has two avenues for internal administrative appeal by applying to (1) the Board for Correction of Naval Records (“BCNR”) to correct errors or to remove injustices from his service record; or (2) the Naval Discharge Review Board (“NDRB”) for review and a determination of whether discharge was granted in a proper manner and was fair and equitable based on the regulations existing at the time of the discharge.
The following facts are taken from the parties’ Rule 56.1 submissions and the underlying administrative record.
1. Undisputed Facts Supported by the Administrative Record
a. Security Incident and Investigation
Plaintiff is a reservist in the United States Marine Corps, assigned to the Marine Reserve facility in Garden City, Long Island. Brezler,
As a result, the Naval Criminal Investigative Service (“NCIS”) began an investigation on August 6, 2012, and the Marine Corps opened a preliminary inquiry on September 11, 2012. (Defs.’ 56.1 at ¶¶ 10-11; R. at 2579, 2696, 2719.) The inquiry’s report, dated September 16, 2012, determined that “[s]pillage [of classified information] occurred from Major Jason C. Brezler’s personal computer; the probability of further compromise is remote and the threat to national security is minimal ....” (Defs.’ 56.1 at ¶ 12; R. at 2695.) The report also recommended that the “incident be handled administratively.” (Id.) Its
Pending completion of the NCIS investigation, plaintiffs regimental commanding officer, Colonel Michael LeSavage, suspended plaintiff from command in October 2012.
Following a preliminary NCIS report concluding that plaintiff had maintained and disseminated classified information on an unsecure system, Colonel LeSavage requested in a December 19, 2012 e-mail to Marine General James Hartsell that plaintiff be relieved of his command until NCIS issued a final assessment. (Defs.’ 56.1 at ¶ 23; R. at 1608-10.) Colonel LeSavage also said that he would “forward an adverse not observed” fitness report (“Fi-tRep”)
In March 2013, Colonel LeSavage submitted an adverse FitRep stating that plaintiff had- been relieved of his command “due to loss-of trust and confidence,” and that plaintiffs security clearance had expired and was pending “further action.” (Defs.’ 56.1 at ¶¶ 30-33; R. at 597-99.) As Colonel LeSavage had indicated in his December 2012 e-mail to General Hartsell, although plaintiffs acting battalion commander would, normally have conducted the FitRep, Colonel LeSavage authored the report on the grounds that the commander held the same rank as plaintiff. (Defs.’ 56.1 at ¶ 31; R. at 598, 1608-09.) Plaintiff protested Colonel LeSavage’s involvement, submitting an addendum to the FitRep contending that “Col LeSavage arbitrarily re-designated himself’ as the reviewing officer, and that he had told plain
NCIS completed its investigation of plaintiff at the beginning of 2013. (Defs.’ 56.1 at ¶¶ 26-29; R. at 2579, 2786-89, 2805-10.) In an interim report dated January 7, 2013, NCIS stated that “[a]ll investigative activity is complete. Investigation now pending administrative or judicial action.” (R. at 2787.) Similarly, an April 16, 2013 report, which stated that the investigation was now closed, concluded that “[a]ny further administrative action is pending the outcome of the Department of Defense” review of plaintiffs security clearance, and that the Marine Corps had determined not to charge plaintiff with criminal violations. (Defs.’ 56,1 at ¶¶ 26-29; R. at 2808-09.)
b. BOI and Inspector General Report
On March 22, 2013, plaintiff spoke with U.S. Congressman Peter King and asserted that the FitRep was procedurally improper; as a result, Congressman King sent a July 11, 2013 letter to Marine Commandant General James Amos expressing his concerns about the FitRep process. (Defs.’ 56.1 at ¶¶ 34, 38; R. at 1364.) The Marine Corps Times subsequently published an article on August 25, 2013 describing plaintiffs challenge to the FitRep and Congressman King’s intercession. (Defs.’ 56.1 at ¶¶ 36-38; R. at 1364-66.)
That article precipitated a whirlwind of e-mails among high-ranking Marine Corps officials. The following day, Commandant Amos forwarded it to several other officers and asked for the “ground truth” about the facts therein. (Defs.’ 56.1 at ¶ 39; R. at 1692, 1698.) General Richard Mills, who subsequently assumed command of the Marine Forces Reserve on August 28, 2013, responded that he would “get more detail.” (Defs.’ 56.1 at ¶¶ 39, 41-42; R. at 1691, 1367.) On August 30, 2013, General Mills — the Show Cause Authority — notified plaintiff that he was convening a BOI to determine whether plaintiff should remain in the Marine Corps. (Defs.’ 56.1 at ¶ 45; R. at 4-5.)
The BOI convened from December 17 through December 19, 2013. (Defs.’ 56.1 at ¶48; R. at 1819.) Although plaintiff declined to challenge the impartiality of any of the BOI’s three members (Defs.’ 56.1 at ¶¶ 52, 55; R. at 1837), he did file a motion to dismiss the proceeding because of, inter alia, a “conflict of interest and unlawful command influence” and “selective prosecution” (Defs.’ 56.1 at ¶ 53; R. at 2813-46). Following oral argument by plaintiffs counsel, the BOI Legal Advisor denied the motion on all grounds, determining that the BOI was not the product of undue political pressure, and that there was insufficient evidence that the Navy handled plaintiffs spillage differently vis-á-vis similar security lapses. (Defs.’ 56.1 at ¶ 54; R. at 1839-57.)
