                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                              )
SYNEEDA LYNN PENLAND,                         )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )       Civil Action No. 13-1465 (RMC)
                                              )
RAYMOND EDWIN MABUS, JR.,                     )
Secretary of the Navy, et al.,                )
                                              )
               Defendants.                    )
                                              )

                                            OPINION

               Syneeda Lynn Penland is a former Lieutenant Commander in the United States

Navy. She was convicted of adultery and other misconduct in a military court martial and was

discharged shortly before she would have become eligible for retirement benefits. Ms. Penland

alleges that the Navy violated her constitutional rights in her court-martial proceedings and that

the proceedings were fundamentally defective. She seeks reversal of subsequent Navy decisions

leading to her separation. The Navy moves to dismiss for lack of subject matter jurisdiction on

the grounds of sovereign immunity. The Navy is wrong. However, as explained below, only

Ms. Penland’s prayer for relief from the decision of the Board for Correction of Naval Records

will go forward. Counts I, II and III of the Amended Complaint will be dismissed. In addition,

the Court will dismiss all individual Defendants and the sole remaining Defendant will be

Raymond E. Mabus, Jr., Secretary of the Navy, in his official capacity.




                                                  1
                                            I. FACTS

               Syneeda Lynn Penland enlisted in the United States Navy as an undesignated

seaman in 1989. She received her bachelor’s degree and two masters’ degrees, was

commissioned as a Naval officer, received numerous awards, and was certified as a Navy auditor

and inspector general. She began serving as command comptroller for Maritime Expeditionary

Support Group ONE (MESGO), in San Diego, California, beginning on January 1, 2006.

               In January 2007, Chief Petty Officer (CPO) Kimberly Lewis-Wiggan brought a

flash drive to the attention of Commander Mei Ling Marshall, staff attorney for MESGO; the

flash drive contained several photos of Ms. Penland having sexual relations with a male whose

face could not be identified. 1 According to Ms. Penland, CPO Lewis-Wiggan improperly

obtained the photos from the laptop of Lieutenant Junior Grade (Lt.) Mark Wiggan, her husband,

but with whom CPO Lewis-Wiggan was engaged in divorce proceedings. 2 The photos were

allegedly on Lt. Wiggan’s computer because Ms. Penland had previously loaned him her digital

camera and he had inadvertently downloaded the photos onto his laptop.

               When the photos were discovered, Ms. Penland was “offered mast, a low level

administrative punishment.” Am. Compl. ¶ 25. She declined mast and her commanding officer,


1
  The Amended Complaint alleges that the man in the photos is an unmarried civilian with whom
Ms. Penland was formerly in a long-term relationship. Am. Compl. [Dkt. 10] ¶ 3. However, in
her opposition to Defendants’ motion to dismiss, Ms. Penland intimates that the man in the
photos is Lt. Wiggan, stating that she “was single at the time of the conduct in question, and
reasonably believed that [Lt.] Wiggan was divorced . . . . The private sexual conduct had no
impact on [her] military duties . . . . Both [she] and her partner were commissioned officers.” Pl.
Opp. [Dkt. 15-1] at 7. The true identity of the man in the pictures is immaterial to the question
of sovereign immunity.
2
  At the time of the relevant events, Lt. Wiggan and his wife “were physically separated and in
the final stage of a bifurcated divorce that, based on the advice of his legal counsel, [Lt.] Wiggan
reasonably believed had already . . . been legally terminated. He communicated this belief to
others, including Plaintiff.” Am. Compl. ¶ 4 (footnote omitted).

                                                 2
Captain John Sturges, formally charged her with adultery, conduct unbecoming an officer,

disobeying a lawful order, and making a false official statement. The charges were based on

allegations that Ms. Penland used her Navy-issued cellular phone to harass CPO Lewis-Wiggan,

lied about making such calls, distributed nude photos of Lt. Wiggan to CPO Lewis-Wiggan, and

participated in a sexual relationship with Lt. Wiggan. See Exhibits in Support of Def. Mot. to

Dismiss [Dkt. 12-2], Def. Ex. 1 at 2-4; 3 see also Def. Ex. 4 at 14. Ms. Penland alleges that Capt.

