                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


WALTER J. JACKSON, JR.,

       Plaintiff,
                                                   Civil Action No. 10-1861 (BJR)
              v.
                                                   MEMORANDUM OPINION AND ORDER
RAY MABUS, Secretary of the Navy,

       Defendant.


       In this action, Walter J. Jackson (“Jackson”) challenges the Board of Correction of Naval

Records’ (“BCNR” or “the Board”) decision not to correct his records and the Board’s denial of

his request to reconsider its decision. Before the Court are Defendant’s Motion to Dismiss, or in

the alternative, for Summary Judgment (“Def.’s Mot. Dismiss/Summ. J.”) [Dkt. #35] and

Plaintiff’s Motion for Summary Judgment [Dkt. #39]. Having reviewed the parties’ briefs

together with the relevant materials, for the reasons set forth below, Defendant’s Motion to

Dismiss is DENIED IN PART and GRANTED IN PART; Defendant’s Motion for Summary

Judgment is GRANTED; and Plaintiff’s Motion for Summary Judgment is DENIED.


                                   I.      BACKGROUND

                                 A.      Factual Background


       Jackson enlisted in the United States Navy in 1989.        Second Amended Complaint

(“Second Am. Compl.”) [Dkt. #31] ¶ III. Jackson served in the Navy until 1999 when he was

honorably discharged. Id. ¶ IV. He re-enlisted in 2000. Id. ¶ VII. In 2004, Jackson was

transferred to United States Naval Computer and Telecommunications Stations Bahrain (“NCTS

Bahrain”). Id. ¶ XVIII.


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        In February 2005 while serving at NCTS Bahrain, Jackson was counseled by his superior

officer for checking out a day early for his scheduled leave. Def.’s Mot. Dismiss/Summ. J. at 3.

Later that year, Jackson sought and received Funded Environmental and Morale Leave

(“FEML”). Second Am. Compl. ¶ XXI. His ticket, organized and purchased by the government

travel office, was for a flight departing Bahrain one day earlier than his FEML had been

scheduled. Id. ¶¶ XXII, XXIII. According to Plaintiff, before leaving, Jackson checked out with

his Command Duty Officer, who instructed Jackson to leave despite the discrepancy between the

date on his leave orders and the date of his scheduled flight. Id. ¶ XXV. When Jackson returned

to NCTS Bahrain and checked back in with a different Command Duty Officer, he was one day

later than his scheduled leave. Def.’s Mot. Dismiss/Summ. J. at 3. Jackson was charged with

unauthorized absence. Second Am. Compl. ¶ XXVIII. Given the choice, Jackson demanded a

court martial rather than non-judicial punishment, known as Captain’s Mast. Id. ¶¶ XXIX, XXX,

XXXI.


        Shortly after Jackson requested a court martial, Hurricane Katrina struck Louisiana,

where Jackson’s family lived. Second Am. Compl. ¶ XXXIII. In response to Hurricane Katrina,

the Chief of Naval Operations directed commanding officers to make every effort to support

members of the Navy by granting leave to those with family members affected by the hurricane,

notwithstanding a standing policy at NCTS Bahrain limiting members to thirty-two days of leave

each year in order to ensure extensive leave was not taken during relatively short tours of duty.

Def.’s Mot. Dismiss/Summ. J. at 5.


        Jackson requested thirty days emergency leave to assist his family, but his request was

denied due to his pending court martial. Second Am. Compl. ¶¶ XXVI, XXXVII. Jackson then

accepted non-judicial punishment. He received a suspended reduction to the next inferior pay

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grade (E-5) and was required to forfeit half of his pay for two months. Id. ¶¶ XXVII, XL.

Jackson again requested emergency leave. Id. ¶ XLI. He was granted sixteen days leave, Id. ¶

XLV, and he left for New Orleans on November 30, 2005, Def.’s Mot. Dismiss/Summ. J. at 7.

His leave was extended three times while he was in New Orleans—for seven days, two days, and

another two days. Second Am. Compl. ¶ XLVI.


       According to Defendant, in April 2006, Jackson disobeyed an order and engaged in a

verbal altercation with a superior officer, violating the probation he was serving from his earlier

non-judicial punishment. Def.’s Mot. Dismiss/Summ. J. at 7. In response, his previously

suspended reduction in rank was imposed, making his rank E-5 effective in May 2006. Id. at 8.


