                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

FERNANDO GARCIA,                             :
                                             :
       Plaintiff,                            :
                                             :
       v.                                    :      Civil Action No. 08-2230 (RMC)
                                             :
DONALD C. WINTER, Secretary of               :
the Navy,                                    :
                                             :
       Defendant.                            :



                                 MEMORANDUM OPINION

               Fernando Garcia, proceeding pro se and in forma pauperis, filed a Complaint for

declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.

He seeks an order directing the Secretary of the Navy to reinstate him as a member of the United

States Marine Corps and to change his discharge status from dishonorable to honorable. The

Secretary has filed a motion to dismiss, and Mr. Garcia has filed a motion for summary

judgment, both of which are ripe. The Complaint will be dismissed for lack of jurisdiction.

                                           I. FACTS

               Mr. Garcia is a former Marine now serving a 20-year criminal sentence imposed

in 2004 pursuant to a plea agreement in a general court-martial. In 1997, when Mr. Garcia and

his wife were under suspicion of criminal activity, Mr. Garcia, who was physically present in

their home at the time, expressly refused to allow law enforcement officers to conduct a

warrantless search of his home. His wife, who was not at home at the time, gave permission, and

the officers executed a search based on her permission. Using evidence obtained in this search,

Mr. Garcia was tried in a 1998 court-martial. He was convicted of multiple counts of attempted
robbery, larceny, related conspiracies, housebreaking, and interstate transport of stolen property,

and was sentenced to a dishonorable discharge, a reduction in rank, forfeiture of pay and

allowances, confinement of 75 years in prison, with 35 years suspended, and a fine of $60,000.

See Compl., App. 10 at 1; United States v. Garcia, No. 9901513, 2007 WL 1704946, *1 (N.M.

Ct. Crim. App. Jan. 10, 2007). Mr. Garcia successfully appealed this conviction, and the

“findings, sentence, and the decision” were set aside based on a finding of ineffective assistance

of counsel. Compl., App. 10 at 2. He was recharged in 2004 and this time pled guilty pursuant

to an agreement whereby his sentence of confinement was effectively reduced to a total of 20

years. Id.; Compl. ¶ 48; Garcia, 2007 WL 1704946 at *1 & n.1.

               Mr. Garcia then appealed the 2004 conviction resulting from his negotiated guilty

plea to the Navy-Marine Court of Criminal Appeals. Mr. Garcia raised four alleged errors in his

appeal:

               He first argues that his pleas were improvident because he was
               misinformed both by his counsel and by the military judge as to the
               maximum punishment authorized. Second, the appellant asserts
               that he was denied his right to speedy post-trial review. Third, he
               avers that he suffered cruel and unusual punishment under the
               Eighth Amendment and under Article 55, UCMJ [Uniform Code of
               Military Justice]. Finally, he asserts that his trial defense counsel
               was ineffective.

Id. at *1. While this appeal was pending, the Supreme Court in March 2006 issued its decision

in Georgia v. Randolph, 547 U.S. 103 (2006), holding that the Fourth Amendment’s guarantee

against unreasonable searches requires a rule to the effect that “a physically present inhabitant’s

express refusal of consent to a police search is dispositive as to him, regardless of the consent of

a fellow occupant.” Id. at 122-23. In June 2006, Mr. Garcia executed a sworn statement



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asserting that he had relied on his 2004 trial counsel’s incorrect advice that his Fourth

Amendment challenges to the 1997 search of his home would be preserved even if he entered a

negotiated guilty plea. See Compl., App. 5; Garcia, 2007 WL 1704946 at *3 & n.5. Both Mr.

Garcia’s declaration and a counter-declaration from his 2004 defense counsel were submitted to

the Navy-Marine Court of Criminal Appeals where the appeal was still pending. Garcia, 2007

WL 1704946 at *3 & n.6. In considering Mr. Garcia’s allegations of ineffective assistance of

counsel, that court reviewed the two conflicting sworn statements in light of the record facts and,

after a detailed and extensive discussion of the evidence, id. at *3-4, concluded that “the record

‘compellingly demonstrates’ the improbability of [Mr. Garcia’s] factual assertions regarding the

advice provided by his trial defense counsel.” Id. at 4. The appeals court denied Mr. Garcia

relief on all his claims.1 Id. at 5. It also noted that “[t]he suppression motion was waived by

[Mr. Garcia’s] voluntary decision to enter pleas of guilty at his second trial.” Id. at 4 n.12 (citing

Rules for Courts-Martial (“RCM”) 910(c)(4), Manual for Courts-Martial, United States (2002

ed.)). Subsequently, that same court issued an opinion on February 21, 2008, in response to Mr.