Sturges retaliated against her by bringing severe charges because she had accused him of

financial improprieties in his official duties. She was stripped of her security clearance,

immediately removed from duty, and faced a Navy court martial. Lt. Wiggan was not

prosecuted for his alleged role in the affair and, instead, received immunity. He denied under

oath that he and Ms. Penland had had a sexual relationship. At trial, the prosecution relied on the

testimony of CPO Lewis-Wiggan, who identified Lt. Wiggan as the man in the photos based on

the location of moles on his body.

               On May 24, 2008, Ms. Penland was convicted on four counts by the members of

the court martial: (1) violating a lawful general order by wrongfully using government property

for other than authorized purposes in violation of Article 92, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 892; (2) making a false official statement in violation of Article 107,

UCMJ, 10 U.S.C. § 907; (3) conducting herself in a matter unbecoming an officer in violation of

Article 133, UCMJ, 10 U.S.C. § 933; and (4) adultery in violation of Article 134, UCMJ,

10 § U.S.C. 934. See Def. Ex. 1 at 2-4. She was sentenced to a reprimand, a 60-day term of

incarceration, and a fine of $9,000. The court-martial sentence did not mandate that she be

separated from the Navy.
3
 Defendants’ exhibits are not paginated. All citations to them reference the page numbers
assigned by the electronic case filing (ECF) system.

                                                 3
              Four months later, Capt. Sturges ordered Ms. Penland to appear before a Navy

administrative Board of Inquiry (BOI) to show cause why she should not be discharged. 4 Ms.

Penland alleges she was not permitted to introduce testimony from her civilian boyfriend at the

BOI hearing and the BOI was not “allowed to consider fundamental defects” in the court martial

when making its decision. Am. Compl. ¶ 26. The BOI found that Ms. Penland had committed

misconduct and substandard performance of duty, and recommended that she be separated from

Naval Service with the characterization of “General (Under Honorable Conditions).” 5 Def. Ex. 3

at 12. The BOI’s recommendation was accepted and approved on June 29, 2009 by the Acting

Assistant Secretary of the Navy (Manpower and Reserve Affairs). 6

              On July 29, 2009, Ms. Penland filed a petition for a writ of mandamus and a

motion for a preliminary injunction to challenge and forestall her imminent discharge. See

Penland v. Mabus, 643 F. Supp. 2d 14, 17 (D.D.C. 2009). The court denied her motions. See id.


4
 Ms. Penland alleges that “[h]er command’s authority to order this hearing was discretionary.”
Pl. Opp. at 4.
5
 The military recognizes three kinds of administrative discharges: Honorable, Under Honorable
Conditions (also termed General Discharge), and Under Other Than Honorable Conditions. 32
C.F.R. § 724.109(a). A discharge "Under Honorable Conditions" is “contingent upon military
behavior and performance of duty which is not sufficiently meritorious to warrant an Honorable
Discharge.” 32 C.F.R. § 724.109(a)(2). “There is a stigma associated with General and Other
Than Honorable discharges.” Vince v. Mabus, 956 F. Supp. 2d 83, 85 n.1 (D.D.C. 2013) (citing
Kauffman v. Sec’y of the Air Force, 415 F.2d 991, 995 (D.C. Cir. 1969); Martin v. Donley, 886
F. Supp. 2d 1, 10 (D.D.C. 2012)).
6
  Ms. Penland alleges that “[f]or the past five years, [she] has sought administrative relief by
challenging her discharge through Navy and Department of Defense administrative channels,
including, most recently, an appeal to the Board for Correction of Naval Records. Once each of
those channels was exhausted, [she] had no other recourse than to file this action.” Am. Compl.
¶ 18. According to Penland v. Mabus, a prior case filed by Ms. Penland in this district, Ms.
Penland appealed her conviction to the General Courts-Martial Convening Authority (GMCA),
which declined to reverse the conviction. 643 F. Supp. 2d 14, 17 (D.D.C. 2009). The matter was
then referred to the Office of the Judge Advocate General of the Navy (JAG), which upheld the
conviction in February 2009. Id.

