                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                                 )
ISAAC J. MORRISON,                               )
                                                 )
       Plaintiff,                                )
                                                 )
               v.                                )                 Civil Action No. 10-362 (ESH)
                                                 )
SECRETARY OF DEFENSE, et al.,                    )
                                                 )
       Defendants.                               )
                                                 )


                                 MEMORANDUM OPINION

I.     INTRODUCTION

       In 1986, Plaintiff, then a United States Marine, was found guilty in a nonjudicial

proceeding (NJP) of unauthorized absence from duty. He was discharged from service in 1988.

In 2008, Plaintiff applied to the Board of Corrections of Naval Records (BCNR) for removal of

the NJP proceedings from his records and reinstatement into the Marine Corps with back pay and

promotions, a 10-year service obligation, and 30-year benefits. The application was denied.

Two years later, Plaintiff commenced this action for review of the Board’s decision under the

Administrative Procedure Act (APA).

       Before the Court is Defendants’ motion to dismiss Plaintiff’s non-APA claims for lack of

subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state

a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6).

Defendants thus contend that Plaintiff alleges not only a claim for APA review, but also non-

APA claims for removal of NJP proceedings from his records and reinstatement into the Marine

Corps with back pay and promotions, a 10-year service obligation, and 30-year benefits.
Defendants argue that the Court lacks subject-matter jurisdiction over non-APA claims for

monetary relief, that non-APA claims for injunctive relief are nonjusticiable, and that all non-

APA claims are time-barred. It is, however, clear that Plaintiff does not allege any non-APA

claims and, thus, this portion of the motion will be denied.

       Further, despite contending on one hand that Plaintiff’s APA claim should not be

dismissed, Defendants also argue on the other hand that Plaintiff fails to state such a claim upon

which relief may be granted under Rule 12(b)(6) because, contrary to what Plaintiff pleads, the

standard of review for an APA claim is not de novo. The Court, however, will broadly construe

the complaint to allege a valid APA claim that the Board’s actions were arbitrary and capricious,

and Plaintiff sufficiently alleges that Board overlooked certain evidence that it was required to

consider. That portion of the motion seeking dismissal of Plaintiff’s APA claim will therefore

also be denied.

II.    BACKGROUND

       Plaintiff Isaac J. Morrison enlisted in the United States Marine Corps on September 20,

1978, for a term of four years, and thereafter reenlisted for an additional six years. Compl. at 2,

ECF No. 1; Letter from W. Dean Pfeiffer, Exec. Director, BCNR, to Issac J. Morrison (Oct. 2,

2008), at 1, ECF No. 1 [hereinafter “Letter”]. On July 10, 1986, the Marine Corps meted out

nonjudicial punishment to Plaintiff for an unauthorized absence from duty. Compl. at 2; Letter

at 1. Plaintiff did not appeal the NJP. See Compl. at ECF p. 17. Plaintiff was discharged on

January 13, 1988. Letter at 1–2.

       Over two decades later, Plaintiff filed an application with the BCNR, asking the Board to

“set aside” the nonjudicial punishment of July 10, 1986, remunerate “all pay and allowances” to

which Plaintiff would have been entitled between the NJP and his discharge, and return Plaintiff



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to active duty with a 10-year service obligation and 30-year benefits. Mem. to Exec. Director,

BCNR, from G.L. Simmons, Head, Mil. L. Branch, Judge Advocate Div. (July 3, 2008) ¶ 3.b.,

ECF No. 1 [hereinafter “Mem.”]. The Board denied the application. See Letter. Plaintiff now

appeals that denial to this Court.

III.   STANDARDS OF REVIEW

       A.      Motion to Dismiss Under Rule 12(b)(1).

       Federal courts have limited jurisdiction and may not presume the existence of jurisdiction

in order to decide a case on other grounds. Tuck v. Pan Am. Health Org., 668 F.2d 547, 549

(D.C. Cir. 1981). Instead, the party claiming subject-matter jurisdiction bears the burden of

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

2008). In ruling on a motion to dismiss for lack of subject-matter jurisdiction under Rule

12(b)(1), a 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. Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

       B.      Motion to Dismiss Under Rule 12(b)(6).

       To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face,’” such that a court may “‘draw the reasonable inference that the defendant

is liable for the misconduct alleged.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). In ruling on a 12(b)(6) motion, a

court may consider facts alleged in the complaint, documents attached to or incorporated in the

complaint, matters of which courts may take judicial notice, and documents appended to a

motion to dismiss whose authenticity is not disputed, if they are referred to in the complaint and



                                                  3
integral to a claim. U.S. ex rel. Folliard v. CDW Tech. Servs., Inc., 722 F. Supp. 2d 20, 24–25

(D.D.C. 2010).1

IV.    PLAINTIFF SUFFICIENTLY ALLEGES A CLAIM UNDER THE
       ADMINISTRATIVE PROCEDURE ACT

       Under a liberal construction of the complaint, Plaintiff brings a claim under the

Administrative Procedure Act (APA). He does not bring, as Defendants contend, additional

independent claims for various forms of injunctive and monetary relief. Defendants appear to

inconsistently that the APA claim should be the only claim not dismissed, but also that the APA

claim should be dismissed for failure to state a claim upon which relief may be granted. The

Court agrees with the former position, and will conclude that Plaintiff sufficiently alleges an

APA claim.

