Hernandez v. Board for Correction of Naval Records, The et al

Filing 10

MINUTE ORDER re 8 Joint Motion for Remand to the Board for Correction of Naval Records and for Administrative Closure, by Magistrate Judge Michael J. Watanabe on 3/14/2016.(slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00162-MJW
PAUL A. HERNANDEZ,
Plaintiff,
v.
THE BOARD FOR CORRECTION OF NAVAL RECORDS and
THE DEPARTMENT OF THE NAVY,
Defendants.

MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
This matter comes before the Court on the parties’ Joint Motion For Remand to
the Board for Correction of Naval Records and For Administrative Closure (Docket No.
8). In this case, Plaintiff seeks an order compelling “Defendants to comply with various
provisions of the United States Code” and, ultimately, asks the Court to compel
Defendants to award Plaintiff a “Purple Heart for the wounds suffered on October 14,
1969.” (Docket No. 1 ¶¶ 6, 13.) In the instant motion, the parties ask the Court to
remand this case to the Board for Correction of Naval Records (“BCNR”) for an initial
determination regarding Plaintiff’s claims and to administratively close this case pending
an administrative determination by the BCNR. (Docket No. 8 at 1.)
In his Complaint, Plaintiff details the steps he took to correct his service record
prior to filing this lawsuit. He notes that he previously submitted an application to the
BCNR, but that the BCNR was unable to obtain his service records and, therefore, the
BCNR closed his application without reaching a determination as to the merits of
Plaintiff’s application. (Docket No. 1 ¶¶ 19-23.) Through this lawsuit, Plaintiff asks the
Court to order Defendants, including BCNR, to adjudicate Plaintiff’s application on the
merits and to award a Purple Heart to him. (Id. ¶¶ 29, 32.) While Plaintiff also initially
sought attorney’s fees and costs, in the instant motion Plaintiff withdraws that request.
(Docket No. 8 at 2.)
The Court finds that the requested relief is both necessary and in the interest of
justice. While Plaintiff has attempted to exhaust his administrative remedies, the BCNR
never ruled on the merits of his application. Therefore, there is no BCNR ruling that can
be reviewed by this Court. Cf. Bard v. Seamans, 507 F.2d 765, 769-70 (10th Cir. 1974)
1

(discussing exhaustion requirement). In order to allow the parties to complete the
administrative review process, the Court finds that remanding this case to the BCNR
and administratively closing this case pending a determination by the BCNR serves the
interests of justice. See, e.g., Magneson v. Mabus, 85 F.Supp.3d 221, 229-30 (D.D.C.
2015) (remanding case to the BCNR for further proceedings).
Accordingly, it is hereby ORDERED that this case is remanded to the Board for
Correction of Naval Records for consideration of Plaintiff’s application.
It is further ORDERED that this case is administratively closed pursuant to
D.C.COLO.LCivR 41.2. Plaintiff or Defendants may file a motion to reopen this case for
good cause.
It is further ORDERED that within 15 days of issuance of a determination
regarding Plaintiff’s application by the BCNR, Plaintiff shall file either a motion to dismiss
this case or a motion to reopen this case for good cause.
Date: March 14, 2016

2