                                                4
at 21, 23. 7 On July 31, 2009, Ms. Penland was officially discharged from the U.S. Navy with a

discharge of “General (Under Honorable Conditions);” “Unacceptable Conduct” was the reason

listed for separation. Def. Ex. 5 at 17. Ms. Penland states that she was involuntarily separated

from the Navy five months before she was eligible for retirement benefits, including a lifetime

pension and medical coverage.

                On July 18, 2012, Ms. Penland filed an application for correction of military

records under 10 U.S.C. § 1552, seeking to have her conviction overturned. The Board for

Correction of Naval Records (BCNR) reviewed her application and decided that “the evidence

submitted [by Ms. Penland to the BCNR] was insufficient to establish the existence of probable

material error or injustice.” Def. Ex. 7 at 21. Writing to Ms. Penland on May 15, 2013, the

BCNR noted that it did not have authority to remove a conviction by a general court martial and

that it could only review such a sentence for clemency. Id. at 22. Upon review, the BCNR

found her sentence was appropriate considering the nature of her offenses. Id. Finally, the

BCNR advised that the Military Whistleblower Protection Act protects only those service

members who make a protected communication to an inspector general or member of Congress

prior to any alleged reprisal, and it found no evidence that Ms. Penland had done so prior to her

referral to the court martial. Id.

                Ms. Penland is currently residing in Buford, Georgia. She is unemployed and

receiving treatment for blood cancer. Her only source of income is her monthly Veterans Affairs

disability payments.

                Ms. Penland filed her initial Complaint in this matter on September 26, 2013

[Dkt. 1], and filed an Amended Complaint on April 28, 2014 [Dkt. 10]. She sues Raymond E.
7
  On June 28, 2010, the case was dismissed without prejudice for failure to prosecute. Penland
v. Mabus, Civ. No. 09-1417 (RMU), 2010 U.S. Dist. LEXIS 64356 (D.D.C. June 28, 2010).

                                                 5
Mabus, Jr., Secretary of the Navy, and names five other Naval officers who had official duties

related to her court martial or the BOI. 8 The Amended Complaint does not state whether Ms.

Penland intended to sue Secretary Mabus and these other Navy officers in their official or

personal capacities. Its alleged bases for jurisdiction and factual claims support only a suit

against Secretary Mabus in his official capacity. Kentucky v. Graham, 473 U.S. 159, 166 (1985)

(A suit against the head of an agency “is, in all respects other than name, to be treated as a suit

against the entity.”). Thus, the Court will dismiss all Defendants sua sponte with the exception

of Secretary Mabus in his official capacity.

               The Amended Complaint alleges that Ms. Penland’s “court-martial was marred by

several fundamental defects, which taken in totality call into question the basic fairness of her

prosecution, and which give this Court jurisdiction to inquire [into] the legality of her

prosecution.” Am. Compl. ¶ 19. Ms. Penland then makes three broad claims that the Court

construes to be allegations of fundamental defect in the court-martial proceedings. Count One

alleges that the Navy’s prosecution of Ms. Penland for adultery before a general court martial

was part of a pattern of selective prosecution of female officers in violation of the Equal

Protection Clause of the Fourteenth Amendment. Count Two alleges that the Navy violated Ms.

Penland’s due process rights under the Fifth Amendment by, among other complaints,

prosecuting Ms. Penland for private sexual activity between consenting adults, selectively

prosecuting her in retaliation for her complaints against her superiors for alleged financial

improprieties, and refusing to allow the BOI, after her conviction, to hear more evidence or

consider “the fundamental defects in her court-martial.” See id. ¶ 4. The Third Count alleges


8
 The individual defendants are: John Sturges, III; Gene Harr; Donald Bullard; and Leendert
Hering, Sr., all former Navy officers, and Jonathan Greenert, Chief of Naval Operations. Am.
Compl. ¶¶ 13-17.