During the proceeding, plaintiff admitted to mishandling classified information, which he characterized as an “absolute poor decision on [his] part.” (Defs.’ 56.1 at ¶¶ 60-61; R. at 2208-09, 2212-13.) In his defense, plaintiff adduced character statements from more than 60 individuals, as well as live testimony from several witnesses. (Defs.’ 56.1 at ¶ 62; R. at 907-1062, 1873, 2010-2153.) On a unanimous vote, the BOI recommended that plaintiff be separated and honorably discharged from the Marine Corps after finding, by a preponderance of the evidence, that plaintiff had demonstrated substandard performance of duty and committed acts of misconduct or dereliction by violating four of the six Uniform Code of Military Justice provisions asserted as bases for his separation. (Defs.’ 56.1 at ¶¶ 63-64; R. at 1064-67, 2273-75.)
The final IG report, dated November 4, 2014, found that plaintiffs retaliation allegations were unsubstantiated. (Defs.’ 56.1 at ¶¶ 66-70; R. at 2707.) The IG determined that, although General Mills was likely aware of plaintiffs March 22, 2013 protected communication with Congressman King prior to convening the BOI on August 30, 2013 — though he told the IG otherwise — General Mills “would have taken the personnel action [i.e., convening the BOI] against [plaintiff] absent his protected communication,” and that there was “no evidence of retaliatory motive on the part of LtGen Mills when he directed [plaintiff] to the BOI.” (Defs.’ 56.1 at ¶¶ 69-70; R. at 2713-15.)
c. Post-BOI Review
After completion of the BOI process, plaintiff submitted a November 2014 “letter of deficiencies” alleging that: (1) unlawful command influence fatally infected the BOI process; (2) the Marine Corps failed to prove its charges against plaintiff; (3) the conduct of the BOI violated plaintiffs due process rights; and (4) the transcript of the BOI proceedings was of poor quality and did not enable adequate review. (Defs.’ 56.1 at ¶ 71; R. at 1252-1352.) In response, the Staff Judge Advocate to the Commandant of the Marine Corps (“SJA”), Colonel Eric Kleis, prepared a December 5, 2014 memorandum determining that there was “no substantive legal basis to grant relief’ as a result of those purported errors, and General Mills endorsed the BOI’s honorable discharge recommendation on December 11, 2014. (Defs.’ 56.1 at ¶¶ 72-73; R. at 1800-07, 1073-74.)
As a result of plaintiffs challenge to the BOI transcript, the Navy provided a revised version on December 30, 2014, and the next day, General Mills again accepted the BOI’s recommendation notwithstanding the edits to the transcript. (Defs.’ 56.1 at ¶¶ 74, 77; R. at 1816, 1818-2276.) The Marine Corps also furnished an audio recording of the proceeding to plaintiff. (Defs.’ 56.1 at ¶ 78; R. at 2606, 2624.) In addition, the Navy subsequently prepared a second transcript that it deemed to be a “substantially verbatim” record of the BOI proceeding. (Defs.’ 56.1 at ¶¶ 75-76; R. at 2605-06.)
Although plaintiff again objected to the BOI on February 2, 2015 (Defs.’ 56.1 at ¶ 80; R. at 2278-85), the Deputy Commandant of the Marine Corps endorsed the panelis recommendation on August 4, 2015, rejecting plaintiffs procedural and substantive challenges (Defs.’ 56.1 at ¶¶ 81-87; R. at 2615-31). The Navy Deputy Assistant Judge Advocate General for Administrative Law then prepared an October 23, 2015 memorandum discussing plaintiffs various claims and concluding that the “record does not support a finding that the BOI was convened as an act of reprisal,” and that there was sufficient evidence to support the BOI’s separation recommendation. (Defs.’ 56.1 at ¶¶ 89-101; R. at 2573-2607.) The memo also found that the BOI transcript was “legally unobjectionable,” and that the relevant regulation in force at the time of the proceeding did not require a verbatim record to be made unless the
On November 24, 2015, the Assistant Secretary of the Navy for Manpower and Reserve Affairs approved the BOI’s recommendation of separation with honorable discharge. (Defs.’ 56.1 at ¶ 102; R. at 2631.)
2. Additional Evidence Alleged by Plaintiff
In support of his motion for summary judgment, plaintiff submitted declarations and documentary evidence containing testimony and materials not included in the administrative record. These materials allege an orchestrated campaign by senior military and civilian officials to punish plaintiff for alerting Congressman King and others to a cover-up concerning the deaths of several Marines in Afghanistan. The government has entered a general objection to consideration of extra-record evidence, and the Court notes the government’s challenges to specific factual allegations below.
a. FOB Delhi Attack and Aftermath
Plaintiff contends, and the government concedes, that an Afghan national murdered Marines Lance Corporal Gregory T. Buckley, Jr., Corporal Richard A. Rivera, and Staff Sergeant Scott E. Dickenson oh August 10, 2012 at FOB Delhi. (PL’s 56.1, EOF No. 61, at ¶ 2; Brezler Decl. at ¶ 15.
b. Suspension and FitRep
In addition, plaintiff contends that his October 2012 suspension and the March 2013 FitRep were the products of bad faith and improper procedure. He asserts that Colonel LeSavage suspended plaintiff from command shortly after learning of an October 2012 letter from Congressman King to the Marine Corps sent on behalf of the Gregory Buckley, Jr.’s surviving family members. (PL’s 56.1 at ¶¶ 19-22; Brezler Decl. at ¶¶ 20-21.) As previously noted, plaintiff also claims that he never received any notice, formal or otherwise, about his suspension. (PL’s 56.1 at ¶¶ 24-26; Brezler Decl. at ¶ 21.)