       In addition to the above instances, Jackson received several poor performance evaluations

and was not recommended for reenlistment. Second Am. Compl. ¶¶ XLVIII, L, LIV. According

to Plaintiff, Jackson filed two protective communications under the Military Whistle Blower

Act—once before his non-judicial punishment and once after his adverse performance

evaluations. Plaintiff’s Opposition to Defendant’s Motion to Dismiss, or in the alternative, for

Summary Judgment (“Pl.’s Opp’n Def. Mot. Dismiss/Cross-Mot. Summ. J.”) [Dkt. #36] at 11-

12. Jackson was honorably discharged from the army in July 2006 with the reenlistment code

RE-4, which signifies that the individual is not recommended for reenlistment in any branch of

service. Id. ¶¶ LV, LVI.


                                B.      Procedural Background


       Jackson initially sought to modify his records through appeal to the BCNR in January

2007. Second Am. Compl. ¶ LVII. Jackson asked the BCNR to remove the non-judicial

punishment from his record; correct the reason for his discharge; change his separation and re-


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entry code to “KBK” and “RE-1”; and remove two evaluations from 2006. Id. In May 2007, the

BCNR denied his application. Id. ¶ LVIII. The BCNR summarized the record and stated “the

evidence was insufficient to establish the existence of probable material error or injustice.”

Administrative Record (“AR”) at 40.


        Jackson requested the BCNR reconsider his request in September 2007. Def.’s Mot.

Dismiss/Summ. J. at 10. According to its governing regulations, the BCNR must approve a

request for reconsideration if the applicant presents new and material evidence. 32 C.F.R. §

723.9. New evidence is “evidence not previously considered by the Board and not reasonably

available to the applicant at the time of the previous application.” Id. Material evidence is

“likely to have a substantial effect on the outcome.” Id. The BCNR denied Jackson’s request for

reconsideration that September, stating only that there was no new or material evidence

submitted to the BNCR for review. AR at 5. Shortly after its denial of reconsideration, the

BCNR received a binder of information in support of Jackson’s request for reconsideration.

Def.’s Mot. Dismiss/Summ. J. at 10-11. The Board did not change its decision and did not

consider the material in the binder. Id.


        Jackson filed this case in November 2010. Second Am. Compl. ¶ LIX. This Court

remanded the case to the BCNR to consider the binder of evidence received after the first denial

of reconsideration. Id. ¶ LX. The BCNR again denied Jackson’s request in February 2011. Id. ¶

LXII.    The denial was not communicated to Jackson until May 2011.                Def.’s Mot.

Dismiss/Summ. J. at 11. The BCNR’s denial echoed its September 2007 denial, stating there

was no new or material evidence for the board to consider. The same month, Jackson submitted

results from a polygraph test and a report by an investigator. Second Am. Compl. ¶ LXV. In

September 2011, after reviewing the additional evidence, the BCNR denied this request for

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reconsideration. Once again, the board sent a conclusory letter asserting no new or material

evidence was provided by Jackson. AR at 633.


       After an amended complaint and cross motions for summary judgment, this Court

remanded this case to the BCNR, requesting its reasons for concluding that Jackson’s most

recent request did not include new and material evidence as required by 32 C.F.R. § 723.9.

Second Am. Compl. ¶ LXVII. In its most recent review, the BCNR reviewed all of the evidence

submitted by Jackson, including the polygraph and investigation report, and denied Johnson’s

request for reconsideration. Second Am. Compl. ¶ LXXII; Def.’s Mot. Dismiss/Summ. J. at 12.

As to the polygraph, the BCNR explained that it “merely . . . recit[ed] . . . the facts as to why

[Jackson] thought [he] had been on authorized leave” and confirmed the evidence already

reviewed by the BCNR. AR at 607. Therefore, according to the BCNR, no new and material

evidence was submitted and reconsideration was not justified. AR at 608. The BCNR also

addressed Jackson’s arguments concerning his unauthorized leave. The BCNR found that the

leave extended longer than allowed and that Jackson did not have reason to believe that the

Command Duty Officer had the authority to modify or approve changes to his leave. Id. Last,

the BCNR said that Jackson did not have whistleblower status because no “protected

communication . . . resulted in reprisal.” Id.


       Following the BCNR’s most recent denial, Jackson filed a Second Amended Complaint.

[Dkt. #31]. Jackson’s Second Amended Complaint alleges his Commanding Officer and the

BCNR made decisions that were arbitrary and capricious, unsupported by substantial evidence,

and in contravention of law. Additionally, in his complaint Jackson claims his Commanding

Officer and the BCNR violated his due process rights. The parties then filed the motions

currently before the Court.