                                                  6
that the Navy violated the Military Whistleblowers Protection Act (MWPA), 10 U.S.C. § 1034. 9

Ms. Penland also argues her entitlement to the following relief: (1) reversal of the BOI’s

recommendation that she be separated from the Navy based on her court-martial conviction;

(2) an order that the Navy retire Ms. Penland from active duty at whatever rank she would have

attained in the interim; and (3) reversal of the BCNR’s decision to affirm her conviction and an

order requiring it to characterize her discharge as honorable. Based on these prayers for relief,

the Court finds that Ms. Penland’s challenges to decisions made by the BOI and BCNR should

be deemed additional claims. 10

                In her Amended Complaint, Ms. Penland invokes this Court’s jurisdiction under

the general provision for federal question jurisdiction, 28 U.S.C. § 1331, and the Administrative

Procedure Act (APA), 5 U.S.C. § 701. Venue is proper under 28 U.S.C. §§ 1391 et seq.

Defendants filed a motion to dismiss for lack of subject matter jurisdiction on June 20, 2014.

The motion is based entirely on sovereign immunity.


9
  Ms. Penland pled a violation of her rights under the Fourth Amendment in her initial Complaint
but dropped that claim in her Amended Complaint. The Amended Complaint continues to recite
allegations that CPO Lewis-Wiggan was an agent of Navy superiors when she searched Lt.
Wiggan’s computer without a warrant and that anything uncovered in that search was
inadmissible in the court martial, Am. Compl. ¶ 32, but has no accompanying alleged violation
of law. The Court concludes that the failure to plead a Fourth Amendment violation in the
Amended Complaint was intentional and finds that Ms. Penland has abandoned and waived any
such claim.
10
   According to Ms. Penland, she “does not ask for monetary damages” under the Tucker Act or
any other statute. Pl. Opp. at 3. Indeed, the Administrative Procedure Act precludes Ms.
Penland from seeking such relief. See 5 U.S.C. § 702 (providing for limited review of agency
actions only in cases “seeking relief other than money damages”). Still, the fact that she might
receive some monetary relief if she is successful in overturning her discharge does not deprive
this Court of jurisdiction. Smalls v. United States, 471 F.3d 186, 190 (D.C. Cir. 2006) (holding
that “the fact that in seeking the correction of a military record the plaintiff may, if successful,
obtain monetary relief from the United States in subsequent administrative proceedings is
insufficient to deprive the district court of jurisdiction” and noting that “the phrase ‘retirement
benefits’ connotes a host of benefits to which no monetary value can be attached”).

                                                  7
                                    II. LEGAL STANDARDS

   A. Motion to Dismiss for Lack of Jurisdiction

               Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to

dismiss a complaint for lack of subject matter jurisdiction. No action of the parties can confer

subject matter jurisdiction on a federal court because subject matter jurisdiction is both a

statutory requirement and an Article III requirement. Akinseye v. District of Columbia, 339 F.3d

970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction bears the burden of

demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C.

Cir. 2008). When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a

court reviews the complaint liberally, granting the plaintiff the benefit of all inferences that can

be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004).

Nevertheless, “the Court need not accept factual inferences drawn by plaintiffs if those

inferences are not supported by facts alleged in the complaint, nor must the Court accept

plaintiffs’ legal conclusions.” Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006).

On a motion to dismiss pursuant to 12(b)(1), the court may, where necessary, “‘consider the

complaint supplemented by undisputed facts evidenced in the record, or the complaint

supplemented by undisputed facts plus the court’s resolution of disputed facts.’” Coalition for

Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat'l

Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)); see also Settles v. U.S. Parole Comm’n, 429

F.3d 1098, 1107 (D.C. Cir. 2005) (holding that a court may consider materials outside the

pleadings to determine its jurisdiction).




                                                  8
   B. Sovereign Immunity

               Defendants argue that the entire lawsuit is barred by sovereign immunity. As the

Supreme Court has observed, “it is axiomatic that the United States may not be sued without its

consent and that the existence of consent is a prerequisite for jurisdiction.” United States v.

