BYRUM v. WINTERBYRUM v. WINTER
DENYING THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING THE DEFENDANT’S MOTION TO DISMISS; DENYING WITHOUT PREJUDICE THE DEFENDANT’S ALTERNATIVE MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
The plaintiff is a white minister formerly employed as a Commander in the Navy Chaplain Corps. He commenced this action to challenge the recommendation of the Department of the Navy’s Selective Early Retirement Board’s (“SERB”) that resulted in his involuntary retirement. The plaintiff now moves for summary judgment, arguing that the recommendation was based on official Navy policy giving preference to minorities and thus constituted reverse racial discrimination. The defendant, the Secretary of the Department of the Navy (“Secretary”), has filed a motion to dismiss or, in the alternative, a cross-motion for summary judgment,1 arguing, inter alia, that this court lacks jurisdiction to entertain the plaintiff’s claim because he failed to exhaust his administrative remedies prior to commencing this action. The court concurs that the plaintiff has failed to establish the cоurt’s subject matter jurisdiction over this matter and,
II. FACTUAL & PROCEDURAL BACKGROUND
In November 1995, the Secretary issued an instructional memorandum or “precept” that convened a selection board to consider whether Chaplain Corps servicemembers at the rank of Commander should be made eligible for selective early retirement. Admin. R. at 4. In the “supplemental guidance” attached to the precept, the Secretary stated in relevant part as follows:
The Department of the Navy is dedicated to equality of treatment for all personnel without regard to race, creed, color, sex, or national origin. Aggressive commitment to equal opportunity is critical.
(a) Many minority officers have been assigned involuntarily outside the traditional career development patterns, i.e., recruiting, equal opportunity and specific billets requiring minorities. These assignments, though beneficial to the interests оf the Navy, have resulted in those officers having career patterns different from officers who have been able to serve in their primary or warfare specialties. In making your determination of those officers who are best suited for retention, you must view such assignments as having the same value as assignments within the primary or warfare speciality.
(b) The 1988 CNO Study Group Report on Equal Opportunity in Navy, which is available to you, noted that minority officers who, prior to entering Navy, had limited interaction with a predominately majority environment, may take a longer time to adjust and, perform to the level of their contemporaries. This may result in initially lower fitness reports at the junior officer level (through 0-3) and a higher percentage of ‘late bloomers’ than their majority counterparts. You must consider this when evaluating a minority officer.
(c) In evaluating the records of eligible officers, you should be aware that past discrimination may have operated to the disadvantage of minority officers. Such discrimination may have manifested itself in comparatively lower fitness reports. Equivalent performance by a minority officer and a non-minority officer may not have resulted in equivalent fitness reports. You must consider this when evaluating minority officers.
In August 1996, the plaintiff, a white minister who served as a Commander in the Chaplain Corps, was “involuntarily retirеd” in accordance with a recommendation of the SERB.
The plaintiff subsequently submitted a petition to the BNCR for reconsideration of its decision, which the BCNR accepted in March 2003. Id. at 136-37, 165. In December 2003, the plaintiff amended his petition for reconsideration to include allegations that the SERB’s decision forcing his early retirement had been guided by a “precept” which “established a preference for minority personnel.” Pl.’s Mоt. at 2; Admin. R. at 186-87. The plaintiff asked that the SERB decision be overturned “because the [precept] constituted illegal reverse racial discrimination.” Pl.’s Mot. at 3; Admin. R. at 184-85.
The BCNR again requested comments and a recommendation from the OJAG. Admin. R. at 253. The OJAG acknowledged that other selection boards had used “[t]he practice of re-grading,” which involved “taking the preliminary results of the selection board, and re-grading minority candidates where there [was] a disсrepancy between the selection rates of minority and non-minority candidates.” Id. at 263. The OJAG concluded, however, that “improper re-grading of minority candidates” had not occurred in the 1996 SERB decision and the controlling precept “did not instruct or even permit members to re-grade minority officer records.” Id. at 255. The BCNR denied the plaintiff’s petition for relief upon reconsideration in July 2004, determining that “the precept did not mandate prеferential treatment for minorities, but merely encouraged fair and equitable consideration of all officers.” Id. at 290-93.
In August 2004, the BCNR accepted the plaintiff’s second petition for reconsideration, in which he alleged that the composition of the SERB that rendered the decision forcing the plaintiff’s early retirement was contrary to Navy regulations and that the SERB had improperly selected him for early retirement based on criteria which did not apply to him. Id. at 420. The BCNR denied his second petition in March 2005. Id. at 651-53.
In May 2006, the plaintiff, through counsel, submitted a “pre-litigation letter” to the OJAG in which he asserted that he would be seeking judicial review of the BCNR’s decisions denying his requested relief. Id. at 654. In the letter, the plaintiff offered to settle the matter, arguing that the Navy’s policy demonstrated a preference for minorities that was illegal and therefore the Navy should “deem [the plaintiff] to have remained on active duty through the date of mandatory rеtirement by reason of age and to refer his record to a Special Selection Board to consider him for promotion to Captain.” Id. at 655. The BCNR construed this letter as another request for relief upon reconsideration and forwarded it to the Navy’s Assistant General Counsel (“AGC”) for comment and a recommendation. Id. at 669.
The AGC determined that “a new [BCNR] panel should be expeditiously convened” to evaluate the contested language in the SERB precept and the effect, if any, that it had on the plaintiff. Id. at 670; see also Pl.’s Mot. at 5. The AGC also directed the BCNR to seek an advisory opinion from the OJAG and asked that the BCNR’s recommendation be forwarded to the AGC for “final action.” Admin. R. at 670.
