Robert Rodriguez v. Virginia Penrod

Filing

OPINION [1676925] filed (Pages: 9) for the Court by Judge Millett. [15-1096]

USCA Case #15-1096

Document #1676925

Filed: 05/26/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2016

Decided May 26, 2017

No. 15-1096
ROBERT W. RODRIGUEZ,
PETITIONER
v.
VIRGINIA S. PENROD, CHIEF OF STAFF FOR THE OFFICE OF THE
UNDER SECRETARY OF DEFENSE FOR PERSONNEL AND
READINESS, UNITED STATES DEPARTMENT OF DEFENSE,
RESPONDENT

On Petition for Review of an
Order of the Department of Defense

Joseph E. Schmitz argued the cause for petitioner. With
him on the briefs was Paul D. Kamenar.
Patrick G. Nemeroff argued the cause for respondent.
With him on the brief were Benjamin C. Mizer, Principal
Deputy Assistant Attorney General at the time the brief was
filed, and Marleigh D. Dover, Attorney. Thomas G. Pulham,
Attorney, entered an appearance.

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Before: SRINIVASAN, MILLETT, and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Lieutenant Colonel Robert
Rodriguez, a retired member of the Army National Guard,
claims that the Army unlawfully relieved him of command in
retaliation for whistleblowing, in violation of the Military
Whistleblower Protection Act of 1988 (“Whistleblower Act”),
10 U.S.C. § 1034. But first we must decide where Rodriguez’s
claim should be litigated—should he have started in district
court or did he properly proceed directly to this appellate court?
The default rule is that jurisdiction starts with the district court,
and that default rule applies here. We accordingly order that
this action be transferred to the United States District Court for
the District of Columbia.
I
A
The Whistleblower Act prohibits “tak[ing] (or
threaten[ing] to take) an unfavorable personnel action, or
withhold[ing] (or threaten[ing] to withhold) a favorable
personnel action, as a reprisal against a member of the armed
forces” for making protected whistleblowing communications.
10 U.S.C. § 1034(b) (2015). Any member of the armed forces
who believes he was subjected to such reprisal may submit an
allegation to an Inspector General within the Department of

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Defense, including within the relevant branch of the armed
services. See id. § 1034(c)(1), (j)(2)(A), (j)(2)(C). 1
The Inspector General who receives the allegation shall
then “determine * * * whether there is sufficient evidence to
warrant an investigation” into the matter.
10 U.S.C.
§ 1034(c)(4)(A). If there is, the Inspector General must
undertake that investigation and report the results to the
Secretary of Defense and the Secretary of the relevant military
department. Id. § 1034(c)(4)(D), (e)(1). If the Secretary of the
relevant military department then finds a “sufficient basis to
conclude” that a prohibited reprisal has occurred, id.
§ 1034(f)(1), the Secretary may order corrective action, id.
§ 1034(f)(2)–(3).
After the Inspector General reports the results of the
investigation, the service member may seek additional relief
from a board for the correction of military records, established
pursuant to 10 U.S.C. § 1552. See 10 U.S.C. § 1034(g). The
board reviews the report prepared by the Inspector General, id.
§ 1034(g)(2)(A), and subsequently forwards its proposed
decision to the Secretary of the relevant military department,
see, e.g., 32 C.F.R. § 581.3(g)(2)(ii)(B). That Secretary must
then issue a final decision on the matter and take appropriate
corrective action. 10 U.S.C. § 1034(g)(4)–(5).
Once administrative review is completed, a service
member who is still not satisfied with the disposition of his
claim may submit the matter to the Secretary of Defense for
further review. 10 U.S.C. § 1034(h). Under Section 1034(h),
1

In some circumstances (not relevant here), claims may also be
submitted to and processed by the Inspector General of the
Department of Homeland Security. See 10 U.S.C. § 1034(c)(1),
(j)(2)(B). Our discussion of the statutory scheme focuses on
submissions within the Defense Department.