Mitchell, 463 U.S. 206, 212 (1983). “The basic rule of federal sovereign immunity is that the

United States cannot be sued at all without the consent of Congress.” Block v. North Dakota,

461 U.S. 273, 287 (1983). Sovereign immunity also protects federal agencies and federal

employees acting in their official capacities. See Albrecht v. Comm. on Employee Benefits of

Fed. Reserve Employee Benefits Sys., 357 F.3d 62, 67 (D.C. Cir. 2004) (federal agencies and

instrumentalities possess sovereign immunity); Clark v. Library of Congress, 750 F.2d 89, 102-

04 (D.C. Cir. 1984) (federal employees, acting in their official capacities, are protected from suit

by sovereign immunity). Unless there is clear evidence that the United States waived its

immunity, claims brought against it, its agencies, or employees must be dismissed for lack of

subject matter jurisdiction under Rule 12(b)(1). Sloan v. Dep’t of Hous. and Urban Dev., 236

F.3d 756, 759 (D.C. Cir. 2001); Lane v. Pena, 518 U.S. 187, 192 (1996) (sovereign immunity

bars claims against United States and employees acting in official capacity unless waiver is

“unequivocally expressed in statutory text”).

                                         III. ANALYSIS

               This lawsuit comes to court in a strange posture. Ms. Penland does not challenge

the outcome of her court martial, which did not order her discharge or a denial of retirement

benefits. Instead, she asks the Court to reverse the decisions of the BOI and BCNR, which were

based on the underlying court-martial conviction, and to order that the Navy retire her at the

appropriate rank she would have obtained in the meantime. The Court finds that the BOI’s



                                                 9
recommendation that Ms. Penland be separated in light of her court-martial conviction is non-

justiciable because it was an exercise of discretion on a military personnel matter. The Court

also concludes that Ms. Penland fails to state a claim under the MWPA. With respect to the

BCNR proceedings, the Court has jurisdiction under the Administrative Procedure Act to review

decisions made by the BCNR, but the Court cannot make any determination on the merits

because the administrative record is incomplete.

               Ms. Penland’s claims regarding her court-martial proceedings are more

convoluted. Contrary to Defendants’ argument, the Court finds that it has jurisdiction generally

to determine whether court-martial proceedings suffer a fundamental error. Here, however, Ms.

Penland does not challenge her court-martial conviction, and thus the Court cannot reach the

merits of her claims of fundamental defect. Still, a brief discussion on the question of federal

court jurisdiction over military courts-martial is warranted given Ms. Penland’s argument that

the BOI and BCNR decisions relied on her court-martial proceedings, which were allegedly

tainted with fundamental defects.

   A. Challenge to Court-Martial Proceedings

               It is clear that the grant of “[f]ederal question jurisdiction [in 28 U.S.C. § 1331]

does not by itself waive sovereign immunity.” Stone v. Castro, Civ. No. 14-656 (CRC), 2014

WL 5514139, at *3 (D.D.C. Nov. 3, 2014) (citing Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir.

1996)). This precedent, cited by the Navy, does not go as far as the Navy hopes. Contrary to the

Navy’s argument, it is clear that district courts have subject matter jurisdiction under 28 U.S.C.

§ 1331 to hear a non-custodial plaintiff’s collateral attack on a court martial when she alleges

that the court martial had no jurisdiction or there was some other equally fundamental defect in

the proceedings. Schlesinger v. Councilman, 420 U.S. 738 (1975); Sanford v. United States, 586



                                                 10
F.3d 28, 31-33 (D.C. Cir. 2009); United States ex rel. New v. Rumsfeld (New II), 448 F.3d 403

(D.C. Cir. 2006). “[F]or non-custodial individuals such as [Ms. Penland], federal question

jurisdiction under 28 U.S.C. § 1331 is the appropriate avenue for a service member to seek

collateral review of the outcome of a military court-martial proceeding.” Luke v. United States,

942 F. Supp. 2d 154, 162 (D.D.C. 2013).

               Councilman is particularly instructive. It renewed pertinent rules from the 19th

century: (1) “‘the general rule that the acts of a court-martial, within the scope of its jurisdiction

and duty, cannot be controlled or reviewed in the civil courts, by writ of prohibition or

otherwise,’” 420 U.S. at 746 (quoting Smith v. Whitney, 116 U.S. 167, 177 (1886)); but also