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                                  II.     MOTION TO DISMISS


                                     A.      Standard of Review


        The justiciability of a case is properly raised and adjudicated upon a motion to dismiss

for failure to state a claim upon which relief can be granted. See Oryszack v. Sullivan, 576 F.3d

522, 526 (D.C. Cir. 2009). On a motion to dismiss for failure to state a claim upon which relief

can be granted pursuant to Federal Rules of Civil Procedure 12(b)(6), a court may dismiss a case

if Plaintiff’s complaint fails to plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007). The court must view the

factual allegations as true and consider them in the light most favorable to the non-moving party.

See, e.g., Tradeau v. Federal Trade Com’n, 456 F.3d 178, 193 (D.C. Cir. 2006).


                                           B.      Analysis


        Defendant moves to dismiss on the grounds that Plaintiff’s claims, which relate to the

actions of his Commanding Officer and the decisions of the BCNR, are not justiciable. Def.’s

Mot. Dismiss/Summ. J. at 18. Defendant alleges the military personnel decisions at issue in

Plaintiff’s complaint are beyond the scope of this Court’s judicial review. Id. Specifically,

Defendant argues that asking this Court to rule that Plaintiff’s Commanding Officer’s

punishment was unreasonable, that Jackson’s continued service was not prejudicial to order, and

that Jackson’s performance evaluations must be changed and allow for reenlistment

impermissibly demands this Court “second-guess whether the Navy acted prudently.” Id.


        Plaintiff argues that the claims in his Second Amended Complaint are justiciable because

courts can review correction board decisions under the arbitrary and capricious standard. Pl.’s

Opp’n Def. Mot. Dismiss/Cross-Mot. Summ. J. at 18.

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       1.      Review of the BCNR


       As to Plaintiff’s claims against the BCNR, it is a “well settled rule that decisions of

boards for corrections of military records are subject to review under the APA [Administrative

Procedure Act].” Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir. 2006); see, e.g., Kreis v. Sec’y

of Air Force, 866 F.2d 1508, 1513-14 (D.C. Cir. 1989). Judicial review of the BCNR is proper

because “the district court merely . . . evaluate[s], in light of familiar principles of administrative

law, the reasonableness of the Secretary’s decision not to take certain corrective action with

respect to appellant’s record.” Kreis, 866 F.2d at 1511. Reviewing the BCNR’s decision only

requires this Court to assess the Board’s decision-making procedures not its substantive decision.

See Id. Therefore, Defendant’s Motion to Dismiss is denied as to review of the BCNR’s actions.


       2.      Review of the Commanding Officer


       Plaintiff also contests actions taken by his Commanding Officer. The claims challenge

the underlying facts found, evaluations conducted, and regulations interpreted by Plaintiff’s

Commanding Officer. Because “[c]ourts are not in the business of substituting their judgment

for that of military officers,” this Court may not review the decisions made by Plaintiff’s

Commanding Officer. Powers v. Donley, 844 F. Supp. 2d 65, 71 (D.D.C. 2012); see also

Piersall, 435 F.3d at 324-25. To do so would “take the judiciary far afield of its area of

competence.” Cone v. Caldera, 223 F.3d 789, 792 (D.C. Cir. 2000). Reviewing a performance

evaluation would require the Court to assess the subjective judgment of the military officer who

conducted the evaluation. See Powers, 844 F. Supp. at 71. Because allegations against a naval

officer are not justiciable, the Court grants Defendant’s Motion to Dismiss as to claims regarding

the actions of Plaintiff’s Commanding Officer.


                                                  7
                 III.    CROSS-MOTIONS FOR SUMMARY JUDGMENT


                                   A.      Standard of Review


       The Administrative Procedure Act (“APA”) provides the standard of review for deciding

a motion for summary judgment when a district court reviews an administrative action. 5 U.S.C.

§ 706; Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006). “Under the APA, it is

the role of the agency to resolve factual issues to arrive at a decision that is supported by the

administrative record, whereas ‘the function of the district court is to determine whether or not as

a matter of law the evidence in the administrative record permitted the agency to make the

decision it did.’” Buckingham v. Mabus, 772 F. Supp. 2d 295, 300 (D.D.C. 2011) (quoting

Catholic Health Initiatives v. Sebelius, 658 F. Supp. 2d 113, 117 (D.D.C. 2009)). Therefore,

summary judgment “serves as the mechanism for deciding, as a matter of law, whether the

agency action is supported by the administrative record and otherwise consistent with the APA

standard of review.” Sierra Club, 459 F. Supp. 2d at 90 (citing Richard v. INS, 554 F.2d 1173,

1177 n. 28 (D.D.C. 1977)).