Plaintiff further alleges that Colonel Le-Savage circumvented military regulations to improperly and covertly author the Fi-tRep. Specifically, plaintiff asserts that: (1) Colonel Whisnant, plaintiffs battalion commander and reporting officer, submitted a FitRep on or about November 20, 2012, and Colonel LeSavage thus prepared
Throughout his submissions, plaintiff repeatedly contends that the Marine Corps officers involved in issuing the FitRep and relieving him from' his command, including Colonel LeSavage and General Hartsell, never recommended or requested a BOI prior to the July 2013 King letter. (See, e,g., PL’s 56.1 at ¶¶50, 55, 63-65; Brezler Decl. at ¶ 3.) Plaintiff claims that, on the contrary, the Marine Corps transferred him from the IRR to the Chemical Biological Incident Response Force (“CBIRF”) in March 2013 due to his “needed skills and experience,” and Colonel LeSavage did not object. (PL’s 56.1 at ¶¶ 66-62;
c. King Correspondence and Response
After the Marine Corps received the July 13, 2013 correspondence from Congressman King inquiring about the Fi-tRep, plaintiff contends that the Marine Corps prepared a draft response that included a statement from Colonel Whisnant attesting that the FitRep was procedurally improper because regulations required that Major Schutta prepare the report in Colonel Whisnant’s absence. (PL’s 56.1 at ¶¶ 65-69; Brezler Decl. at ¶ 73; Bowe Decl., Ex. 8.) Plaintiff further asserts that this response was never provided to Congressman King, and that the Marine Corps placed him on a “hard hold” in mid-August 2013. (PL’s 56.1 at ¶¶ 70, 91-93.)
Following publication of the August 25, 2013 story in the Marine Corps Times, plaintiff contends that high-ranking Marine officers took a sudden interest in his case, as reflected in August 26, 2013 correspondence noting “several calls from [Generals] with multiple stars,” such as Commandant Amos and Generals Hartsell and Mills. (PL’s 56.1 at ¶¶ 72-110; Bowe Decl., Exs. 11, 13, 14, 15, 17.) Plaintiff further alleges that one of those e-mails providing the “ground truth” sought ■ by Commandant Amos said that “Major Brezler is now trying to 'work’ the system to have the Fitrep removed.” (PL’s 56.1 at ¶ 111'; Bowe Decl., Ex. 12.)
Again, plaintiff contends that none of those e-mails indicates that a BOI was contemplated or forthcoming. (See, e.g., PL’s 56.1 at ¶ 114.) In addition, 'plaintiff asserts that an internal August 26, 2013 email summary of his case prepared by the Marine Corps Inspector General misstated several facts, including that NCIS had reported plaintiff to the U.S. Attorney’s Office in the “2d Cir.” for violation of federal statutes. (PL’s 56.1 at ¶¶ 115-25; R. at 1696-98.) Plaintiff further contends that “General Mills and/or his staff and General Hartsell and/or his staff had not discussed directing Major Brezler to show cause be
d. BOI Process
With respect to the BOI itself, plaintiff argues that retaliation and selective punishment infected the process. He asserts that e-mail correspondence shows that military public relations officials used media leaks to shape public perception of plaintiffs case, and that his “referral to a BOI for so-called ‘spillage’ of classified information in a ‘cross-domain’ violation was the first such referral of a Marine Reservist to a BOI for this reason during the entire span of the ‘War on Terror.’ ” (Pl.’s 56.1 at ¶¶ 164-65, 167, 189-91; Brezler Decl. at ¶ 36; Bowe Decl., Exs. 23-24; see also PL’s 56.1 at ¶¶ 168-82.) Moreover, plaintiff claims that the government failed to apprise him of some of the bases for the administrative proceeding, and that SJA Colonel Kleis pressured plaintiffs BOI counsel to “take it easy” during the hearing. (PL’s 56.1 at ¶¶ 183-88; Bowe Decl., Ex. 28 (“Carroll Decl.”), at ¶ 7.)
In addition, plaintiff contends that the government impeded his defense and review of the BOI decision by: (1) dissuading Brigadier General Paul Kennedy from submitting a letter supporting plaintiff; (2) denying document requests; (3) denying requests for witness testimony; (4) failing to include plaintiffs pre-hearing motions to dismiss and change venue in the Administrative Record; (5) preventing defense counsel from copying the September 16, 2012 inquiry report; and (6) failing to provide a verbatim transcript of the BOI proceeding within 30 days of the proceeding’s conclusion. (PL’s 56.1 at ¶¶ 192-219.) Regarding the transcript, plaintiff alleges that the original version contained “1,548 missing portions designated ‘inaudible,’” and that the subsequently produced corrected transcripts still contained unacceptable errors. (PL’s 56.1 at ¶¶ 228-30; Bre-zler Decl. at ¶ 55; Bowe Decl., Ex. 3.)
In support of these procedural and substantive challenges, plaintiff submits the affidavit of Gary Benthal, a former Staff Judge Advocate in the Marine Corps. (“Benthal Decl.,” annexed as Bowe Decl., Ex. 4.) Mr. Benthal states, inter alia, that the timing of the BOI proceeding was
extremely unusual [because] after Major Brezler had already had adverse administrative actions taken against him, including the command’s reversal of the adverse administrative action placing him in the IRR [by transferring him to the CBIRF], [ ] he was not notified of a Board' of Inquiry until approximately a year after the investigation in his case was completed and administrative action had already been taken against him.
(Benthal Deck at ¶ 28.) Based on Mr. Ben-thal’s review of the case and his “education, training and experience it is [Mr. Benthal’s] opinion that Major Brezler’s command did not have the intent to recommend him for a Board of Inquiry prior to defective Notification being served on him nearly one year later on 30 August 2013.” (Id. at ¶ 31.)