(2) the general rule is subject to the qualification that “the court-martial’s acts be ‘within the

scope of its jurisdiction and duty.’” Id. Further, Councilman noted that a “[c]ollateral attack

seeks, as a necessary incident to relief otherwise within the court’s power to grant, a declaration

that a judgment is void.” Id. at 746-47. 11 Thus, when a court martial lacks “jurisdiction or [has]

some other equally fundamental defect,” its judgment is void, not merely voidable. Id. n.16

(“‘Persons, then, belonging to the army and navy are not subject to illegal or irresponsible courts

martial. . . . In such cases, everything which may be done is void—not voidable, but void; and

civil courts have never failed, upon a proper suit, to give a party redress, who has been injured by

a void process or a void judgment.’”) (quoting Dynes v. Hoover, 20 How. 65, 81 (1857)). The

Supreme Court also instructed that “void judgments, although final for purposes of direct review,




11
    Councilman identified a “uniform approach to the problem of collateral relief from the
consequences of court-martial judgments” that it traced back to the earliest days of the Republic.
Id. at 747-48 (citing, inter alia, Wise v. Withers, 3 Cranch 331, 2 L.Ed. 457 (1806)). Under this
“uniform approach,” relief in a civilian court from a court-martial “was barred unless it appeared
that the judgments were void.” Id. at 748.

                                                  11
may be impeached collaterally in suits otherwise within a court’s subject-matter jurisdiction.”

Id. at 749.

               Ms. Penland does not allege that her court martial lacked jurisdiction but does

allege “fundamental” defects therein. Contrary to Defendants’ argument, and without deciding

whether Ms. Penland’s alleged defects qualify as fundamental defects, Councilman makes clear

that the Court would have jurisdiction to consider a challenge to Ms. Penland’s court martial, if

that were the relief she sought. But it is not; Ms. Penland does not challenge her court martial

itself and seeks no change to its judgment. Thus, the general rule applies and civilian-court

consideration of her court martial is precluded. Councilman, 420 U.S. at 747 (no consideration

of a court martial unless “jurisdiction or some other equally fundamental defect” is proved).

               Post-Councilman, recent decisions of the D.C. Circuit suggest a different standard

of review. In Sanford, the Circuit identified “two lines of precedent” relevant to determining the

standard of review for collateral challenges to courts martial. Sanford, 586 F.3d at 31. Sanford

distinguished “the ‘full and fair consideration’ standard” applicable “for habeas review of courts-

martial, and . . . the ‘void’ standard that applies to collateral attacks on court-martial proceedings

by persons who are not in custody.” Id. Sanford then applied New II, which had reasoned, “in

light of Councilman’s point that non-habeas review is, if anything, more deferential than habeas

review of military judgments, a military court’s judgment clearly will not suffer such a

[fundamental] defect if it satisfies [the] ‘fair consideration’ test.” New II, 448 F.3d at 408.

               But the New II/Sanford analysis is both curious and confusing. But see McKinney

v. White, 291 F.3d 851, 853 (D.C. Cir. 2002) (noting that acts of a court martial can only be

reviewed in a “collateral attack seeking a declaration that a judgment is void . . . ‘because of lack

of jurisdiction or some other equally fundamental defect’”) (quoting Councilman, 420 U.S. at



                                                  12
747). It is clear that, in a habeas petition after a court martial, a civilian court applies the “full

and fair consideration” standard “to determine whether the military have given fair consideration

to each of [the soldier’s] claims.” Burns v. Wilson, 346 U.S. 137, 144 (1953); see also Kauffman

v. Secretary of Air Force, 415 F.2d 991, 997 (D.C. Cir. 1969). “[T]he test of fairness requires

that military rulings on constitutional issues conform to Supreme Court standards, unless it is

shown that conditions peculiar to military life require a different rule.” Kauffman, 415 F.2d at

997. Conversely, in cases such as this involving a non-habeas collateral attack on a court

martial’s judgment, Councilman is clear that the case rests on whether the court-martial lacked

jurisdiction or suffered some similar fundamental flaw that renders its judgment void.