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the Secretary of Defense “shall make a decision to reverse or
uphold the decision of the Secretary of the military department
concerned” within ninety days of receiving the member’s
request for review. Id.
B
Starting in 1995, Rodriguez served as a Lieutenant Colonel
in the New York Army National Guard, commanding the 1st
Battalion, 105th Infantry Regiment, 27th Infantry Brigade. In
July 1996, Rodriguez’s Brigade Commander, with the
concurrence of the Commanding General of the New York
Army National Guard, Brigadier General Robert Rose, relieved
Rodriguez of command. The stated reasons for that decision
were Rodriguez’s alleged failure to prevent soldiers from going
absent without leave (“AWOL”) and other losses in his
battalion, which showed up to training with more than ninety
unaccounted-for members.
Rodriguez complained to the Adjutant General of the New
York Army National Guard that he had been improperly
relieved of command.
The National Guard thereafter
determined that Rodriguez had failed to control his battalion’s
losses and AWOLs, and that Rodriguez should be reassigned.
After Rodriguez was reassigned, Brigadier General Rose
issued Rodriguez a letter of reprimand for “fail[ing] to control
the AWOLs” and for his “lack of attention to strength
maintenance throughout [his] battalion.” D.A. 217. Rodriguez
promptly requested that Brigadier General Rose withdraw the
letter of reprimand and that the Adjutant General expunge any
record of the reprimand from his personnel file.
In April 1997, the Adjutant General directed Brigadier
General Rose to remove the letter of reprimand from

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Rodriguez’s personnel file, citing an agreement between the
Adjutant General and Rodriguez that “no further adverse action
would be taken against [him]” with respect to the matter of
troop loss and AWOLs. D.A. 280.
Around that same time, Rodriguez filed a whistleblower
complaint with the Department of Defense, in which he alleged
that Brigadier General Rose and others took actions against
him in reprisal for making unspecified whistleblower
communications. Then, in November 1997, Rodriguez’s
position in the National Guard was either “eliminated by State
headquarters,” Pet. Br. 10, or “downgraded due to
reorganization,” Resp. Br. 7. As a consequence, Rodriguez
transferred to the Retired Reserve.
Rodriguez’s whistleblower complaint was reviewed by the
Department of the Army Inspector General. After a couple
rounds of review, the Inspector General ultimately concluded,
in 1999, that all of Rodriguez’s claims of reprisal lacked merit.
A decade later, in September 2009, Rodriguez filed an
application for relief with the Army Board for Correction of
Military Records, again raising his allegations of reprisal. The
Army Board rejected, in relevant part, his reprisal claims and
requests for relief. The Board also denied Rodriguez’s request
for reconsideration.
As authorized by Section 1034(h) of the Whistleblower
Act, 10 U.S.C. § 1034(h), Rodriguez appealed the Board’s
decision to the Secretary of Defense. The Secretary, however,
delegated his authority to review Section 1034(h) appeals to the
Chief of Staff for the Office of the Under Secretary of Defense
for Personnel and Readiness, Pasquale Tamburrino. In January
2013, Tamburrino affirmed the Board’s decision.

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Rodriguez filed a petition for review of Tamburrino’s
decision in this court, Rodriguez v. Tamburrino, petition
docketed, No. 13-1192 (D.C. Cir. May 31, 2013). After the
parties reached a settlement agreement, we granted
Rodriguez’s motion to dismiss his petition without prejudice.
Under the settlement agreement, Virginia Penrod, the newly
assigned Chief of Staff for the Office of the Under Secretary of
Defense for Personnel and Readiness, agreed to “reconsider”
Tamburrino’s decision. D.A. 627.
On March 6, 2015, Penrod issued her decision on
reconsideration, upholding the decision of the Army Board for
Correction of Military Records and denying Rodriguez’s
requests for relief. Rodriguez again sought review directly in
this court.
II
We begin, as we must, “with the question of our
jurisdiction.” Sierra Club v. FERC, 827 F.3d 36, 43 (D.C. Cir.
2016) (quoting Brotherhood of Locomotive Eng’rs & Trainmen
v. Surface Transp. Bd., 457 F.3d 24, 27 (D.C. Cir. 2006)).
Jurisdiction in the federal courts of appeals hinges on two
things: “‘[t]he Constitution must have given to the court the
capacity to take [the case], and an act of Congress must have
supplied it.’” Micei Int’l v. Department of Commerce, 613 F.3d
1147, 1151 (D.C. Cir. 2010) (quoting Mayor v. Cooper, 73 U.S.
(6 Wall.) 247, 252 (1868)). Rodriguez indisputably has been
personally and directly aggrieved by the Defense Department’s
decision on his claim, so the question in this case is one of
statutory, not constitutional, jurisdiction. That predicate
statutory inquiry is essential to our power to decide this case:
“without statutory authorization,” “federal courts have no
jurisdiction.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 553 (2005).