3. The Government’s Supplemental Submission
The Court held oral argument on the parties’ cross-motions on October 14, 2016 and afforded the government time to voluntarily provide plaintiff with additional discovery if it chose to do so. (See ECF No. 72.) In response, the government filed a letter on November 8, 2016 attaching a declaration prepared by Colonel Eric Kleis — the Marine Corps SJA at the time of plaintiffs BOI proceeding — with an ac
NCIS terminated its inquiry in April 2013, and from that time through August 20, 2013, Colonel Kleis believed that the DONCAF review was underway, which is partially why he refrained from formally recommending that plaintiff face a BOI. (Id. at ¶ 9.) In addition, General Hummer stepped down from command of the Marine Forces Reserve in June 2013, which meant that there was no Show Cause Authority who could convene a BOI. (Id. at ¶¶ 9-10.) Although Colonel Kleis explored whether another Marine officer could issue a show cause order before Hummer’s successor — General Mills — took command, Colonel Kleis decided to wait for General Mills to assume that role. (Id. at ¶ 10.) Despite an August 2, 2013 inquiry from a Marine Forces Reserve security manager, DONCAF did not provide an update on its review prior to August 21, 2013, when Colonel Kleis first learned of Congressman King’s letter to Commandant Amos. (Id. at ¶¶ 12-13.) Colonel Kleis reviewed the Marine Corps’ response to Congressman King and discovered that DONCAF had already decided not to take any action on plaintiffs security clearance because it had previously expired. (Id. at ¶ 14.)
After General Mills assumed command of the Marine Forces Reserve on August 28, 2013, Colonel Kleis briefed him on plaintiffs case two days later, on August 30, 2013, the day General Mills issued the show cause order. (Id. at ¶ 15.) Colonel Kleis presented General Mills with a BOI “package” consisting of the NCIS investigation report, the adverse FitRep, and a Joint Personnel Adjudication System (“JPAS”) security report dated that same day. (Id. at ¶ 16.) In addition, Colonel Kleis gave General Mills a draft show cause order and orally recommended that General Mills order plaintiff to show cause for retention. (Id. at ¶¶ 16-18.) Colonel Kleis states in his declaration that his customary practice at that time was to provide a written recommendation only in rare circumstances, and that he advised General Mills of various alternatives to a BOI, including a court-martial proceeding. (Id. at ¶¶ 17-18.) Colonel Kleis states that he and General Mills did not discuss Congressman King’s letter or the Marine Corps Times article, and that at the end of their meeting, General Mills signed the show cause order Colonel Kleis had prepared. (Id. at ¶¶ 18-19.) Colonel Kleis did not retain a copy of the composite BOI package because the relevant records systems or files contained the constituent documents. (Id. at ¶ 20.) However, while preparing his declaration, Colonel Kleis located an August
4. Plaintiffs Response to the Government’s Supplemental Submission
On November 10, 2016, plaintiff submitted a letter and declaration in response to the government’s November 8, 2016 supplemental submission. (ECF Nos. 80-81.) In that filing, plaintiff raises a number of arguments, including claims regarding Colonel Kleis’s credibility and how the lack of relevant discovery has prejudiced plaintiff. (See ECF No. 81 at 3-4 (“In sum, offered the opportunity to supplement the record with exculpatory evidence, the Marine Corps could only muster a self-serving, uncorroborated declaration that confirms, not debunks, Plaintiffs proof of illegal retaliation. In the face of the existing record, and Defendants’ failure to produce substantial credible exculpatory evidence, the Court should vacate the BOI proceeding below in its entirety.”)) Plaintiffs declaration also states the following: “In December 2012, I was informed that DODCAF had reported that because my security clearance had expired during the NCIS investigation, they would not consider revocation and would only consider renewing my expired clearance if and when I joined a unit and- billet in which it was necessary to have a clearance.” (ECF No. 81 at ¶ 1.) Thus, plaintiff contests the accuracy of Colonel Kleis’s -belief that plaintiffs security clearance review was pending until August 2013.
C. Procedural History
On December 22, 2014, plaintiff sought a temporary restraining order from this Court prohibiting defendants from acting upon the BOI’s recommendation. (ECF No. 4.) That same day, the Court held a hearing and denied plaintiffs request for a temporary restraining order, but ordered defendants to respond to the request for a preliminary injunction. (ECF Nos. 8-9.)
Oh February 18, 2015, the Court issued a memorandum and order denying plaintiffs motion for a preliminary injunction without prejudice, finding that the Court lacked jurisdiction to enjoin the disciplinary proceedings under the APA because the BOI’s recommendation was not a final agency action absent approval by the Secretary of the Navy. Brezler,
On July 1, 2015, defendants filed a motion to dismiss the First Amended Complaint. (ECF No. 28.) Following oral argument on September 21, 2015, the Court granted the motion on March 17, 2016, but gave plaintiff leave to file another amended complaint because of the Assistant Sec
Plaintiff filed his Second Amended Complaint on April 25,2016. (EOF No. 45.) The government moved to dismiss or for summary judgment on August 29, 2016 (EOF No. 55), and plaintiff cross-moved for summary judgment the following day (EOF No. 58). The Court held oral argument on October 14, 2016, and both sides filed post-argument supplemental submissions. The Court has thoroughly considered the submissions of both sides.
II. Standard op Review
A. Administrative Procedure Act
Plaintiff challenges the BOI’s recommendation under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Section 706(2) of the APA provides that a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law .... ” 5 U.S.C. § 706(2)(B). Additionally, Section 706(1) provides that a federal court “shall ... compel agency action unlawfully withheld or unreasonably delayed.” 5 U.SU. § 706(1).