       A.      Plaintiff Only Pleads an APA Claim.

       Plaintiff does not clearly set forth the claims he makes in his complaint. Construing the

pro se complaint broadly, the Court must, however, look to the relief sought to infer the claims

made, wherever possible. Bradley v. Smith, 235 F.R.D. 125, 127 (D.D.C. 2006) (“[P]leadings

filed by pro se litigants are liberally construed, and are held to less stringent standards than are

applied to pleadings prepared by attorneys.”). In this action, Plaintiff asks the Court to conduct a

de novo review of the findings of the BCNR, to reverse and reject the Board’s decision, and to

thereby grant the very relief he sought from the Board: removal of the NJP from his records and

reinstatement into the Marine Corps with back pay and promotions, a 10-year service obligation,

       1
         “If, on a motion under Rule 12(b)(6) . . . , matters outside the pleadings are presented to
and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56.” Fed. R. Civ. P. 12(d). Defendants attach to their motion to dismiss JAG Instruction
5800.7B, ECF No. 15-1; Nonjudicial Punishment Procedure, ECF No. 15-2; and Regulations
Supplementing the Manual for Courts martial, Part A – Nonjudicial Punishment, ECF No. 15-3.
The Court does not rely on these attachments in reaching its decision. Accordingly, the motion
will remain one for dismissal.
                                                  4
and 30-year benefits. Compl. at 4; see Mem. ¶ 3.b. As discussed more fully herein, Plaintiff

thus pleads a claim under the APA. See Gillan v. Winter, 474 F.3d 813, 817 (D.C. Cir. 2007)

(reviewing BCNR decision under the APA); 5 U.S.C. § 706; discussion infra Part III.B.

        Defendants, however, spend much of their motion challenging purported claims for

various forms of injunctive and monetary relief. See Mem. of P. & A. in Supp. of Defs.’ Mot. to

Dismiss at 7–14, 17-22, ECF No. 15 [hereinafter “Defs.’ Mem.”] (arguing that the Court is

without subject-matter jurisdiction over apparent claims for monetary relief, that apparent claims

for injunctive relief are nonjusticiable, and that all non-APA claims are time-barred by the

applicable statute of limitations). The fact that Plaintiff requests these forms of relief, however,

does not imply independent causes of action for that relief. Rather, Plaintiff only brings an APA

claim, asking the Court to review the BCNR decision, and in reversing that decision, to order

that relief which was requested of the Board but which the Board denied.

        Plaintiff clarifies his claim in his opposition, asserting that “the [C]ourt can only rule on

the decision of the [B]oard,” but stressing that, when doing to, “the [C]ourt is within its

jurisdiction to specify to the board that once it reverses the ruling to grant the Plaintiff his relief

to which he is entitled.” Resp. to Defs.’ Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss, at

6, ECF No. 19 [hereinafter “Pl.’s Opp’n”]. Plaintiff further clarifies that “[c]ontrary to the

Defendant[]s[’] rhetoric, the appeal before this [C]ourt is to review the finding of the BCNR,”

not to entertain other separate causes of action. Id. at 9. Defendants seize on this language to

assert that Plaintiff thus “concedes that the Court only has jurisdiction for APA review of the

BCNR decision.” Reply, ECF No. 20. In the Court’s view, however, Plaintiff merely clarifies

that he only seeks APA review.

        B.      Plaintiff Sufficiently Pleads an APA Claim.



                                                   5
       Defendants initially argue in their motion that “[t]he only matter which should remain for

consideration by the Court should be APA review of the 2008 findings of the Board of

Correction of Naval Records.” Defs.’ Mot to Dismiss, at 1, ECF No. 15. But in the

memorandum accompanying their motion, Defendants contradict that argument by stressing that

“Plaintiff’s request for a de novo review [under the APA] should be denied pursuant to Fed. R.

Civ. P. 12(b)(6).” Defs.’ Mem. at 13. Thus, say Defendants, “Plaintiff’s entire cause of action

should be dismissed.” Id. at 17. Even Plaintiff proceeding pro se identifies the oddity of

Defendants’ contradictory argument: “the defense is being rhetorical by first claiming the only

relief is that under A[P]A and now claiming that Plaintiff has failed to state a claim.” Pl.’s

Opp’n at 9.