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Rodriguez’s jurisdictional task is particularly difficult
because federal courts of appeals generally are courts of
review, not first view. See Texas v. United States, 798 F.3d
1108, 1115 (D.C. Cir. 2015). Yet Rodriguez seeks to bypass
the district court and obtain review in the first instance in the
court of appeals. That is permissible “only when authorized by
a specific direct-review statute.” Loan Syndications & Trading
Ass’n v. SEC, 818 F.3d 716, 719 (D.C. Cir. 2016). Otherwise,
“the ‘normal default rule’ is that ‘persons seeking review of
agency action go first to [a federal] district court.’” National
Auto. Dealers Ass’n v. Federal Trade Comm’n, 670 F.3d 268,
270 (D.C. Cir. 2012) (quoting Watts v. SEC, 482 F.3d 501, 505
(D.C. Cir. 2007)). 2
Rodriguez seeks review of a decision by the Secretary of
Defense under 10 U.S.C. § 1034(h). But nothing in Section
1034(h) or any other provision of the Whistleblower Act
provides for direct review in the courts of appeals. To the
contrary, as Rodriguez admits, the entire Whistleblower Act is
“silent” on the question of judicial review. Pet. Reply Br. 2. In
this jurisdictional context, silence has meaning: the default rule
of district court jurisdiction applies. See NetCoalition v. SEC,
715 F.3d 342, 347 (D.C. Cir. 2013) (“[U]nless the Congress
has * * * expressly supplied the courts of appeals with
jurisdiction to review agency action directly, an
[Administrative Procedure Act] challenge falls within the
general federal question jurisdiction of the district court and
must be brought there ab initio.”) (emphasis added).
2

See also American Petroleum Inst. v. SEC, 714 F.3d 1329,
1332 (D.C. Cir. 2013) (“Initial review [of agency action] occurs at
the appellate level only when a direct-review statute specifically
gives the court of appeals subject-matter jurisdiction to directly
review agency action.”) (quoting Watts, 482 F.3d at 505).

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Reinforcing the point, the Whistleblower Act’s provision
for seeking relief from boards for correction of military
records, 10 U.S.C. § 1034(g)(1), similarly says nothing about
direct review in the federal courts of appeals, and district courts
have routinely reviewed those board decisions in the first
instance. See, e.g., Kidwell v. Department of Army, Bd. for
Correction of Military Records, 56 F.3d 279, 283–284 (D.C.
Cir. 1995).
Rodriguez points to the Administrative Procedure Act
(“APA”), which authorizes judicial review of agency action
under specified circumstances. See 5 U.S.C. §§ 701–706. That
is of no help to Rodriguez, for two reasons.
First, the APA creates a cause of action, not jurisdiction.
See Trudeau v. Federal Trade Comm’n, 456 F.3d 178, 185
(D.C. Cir. 2006) (“[T]he APA does not confer jurisdiction,” but
“its judicial review provisions do provide * * * a limited cause
of action for parties adversely affected by agency action.”)
(citation omitted). In other words, the APA “says how to
review agency actions”; “it says next-to-nothing about where
that review should take place (e.g., in particular district courts
or courts of appeals).” Loan Syndications, 818 F.3d at 719. 3
Second, unless Congress expressly says otherwise, APA
review takes place first in the federal district courts, not the
courts of appeals. Micei, 613 F.3d at 1152 (“[I]n the absence
of a provision authorizing review in the court of appeals,
challenges to agency action to which the APA’s judicial review
provisions apply fall within the district court’s federal question
3

See also Califano v. Sanders, 430 U.S. 99, 105 (1977) (“[T]he
APA is not to be interpreted as an implied grant of subject-matter
jurisdiction to review agency actions.”).

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jurisdiction[.]”) (citing Bell v. New Jersey, 461 U.S. 773, 777
& n.3 (1983)).
Finally, Rodriguez asks this court to ground jurisdiction in
our “equitable powers.” Pet. Br. 3 (quoting Nader v. Volpe,
466 F.2d 261, 269 (D.C. Cir. 1972)). That we cannot do. This
court is a “creature[] of statute and possess[es] no jurisdiction
except as afforded by congressional enactment.” Owens v.
Republic of Sudan, 531 F.3d 884, 887 (D.C. Cir. 2008).
Accordingly, there is no legal basis for this court to
exercise direct-review jurisdiction over Rodriguez’s challenge
to the Secretary of Defense’s decision under Section 1034(h).
We need not dismiss the petition altogether, however.
Under 28 U.S.C. § 1631, we “shall, if it is in the interest of
justice, transfer [the] action * * * to any other * * * court in
which the action * * * could have been brought at the time it
was filed or noticed[.]” Given the resources and time already
invested in this matter by both parties, we conclude that
transfer is warranted. See generally Five Flags Pipe Line Co.
v. Department of Transp., 854 F.2d 1438, 1442 (D.C. Cir.
1988); Professional Managers’ Ass’n v. United States, 761
F.2d 740, 745 n.5 (D.C. Cir. 1985). Accordingly, we order the
action transferred to the United States District Court for the
District of Columbia.
So ordered.

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