“The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that ;of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
B. Dismissal
To defeat a motion to dismiss brought under Rule 12(b)(1), “[tjhe plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc.,
In reviewing a motion to dismiss pursuant to Rule 12(b)(6),, the Court must accept the factual allegations set .forth in the Second-. Amended Complaint as true and draw all reasonable inferences in favor of plaintiff. See Operating Local 619 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC,
The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth two principles for a district court to follow in deciding a motion to dismiss.
C. Summary Judgment
The standard for summary judgment is well-settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Gonzalez v. City of Schenectady,
[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). The court “ ‘is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.’ ” Amnesty Am. v. Town of W. Hartford,
Once the moving party has met its burden, the opposing party “‘must do more than simply show that there is some metaphysical doubt as to the material facts . [Tjhe nonmoving party must come forward with specific facts showing that there is a genuine issue for trial! ” Caldarola v. Calabrese,
Where “a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal,” and “[t]he entire case on review is a question of law.” Am. Bioscience,
extra-record investigation by the reviewing court may be appropriate when there has been a strong showing in support of a claim of bad faith or improper behavior on the part of agency decisionmakers or where the absence of formal administrative findings makes such investigation necessary in order to determine the reasons for the agency’s choice.
Id. (citing Citizens to Preserve Overton Park, Inc. v. Volpe,
III. Discussion
A. Subject Matter Jurisdiction
1. Intramilitary Immunity Doctrine
The government contends that the Court lacks jurisdiction under the APA because the intramilitary immunity doctrine bars plaintiffs claims. Since the government correctly acknowledges that— notwithstanding this general rule — an agency’s failure to abide by its own mandatory regulations is not shielded from judicial review (Defs.’ Br. at 17), and, for the reasons set forth below, the Court concludes that this exception applies here, the Court will only briefly summarize the doctrine.
In Feres v. United States,
2. Exhaustion
The government concedes that courts may hear challenges to the military’s failure to enforce its own mandatory regulations. Gov’t Br. at 20 (citing Jones,
Section 10(c) of the APA enables judicial scrutiny of “final agency action for which there is no other adequate remedy in a court,” and it provides that
[ejxcept as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration, or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority.
5 U.S.C. § 704 (emphasis added). In Darby v. Cisneros,
The government does not dispute that the Assistant Secretary’s November 24, 2015 endorsement of the BOI recommendation constitutes a final agency action for purposes of the APA. See Brezler,
The BCNR is a civilian review board established pursuant to 10 U.S.C. § 1552 with the authority to “determin[e] the existence of error or injustice in the naval records of current and former members of the Navy and Marine Corps, to make recommendations to the Secretary [of the Navy] or to take corrective
Nevertheless, the government relies upon Guitard v. United States Secretary of Navy,
Plaintiff argues that Darby, decided the following year, abrogated Guitard, and indeed, Darby makes no exception for APA-based challenges to military personnel actions. However, the government contends that Jones, a post-Darby decision, reaffirmed that exhaustion is required in such cases. In Jones, the plaintiff filed a non-APA 42 U.S.C. § 1983 claim asserting that the New York Army National Guard (“NYANG”) violated his constitutional rights when it discharged him in violation of NYANG’s own mandatory regulations.
This Court declines to do so. Although the law accords the mi generis nature of military life unique deference, id. at 304,
Though the government argues that Jones stands for the proposition that “exhaustion is required for any claim based on the military’s failure to follow regulations even where the statute under which relief is sought does not require it,” Gov’t Br. at 21 (emphasis added), the better view is that Jones merely reflects that Darby, by its own terms, is limited to APA cases. See Darby,
B. Merits
Plaintiff alleges that the Navy committed several regulatory infractions during the BOI process. Because the Court concludes that the Navy’s violation of its own discovery rule requires vacatur
1. Facts
SECNAVINST 1920.6C, Enclosure 8, ¶ 6(d) (2005) provides that plaintiff has the right of
[f]ull access to, and copies of, records relevant to the case, except that information or material shall be withheld if CHNAVPERS or DC (M&RA) determines that such information should be withheld in the interest of national security. When information or material is so withheld, a summary of the information or material will be provided to the extent the interests of national security permits.
This rale is facially broad in scope and requires production of all information relevant to plaintiffs case. The only exception pertains to material deemed to implicate national security concerns.
Defendants do not dispute that on December 3, 2013 — a few weeks before the BOI proceeding began — plaintiff requested, inter alia, all correspondence concerning plaintiff from July 1, 2012 to .the date of the request. (R. at 2552, 2600-01, 2626.) By letter dated December 13, 2013, the government summarily denied discovery because (1) it concluded that plaintiffs disclosure request was duplicative of pending FOIA applications; (2) “the information requested [was] not determined to be relevant as to [plaintiffs] actions”; and (3) plaintiff already had access to the materials that the government planned to use at the BOI proceeding. (R. at 2552.)
In November 2014, plaintiff filed a letter of deficiencies alleging a violation of the disclosure rale and that he did not receive critical documents through the FOIA process until after the BOI concluded. (R. at 1319-21.) The December 5, 2014 memoran
Finally, the Deputy Commandant’s August 4, 2015 endorsement, subsequently approved by the Assistant Secretary on November 24, 2015 (the “SecNav Report”), found that plaintiff
failed, in his request and in his letter of deficiency, to adequately explain why the requested documents, assuming they existed, were relevant. With respect to Major Brezler’s request for documents (“e-mails since July 1, 2012, regarding Brezler, Sarwar Jan, Ainuddin Khudair-aham or the August 10, 2012 attack by Generals Flynn and Mills, or any commander or principal staff officer within the 3rd [sic] Battalion, 8th Marines from July 1 to August 10, 2012”), documents not provided were not relevant, did not exist, or were not within the control of [the Marine Forces Reserve].