       In reviewing an administrative action, a district court must determine whether the

administrative action was arbitrary and capricious, contrary to law, or unsupported by substantial

evidence. § 706. To pass arbitrary and capricious review, the administrative body “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.’” Motor Vehicle Mfrs. Ass’n

of United States, Inc. v. State Farm, 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v.

United States, 371 U.S. 156, 168 (1962)). If the administrative action is reasonable, the court

must accept it. Roberts v. Harvey, 441 F. Supp. 2d 111, 118 (D.D.C. 2006). An administrative


                                                 8
decision that satisfies arbitrary and capricious review also satisfies the substantial evidence test.

Assoc. of Data Processing Serv. Org., Inc. v. Bd. Of Governors of Fed. Reserve Sys., 745 F.2d

677, 683-84 (D.C. Cir. 1984) (“[T]here is no substantive difference between what [arbitrary and

capricious] requires and what would be required by the substantial evidence test.”).


       The standard of review established by the APA is deferential to administrative action. In

determining whether an administrative decision violates the APA standard, a court has a very

narrow review and does not substitute its judgment for that of the agency. State Farm, 463 U.S.

at 43. Indeed, “even if a board could have explained its reasons . . . in more detail, an agency’s

decision [need not] be a model of analytic precision to survive a challenge.” Roberts v. United

States, 883 F. Supp. 2d 56, 69 (D.D.C. 2012) (alteration in original) (internal quotation and

citation omitted). A court’s deference is heightened when it reviews an administrative decision

by the military, see, e.g., Kreis, 866 F.2d at 1513, as there is a “presumption that administrators

of the military, like other public officers, discharge their duties correctly, lawfully and in good

faith.” Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997). Therefore, the actions of the

BCNR receive substantial deference.


                                         B.      Analysis


       Because Plaintiff’s claims against the BCNR are justiciable, this Court must determine

whether the BCNR’s decision was arbitrary and capricious, unsupported by substantial evidence,

or in contravention of law. While Plaintiff’s complaint and briefs devote considerable attention

to both the BCNR’s initial denial of relief and its subsequent denials of reconsideration, the

Court evaluates only whether the BCNR ultimately provided an explanation that demonstrated

that its action was not arbitrary and capricious. Since the BCNR finally provided a reasoned


                                                 9
explanation for its decision, the Court finds the BCNR’s decision was not arbitrary and

capricious.


       1.        Arbitrary and Capricious or Unsupported by Substantial Evidence


       Plaintiff argues that the BCNR’s denial of relief and denials of reconsideration do not

adequately explain the connection between the facts found and the decision made and thereby

fail arbitrary and capricious review. Specifically, Plaintiff insists that the BCNR did not explain

how the polygraph and investigation were not new or material; that the BCNR impermissibly

“rubber-stamped” the advisory opinion provided by Plaintiff’s Commanding Officer; that the

BCNR failed to inquire into whether Plaintiff deserved protection as a military whistleblower;

and that the BCNR violated Plaintiff’s due process rights.


                 a.     New and Material Evidence


       Plaintiff first claims that the BCNR’s denial was arbitrary and capricious because it failed

to explain how the polygraph and investigation Plaintiff submitted to the Board were not new or

material.     Opp. Def. Mot. Dismiss/Mot. Summ. J. at 27.        Defendant suggests the BCNR

“reasonably found” the polygraph and investigation did not provide the board with new and

material evidence to justify reconsideration. Def.’s Mot. Dismiss/Summ. J. at 23. In previous

denials of reconsideration, the BCNR only asserted that the polygraph and investigation was not

new or material. AR at 5, 27, 633. However, in October 2013, the Board explained that it found

the documents were “merely a recitation of the facts as to why [Jackson] thought [he] had been

on authorized leave” and “confirmed [Jackson] believed [he] w[as] in a leave status when

departing.” AR at 607. Given that explanation, the BCNR’s most recent denial demonstrated




                                                10
why the board did not believe there was new and material evidence to justify reconsideration.

               b.      Advisory Opinion


       Second, Plaintiff claims the BCNR’s denial was arbitrary and capricious because it

impermissibly “rubber-stamped” the advisory opinion provided by the Commanding Officer.

Opp. Def. Mot. Dismiss/Mot. Summ. J. at 27. Defendant argues that the BCNR was justified in

adopting the advisory opinions of Plaintiff’s Commanding Officer. Def.’s Mot. Dismiss/Summ.