In its advisory opinion, the OJAG recommended that the BCNR deny the plaintiff’s reconsideration request because the plaintiff had not presented any “new and material evidence or other matter not previously cоnsidered by [the] BCNR.” Id. at 676. More specifically, the OJAG determined that the plaintiff had not provided any evidence to support his allegation that
On December 8, 2006, the BCNR issued its decision, adopting the OJAG’s recommendation and denying the plaintiff’s request for relief upon reconsideration. Pl.’s Mot. at 5; see also Admin. R. at 691-93. The BCNR concluded that the plaintiff had provided no evidence, such аs statistics, which would “show that the precept language [had] disadvantaged [him].” Admin. R. at 692. The BCNR also determined that “[b]efore applying to this Board, [the plaintiff had] exhausted all administrative remedies which were available under existing law and regulations within the Department of the Navy.” Id. at 692. The AGC then reviewed and approved the BCNR’s decision. Id. at 693.
On December 11, 2006, the plaintiff commenced this action, requesting that the court set aside the BCNR’s decision and order the defendant to “reinstate him on active duty; correct his record to show that he was never retired . . . by expunging all reference to the SERB; and cause him to be considered for promotion to Captain.” See generally Compl. at 5. The plaintiff characterizes his complaint as strictly an action under the Administrative Procedure Act and explains that he is not seeking direct review of the SERB decision, but rather, review of the BNCR’s decision to deny him relief. Pl.’s Mot. at 7; Pl.’s Reply at 3.
A few months after the plaintiff commenced this action, the defendant moved to dismiss the complaint, arguing that the court lacked jurisdiction over the plaintiff’s claims. See generally Def.’s Mot. to Dismiss. In response, the plaintiff filed a motion for summary judgment and opposition to the defendant’s motion to dismiss, see generally Pl.’s Mot. for Summ. J. & Opp’n Def.’s Mot. to Dismiss (“Pl.’s Mot.”). The defendant’s motion to dismiss was summarily denied
III. ANALYSIS
A. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) (noting that “[a]s a cоurt of limited jurisdiction, we begin, and end, with an examination of our jurisdiction”).
Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory requirement[,] no action of the parties can confer subject-matter jurisdiction upon a federal court.’” Akinseye v. Dist. of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). On a motion to
Because subject matter jurisdiction focuses on the court’s рower to hear the claim, however, the court must give the plaintiff’s factual allegations closer scrutiny when resolving a
B. The Court Laсks Jurisdiction Over the Plaintiff’s APA Claim
The defendant asserts that the court lacks jurisdiction over the plaintiff’s claim because the plaintiff failed to exhaust his administrative remedies. Def.’s Cross-Mot. at 7-9. More specifically, the defendant argues that the plaintiff failed to request that a “special board” review the 1996 SERB decision, in violation of
The plаintiff does not dispute that he was required to “exhaust[] a ‘special board’ remedy as a precondition to a judicial challenge to a SERB” decision, but argues that he satisfied this requirement by obtaining the BCNR’s review of the SERB’s recommendation. Pl.’s Mot. at 6.
“[A]n aggrieved military officer must first exhaust his administrative remedies . . . prior to litigating his claims in federal court.” Bois v. Marsh, 801 F.2d 462, 468 (D.C. Cir. 1986) (holding that “settled principles of law requiring exhaustion of administrative remedies” applied to an officer’s claim seeking to correct her military record based on purported constitutional violations by the Army). Indeed,
[a] person sеeking to challenge an action or recommendation of a selection board, or an action taken by the Secretary of the military department concerned on the report of a selection board, is not entitled to relief in any judicial proceeding unless the action or recommendation has first been considered by a special board under this section or the Secretary concerned has denied the convening of such a board for such consideration.
A “special board” is defined as “a board that the Secretary . . . convenes under any authority to consider whether to recommend a person for . . . . retirement.”
Like a “special board,” a “selection board” is a board convened by the Secretary to recommend persons for retirement.
To add further complication, there is a third type of review board – a “special selection board” – that may be convened in personnel chаllenges brought in the military context. A “special selection board” is a board convened to consider an officer’s eligibility for a promotion,
The parties agree that the special board requirement set forth in
Similarly, the BCNR’s determination that the plaintiff exhausted all of his administrative remedies does not demonstrate that the plaintiff satisfied the special board requirement. Pl.’s Reply at 2. Although the BCNR stated in its decision that “[b]efore applying to this Board, [the plaintiff] exhausted all administrative remedies which were available under existing law and regulations within the Department of the Navy,” Admin. R. at 692, that statement confirms only that the plaintiff had aptly exhausted the remedies necessary for the BCNR to hear his claim. Indeed, the BCNR had no reason to comment on whether the plaintiff had exhausted those administrative remedies that must be satisfied prior to seeking judicial review. Nor has the plaintiff offered any support for his contention that the BCNR’s determination that he exhausted his administrative remedies would in any way bind this court, particularly when Congress has stated that a special board exhaustion requirement must be met in order to allow this court to grant relief.
The plaintiff’s final argument is that the defendant waived any argument with regard to his purported failure exhaust his administrative remedies because it did not previously raise the issue before the BCNR. Pl.’s Reply at 3. This argument too falls flat. First, as the defendant plainly had no obligation to argue before the BCNR that a federal court in some future action would lack jurisdiction because the plaintiff had not exhausted his administrative remedies under
In sum, the plaintiff failed to exhaust the requirement of
IV. CONCLUSION
For the foregoing reasons, the court grants the defendant’s motion to dismiss, denies without prejudice the defendant’s motion, in the alternative, for summary judgment, and denies the plaintiff’s motion for summary judgment. An Order consistent with this Memorandum Opinion is separately and contemporaneously issued this 10th day of May, 2011.
RICARDO M. URBINA
United States District Judge