(R. at 2626.)
2. Analysis
The Navy, like any other agency, must comply with its own binding rules. Smith v. Resor,
Here, the Court finds that the Navy violated the APA by denying plaintiffs discovery request. It is axiomatic that an agency decision is “arbitrary or capricious” if it is contrary to the agency’s own mandatory rules. See 5 U.S.C. § 706(2)(A); Dilley,
Further, the Court finds that the government’s determination that .the documents sought by plaintiff “were not relevant, did not exist, or were not within the control of [the Marine Forces Reserve]” (R. at 2626) to be completely unsupported by the administrative record.
Here, there are no findings or analysis in the administrative record as to why correspondence concerning plaintiff was not relevant to his BOI proceeding and discoverable under SECNAVINST 1920.6C, Enclosure 8, ¶ 6(d)’s expansive scope. That the BOI ultimately determined that plaintiff did not commit misconduct while stationed in Afghanistan offers no support for the government’s tenuous claim that all e-mails from July 1, 2012 through December 3, 2013 concerning plaintiff were irrelevant to the BOI proceeding.
Given the clear failure to provide all documents that would be relevant to, inter alia, plaintiffs claims of retaliation, the government appears to be bolstering the administrative record by taking the position (as articulated in its post-argument submission) that such documents are not “relevant” under the regulation because plaintiffs retaliation allegations do not relate to the misconduct that provided the ostensible basis for the BOI and Major Brezler’s separation from the Marine Corps. (See Kleis Deck at ¶ 21 (“[T]his document is not relevant to Major Bre-zler’s administrative proceeding as that term is used in SECNAVIST 1920.6C because it does not relate to the actions for which Major Brezler was ordered to show cause or the bases for separation ..,.”)). In other words, the government now suggests in this APA litigation that the retaliation issue was outside the scope of the BOI hearing, and thus, plaintiffs retaliation claims (and documents that would have allowed him to fully pursue those claims) were irrelevant.
That position, however, is completely inconsistent with the administrative record in this case, which demonstrates unequivocally that plaintiffs retaliation allegation was raised prior to the BOI, considered at the BOI, and renewed and reviewed at every stage of the administrative process. In fact, the government’s submissions to this Court repeatedly concede this critical point. (See Defs.’ Br. at 27 (“The Assistant Secretary (as well as the Deputy Commandant, General Mills, and the Board itself)
Accordingly, the Court finds that the denial of discovery violated the Navy’s mandatory disclosure regulation and the APA. Notwithstanding the general argument advanced by the government that such a determination “would impermissibly turn civilian courts into forums in which military personnel could, routinely challenge evidentiary determinations during military personnel proceedings,” Defs.’ Opp’n Br. at 21, the Court is duty-bound “to inquire whether an action of a military agency conforms to the law, or is instead arbitrary, capricious, or contrary to the statutes and regulations governing that agency,” Dilley,
It is also apparent that the failure to disclose relevant information prejudiced plaintiff. Major Brezler argued in his motion to dismiss the BOI, and throughout the course of the instant litigation, that there is a “strong showing” — even without resort to plaintiffs extra-record submissions — that the Navy initiated the BOI due to “bad faith or improper behavior.” See Hoffman,
In response, the government has repeatedly asserted that these uncontrovert-ed facts have no probative value because the BOI “package” was completed prior to Congressman Kang’s letter and only held in abeyance pending adjudication of Major Brezler’s security clearance, which had previously expired. (See Defs.’ Resp. to PL’s 56.1 at ¶ 139 (“The Staff Judge Advocate for Marine Forces Reserve Command indicated that the legal review of Major Brezler’s case was completed sometime after General Hummer departed in June 2013 and before General Mills assumed command on August 30, 2013.”); id. at ¶ 147 (“[T]he Administrative Record shows that the recommendation upon which General Mills based his decision was prepared before August '30, 2013.”); see also Defs.’ Opp’n Br. at 4-5 (“NCIS formally closed its investigation on April 16, 2013, AR 2811, and the Staff Judge Advocate (‘SJA’) of Marine Forces Reserve, in turn, concluded its legal review for administrative action against Major Brezler after General Hummer departed as Commander in June 2013. In the absence of a Show Cause Authority, the package was held for Lieutenant General Mills to take action once he assumed command.”)). Moreover, the government argues that any assertion that the BOI package did not exist prior to General Mills assuming command is baseless:
Major Brezler’s only response to this dispositive timeline is to argue, without any competent evidence or persuasive evidence, that the Marine Corps and the Navy are lying and that no “BOI package” was awaiting General Mills when he assumed command. Major Brezler’s allegations are untrue and ignore significant evidence in the Administrative Record to the contrary.
Defs.’ Opp’n Br. at 18 (citations omitted). However, a close examination of the administrative record undermines the government’s position and highlights the prejudice that plaintiff suffered due to his inability to obtain all documents relevant to his retaliation claims.