J. at 23. If the Board adopted the Commanding Officer’s advisory opinion in its denial of

reconsideration, that action would not make the decision arbitrary and capricious. Indeed, the

BCNR’s regulations authorize the board to consider advisory opinions as part of the record

before it. 32 C.F.R. § 723.6(c). Additionally, the court in Roberts held that “it is not inherently

problematic for a military review board to seek out one or more advisory opinions . . . and then

rely on the reasons in those opinions in coming to its determination.” Roberts, 883 F. Supp. 2d

at 70. Reliance on an advisory opinion does not render the BCNR’s denial of reconsideration

arbitrary and capricious.


               c.      Military Whistleblower


       Plaintiff’s third argument is that the BCNR’s denial was arbitrary and capricious because

it failed to inquire into whether Plaintiff deserved protection as a military whistleblower. Pl.’s

Opp’n Def. Mot. Dismiss/Cross-Mot. Summ. J. at 34. The BCNR inquired into the validity of

Plaintiff’s whistleblower claim when it reached a conclusion concerning the elements of an

action under the Military Whistle Blower Act. 10 U.S.C. § 1034(f) (requiring an applicant show

a protected communication, prior to adverse action, that was a negative personnel decision, that

was connected to the protected communication). The BCNR explained that it was “unable to


                                                11
find any protected communication [that Jackson] made resulted in reprisal.” AR at 207.                             The

BCNR is not required to resolve an issue in favor Plaintiff in order to pass arbitrary and

capricious review; it need only examine the evidence and explain its finding. Therefore, the

BCNR adequately explained its decision concerning Plaintiff’s whistleblower status.


         The Court concludes the BCNR’s ultimate decision was not arbitrary and capricious. 1


         2.       Contravention of Law


         Separately, Plaintiff argues that the BCNR violated its enabling statute by not using its

equitable powers and reconsidering Plaintiff’s request.                     Second Am. Compl. ¶ XXXIII.

Plaintiff’s argument fails. The equitable powers granted in the Board’s enabling legislation are

discretionary. 10 U.S.C. § 1552 (“The Secretary of a military department may correct any

military record of the Secretary’s department when the Secretary considers it necessary to

correct an error or remove an injustice.”) (emphasis added). Here, the BCNR decided not to

grant Plaintiff’s request because it concluded, based on the evidence before it, that there was no

injustice. Because the BCNR has the discretion to make such a determination, Mail Order Ass’n

of America v. United States Postal Serv., 2 F.3d 407, 421 (D.C. Cir. 1993), there was no

contravention of law. 2


1
  Plaintiff argues that the BCNR violated his due process rights by not informing him of the specific evidence
supporting its findings and by not following its own regulations. Pl.’s Opp’n Def. Mot. Dismiss/Cross-Mot. Summ.
J. at 42. “[T]he guaranty of due process . . . demands only that the law shall not be unreasonable, arbitrary or
capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.”
Nebbia v. New York, 291 U.S. 502, 510-11 (1934); see also Holy Land Found. For Relief and Dev. v. Ashcroft, 333
F.3d 156, 163 (D.C. Cir. 2003). Because the BCNR’s decision was not arbitrary and capricious, the Court finds
Plaintiff’s due process rights were not infringed.
2
  Plaintiff also claims in his brief that his Commanding Officer should be equitably estopped from punishing
Plaintiff because Plaintiff detrimentally relied on representations by his Commanding Officer. Pl.’s Opp’n Def.
Mot. Dismiss/Cross-Mot. Summ. J. at 39. However, Plaintiff’s Second Amended Complaint contains no such claim.
Plaintiff cannot raise in his Motion for Summary Judgment a claim not contained in his complaint. See Queen v.
Schultz, 888 F. Supp. 2d 145, 168 (D.D.C. 2012) (“The Court holds that the plaintiff may not raise his . . . claim at
the summary judgment stage because he failed to raise such a claim in his Complaint.”).

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Accordingly,


       IT IS HEREBY ORDERED that:


       (1) Defendant’s Motion to Dismiss is DENIED IN PART and GRANTED IN PART.

       (2) Defendant’s Motion for Summary Judgment is GRANTED.

       (3) Plaintiff’s Motion for Summary Judgment is DENIED.


DATED this 15th day of July, 2014.




                                                BARBARA J. ROTHSTEIN
                                                UNITED STATES DISTRICT JUDGE




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