Garcia’s petition under 28 U.S.C. § 1651, in which it reiterated its determination that

               [i]ssues arising from any rulings made during [Mr. Garcia’s] 1998
               court-martial are effectively mooted by our superior court’s
               decision setting aside the results of that court-martial. Further,
               [Mr. Garcia’s] subsequent decision to enter unconditional guilty



       1
          The Complaint misleadingly suggests that the Navy-Marine Court of Criminal Appeals
disposed of Mr. Garcia’s argument that Georgia v. Randolph, 457 U.S. 103, mandated vacature
of his guilty plea by stating that the “Appellant’s remaining assignment of error is without merit.”
Compl. ¶ 51 (referring to the Randolph supplemental assignment of error) & ¶ 52 (quoting
Garcia, 2007 WL 17094946 at *5). There can be no mistake that the “remaining assignment of
error” to which the court referred was Mr. Garcia’s claim of cruel and unusual punishment. See
generally, Garcia, 2007 WL 17094946.

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                pleas at his 2004 court-martial effectively waived any evidentiary
                issues relating to his factual guilt.

Compl., App. 10 at 2 (citing RCM 910(c)(4).

                Mr. Garcia has continued without success to attempt to have his negotiated guilty

plea overturned by application of the Randolph decision to the 1997 search.2 In early 2008, he

asked the Board for the Correction of Naval Records (“BCNR”) to alter his record and his

military discharge status. In this action, he seeks a judgment declaring that the BCNR’s non-

response is arbitrary and capricious, Compl. ¶ 11, and a mandatory injunction requiring the

Secretary of the Navy to upgrade his dishonorable discharge to an honorable discharge, id. at 14,

and to reinstate him “as a member of the United States Marine Corps with all duties,

responsibilities and privileges earned . . . prior to his 2004 court[]-martial,” id. at 15.

                                  II. STANDARD OF REVIEW

                The APA provides for judicial review of “[a]gency action made reviewable by

statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C.

§ 704. The parties agree that this Court may review decisions by the BCNR under the APA, and

that to succeed, a plaintiff must show that the BCNR’s decision was “‘arbitrary, capricious or not

based on substantial evidence.’” Def.’s Mot. to Dismiss at 2 (quoting Piersall v. Winter, 435

F.3d 319, 321-22 (D.C. Cir. 2006)); see also Pl.’s Mot. for Summ. J. at 2 (citing 5 U.S.C. § 706

(2)).




        2
         One such attempt was by petition for a writ of mandamus seeking to have this Court
mandate that the United States Court of Appeals for the Armed Forces reverse the plaintiff’s
conviction. The petition was dismissed for lack of jurisdiction. See slip. op., Garcia v. United
States Court of Appeals for the Armed Forces, Civ. No. 08-1825 (UNA) (July 28, 2008).

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                                         III. ANALYSIS

                When Mr. Garcia submitted this Complaint for filing in early December 2008, he

was under the mistaken impression that he was entitled to sue because the BCNR had not timely

responded to his request, which he construed as a denial without adequate explanation. See

Compl. ¶ 6 (citing 28 U.S.C. § 2675(a)). Mr. Garcia is incorrect that 28 U.S.C. § 2675(a) affords

him the right to bring an action against the Secretary on the issues presented in this case, as that

statute applies only to claims for damages brought under the Federal Tort Claims Act. Therefore,

this Complaint for injunctive and declaratory relief under the APA was subject to dismissal as

premature.