First, as noted above, there is a complete absence in the administrative record of any e-mails or documents that reference existence of a BOI “package” prior to the Marine Corps Times article and General Mills assuming command. Second, the “sig
Similarly, to the extent that the government relies on DONCAF’s review of Major Brezler’s expired security clearance to explain the delay between the closing of the NCIS investigation in April 2013 and the BOI decision in August 2013, plaintiff was not given a fair opportunity (with proper discovery) to explore that issue, the facts of which are far from clear in the administrative record. The government correctly notes that NCIS stated in an April 16, 2013 report that its investigation was now closed, that “[a]ny further administrative action is pending the outcome of the Department of Defense” review of plaintiffs security clearance, and that the Marine Corps had determined not to charge plaintiff with criminal violations. (R. at 2808-10.) However, the administrative record omits further mention of the DONCAF review, and there are no facts that set forth when that adjudication was complete. If DONCAF finished its security clearance review months before General Mills convened the BOI, that adjudication would provide little or no support for the timing of the BOI decision. Certainly, to the extent that the Navy relied on the DONCAF review to support a finding of non-retaliation, Major Brezler should receive discovery regarding the adjudication process, such as related communications between DONCAF and the Marine Forces Reserve.
Althoúgh the Court has reached its determination independent of the extra-record evidence submitted by both parties, the Court has reviewed those materials and notes that the post-oral argument voluntary discovery provided by the govern
Moreover, the explanation provided by Colonel Kleis for the six-month delay in making his oral recommendation was completely undeveloped in the record. In particular, Colonel Kleis asserts that he held the BOI recommendation in abeyance to await completion of the DONCAF adjudication because that review could have resulted in an additional basis for plaintiffs separation if DONCAF revoked plaintiffs security clearance, and he provides this Court with an ODN entry to support that assertion. (See Kleis Decl. at 8; ECF No. 78 at 15.) As a threshold matter, the Navy never provided this ODN entry to Major Brezler, who thus never had a chance to explore this issue during the administrative process. Second, having now received the ODN, Major Brezler vigorously disputes this factual assertion, and he has submitted a post-argument declaration stating that he was advised in December 2012 that, because his security clearance had expired, there would be no revocation, and DONCAF would only consider renewing his clearance based upon any future assignment. (ECF No. 81 at ¶ 1.) Third, as noted above, it does not appear that the administrative record contains any DON-CAF materials (or that anyone from DON-CAF was ever interviewed) regarding the timing and nature of the security clearance adjudication. Fourth, as Major Brezler observes in his post-argument response to Colonel Kleis’ declaration, there is another aspect of his chronology that warrants further exploration (and that was also apparently unknown during the administrative proceeding). Colonel Kleis states that, in July 2013, he reconsidered the necessity of waiting on the DONCAF determination and considered the possibility of obtaining a show cause determination from an alternate authority since General Mills had not yet replaced General Hummer as commander of the Marine Forces Reserve. {See Kleis Decl. at ¶¶ 9-10.) However, plaintiff notes that on July 11, 2013, around the time of this reconsideration by Colonel Kleis, the Marines Corps received Congressman King’s inquiry. Although Colonel Kleis asserts that he did not learn
In sum, although the government argues that the Navy scrupulously considered and rejected plaintiffs retaliation claims during the administrative process, it is abundantly clear to this Court that the administrative record was not fully developed on this critical issue because of the Navy’s failure to provide relevant documents, as mandated by its own discovery provision, and that Major Brezler was prejudiced as a result.
IV. Remedy
The APA provides that a “reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(B). Thus, where a court has found that an agency violated its own mandatory regulations, vacatur of the agency action with remand for reconsideration is appropriate. See Harmon v. Brucker,
To the extent plaintiff suggests that the Court should permit discovery in the context of this lawsuit and then allow supplemental factual submissions, the Court declines to do so in its discretion. Specifically, plaintiff has not demonstrated that the Navy acted in bad faith in failing to comply with its discovery obligation, and the Court has no reason to believe that the Navy will not follow the Court’s instruction to provide the relevant documents to plaintiff on remand,
Accordingly, the Court will vacate the BOI’s findings and recommendation and remand to the Secretary of the Navy for further proceedings consistent with this Memorandum and Order.
V. Conclusion
For the reasons set forth above, defendants’ motion to dismiss or for summary judgment (ECF No. 55) is denied — except that the Court dismisses all claims against defendants Mills and the Marine Corps for lack of subject matter jurisdiction; and plaintiffs motion for summary judgment (ECF No. 58) is granted to the extent that the Court finds that the government violated SECNAVINST 1920.6C, Enclosure 8, ¶ 6(d) (2005) under the particular circumstances of this case. The Court vacates the BOI’s findings and recommendation, and this case is remanded to the Secretary of the Navy for further proceedings consistent with this Memorandum and Order, including providing plaintiff with documents that are relevant to his retaliation claims and with a new BOI proceeding during which he can fully and fairly explore, inter alia, those issues and complete the administrative record.
SO ORDERED.
Notes
. The Navy is the only proper defendant in this case pursuant to 5 U.S.C. § 703, which provides that an APA "action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer” responsible for the contested agency action. Here, the final agency action at issue is the November 2015 endorsement by the Assistant Secretary of the Navy— acting on behalf of the Secretary of the Navy — approving the BOI’s recommendation that plaintiff be discharged. See Brezler v. Mills,
. "R.” is a citation to the Administrative Record annexed to the Declaration of Tian Gao, ECF No. 62.
. Pursuant to SECNAVINST 1920.6C, the Show Cause Authority for the Marine Corps is the Deputy Chief of Staff for Manpower and Reserve Affairs, though he may delegate that role to generals and lieutenant generals in command.