Councilman, 420 U.S. at 746-47.

                It would appear that “full and fair consideration” of a soldier’s defense by a

military court is legally distinct from whether that military court suffered a lack of jurisdiction or

similar fundamental defect. See Runkle v. United States, 122 U.S. 543, 556 (1887) (“To give

effect to its sentences, it must appear affirmatively and unequivocally that the court [martial] was

legally constituted, that it had jurisdiction, that all the statutory regulations governing its

proceedings had been complied with, and that its sentence was conformable to law.”). Thus, if

Ms. Penland had challenged the outcome of her court martial, the Court would consider whether

fundamental error or an “irresponsible court-martial,” Councilman, 420 U.S. at 748 n.16,

rendered the judgment unenforceable, as opposed to whether the military court fully and fairly

considered her claims. Nor can Ms. Penland’s claims be saved by arguing there was no full and

fair consideration. More critically, while Defendants miss the mark by arguing only lack of

jurisdiction due to sovereign immunity, the Court must dismiss any claims of fundamental error

in her court martial because Ms. Penland does not challenge her court-martial proceedings.



                                                   13
     B. Challenge to Board of Inquiry Recommendation 12

               After Ms. Penland served her 60-day sentence, Capt. Sturges ordered her to

appear before a board of inquiry to show cause why she should not be separated from the Navy.

The BOI was tasked with recommending whether or not Ms. Penland should be discharged. In

this lawsuit, asserting jurisdiction under the APA, Ms. Penland asks the Court to overrule the

BOI’s recommendation of a General Discharge (Under Honorable Conditions).

               Ms. Penland alleges that “[t]estimony from her civilian boyfriend—the man in the

photos—was not allowed” before the BOI, and the BOI “was not allowed to consider

fundamental defects” in the court martial when making its recommendation. Am. Compl. ¶ 26.

The argument misapprehends the role of a board of inquiry. A question of fundamental defect—

such as lack of jurisdiction—provides a basis for review of a court martial. As indicated, Ms.

Penland does not seek review of her court martial. Instead, she attacks the BOI’s failure to hear

new evidence and to evaluate alleged defects in her prior court-martial proceeding. But Navy

regulations make clear that a board of inquiry has no such authority: “where a reason for

separation is based on an approved finding of guilty by a court-martial or a civilian criminal

conviction, such a finding of guilty or criminal conviction shall be binding on the BOI.” Sec

Nav Inst. Encl. 8 § 11. Thus, any failure of the BOI to consider the alleged fundamental errors in

the preceding court martial is immaterial because the BOI was not reviewing the merits of the

conviction and did not have jurisdiction to overturn them. Its role was the more limited one of

recommending whether discharge was warranted in light of the prior conviction.

               A district court’s “ability to review matters related to military discharges is

limited, as military personnel decisions themselves lie outside the court’s jurisdiction.” Burt v.
12
  The Court construes Ms. Penland’s challenge to the BOI recommendation as a claim that the
recommendation was arbitrary and capricious under the APA.

                                                 14
Winter, 503 F. Supp. 2d 388, 390 (D.D.C. 2007) (citing Piersall v. Winter, 435 F.3d 319, 321-22

(D.C. Cir. 2006) (claims for retroactive promotion are nonjusticiable)); Reilly v. Sec’y of the

Navy, 12 F. Supp. 3d 125, 140 (D.D.C. 2014) (merits of an individual military promotion not

justiciable); Caez v. United States, 815 F. Supp. 2d 184, 188 n.4 (D.D.C. 2011) (Army decision

to discharge and other “underlying personnel actions” were “not reviewable”). See also Reilly,

12 F. Supp. at 140 (while “courts do sometimes review the actions of military agencies, the

Court’s jurisdiction in this area is typically limited to challenges to procedures—it does not

extend to the merits of a promotion decision”) (emphasis in original). In line with this caselaw,

the Court concludes that the BOI acted in a similarly discretionary manner and rendered a

recommendation on a non-justiciable personnel decision.