                Although the BCNR had not issued a decision at the time Mr. Garcia submitted

this Complaint, it did so soon thereafter. In a letter dated December 23, 2008, the BCNR denied

Mr. Garcia relief, stating that “[a]fter careful and conscientious consideration of the entire record,

the Board found that the evidence submitted was insufficient to establish the existence of

probable material error or injustice.” Notice of Filing, BCNR Letter Decision addressed to

Fernando Garcia at Ft. Leavenworth, Kansas, Dec. 23, 2008, at 1. After reciting the procedural

history of Mr. Garcia’s case and appeals, and noting that his clemency application had been

denied, the letter also stated

                In your application you are requesting that all traces of the invalid
                court-martial be removed from your record and that the
                dishonorable discharge be upgraded to an honorable discharge. As
                you have been previously informed the Board is prevented by law
                from reviewing courts-martial and must limit its review to
                determining if the court-martial sentence should be reduced as a
                matter of clemency. Therefore, all of your arguments concerning
                the court-martial conviction were disregarded by the Board.



                                                 -5-
               Given the offenses for which you were convicted the Board could
               not conclude that the sentence of the court was too severe. Accordingly, your application has been

Id. at 2.

               Apparently unaware that the BCNR had issued its decision, the Secretary filed a

motion to dismiss the Complaint on March 26, 2009, asserting that there was no final agency

decision for this Court to review and that the Complaint was filed prematurely. See Def.’s Mot.

to Dismiss at 1. Three weeks later, on April 20, 2009, the Secretary filed a notice with the Court,

placing on the record the BCNR letter decision addressed to Mr. Garcia. Since learning of the

BCNR decision, the Secretary has maintained the position that Mr. Garcia’s challenge to the non-

decision of the BCNR is moot because the BCNR has issued its decision. See Def.’s Opp’n at 3.

               Neither Mr. Garcia’s opposition nor his motion for summary judgment

acknowledges or addresses the BCNR decision. Rather, Mr. Garcia proceeds as if the BCNR

never issued its decision.3 Mr. Garcia contends that “[b]ecause the Defendant failed to provide

anything approaching a reasoned explanation for its no respond decision [sic], this Court should



        3
         It is certainly reasonable to conclude that Mr. Garcia received a copy of the BCNR letter
decision — which was addressed directly to him — soon after it was issued on December 23,
2008. It appears that in late March 2009 the Secretary was unaware that the BCNR had issued its
decision three months earlier. The Secretary had learned of the BCNR decision by April 20,
2009, when he filed it on the Court’s record and served on Mr. Garcia. At the time Mr. Garcia
submitted his opposition and motion for summary judgment, he may have not known that the
Secretary had learned of the BCNR decision. His certificate of service for the opposition and
summary judgment motion is dated April 20, 2009, the same day that the Secretary filed the
BCNR decision on the Court’s record. Given that Mr. Garcia sends and receives case-related
materials by mail, he would not have received a service copy of the Secretary’s notice of the
BCNR decision until after he had mailed his opposition and summary judgment motion. The
BCNR decision was again served on Mr. Garcia when the Secretary filed an opposition to Mr.
Garcia’s motion for summary judgment. Mr. Garcia did not file a reply in support of his
summary judgment motion. In sum, nothing in Mr. Garcia’s submissions acknowledges that the
BCNR had issued its decision while this action was pending.

                                                -6-
hold that the agency’s no respond [sic] [was ] ‘arbitrary and capricious.[’]” Pl.’s Opp’n ¶ 11.

Noting that the Secretary’s motion to dismiss does not dispute Mr. Garcia’s “position that the . . .

BCNR never responded to his claim,’” he asserts that he can prevail by showing that the “‘no

respond’ [sic] from the agency (BCNR) was arbitrary and capricious and an abuse of discretion.”

Pl.’s Mot. for Summ. J. at 2. He maintains that “[b]ecause the BCNR failed to provide anything

approaching a reasoned explanation for its no respond [sic], this Court should hold that the

BCNR actions were arbitrary and capricious and an abuse of discretion.” Id.

               Mr. Garcia’s argument is based on a false premise. As the BCNR has issued its

decision, Mr. Garcia’s argument regarding a non-response is without factual or legal merit. This

Court lacks subject matter jurisdiction over issues that have become moot.

                                       IV. CONCLUSION

               Accordingly, Mr. Garcia’s motion for summary judgment [Dkt. # 14] will be

denied and the Secretary’s motion to dismiss [Dkt. # 9] will be granted. A separate order

accompanies this Memorandum Opinion.



                                                                   /s/
                                                      ROSEMARY M. COLLYER
Date: January 13, 2010                                United States District Judge




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