. The Court has conducted an independent review of the administrative record as is required in an APA proceeding. See Am. Bioscience, Inc. v. Thompson,
. As discussed infra Part II.C, a court reviewing an agency action is generally confined to the administrative record, but it may consider extra-record evidence when there has been a "strong showing ... of a claim of bad faith or improper behavior” by the agency. Nat'l Audubon Soc. v. Hoffman,
. Plaintiff asserts that “[n]o October 2012 letter from Colonel LeSavage to Major Brezler suspending him'from command exists,” (Pl.’s Resp. to Defs.' 56.1, ECF No, 66-1, at ¶ 13.) Indeed, the administrative record does not contain a formal written notice from Colonel LeSavage to plaintiff, despite a December 2012 e-mail from Colonel LeSavage to a superior officer stating that plaintiff’s "command duties have been suspended since Oct in light of NCIS investigation,” and noting that a letter of suspension was signed and disseminated on October 17, 2012. (R. at 1608-10.)
. FitReps "providef] the primary means for evaluating a Marine’s performance to support the Commandant’s efforts to select the best qualified personnel-for promotion, augmentation, retention, resident schooling, command, and duty assignments.” MCO P1610.7F, Ch. 2, ¶ 3(a)(2) (2010). They are prepared annually or on other specified occasion's. Id. at Ch. 3; see also United States v. Mitchell,
. Citations to the "Brezler Decl.” refer to the Declaration of Jason Brezler, annexed as Ex-Mbit 1 to the Declaration of Michael J. Bowe ("Bowe Decl.”), ECF No. 60.
. Plaintiff's 56.1 Statement is replete with incorrectly marked paragraph numbers. The Gourt cites to the paragraphs as they are numbered therein.
. As noted below, plaintiff refers to this entity as “DODCAF.”
. Plaintiff may also appeal to the Naval Discharge Review Board, 10 U.S.C. § 1553, 32 C.F.R. § 724.102 et seq., but the government acknowledges that the “NDRB, which has authority to change the characterization of service, would not offer meaningful relief in this case” because plaintiff received an honorable discharge. Gov’t Br, at 13 n.6.
. Plaintiff also argues, in the alternative, that any exhaustion requirement should be waived because an appeal would be futile. However, given &e Court's conclusion that no exhaustion requirement exists, it need not address plaintiffs futility argument.
. Plaintiff also asserts that defendants (1) failed to provide him with proper notice of all the charges that the BOI considered; (2) omitted from the BOI record required documents and included documents that were not part of the proceeding; (3) failed to generate a verbatim transcript of the BOI; (4) failed to adhere to the required timeline for the BOI proceeding and post-BOI process; (5) pressured plaintiff's BOI counsel prior to the proceeding; (6) prevented plaintiff from calling witnesses and submitting supportive testimony; and (7) used the BOI proceeding for publicity purposes. Because the Court is remanding the matter for a new BOI, these other procedural challenges are moot.
In addition to these procedural complaints, plaintiff contends that the (1) separation decision was not supported by substantial evidence and was the result of retaliation; (2) the Assistant Secretary’s "rubberstamp” endorsement of the BOI report was based on "irrelevant and improper considerations”; and (3) the separation decision was arbitrary and capricious because the government treated similar security lapses with greater leniency. Because the Court finds that the BOI process was contrary to "the statutes and regulations governing that agency,” Dilley v. Alexander,
. Although the government’s submissions do not advance a contrary interpretation of this regulation, the Court is cognizant that "considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
. To the extent that defendants argue that the production of relevant documents was unnecessary because it was duplicative of plaintiff’s FOIA request, the Court finds that argument unpersuasive because ’ plaintiff did not obtain all relevant documents (through FOIA or any other mechanism) prior to his BOI hearing,
. In addition, plaintiff attempts to show that the Navy’s decision to separate him was arbitrary and capricious because it treated similar security lapses by other military personnel with greater leniency. To advance this argument, plaintiff points to the JAG Memo, which includes "an apparent summary of all closed spillage investigations resulted in the subject not being separated or even directed to a BOI, even though most involved intentional and far more extensive spillage and misconduct than Major Brezler’s alleged misconduct (Mem. of Law in Supp. of Pl.’s Mot, for Summ. J. and, in the Alternative, for a Prelim. Inj., ECF No. 59, at 7.) The government disputes this contention and argues that these other cases are distinguishable from Major Brezler’s conduct. In any event, as noted supra note 13, the Court does not reach this substantive claim in light of the need to remand the case for the reasons discussed herein.
. Moreover, if Major Brezler had been aware of the purported pre-existence of the BOI “package,” he could have (at a minimum) sought to rebut that assertion with the fact that none of the post-Aiamze Corps Times e-mails providing the “ground truth” Commandant Amos sought — including the response from the Marine Corps Inspector General — states that a BOI was imminent or even contemplated in the few days prior to the August 30, 2013 show cause order. (R. at 1696-98.)
. In reaching this decision, the Court emphasizes that it is not holding, pursuant to this regulation, that documents that might be relevant to a retaliation claim must be produced at the outset of every BOI; instead, this holding is limited to situations where such a claim is raised and actively considered during a BOI and/or any subsequent review of a BOI determination. To hold otherwise would be to ignore the expansive plain language of the discovery regulation and expose any substantive review of a retaliation claim to potentially arbitrary and capricious decisionmaking due to a lack of relevant information.
. Obviously, if there are grounds for not producing relevant documents (such as national security concerns), the Navy is free to assert those claims in accordance with its applicable procedures.
. Plaintiff also requests that this Court restore him to his previous employment status and permanently enjoin the government from taking any adverse personnel action against him on the basis of his BOI proceeding, the show cause order, or the facts underlying the proceeding. However, because the government agreed not to separate plaintiff during the pendency of this litigation, see ECF No. 76, there has been no change in the status quo ante with respect to his employment. Further, "where a district court reviews agency action under the APA, it acts as an appellate tribunal, so the appropriate remedy for a violation is simply to identify a legal error and then remand to the agency.” Hill Dermaceuticals, Inc. v. Food & Drug Admin.,