     C. Challenge to the BCNR’s Decision

               Contrary to Defendants’ jurisdictional argument, this Court clearly has subject

matter jurisdiction to review BCNR decisions. 13 Such administrative boards “are subject to

judicial review and can be set aside if they are arbitrary, capricious, or not based on substantial

evidence.” Chappell v. Wallace, 462 U.S. 296, 303 (1983); Houseal v. McHugh, 962 F. Supp. 2d

286, 291 (D.D.C. 2013); Vince v. Mabus, 852 F. Supp. 2d 96, 99 (D.D.C. 2012). Review is

subject to a heightened standard of deference. Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514

(D.C. Cir. 1989). “All that is required is that the Board’s decision minimally contain a rational

connection between the facts found and the choice made.” Frizelle v. Slater, 111 F.3d 172, 176

(D.C. Cir. 1997) (internal quotations omitted).



13
  Despite the fact that the APA operates as a general waiver of sovereign immunity, Defendants
argue that all of Ms. Penland’s claims are nonetheless barred because the APA excludes from
judicial review actions taken by courts martial and military commissions. 5 U.S.C.
§ 701(b)(1)(F). However, the APA does not preclude a challenge to BCNR decisions.

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               The Navy filed a motion to dismiss based on erroneous claims of sovereign

immunity before submitting the full administrative record of the BCNR proceedings. Without

the administrative record, the Court has no basis to determine whether its decision should be

upheld or reversed. Indeed, the parties have not briefed the relevant issues. Therefore, the

Navy’s motion to dismiss this aspect of the Amended Complaint will be denied.

   D. Jurisdiction Over Alleged Violation of Military Whistleblower’s Protection Act

               The Amended Complaint alleges that “Defendant[] failed to comply with Military

Whistleblowers Protection Act when [it] prosecuted [Ms. Penland] as reprisal for her complaints

to military inspectors general.” Am. Compl. ¶ 39. It also alleges that Ms. Penland had “made

repeated complaints about financial improprieties in her command to Navy inspectors general

and to her congressional representatives before she was criminally charged.” Id. ¶ 10.

               These allegations might make out a violation of MWPA, but any such violation

cannot be rectified by this Court because the MWPA does not provide a private cause of action.

See Soeken v. United States, 47 Fed. Cl. 430, 433 (Fed. Cl. 2000) (“Because the Military

Whistleblower Protection Act provides strictly administrative remedies, plaintiff does not have a

private cause of action on which to file a claim in this court.”); Acquisto v. United States, 70 F.3d

1010, 1011 (8th Cir. 1995) (finding no private right of action under 10 U.S.C. § 1034 based on

statutory language, legislative history, administrative regulations, and that Congress only

established administrative remedy under the statute). Implicitly conceding the point, Ms.

Penland argues that, nonetheless, she has a constitutional right to be free from retaliation.

However, when Congress has established a specific form of redress, it precludes alternative fora.

See Wilson v. Libby, 535 F.3d 697, 705 (D.C. Cir. 2008) (victims of an alleged constitutional




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violation by a federal official have no remedy when Congress has created separate

comprehensive remedial scheme).

               Accordingly, Ms. Penland’s allegation that the Navy violated the MWPA will be

dismissed.

                                      IV. CONCLUSION

                The Court will grant in part and deny in part Defendants’ Motion to Dismiss

[Dkt. 12] for the reasons stated. All individual Defendants, except for Secretary Mabus in his

official capacity, will be dismissed by the Court. Counts I and II, which allege various

constitutional violations, will be dismissed without prejudice because Ms. Penland has not

attacked the outcome of the court martial where these errors allegedly occurred and because they

are wanting in factual support. Count III, which alleges a violation of the Military

Whistleblower’s Protection Act, will be dismissed for failure to state a claim. Ms. Penland’s

challenge to the decision of the Board for Correction of Naval Records will be the sole remaining

claim.

               A memorializing Order accompanies this Opinion.




Date: January 30, 2015

                                                                    /s/
                                                     ROSEMARY M. COLLYER
                                                     United States District Judge




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