       Defendants are correct that when a district court reviews agency action under the APA,

the court may “reverse the agency action only if it is ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’” United Techs. Corp. v. U.S. Dep’t of

Defense, 601 F.3d 557, 562 (D.C. Cir. 2010) (quoting 5 U.S.C. § 706(2)(A)); see Defs.’ Mem. at

13–17. “This ‘standard is narrow and a court is not to substitute its judgment for that of the

agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory

explanation for its action[,] including a rational connection between the facts found and the

choice made.’” United Techs. Corp., 601 F.3d at 562 (quoting Motor Vehicle Mfrs. Ass’n of

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). But the Court will not

dismiss Plaintiff’s APA claim.

       Liberally reading Plaintiff’s complaint, the Court construes the request for de novo

review as a request for review under the APA’s arbitrary-and-capricious standard. This

construction is buttressed by Plaintiff’s opposition, in which he stresses that he “is seeking the



                                                  6
court decision based on the preponderance of the evidence that the ruling was arbitrary,

Capricious, and not based on substantial evidence.” Pl.’s Opp’n at 12. When so construed,

Plaintiff’s complaint does not necessarily fail to state a claim upon which relief may be granted

under the APA simply by virtue of the words “de novo review.” The question instead turns on

whether Plaintiff has adequately alleged that the Board acted arbitrarily or capriciously when in

2008 it declined to remove Plaintiff’s NJP proceedings from his records or reinstate Plaintiff into

the Marine Corps with back pay and promotions, a 10-year service obligation, and 30-year

benefits. Defendants argue that “[e]ven if this Court treats Plaintiff’s complaint as liberally as

possible, Plaintiff has failed to plead any factual allegations that could lead a reasonable Court to

determine any misconduct on the part of the defendant[s].” Defs.’ Mem. at 16–17. The Court

disagrees.

       Although not an investigative body, 32 C.F.R. § 723.2(b), the BCNR is required to

review “all pertinent evidence of record” when it examines applications to correct naval records.

Id. § 723.3(e)(1). Pertinent evidence includes factors mitigating against the decision that led to

the record sought to be changed, such as “exceptional service.” See, e.g., Filler v. Winter, 538 F.

Supp. 2d 179, 184 (noting the BCNR’s conclusion that an applicant’s “many years of exceptional

service mitigated his conduct” and thus militated in favor of changing records concerning the

applicant’s involuntary separation).

       Plaintiff claims that the BCNR failed to consider that he “was/is an outstanding marine”

and that “[h]is career in the Marine Corps was exemplary.” Compl. at 3. Defendants dismiss

these averments as merely Plaintiff’s “personal opinions and/or conclusions” that are “not legally

sufficient” under Federal Rule of Civil Procedure 8(a)(2) to state an APA claim, Defs.’ Mem. at

17, but Defendants confuse the issue. It does not matter whether Plaintiff is or was, as a matter



                                                  7
of fact as opposed to opinion, an excellent marine; what matters is whether the BCNR considered

evidence of that excellence, if presented, when deciding whether to change Plaintiff’s records.

       Under a liberal construction of Plaintiff’s complaint, Plaintiff alleges that the BCNR

failed to consider that evidence. Compl. at 3. Plaintiff also supports that allegation with specific

facts allegedly overlooked, such as Plaintiff’s promotions and receipt of “nothing but outstanding

proficiency marks and exemplary fitness reports.” Compl. at 2. If, as alleged, Defendants failed

to consider this mitigating evidence, Defendants may have acted arbitrarily and capriciously.

Plaintiff has, at this stage, alleged an APA claim upon which relief may be granted.2

V.     CONCLUSION

       For the reasons set forth above, Defendants’ motion to dismiss will be denied. A separate

order consistent with this Memorandum Opinion shall issue this date.



                                                                  /s/
                                                      ELLEN SEGAL HUVELLE
                                                      United States District Judge


DATE: January 12, 2011




       2
          Plaintiff also alleges that the Board failed to consider that “[t]he
charge/supervision/vacation was clearly vindictive and racist,” that his “constitutional rights
were violated,” and that “[t]he decision of the Board for Correction of Naval Records was clearly
arbitrary and capricious.” Compl. at 3. Defendants dismiss the first of these averments as
merely Plaintiff’s “personal opinion[] and/or conclusion[]” and dismiss the remaining averments
as “not ‘facts[,]’[] but legal conclusions.” Defs.’ Mem. at 17. None, say Defendants, are
sufficient “to meet the requirements” of Rule 8(a) to sufficiently state an APA claim. Id.

        The Court does not reach these allegations by Plaintiff or arguments by Defendants.
Plaintiff successfully states an APA claim upon which relief may be granted with respect to the
alleged failure to consider mitigating evidence. That claim will therefore survive dismissal, even
if the Court were to agree with Defendants’ other arguments why that claim should be dismissed.
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